Subsection 2: List of penalties

Subject to the provisions of Article L. 612-40, if any of the persons referred to in I of Article L. 612-2, with the exception of those referred to in 4a, 5° and 11° of A and 4° of B, has breached a European, legislative or regulatory provision that the AMF is responsible for ensuring compliance with, or the approved codes of conduct applicable to its profession, has failed to submit to the AMF the requested recovery programme or the training programme referred to in V of Article L. 612-23-1, has not heeded a warning, has not complied with a formal notice or has not complied with the specific conditions imposed or commitments made in connection with an application for authorisation, approval or derogation provided for by the applicable legislative or regulatory provisions, the Enforcement Committee may impose one or more of the following disciplinary sanctions, depending on the seriousness of the breach:

1° a warning ;

2° a reprimand

3° A ban on carrying out certain operations and any other restrictions on the exercise of the activity;

4° Temporary suspension of one or more managers or any other person mentioned in Article L. 612-23-1 or, in the case of a payment institution or an electronic money institution carrying out hybrid activities, of the persons declared to be responsible, respectively, for the management of payment services activities or electronic money issuing and management activities, with or without the appointment of a provisional administrator;

5° The compulsory resignation of one or more senior managers or any other person mentioned in Article L. 612-23-1 or, in the case of a payment institution or electronic money institution carrying out hybrid activities, of the persons declared to be responsible, respectively, for the management of payment services activities or electronic money issuing and management activities, with or without the appointment of a provisional administrator;

6° Partial withdrawal of authorisation;

7° Total withdrawal of authorisation or removal from the list of authorised persons, with or without the appointment of a liquidator.

The sanctions mentioned in 3° and 4° may not exceed ten years in duration.

For credit institutions, the sanction provided for in 6° may only be imposed for services not covered by the authorisation issued by the European Central Bank. For these same institutions and for activities that fall within the scope of the authorisation issued by the European Central Bank, the sanctions provided for in 6° and 7° respectively take the form of a partial or total prohibition on activity issued as a precautionary measure.

Where the Enforcement Committee imposes a total ban on a credit institution, the Autorité de contrôle prudentiel et de résolution proposes to the European Central Bank that it withdraw the authorisation. If the European Central Bank does not withdraw the authorisation, the Enforcement Committee may deliberate again and impose another sanction from among those provided for in this article.

Where the sanction proceedings may result in the imposition of sanctions on senior managers, the panel of the AMF that decided to initiate the proceedings shall expressly state in the statement of objections that the sanctions referred to in 4° and 5° may be imposed on the senior managers it designates, specifying the grounds on which they may be held directly and personally liable for the misconduct or infringements in question, and the Enforcement Committee shall ensure that they are subject to the adversarial nature of the proceedings.

The Enforcement Committee may impose, either instead of or in addition to these penalties, a fine of up to one hundred million euros or 10% of annual net turnover within the meaning of V of Article L. 612-40 of this Code for breaches of Articles L. 113-5, L. 132-5, L. 132-8, L. 132-9-2 and L. 132-9-3 of the Insurance Code, Articles L. 223-10, L. 223-10-1, L. 223-10-2 and L. 223-19-1 of the Mutual Code, Chapters I and II of Title VI of Book V of this Code and European provisions relating to obligations in connection with the fight against money laundering and terrorist financing, as well as restrictive measures. When an authorisation is withdrawn under this article, the Enforcement Committee may cancel the certificates issued by the person in question pursuant to article L. 312-7.

Penalties for breaches relating to the marketing of structured deposits by credit institutions are imposed under the conditions set out in X and XII of Article L. 612-40. The Enforcement Committee may impose a fine of up to one hundred million euros or ten times the amount of the benefit derived from the breach, if this benefit can be determined.

Where direct and personal liability for the breaches or offences in question is established against persons who effectively manage, within the meaning of Article L. 511-13, the business of a credit institution, or within the meaning ofArticle L. 322-3-2 of the Insurance Code, the business of an insurance or reinsurance undertaking or within the meaning ofArticle L. 211-13 of the French Mutual Code, the business of a mutual insurance company or union, or within the meaning of Article L. 931-7-1 of the French Social Security Code, the business of a provident institution or union, the Enforcement Committee may impose a fine of up to five million euros or ten times the amount of the benefit derived from the breach, if this benefit can be determined.

The Enforcement Committee may also impose the penalties referred to in this article if the measures taken pursuant to IV of Article L. 612-33 have not been complied with.

For breaches of the obligations set out in Articles L. 516-1, L. 521-1 to L. 521-6 and L. 522-1 to L. 522-6 of the Insurance Code by the persons mentioned in 1° to 5° of B of I of Article L. 612-2 of this Code when they distribute individual life insurance policies with surrender values, capitalisation policies or optional group policies with a surrender or transfer value mentioned in Articles L. 132-5-3 of the Insurance Code, L. 223-8 of the Mutual Code and L. 932-15 of the Social Security Code or contracts mentioned in articles L. 441-1 of the Insurance Code, L. 222-1 of the Mutual Code and L. 932-24 of the Social Security Code, the Enforcement Committee may impose, either instead of or in addition to the penalties mentioned in 1° to 7°, a fine not exceeding the highest of the following three ceilings: one hundred million euros, or 5% of annual net turnover within the meaning of V of Article L. 612-40, or twice the amount of the benefit derived from the breach, if this benefit can be determined.

For breaches of the obligations mentioned in paragraph 1 of Article 82 of Regulation (EU) 2021/23, the Enforcement Committee may impose, either instead of or in addition to the penalties mentioned in 1° to 7° of this Article:

-for a legal person, a financial penalty of a maximum amount of 10% of its total annual turnover for the financial year preceding this penalty. Where the person sanctioned is a subsidiary of a group or where the person sanctioned is the ultimate parent undertaking, the turnover to be taken into consideration is that shown in the consolidated accounts of the ultimate parent undertaking for the financial year preceding the sanction;

-where direct and personal liability for these breaches is established in respect of natural persons who effectively run a clearing house or one of its clearing members other than the entities referred to in Article L. 440-2.6, a fine of up to five million euros.

The Enforcement Committee may, either in lieu of or in addition to a financial penalty, impose on natural persons a temporary ban on holding office in a clearing house for a maximum period of ten years.

Where the benefit derived from the breach can be determined, the Enforcement Committee may impose a financial penalty of up to twice the benefit, in lieu of the aforementioned financial penalties.

The penalties imposed in respect of the obligations referred to in Regulation (EU) 2021/23 shall be determined taking into account the circumstances referred to in Article 85 of that Regulation.

The Enforcement Committee may impose a periodic penalty payment on the penalties it imposes under this Article, setting the amount and the effective date. A decree of the Conseil d'Etat shall determine the applicable procedure, the maximum daily amount of the penalty payment and the terms and conditions according to which, in the event of total or partial non-performance or late performance, the penalty payment shall be settled.

The Enforcement Committee may also impose the penalties referred to in this article if the injunctions provided for in articles L. 511-41-3, L. 522-15-1, L. 526-29 and L. 612-31 and the additional requirements provided for in the second paragraph of Article L. 334-1 of the Insurance Code, in the first paragraph of Article L. 352-3 of the same Code or in the second paragraph of Article L. 385-8 of the same Code.

The Enforcement Committee's decision is published in the publications, newspapers or media it designates, in a format commensurate with the misconduct committed and the sanction imposed. The costs shall be borne by the persons sanctioned. However, if publication would seriously disrupt the financial markets or cause disproportionate harm to the parties involved, the committee's decision may stipulate that it will not be published.