AMF Investigation Guide (Updated 30 September 2014)

Transcription

1 AMF Investigation Guide (Updated 30 September 2014) 17 place de la Bourse Paris Cedex 2 - tél. +33 (0) fax +33 (0)

2 INTRODUCTION Duties of the AMF The Autorité des Marchés Financiers (AMF) is an independent public authority with legal personality established by Act No of 1 August 2003 (Financial Security Act). It is charged with: - protecting savings invested in financial instruments offered to the public or admitted to trading on a regulated market, and in any other investment offered to the public - monitoring disclosures to investors - ensuring the orderly operation of markets in financial instruments. 1 The AMF is composed of a Board with sixteen members which is divided into three specialised committees, as well as an independent Enforcement Committee with twelve members who are not members of the Board, and several consultative commissions. 2 All these participants rely on the departments managed by the Secretary General. 3 The AMF has statutory powers to carry out its duties. Among other things it can: - adopt a General Regulation covering, inter alia, the professional practices of the issuers and service providers under its authority, as well the general organisation and operating principles of regulated markets 4, with a view to protecting investors - issue approvals 5, authorisations, etc. - carry out inspections and investigations 6 - issue formal notices 7 - impose sanctions subsequent to an adversarial procedure initiated by the Board 8. Investigations and inspections The purpose of inspections 9 is to ensure that the entities and persons referred to in Article L II of the Monetary and Financial Code, as well as the individuals acting under their authority or on their behalf 10, are in compliance with their professional obligations as set forth in that Code, the AMF General Regulation and professional rules approved by the AMF. Inspections are covered by a separate guide available on the AMF website and called AMF Inspection Guide. Investigations focus on activities that may constitute either market abuse (insider dealing, price manipulation, disseminating false information) or, more generally, a breach of obligations that could undermine investor protection and disclosure or the orderly operation of the market Article L.621-1, Monetary and Financial Code. Article L.621-2, Monetary and Financial Code. Article L , Monetary and Financial Code. Article L.621-7, Monetary and Financial Code. Articles L to L , Monetary and Financial Code. Articles L to L , Monetary and Financial Code. Article L , Monetary and Financial Code. Article L , Monetary and Financial Code. Article 143-1, AMF General Regulation. Article 143-1, AMF General Regulation. Article L.621-9, Monetary and Financial Code, Articles to 621-3, to -4 and 632-1, AMF General Regulation

3 Purpose of this guide This guide does not replace the statutory and regulatory provisions applicable to investigations; it seeks to explain the investigatory process. As such, it helps ensure the proper conduct of investigations by raising awareness and spelling out some of the principles of good conduct followed by the AMF's investigators. It also describes how persons interviewed in connection with an investigation are expected to behave. The document has two sections: - the first specifies the rights and obligations of investigators and the persons summoned in connection with an investigation - the second sets out the rules of conduct applicable to investigators and the behaviour expected of the persons summoned. In addition to respecting fundamental legal principles and the statutes and regulations applicable specifically to the AMF's activities, investigators undertake to comply with this guide, a copy of which will be given to any person summoned in connection with an investigation. The guide is also posted on the AMF website. How investigations start Most investigations are opened 12 following an alert raised by the AMF's Market Surveillance Directorate, which monitors all transactions in Paris-listed securities and the activities of investment services providers on a daily basis. The directorate receives and analyses reports of suspicious transactions that credit institutions and investment firms file with the AMF pursuant to Article L of the Monetary and Financial Code. Alerts may also be raised by the AMF s divisions (including Corporate Finance, and Corporate Accounting & Auditing), especially where financial reporting issues are concerned. In general, investigations may also be opened on the basis of complaints and alerts sent to the AMF by any external person. In addition, investigations may be opened at the request of a foreign authority with equivalent powers to the AMF's 13. The decision to open an investigation is taken by the AMF Secretary General, who appoints and empowers investigators 14. The decision, signed by the Secretary General or the person delegated by him, specifies the scope of the investigation and the date from which the facts under scrutiny may give rise to further proceedings By the Secretary General or the person he delegates. Article L , Monetary and Financial Code. Article L and article R , Monetary and Financial Code, Article 144-1, AMF General Regulation

4 Purpose of investigations As a rule, investigations concern one or more facts that may constitute a breach of stock market regulations, including but not limited to: - insider dealing 15 - price manipulation 16 - dissemination of false information 17 - any other breach likely to undermine investor protection or orderly markets (e.g. with regard to issuers' financial reporting, financial instrument marketing) 18 - transactions by companies and their senior managers in the companies' securities, - the reporting requirements applying to senior managers and third parties, and relating in particular to changes in major shareholdings. Most investigations focus on the specific issue that trigged them, but they may also be cross-cutting and theme-based. How an investigation is conducted An investigation consists in obtaining and analysing information, gathered mainly on business premises but also through written requests or during interviews 19. It can also involve requests to foreign regulators with whom the AMF may have signed bilateral or multilateral agreements on information exchange, although such agreements are not a prerequisite for cooperation. Where an investigation requires a joint inquiry with a foreign regulator, information is exchanged in accordance with the laws and regulations of the respective countries, and also with any bilateral or multilateral agreements that have been signed. The evidence obtained through this process may establish that a breach of obligations has occurred. How an investigation is followed up When the investigation is finished, the investigators draw up a report 20 and submit it to one of the three specialised Board committees, or possibly to a plenary session of the Board, which decides what follow-up action to take. This may consist of one or more of the following measures: - notifying the respondents of the complaints against them and opening a proceeding before the Enforcement Committee - referring the case to the public prosecutor Articles to 621-3, AMF General Regulation. Articles to 631-4, AMF General Regulation. Articles 221-1, et seq and article 632-1, AMF General Regulation. Article L , Monetary and Financial Code. Article L , Monetary and Financial Code. Article R , Monetary and Financial Code. If a notified complaint is likely to constitute one of the offences referred to in Articles L and L of the Monetary and Financial Code (MFC), the Board shall promptly forward the investigation report to the Office of the Financial Public Prosecutor (Article L MFC). The Board may decide to make this fact public (Article L MFC). Furthermore, Article L MFC states that if, in the performance of its duties, the Autorité des Marchés Financiers has knowledge of a crime or an offence, it is required to inform the Public Prosecutor without delay

5 - offering an administrative settlement 22 - sending a deficiency letter - dismissing the case - forwarding the report to another domestic or foreign competent authority. If sanction proceedings are opened 23, the chairman of the Enforcement Committee appoints a rapporteur from among its members. The rapporteur conducts a procedure during which the respondents and their advisers have access to the investigation materials and can file a defence. On the basis of this procedure and an adversarial hearing, the Enforcement Committee hands down its decision and may issue a financial and/or disciplinary sanction if a breach of rules has been established. Barring the exceptions provided for in Article L of the Monetary and Financial Code, the decision is publicly disclosed, either anonymously or not, and may be challenged in the Paris appeals court or France s supreme administrative court, the Conseil d Etat Article L , Monetary and Financial Code. Article L , Monetary and Financial Code

6 CONTENTS INTRODUCTION I. LEGAL FRAMEWORK A. Rights and obligations of AMF investigators Rights of AMF investigators a) Action under own powers i. Disclosure of documents ii. Access to business premises iii. Gathering explanations on the spot iv. Interviewing persons who may be of interest to the investigation v. Use of assumed identities b) Action under court authorisation i. Search ii. Temporary prohibition of activity, sequestration, payment into court, and formal notices c) c) Exchanging information with other authorities or administrations i. Exchanging information with the judicial authorities ii. Exchanging information with other administrations iii. Exchanging information with foreign counterparts Obligations of AMF investigators a) Authorisation Absence of conflicts of interest b) Professional secrecy with regard to information gathered during an investigation B. Rights and obligations of persons summoned Rights of persons summoned in connection with an investigation a) Verification of the investigators' identity b) Information about the purpose of the investigation c) Assistance by an adviser d) Investigation minutes e) Information and right for potential respondents to make observations before the investigation is concluded f) The investigation file g) Information about follow-up action h) Right to access and rectify files held by the AMF in connection with investigations Obligations of persons summoned in connection with an investigation a) Not to obstruct the investigation b) Not to invoke professional secrecy against AMF investigators II. PRINCIPLES OF GOOD CONDUCT A. Principles applicable to investigators Compliance with the principles governing investigatory proceedings Explain the context and framework of the investigation Behave professionally, impartially and fairly Be diligent B. Behaviour expected of persons summoned for an investigation Answer the investigators questions fairly Cooperate with the investigators Supply documents, files and explanations within a reasonable time period Remain impartial, professional and courteous throughout the investigation place de la Bourse Paris Cedex 2 - tél. +33 (0) fax +33 (0)

7 I. LEGAL FRAMEWORK A. Rights and obligations of AMF investigators 1. Rights of AMF investigators Investigators have autonomous powers when conducting an investigation, but they may also take measures that require court authorisation. a) Action under own powers To carry out their duties, investigators act firstly under their own powers 24. i. Disclosure of documents Investigators can requisition all types of documents (e.g. hardcopy or electronic documents, s) 25 for the purposes of the investigation. Furthermore, to ensure that the investigation proceeds smoothly, investigators may order the retention of any and all information, regardless of the storage medium. This measure is confirmed in writing, with details of its duration and the conditions in which it may be renewed 26. ii. Access to business premises For the purposes of the investigation, investigators are authorised under the third sentence of Article L of the Monetary and Financial Code to "gain access to business premises". iii. Gathering explanations on the spot When carrying out either an on-site visit under their own powers or a search of business premises or a house search under a court authorisation, investigators may, pursuant to Articles L and L of the Monetary and Financial Code gather explanations on the spot from individuals. In this case, a separate set of minutes report must be drawn up from the minutes of the on-site visit or of the search 27. The person in question must have expressly waived the right to the notice period required for a summons and been informed of his right to be assisted by the counsel of his choosing Article L , Monetary and Financial Code. Article L , first sentence, Monetary and Financial Code. Article 144-2, AMF General Regulation. Article R , Monetary and Financial Code. Final paragraph of Article R , Monetary and Financial Code as worded in accordance with Decree No of 16 May 2014 concerning application of Article L of the said code and the inspection and investigation powers of the Autorité des Marchés Financiers

8 iv. Interviewing persons who may be of interest to the investigation Investigators may summon and take statements from any person who may be useful to the progress of the investigation, including those who may have requested its opening. Article L of the Monetary and Financial Code provides that "any person capable of providing information" may be summoned for interview. Interviews may be conducted in the presence of the person or by video or audio conference if the concerned person agrees to this. To that end, a summons is sent by registered letter with return receipt at least eight calendar days before the date of the summons. It may also be hand-delivered against receipt or served in an official court instrument 29. If the interview is conducted by video or audio conference, the summons must indicate this and specify that the interview will be recorded, and the agreement of the concerned person must be obtained 30. During the interview, the answers to the investigators questions are noted, along with all the information that the interviewees wish to bring to their attention. Moreover, the last question asked at an interview is whether the person being questioned wishes to comment. Accordingly, he or she has the last word. If the interview is conducted by video or audio conference, the audiovisual or sound recording of the interview shall be the subject of a transcription report. This report is submitted for signature to the person interviewed within one month of the interview, accompanied by the recording 31. v. Use of assumed identities When regulated entities, the list of which is given by Article L II of the Monetary and Financial Code, provide services on the internet, investigators may, under Article L of the Monetary and Financial Code, make use of an assumed identity to access information about these services that could be of interest to the investigation. The purpose of exercising this right is to document the manner in which the service is delivered. When investigators exercise this right, a report stating the procedures for consulting and using the website, the responses obtained and the findings must be prepared and sent to the concerned person or entity before the end of the investigation Article R , Monetary and Financial Code as worded in accordance with the aforementioned Decree No of 16 May Third paragraph of Article R , Monetary and Financial Code as worded in accordance with the aforementioned Decree No of 16 May Article R , Monetary and Financial Code as worded in accordance with the aforementioned Decree No of 16 May Final paragraph of Article R , Monetary and Financial Code as worded in accordance with the aforementioned Decree No of 16 May

9 b) Action under court authorisation i. Search When investigating market abuse or acts that may be qualified as property crime and be sanctioned by the Enforcement Committee of the Autorité des Marchés Financiers pursuant to Article L , investigators are entitled to carry out searches of any and all premises, including private residences, and to seize documents there 33, in accordance with a reasoned order from the magistrate (known as the liberty and custody judge ) who has territorial jurisdiction 34. A law enforcement officer takes part in these search operations to ensure that due process is followed. Minutes of the search are taken. An appeal may be lodged against the magistrate's order as well as the manner in which search and seizure is conducted. ii. Temporary prohibition of activity, sequestration, payment into court, and formal notices Under Article L of the Monetary and Financial Code, the presiding judge of the regional court, acting on a reasoned request from the AMF Chairman or Secretary General, can order a temporary ban on conducting a professional activity. This measure also makes it possible to: - declare, in response to an ex parte application, the sequestration of the funds, securities, certificates or rights belonging to the persons the AMF is pursuing, whomever they may be; - order, on a summary basis, that a respondent be required to make a payment into court. In accordance with Article L of the Monetary and Financial Code, the Board can order an end to breaches of obligations arising from statute or regulations or from professional rules within the AMF's jurisdiction. The AMF Chairman may ask the courts to order the person responsible for the practice in question to comply with laws and regulations, to terminate the irregularity or eliminate its effects. c) c) Exchanging information with other authorities or administrations i. Exchanging information with the judicial authorities Where the subject of criminal proceedings has links to acts that could be subject to an examination by the AMF Enforcement Committee, the Financial Public Prosecutor may, at the request of the Secretary General of the Autorité des Marchés Financiers, where appropriate after consulting with the investigations magistrate, or without consultation, provide any document or exhibit from these proceedings 35. Furthermore, Article L of the Monetary and Financial Code states: If, in the performance of its duties, the Autorité des Marchés Financiers has knowledge of a crime or an offence, it is required to inform the Public Prosecutor thereof without delay and to send him all the relevant information, minutes and other documents Article L , Monetary and Financial Code If the premises to be searched are located within the jurisdiction of several courts and action must be taken simultaneously in each of them, a single order may be issued by one of the competent liberty and custody judges. Article L , Monetary and Financial Code - 3 -

10 Finally, Article L of the Monetary and Financial Code states: If a complaint notified pursuant to the second subparagraph of paragraph I of Article L is likely to constitute an offence referred to in Articles L and L , the Board shall promptly forward the investigation or inspection report to the Office of the Financial Public Prosecutor. Where the Financial Public Prosecutor decides to prosecute on the basis of the facts thus received, he shall inform the Autorité des Marchés Financiers thereof without delay. ii. Exchanging information with other administrations Information may be provided to the investigators of the Autorité des Marchés Financiers by different administrations, including the Autorité de Contrôle Prudentiel et de Résolution 36, the Commission de Régulation de l Énergie 37 and the tax authorities. The tax authorities may thus provide the Autorité des Marchés Financiers with information and documents conducive to the performance of its duties 38. Reciprocally, the Autorité des Marchés Financiers is required to provide the tax authorities, at their request, without refusing to do so on grounds of professional secrecy, any document or information that it holds in the course of carrying out its duties unless these documents or this information come from a foreign authority tasked with similar responsibilities to those of the AMF, where said authority has not given explicit authorisation for the exchange 39. Similarly, pursuant to Articles L and L of the Monetary and Financial Code, if the Autorité des Marchés Financiers uncovers facts likely to be linked to money laundering or terrorist financing or any sum or transaction referred to in Article L , it shall promptly inform the national financial intelligence unit of this. iii. Exchanging information with foreign counterparts As part of its investigatory tasks, the Autorité des Marchés Financiers may exchange information with international counterparts, whether or not they are from countries that are members of the Union European or parties to the European Economic Area Agreement Obligations of AMF investigators a) Authorisation Absence of conflicts of interest Only investigators duly authorised 41 by the AMF Secretary General are entitled to carry out investigations. They are subject to: - a duty of integrity: "No one may be authorised or appointed to carry out an investigation or an inspection if they have been subject to one of the convictions referred to in Article L 500-1" 42 ; Article L.631-1, Monetary and Financial Code Article L , Monetary and Financial Code Article L.135 F, Book of Tax Procedures: For the purposes of carrying out its duties, the Autorité des Marchés Financiers may obtain information and documents in accordance with the first paragraph of I of Article L , Article L , the first paragraph of Article L and Article L of the Monetary and Financial Code. Article L.84 E, Book of Tax Procedures: Subject to the provisions of III of Article L of the Monetary and Financial Code, the Autorité des Marchés Financiers shall provide to the tax authorities, at their request, without refusing to do so on grounds of professional secrecy, any document or information that it holds in the course of carrying out its duties. Articles L et seq., Monetary and Financial Code Article L and Article R , Monetary and Financial Code, Article 144-1, AMF General Regulation. Article R , Monetary and Financial Code

11 - a duty to be free of any conflict of interest: "No one may be authorised or appointed to carry out an investigation or inspection of a legal entity in which they have been employed professionally during the previous three years" or if they have "supervised or advised the persons concerned regarding the services or transactions in question" 43. "The secretary general ensures that the person who has been approached [to carry out the inspection or investigation] is not liable to find themselves in a conflict of interest with the person to be inspected or investigated". 44 b) Professional secrecy with regard to information gathered during an investigation Article L II of the Monetary and Financial Code states: " The members, staff and employees of the Autorité des Marchés Financiers [...] are bound by professional secrecy under the conditions and subject to the penalties provided for in Article L " 45 Professional secrecy concerns facts, acts and information that may come to the attention of investigators when performing their duties. It also concerns the documents and information obtained in the course of their investigation, which may not be divulged in any way unless otherwise provided by law. In particular, professional secrecy cannot be invoked against the judicial authorities acting within the scope of criminal proceedings, or in connection with judicial liquidation proceedings brought against the persons referred to in II of Article L of the Monetary and Financial Code, who are under the authority of the AMF. Neither may professional secrecy be invoked against the national financial intelligence unit 46 (Tracfin) when it is carrying out its duties. Professional secrecy may also be lifted with regard to the other domestic authorities specified in Article L of the Monetary and Financial Code when they are performing their duties. Lastly, it may also be lifted vis-à-vis the equivalent foreign authorities, as stipulated in Articles L to L of the Monetary and Financial Code. B. Rights and obligations of persons summoned The fundamental principles of law form the general framework apply to investigations. However, attention may be drawn to some rights and obligations that are specific to persons summoned. 1. Rights of persons summoned in connection with an investigation a) Verification of the investigators' identity Investigators carry a card bearing the AMF logo and their photograph. They present the card to the person in question, together with a mission order made out in their name Article R , Monetary and Financial Code. Article R , Monetary and Financial Code. Article L.642-1, Monetary and Financial Code refers to Article of the Penal Code, which states: The disclosure of secret information by a person entrusted with such a secret, either because of his position or profession, or because of a temporary function or mission, is punished by one year's imprisonment and a fine of 15,000. Articles L and L , Monetary and Financial Code

12 b) Information about the purpose of the investigation Personalised mission orders signed by the Secretary General or his delegate are prepared for every investigation and are valid for the duration of that investigation. The scope of the investigation may be extended if circumstances so require. In this case, a supplemental mission order, drawn up and signed under the same conditions, sets out the new scope. Mission orders specify the purpose of the investigation, including the period covered 47. However, investigators are entitled to seek information from earlier periods if this might shed light on the case. If the investigators observe potential breaches arising from actions that pre-date the period covered by the investigation, the period covered can be extended at the decision of the Secretary General, within the limits set forth in Article L of the Monetary and Financial Code. The persons under investigation can ask to see the mission order 48 and may obtain a copy of it. c) Assistance by an adviser Persons summoned for an interview have the right to be assisted by counsel of their choice 49. This right is reiterated in the summons, which is sent out at least eight calendar days before the interview 50. Persons whose explanations are gathered by investigators during an on-site visit conducted under their own powers or during a house search carried out under court authorisation 51 may also be assisted by an adviser. In both cases, the person in question must be expressly reminded of this right. d) Investigation minutes Investigators keep minutes concerning the exercise of their right to access business premises, gather oral explanations, obtain documents and note any facts that may be of use in the investigation. The purpose of these minutes is to describe the conduct of the investigation and the related observations, draw up a list of documents collected and, where such is the case, record the explanations, comments and unprompted statements made by the persons interviewed. These persons are given a copy of the minutes, and they keep the originals of all exhibit collected. Minutes are also kept of interviews. They record the explanations gathered by the investigators are well as the documents presented by them and/or by the person concerned. The investigators keep the originals of these minutes and do not give copies to the persons who have been interviewed. The investigators and the person concerned always sign the minutes. If the latter refuses, this is duly noted in the minutes Article R IV, Monetary and Financial Code. Article R , Monetary and Financial Code. Article L , Monetary and Financial Code. Article R , Monetary and Financial Code. The person interviewed may waive the above period if he sees fit. Article R of the Monetary and Financial Code. The person in question must be expressly informed of his right to be assisted by the counsel of his choice. Article R , Monetary and Financial Code

13 e) Information and right for potential respondents to make observations before the investigation is concluded Before the final investigation report is written, the points of fact and law gathered by the investigators are brought to the attention of any person who may subsequently be a potential respondent. This is done through a detailed letter 53, preceded where necessary, by a conclusive interview. The letter is accompanied by the principal materials that the investigators consider necessary for it to be understood. At the same time, the persons receive a list of the principal materials that they have handed over and that the AMF intends to join to the proceedings. These persons have one month to submit their written comments and, if needed, to request inclusion of documents in addition to those they have handed over. The AMF may agree to reconsider this deadline if it receives a properly reasoned request. Where possible, the investigators will respond at the end of the investigation to requests for explanations made by potential respondents concerning the facts that may be alleged against them from a regulatory standpoint. The final investigation report takes into account the observations received, after any additional inquiries that may have been necessary in light of the answers received. The detailed letters and the responses to them are appended in full to the investigation report submitted to the specialised Board committee responsible for deciding on further action. If the Committee decides to open proceedings before the Enforcement Committee, a statement of complaint is sent to each respondent. This statement of complaint, not the detailed letter, marks the beginning of the adversarial procedure during which the respondent will have access to all the documents in the case file. f) The investigation file The investigators put together the investigation file to meet four main objectives: - Ensure that the file is consistent and understandable for the members of the specialised Board committee, who need access to the investigation report with its annexes and the entire investigation file before they meet. Regarding evidence included in investigation files, the decisions issued by the AMF Enforcement Committee and upheld by the Paris appeals court 54 and the Supreme Court ( court of cassation ) 55 have confirmed the investigators right to select the documents that are useful to the case, provided this does not infringe the principles of fairness and equality of arms for the prosecution and does not materially impair the rights of the defence 56 / Comply with the principle of transparency, by including in the investigation file a detailed summary of the materials it contains as well as a summary of any evidence that has been gathered but put aside (the backfile ), in line with court of cassation rulings (see above) Article , AMF General Regulation. Paris appeals court rulings of 28 June 2005, J.M.Messier, S.A. Vivendi Universal, 5 January 2010 regarding the investigation "of trading in Pechiney securities". Commercial section of the court of cassation, 19 December 2006, J.M.Messier, S.A. Vivendi Universal. "[ ] the fact that the AMF selected evidence from the file eventually submitted to the enforcement committee is not, in itself, liable to invalidate the proceedings, unless it can be shown that, in breach of its duty of fairness, [the AMF] had removed materials that might influence the assessment by the enforcement committee and, where such is the case, the court of appeal, of the merits of the upheld complaints or that it had materially prejudiced the rights of the defence" - Source: Paris appeals court ruling, 5 January 2010 regarding the investigation "of trading in Pechiney securities". Evidence collected during the investigation but omitted from the investigation file is recorded in a subfile, the contents of which are included in the investigation file

14 - Ensure legal certainty, by ascertaining that investigative acts are honest, lawful and traceable, especially with regard to international applications. The investigation file must contain all the evidence both for and against that contributed to the investigation, regardless of the medium on which it is stored. - Respect the confidentiality of data covered by professional secrecy, especially in correspondence and meetings with lawyers, who, notwithstanding Article L of the Monetary and Financial Code, are entitled to invoke professional secrecy vis-à-vis AMF investigators, notably for the rights of the defence. Confidentiality also applies to business secrets and to personal privacy, especially when the contents of boxes are used. In this respect, the materials containing the s collected during the investigation are returned once it is complete. A minute of findings is sent to the person who handed over the material to inform him or her of which items the investigators have kept and intend to add to the investigation file. g) Information about follow-up action In light of the investigation file and the investigation report 58, prepared in accordance with the above principles, the Board may draw up statements of complaints 59, which are sent to the respondent(s). If the Board decides not to pursue a person who has been under investigation, the AMF duly informs him or her by letter. This is done immediately after the meeting of the specialised Board committee that decided to drop the proceedings, or, where the investigation has given rise to statements of complaints regarding other persons, after the Enforcement Committee has announced its decision at the latest. Persons that have been served with a statement of complaint may access the investigation file as soon as the sanction proceeding phase commences. h) Right to access and rectify files held by the AMF in connection with investigations The AMF keeps files on the persons encountered in connection with its investigations. The rules governing the constitution of such files and access by authorised AMF personnel to the information they contain are governed by an authorisation from the Commission nationale de l informatique et des libertés (CNIL). In accordance with Act of 6 January 1978 on personal data protection, amended by Act of 6 August 2004, any person concerned by an investigation whose personal data is processed in such files has a right to access and rectify them. This right can be exercised by contacting the AMF Investigations and Inspection Directorate, 17 Place de la Bourse, Paris cedex 02, France Article R , Monetary and Financial Code. In general, statements of complaint are sent out during the month following the meeting of the specialised committee

15 2. Obligations of persons summoned in connection with an investigation a) Not to obstruct the investigation Article of the AMF General Regulation states: "Where the proper performance of an AMF investigation has been hindered, this fact is mentioned in the investigation report or in a special report setting out these difficulties". Obstructing investigations conducted by AMF investigators may incur administrative and/or criminal penalties. The AMF Enforcement Committee may impose penalties on any person who, during an investigation conducted as determined in I of Article L , at the request of the investigators, and subject to the preservation of a legally protected secret that may be invoked against the Autorité des Marchés Financiers, refuses to provide access to a document, regardless of the media on which this document is stored, to share information, answer a summons or allow access to business premises. Furthermore, Article L of the Monetary and Financial Code stipulates that "Persons who obstruct an inspection or investigation of the Autorité des Marchés Financiers carried out as determined in Articles L to L or who provide it with inaccurate information, shall incur a penalty of two years' imprisonment and a fine of 300,000 euros". b) Not to invoke professional secrecy against AMF investigators Article L states: "Within the scope of the inspections and investigations referred to in Articles L and L , information may not be withheld on grounds of professional secrecy from the Autorité des Marchés Financiers [...], [except] by officers of the law. For the purposes of this subsection, auditors are released from professional secrecy with regard to the Autorité des Marchés Financiers". Lawyers, court officials (bailiffs), court-appointed administrators and liquidators are all deemed officers of the law

16 II. PRINCIPLES OF GOOD CONDUCT By complying with principles of good conduct, both the AMF s investigators and the legal entities or individuals involved in an investigation will help ensure that the investigation proceeds in a satisfactory and mutually respectful manner. A. Principles applicable to investigators 1. Compliance with the principles governing investigatory proceedings The principle of fairness means that investigators carry out their duties in such a way as to assemble evidence both for and against the person or persons concerned. They collect factual evidence, documents and arguments that could confirm a breach of regulations but that could also reduce its scope or rule out its existence. These materials are added to the investigation file or report. Investigators are free at all times to interview any person who might help them progress with their investigation, but they can also take evidence from anyone who asks to be interviewed. Before the end of the investigation, where possible, they set themselves to interview or re-interview anyone who may be called into question in the investigation report. Investigators respect the presumption of innocence and do not therefore behave as if they automatically harbour suspicions. The principle of proportionality means that operational, technical and professional constraints will be taken into account, except where this may be detrimental to the investigation. Respect for privacy is also an issue. As far as possible, the investigators endeavour to limit the effects of their activities on the privacy of the individuals and entities concerned. 2. Explain the context and framework of the investigation As far as possible, notably in light of their professional secrecy obligations, the investigators explain the background to the investigation and the framework they are acting within. The aim is to give the persons or entities concerned a better understanding of the information that may be useful to the investigation, enabling them to behave accordingly. Once the investigation report has been filed, however, investigators cannot divulge any information about future developments. Only the Secretary General and, where appropriate, the specialised committees of the Board and the Enforcement Committee, are entitled to do this. 3. Behave professionally, impartially and fairly The investigators proceed with due care and professionalism to ensure that the imperatives and timeframe of the investigation do not violate the constraints of the people with whom they are dealing. Any difficulties that may hinder their assignment are reported immediately to their superiors at the AMF, as well as any difficulties they encounter and any events that may call the investigation into question. When exercising their powers, especially as regards access to information and documents, they behave impartially and courteously with regard to the persons or entities concerned. They thus refrain from expressing personal opinions or assessments

17 Both during interviews and in the conduct of on-site investigations, investigators make every effort to give the persons concerned enough time to acquaint themselves with the information they are given, understand its impact, answer questions relevantly and reread and, where necessary, propose corrections to the investigators minutes before signing them. 4. Be diligent Where there is no regulatory or statutory deadline, investigations are not limited in time; they last as long as necessary. Depending on the complexity and international dimension of the investigation, the timeframe may vary. The AMF s managers pay close attention to these timeframes. Wherever possible, investigators try to limit to less than one year the time between the signing of the mission order, which signals the start of the investigation, and the presentation of the report to the Board. However, the duration of an investigation can be prolonged due to a variety of events and the time needed to obtain answers to international cooperation requests. B. Behaviour expected of persons summoned for an investigation To ensure that the investigation proceeds smoothly, the individuals and entities summoned (including their employees and persons for whom they are responsible) are expected to comply with certain rules of behaviour. 1. Answer the investigators questions fairly The individuals or employees of entities summoned for an investigation should answer questions or requests for information diligently, fairly and clearly. They must make every effort to ensure that their answers are full and precise. They should also provide substantiating documentation. 2. Cooperate with the investigators Persons summoned for an investigation provide the investigators with contact details for any third party (statutory auditor, member of the audit committee or board of directors, external consultant or service provider, former employee, counsel retained for the investigation, etc.) whom the investigators consider necessary or useful to get in touch with. Regarding access to business premises, a representative of the entity may be named as the investigators primary contact person. These representatives must be empowered, either personally or by way of delegation, to commit the entity and sign any records of findings and document remittals. During the subsequent course of the investigation, the representative is likely to be the investigators main contact when requesting information. He or she will pass on these requests to the relevant departments, collate the information and issue reminders, where necessary, to ensure that the investigators questions are answered within a reasonable timeframe

18 Where the entity under investigation is an investment services provider, the investigators will consider unless expressly informed to the contrary that their correspondent is the compliance officer. The investigators pay particular attention to informing the correspondent of any difficulties encountered when performing their duties. 3. Supply documents, files and explanations within a reasonable time period Requests for information should be answered within a reasonable period that allows enough time to prepare the answers without slowing down the investigation unnecessarily. It is in everyone s interest to ensure that the investigation does not last too long. All documents and files requested must be sent in a format that is easy to process, which will be determined with the persons interviewed. 4. Remain impartial, professional and courteous throughout the investigation Persons summoned for an investigation are expected to adopt an impartial, professional and courteous attitude in their dealings with the investigators, as the investigators themselves are expected to do. * * * * In case of any problem, persons summoned during a pending investigation can contact from the secretariat of the AMF s Investigations Directorate (tel: +33 (0) ), which will pass on the request to the relevant person in the AMF hierarchy. The Investigations Directorate is part of the Inspection and Investigations Directorate, which in turn reports to the AMF s Secretary General. References Rapport annuel 2013 Chapitre 5 : la surveillance des marchés, les contrôles et les enquêtes : _1. AMF Organisation Chart 1.pdf 2011 Annual report 1.pdf

19 EXHIBIT References (applicable at 1 August 2014) cited in the Investigation Guide and taken from: - Monetary and Financial Code - AMF General Regulation 13

20 Monetary and Financial Code LEGISLATIVE PART Article L Senior managers of a company referred to in Article L of the Commercial Code, or persons who, in the course of their business or the performance of their functions, obtain inside information concerning the prospects or the situation of an issuer whose securities are traded on a regulated market within the meaning of Article L , or for which an application for admission to such a market has been submitted, or on a multilateral trading facility which is subject to the laws or regulations intended to protect investors from insider dealing, price manipulation and the dissemination of false information or traded on a multilateral trading facility, admitted to trading on such a market, or for which an application for admission to trading on such a market has been submitted, or the likely performance of a financial instrument or an asset referred to in II of Article L which is admitted to trading on a regulated market, and either directly or through an intermediary, carry out, attempt to carry out or facilitate one or more transactions before the public has knowledge of that information shall incur a penalty of two years' imprisonment and a fine of 1,500,000 euros, which amount may be increased to a figure representing up to ten times the amount of any profit realised and shall never be less than the amount of that same profit. Whoever, through the practice of his profession or the performance of his functions, obtains inside information concerning the prospects or the situation of an issuer whose securities are traded on a regulated market within the meaning of Article L , or for which an application for admission to such a market has been submitted, or on a multilateral trading facility which is subject to the laws or regulations intended to protect investors from insider dealing, price manipulation and the dissemination of false information or traded on a multilateral trading facility, admitted to trading on such a market, or for which an application for admission to trading on such a market has been submitted, or the likely performance of a financial instrument or an asset referred to in II of Article L which is admitted to trading on a regulated market, and discloses that information to a third party outside the normal framework of his profession or his functions shall incur a penalty of one year's imprisonment and a fine of 150,000 euros, which amount may be increased to a figure representing up to ten times the amount of any profit realised and shall never be less than the amount of that same profit. Any person, other than those referred to in the previous two paragraphs, who knowingly obtains inside information concerning the situation or the prospects of an issuer whose securities are traded on a regulated market within the meaning of Article L , or for which an application for admission to such a market has been submitted, or on a multilateral trading facility which is subject to the laws or regulations intended to protect investors from insider dealing, price manipulation and the dissemination of false information or traded on a multilateral trading facility, admitted to trading on such a market, or for which an application for admission to trading on such a market has been submitted, or the likely performance of a financial instrument or an asset referred to in II of Article L which is admitted to trading on a regulated market, and either directly or indirectly carries out, attempts to carry out or facilitates a transaction or discloses that information, or allows it to be disclosed, to a third party before the public has knowledge thereof, shall incur a penalty of one year's imprisonment and a fine of 150,000 euros, which amount may be increased to a figure representing up to ten times the amount of the profit realised and shall never be less than the amount of that same profit. If the information in question is used in the commission of a crime or an offence, the sentence shall be increased to seven years' imprisonment and a fine of 1,500,000 euros if the amount of the profit realised is below that figure. Article L The penalties imposed by the first paragraph of Article L also apply to whoever carries out or attempts to carry out, directly or through an intermediary, a deliberate action intended to impede the normal operation of a regulated market or multilateral trading facility by misleading others. The penalties imposed by the first paragraph of Article L apply likewise to whoever publicly disseminates or attempts to disseminate, via whatever ways and means, any false or misleading information concerning the prospects or the situation of an issuer whose securities are traded on a regulated market within the meaning of Article L , or for which an application for admission to such a market has been submitted, or on a multilateral trading facility which is subject to the laws or regulations intended to protect investors from insider dealing, price manipulation and the dissemination of false information or traded on a multilateral trading facility, admitted to trading on such a market, or for which an application for admission to trading on such a market has been submitted, or the likely performance of a financial instrument or an asset referred to in II of Article L which is admitted to trading on a regulated market, or a commercial contract relating to goods and linked to one or more financial instruments mentioned above and likely to affect the prices of said instruments or assets. Article L The penalties imposed by the first paragraph of Article L apply to: - whoever transmits false or misleading data or information used to calculate an index as defined in the final paragraph of this article or that could skew the price of an instrument or asset to which the index is linked, where the person transmitting the data or information knew or ought to have known that the information was false or 14