Instruction No. 49/2016 on the Sanction Procedure by the Regional Council on the UMOA Financial Market

UNION MONETARY WEST AFRICAN
COUNCIL REGIONAL FOR PUBLIC SAVINGS AND FINANCIAL MARKETS INSTRUCTION NO. 49/2016 ON THE SANCTION PROCEDURE BY THE REGIONAL COUNCIL ON THE UMOA FINANCIAL MARKET

The Regional Council for Public Savings and Financial Markets, having regard to the Convention of 3 July 1996 establishing the Regional Council for Public Savings and Financial Markets (hereinafter the "Council"); the Annex to the Convention on the composition, organization, functioning and powers of the Regional Council, particularly Articles 30 to 38 and 45 to 47; the General Regulation on the Organization, Functioning and Supervision of the UMOA Regional Financial Market; Decision No. CM/SJ/001/03/2016 of 24 March 2016 by the UMOA Council of Ministers, on implementing the monetary sanctions mechanism applicable to the UMOA regional financial market; Decision No. CM/12/03/2013 of 22 March 2013 by the UMOA Council of Ministers, appointing the President of the Regional Council; the deliberations of the Regional Council in its session on 14 November 2016; HAS ADOPTED

Article 1: Phases of the Sanction Procedure
The sanction procedure by the Regional Council on the financial market of the West African Monetary Union (UMOA) is defined, except in cases of flagrant breaches, according to the following three phases:

• the investigation;
• the hearing;
• the decision-making.

Article 2: Investigation
The investigation is initiated by the Secretary General of the Regional Council,

• when its services identify or suspect conduct contrary to the general interest and the proper functioning of the UMOA regional financial market; or
• following a referral to the Regional Council by a third party.
  The decision to open an investigation is notified to the person concerned. It is directed by the competent services of the General Secretariat under the supervision of the Secretary General. The Secretary General may decide to establish an ad hoc inquiry commission. No person may serve on a Commission tasked with directing an investigation into facts attributed to them, or to a legal or natural person linked to them in any way. The Secretary General may engage the expertise of any external person whose skills are deemed necessary for the conclusion of the investigation.

Article 3: Progression of the Investigation
During the investigation, the competent services of the General Secretariat of the Regional Council may:

• summon and hear any person concerned,
• summon and hear any witness to the case,
• request the submission of any document they deem useful.
  The summons for any person during the investigation must be issued at least fifteen (15) calendar days before the date set for the hearing. The person concerned has the right to be assisted by a legal representative of their choice, chosen from lawyers registered with the Bar Association of a UMOA member country. Hearing sessions are not public and take place at the Council's headquarters. However, the competent services of the General Secretariat may convene elsewhere as needed for the investigation.

Article 4: Investigation Report
The Secretary General has a period of sixty (60) calendar days from the notification of the opening of an investigation to submit their investigation report to the President for referral to the Regional Council. Upon reviewing the investigation report, the Regional Council decides either to open the sanction decision procedure or to close the file without further action. The decision to open the sanction decision procedure, along with the investigation report, is notified in writing with acknowledgment of receipt to the person concerned and, where applicable, to the complainant. The person concerned and, where applicable, the complainant, have a maximum period of fifteen (15) calendar days from the notification of the investigation report to submit their written observations to the Regional Council. When a file is closed without further action, the Regional Council informs the complainant.

Article 5: Hearing
The Regional Council, based on the investigation report or the report confirming a flagrant breach, summons the person concerned for a hearing.
The summons of the person concerned before the Regional Council must be issued at least fifteen (15) calendar days before the date set for the hearing. This hearing proceeds according to the principle of adversarial proceedings, respecting defense rights. The person concerned has in particular the right to be assisted by a legal representative of their choice, chosen from lawyers registered with the Bar Association of a UMOA member country. Following the hearing, a detailed hearing report is prepared and signed by the President of the Regional Council, the person concerned, and their legal representative.

Article 6: Imposition of Sanctions
The Regional Council deliberates in closed session, excluding any Council member subject to the incompatibility cases set out in Article 2 above. If the alleged facts or acts are well-founded, the Regional Council imposes a sanction in accordance with applicable laws. The Regional Council's decision is notified by the Secretary General, in writing with acknowledgment of receipt, to the person concerned.

Article 7: Specific Cases for Sanctioning Flagrant Breaches
The cases of flagrant breaches referred to in Article 1 above concern, inter alia:

• breaches that have been admitted by the person concerned, or breaches attributed to them that are not contested;
• breaches for which evidence appears sufficiently established or immediately accessible, due to their obvious nature or the circumstances of their commission;
• breaches constituted by the refusal, expressed by any means, of their authors to comply with injunctions from the Regional Council, the President of the Regional Council, or the Secretary General of the Regional Council.
  A flagrant breach is documented in a confirmation report prepared by the competent services of the General Secretariat.
  In cases of flagrant breaches, proceedings follow the procedures outlined in Articles 5 and 6 above.

Article 8: Publication of the Decision
The Regional Council's decisions imposing sanctions may be made public in publications, legal announcement newspapers, or any media designated by the Regional Council. The publications referenced in the preceding paragraph become enforceable within three (03) calendar days following the publication order, at the discretion of the Secretary General. The costs of these publications are borne by the sanctioned person(s).

Article 9: Recourse Procedures
In application of Article 49, paragraph 1 of the Annex to the Convention, decisions by the Regional Council are subject to appeal before the Court of Justice of the UMOA.

Article 10: Potential Subsequent Proceedings
The use of the procedure established by this Instruction occurs without prejudice to proceedings before the national courts of member states, in accordance with the provisions of the Annex to the Convention establishing the Regional Council for Public Savings and Financial Markets, the General Regulation, or any other applicable laws.

Article 11: Referral to National Courts
The referral of competent national courts of member states by the Regional Council is carried out at the behest and expense of the Secretary General, inter alia:

• for denouncing any fact constituting an obstacle to the regular functioning of the financial market and brought to its attention by the General Secretariat services or third parties;
• for taking all conservatory or security measures;
• for enforcing any decision taken by the Regional Council.

Article 12: Entry into Force
This Instruction, which shall be published wherever necessary, repeals Instruction No. 42/2010 of 31 August 2010 and enters into force from the date of its signature. Done at Abidjan, on 23 November 2016 THE PRESIDENT JEREMIAS PEREIM