Last month ‘s article focused on the procedure for establishing violations of foreign exchange regulation in the CEMAC. Subject to compliance with a set of rules, this procedure is a prerequisite for the application of pecuniary or non-pecuniary sanctions. It is this last category of so-called non-pecuniary administrative sanctions that is the subject of our analysis. It is a series of administrative decisions not accompanied by fines, taken against the economic argent guilty of the offence. Provided for in Article 179 of Regulation no 02/18/CEMAC/UMAC/CM on foreign exchange regulations in the CEMAC, these sanctions include warning, confiscation of the substance of the offence, suspension or withdrawal of the authorization or license to operate. It is worth mentioning that the implementation of these sanctions is subject to strict observance of numerous legal requirements defined by the BEAC Governor’s instruction No 014/GR/2019 of the 10th June 2019. Therefore, what are the rules governing the implementation of the non-pecuniary administrative sanctions in CEMAC? The implementation of these sanctions is carried out in compliance with certain rules of jurisdiction (I) and procedure (II).
- The rules of jurisdiction
The analysis of the rules of jurisdiction leads to a distinction between the body responsible for pronouncing sanctions and those in charge of imposing them.
As for the pronouncement of sanctions, it is the duty of a commission appointed by the Governor of the BEAC. Article 24 of the aforementioned instruction states that: “sanctions are pronounced by a Sanction Committee, the composition of which is specified by decision of the Governor”. Consequently, any administrative decision that is not pronounced by this committee is clearly illegal and cannot be enforced against economic agents.
The implementation of the sanctions is the responsibility of the Central Bank and, can be delegated to the Ministry of Finance or the COBAC. The Central Bank has a general competence. The combined reading of articles 6 and 23 of the above-mentioned instruction indicates that the BEAC is the competent entity for the implementation of sanctions. Thus, without prejudice of pecuniary administrative sanctions, the Central Bank may also impose the non- pecuniary administrative sanctions listed in the introduction. In this respect, the BEAC can act in two distinct ways. On the one hand, it may on its own initiative apply sanctions for infringements that it has previously observed, after the Commission has pronounced the said sanctions. On the other hand, it can enforce the sanctions found by the Minister of Finance and COBAC, when the latter refer the matter to it by means of a statement of offences. As for the possibility for the BEAC to delegate its sanctioning power, sub-regional legislator provides that such delegation can only be made to the Minister of finance and the COBAC. Indeed, articles 6 of the instruction and 180 of the foreign exchange regulations reveal that the BEAC can directly refers to the Minister of Finance or the COBAC in order to implement the sanctions. It should be noted that this delegation of competence may concern both offences that have been established by the BEAC itself and those that have been established by the bodies to whom the said power is delegated. In view of the above, the implementation of non-pecuniary administrative sanctions is subject to well-defined rules of competence that should be observed, as well as the related rules of procedure .
- The rules of procedure
Like the establishment of offences, their implementation is subject to a procedure that respects the principles of adversarial proceedings and respect for the rights of the defense.
The procedure involves compliance with a series of formalities relating to the summons, the pronouncement and its notification of the sanction. Indeed, the economic agent or its directors in the case of a legal entity must be summoned for hearing by the Sanction Committee at least fifteen (15) days before the date scheduled for the hearing. The accused agent may be assisted by a person of his choice and may communicate his observations in defense to the Sanction Committee in writing at least 72 hours before the hearing; as stipulated in article 25 of the instruction. When the economic agent does not present himself to the Central Bank’s summons for the hearing, a second summon is sent to him at least eight (8) days before the date of the hearing. If the economic agent does not attend this second summon, the Sanction Committee deliberates in his absence according to the terms of article 26 of the instruction. At the end of the deliberations in the absence of the latter, the Committee may then pronounce the sanction. In this respect, article 25 of the instruction stipulates that “at the end of the hearing or in the absence of the economic agent on a second invitation, the Sanction Committee, after deliberation, may pronounce one of the non-pecuniary administrative sanctions provided for by the foreign exchange regulations, depending on the seriousness of the offense and decide to publish it”. The sanction thus pronounced must be notified to the agent concerned, and to the Minister of finance as well as to the General Secretariat of COBAC in the case of an approved intermediary or payment institution.
As far as the principles of the adversarial proceedings and the rights for the defense, they enable the economic agents to organize their defense and ensure that their interests are protected. The implementation of sanctions therefore calls for the respect for a procedure that offers all the guarantees of defense to the economic agent.
Finally, it appears that the implementation of the non-pecuniary administrative sanctions for infringements of foreign exchange regulations is carried out in conformity with a set of rules relating to the competent bodies on the one hand, and the procedure for imposing sanctions on the other. Economic agents would therefore benefit from the assistance of counsels and other legal professionals in order to ensure that this procedure and their rights are respected before any sanctions are implemented.