INSTRUCTION NO. 49-2016

RELATIVE TO THE PROCEDURE FOR IMPOSING SANCTIONS BY THE REGIONAL COUNCIL ON THE UMOA FINANCIAL MARKET

The Regional Council of Public Savings and Financial Markets,

Having regard to:

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

HEREBY ORDERS:

Article 1: Phases of the Sanction Procedure

The procedure for imposing sanctions by the Regional Council on the financial market of the West African Monetary Union (UMOA) is defined, except in cases of flagrant misconduct, according to the following three phases:

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

Article 2: Investigation

The investigation is initiated at the initiative of the Secretary-General of the Regional Council:

• When its services detect or suspect actions 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 conducted by the competent services of the Secretariat-General of the Regional Council under the supervision of the Secretary-General.

The Secretary-General may decide to form an ad hoc inquiry commission.

No one may be part of a Commission called upon to conduct an investigation directed at facts imputed to them or to a legal or natural person linked to them in any way.

The Secretary-General may use the expertise of any external person whose skills are deemed necessary for the completion of the investigation.

Article 3: Conduct of the Investigation

During the investigation, the competent services of the Secretariat-General of the Regional Council may:

• Summon and hear any person concerned;
• Summon and hear any witness to the case;
• Request the communication of any document they deem useful.

The summons of any person during the investigation must occur at least fifteen (15) calendar days before the date set for the hearing. The person concerned has the right to be assisted by a Counsel of their choice, chosen from among lawyers registered with the Bar of a UMOA member country.

Hearing sessions are not public and take place at the seat of the Regional Council. However, the competent services of the Secretariat-General may move to any other location for the needs of 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 transmit his investigation report to the President for referral to the Regional Council.

At the conclusion of the examination of the investigation report, the Regional Council decides either to open the procedure for taking a sanction decision or to close the file without further action.

The decision to open the procedure for taking a sanction decision, as well as the investigation report, are notified in writing with acknowledgment of receipt to the person concerned and, if applicable, to the complainant.

The person concerned and, if applicable, the complainant, have a maximum deadline of fifteen (15) calendar days from the notification of the investigation report to submit their written observations to the Regional Council.

When the file is closed without further action, the Regional Council informs the complainant.

Article 5: Hearing

Based on the investigation report or the report of constatation of flagrant misconduct, the Regional Council summons the person concerned for a hearing.

The summons of the person concerned before the Regional Council must occur at least fifteen (15) calendar days before the date set for the hearing.

This hearing takes place according to the principle of adversarial proceedings, respecting the rights of the defense. The person concerned notably has the right to be assisted by a Counsel of their choice, chosen from among lawyers registered with the Bar of a UMOA member country.

Following the hearing, a detailed hearing report is drawn up and signed by the President of the Regional Council, the person concerned, and their counsel.

Article 6: Imposition of Sanctions

The Regional Council deliberates in camera, outside the presence of any Council member falling under the incompatibility cases referred to in Article 2 above.

If the incriminated facts or acts are founded, the Regional Council imposes a sanction in accordance with existing texts.

The decision of the Regional Council is notified by the Secretary-General, in writing with acknowledgment of receipt, to the person concerned.

Article 7: Particular Cases of Sanctioning Flagrant Misconduct

The cases of flagrant misconduct referred to in Article 1 above concern, notably:

• Misconducts that have been the subject of admissions by the person concerned, or misconducts imputed to the person concerned which are not contested by them;
• Misconducts whose evidence appears sufficiently established or immediately accessible, due to their ostensible nature or the circumstances of their commission;
• Misconducts constituted by the refusal, manifested by all means, by their authors to respond to injunctions from the Regional Council, the President of the Regional Council, or the Secretary-General of the Regional Council.

Flagrant misconduct is the subject of a report of constatation of flagrant misconduct, drawn up by the competent services of the Secretariat-General.

In cases of flagrant misconduct, the procedures indicated in Articles 5 and 6 above are followed.

Article 8: Publication of the Decision

Decisions of the Regional Council pronounced in matters of sanctions may be made public in publications, official announcement newspapers, or any support designated by the Regional Council.

The publications referred to in the preceding paragraph are enforceable within three (03) calendar days following the order to publish, at the diligence of the Secretary-General.

The costs of these publications are borne by the sanctioned person(s).

Article 9: Recourse Options

In application of the provisions of Article 49, paragraph 1, of the Annex to the Convention, decisions of the Regional Council are subject to recourse before the Court of Justice of the UE MOA.

Article 10: Potential Prosecutions

Recourse to the procedure instituted by this Instruction occurs without prejudice to prosecutions before the national jurisdictions of Member States, in accordance with the provisions of the Annex to the Convention establishing the Regional Council of Public Savings and Financial Markets, the General Regulation, or any other applicable texts.

Article 11: Referral to National Jurisdictions

The referral of competent national jurisdictions of Member States by the Regional Council is carried out at the instigation and diligence of the Secretary-General, notably:

• For the denunciation of any fact constituting an obstacle to the regular functioning of the financial market and brought to its knowledge by the services of the Secretariat-General or by third parties;
• For taking all conservatory or security measures;
• For the execution of any decision taken by the Regional Council.

Article 12: Entry into Force

This Instruction, which will be published wherever necessary, repeals Instruction No. 42/2010 of August 31, 2010, and enters into force from the date of its signature.

Done in Abidjan, on November 23, 2016

THE PRESIDENT

Jeremias Pereim