The fight against money laundering and the financing of terrorism ( AML-CFT ) imposes on the professionals concerned the obligation to comply with their duties under penalty of being subject to sanctions from the competent authority, the National Sanctions Commission ( NCS ).
At the end of inspections, it may impose sanctions ranging from a simple warning to the withdrawal of approval or professional license.
However, these sanctions are not definitive. Two successive steps allow for contesting them or mitigating their impact :
The defense before the CNS itself within the framework of the adversarial procedure ;
▶ the challenge of CNS decisions before the administrative court .
I. The CNS: role, competencies, and sanctioning power
In accordance with Articles L561-36 and following of the Monetary and Financial Code ( CMF ), The CNS rules on the breaches identified by the regulatory authorities ( DGCCRF, DDPP, etc. ) against certain professions subject to AML-CFT obligations : real estate agents, domiciliation agents, actors in the gaming and betting sector, art dealers, sports agents, or merchants handling significant cash payments, etc.
The CNS may pronounce :
- A warning (First reminder of the obligation of compliance) ;
- A reprimand ;
- A financial penalty of up to 5 million euros depending on the severity of the breaches ;
- A temporary prohibition on exercising A managerial activity or responsibilities ( Up to 5 years), With the possibility of attaching a suspension to this prohibition ;
- The withdrawal of approval or professional card : a sanction that prevents the exercise of the activity.
In 2023, the CNS imposed 195 sanctions, nearly half of which consisted of temporary bans on practice ( 47% ), often accompanied by a suspension. Real estate ( 62.5% of the sanctions ) and the domiciliation ( 33%) concentrate more than 90% of these decisions made in 2023 by themselves.
II. The procedure before the CNS: how to anticipate and mitigate the sanction
In the context of the proceedings before the CNS, the professional has the right to be heard ( Art. L561-42 CMF ). On this occasion, he may present his observations, submit supporting documents, and demonstrate the efforts already made to achieve compliance.
At this stage, Several levers must be taken into account :
▶ Cooperation with the CNS : Acknowledging shortcomings, responding to requests, providing the required documents, and not contesting the established facts are considered positive factors according to the CNS, which must, however, be assessed on a case-by-case basis.
▶ Rapid compliance : Implement corrective actions as soon as the control phase ( internal procedures, designation of an AML-CFT referent, training of teams ) may lead to a more favorable assessment, upon review of the sanctions imposed.
▶ The request for anonymized publication : The nominative publication of CNS decisions is the rule, but it may be waived by the CNS in certain cases.
III. The challenge of sanctions imposed by the CNS :
The challenge of decisions made by the CNS falls under administrative jurisdiction.
This challenge may be aimed at :
- The annulment of the contested decision,
- The reform of the sanction imposed (for example, by reducing it),
- even the substitution of the decision of the administrative jurisdiction for that of the sanctioning authority.
The administrative judge may re-examine the facts, assess proportionality, and modify the sanction.
The appeal must be filed within a period of two months from the notification of the CNS decision (Article R421-1 of the Administrative Justice Code) .
The means that may be invoked to challenge the decisions of the CNS are of various kinds.
It may notably involve means related to :
- The regularity of the procedure ,
- The reasoning behind the decision of the CNS (Except for the decision to publish the sanction, see TA Versailles, 6th ch., July 1, 2024, no. 2203827),
- The proportionality of the sanctions imposed,
- to the rights of the defense.
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