Décision 2020-289 L - Nature juridique de certaines dispositions du code monétaire et financier, 21-12-2020
Case Outcome | Réglementaire |
Appeal Number | 2020-289 |
Court | Conseil Constitutionnel (France) |
Docket Number | CSCL2036460S |
ECLI | ECLI:FR:CC:2020:2020.289.L |
Official gazette publication | JORF n°0309 du 22 décembre 2020, texte n° 1 |
Procedure type | L |
Record Number | CONSTEXT000043096395 |
Au vu des textes suivants :
- la Constitution, notamment ses articles 34 et 37 ;
- l'ordonnance n° 58-1067 du 7 novembre 1958 portant loi organique sur le Conseil constitutionnel, notamment ses articles 24, 25 et 26 ;
- le code monétaire et financier ;
- l'ordonnance n° 2009-15 du 8 janvier 2009 relative aux instruments financiers, ratifiée par l'article 138 de la loi n° 2009-526 du 12 mai 2009 de simplification et de clarification du droit et d'allègement des procédures ;
Au vu des observations du Gouvernement, enregistrées le 10 décembre 2020 ;
Et après avoir entendu le rapporteur ;
LE CONSEIL CONSTITUTIONNEL S'EST FONDÉ SUR CE QUI SUIT :
1. L'article 34 de la Constitution dispose que la loi détermine « les principes fondamentaux … des obligations civiles et commerciales ».
2. L'article L. 211-24 du code monétaire et financier précise les conditions dans lesquelles les titres financiers qui font l'objet d'un prêt sont prélevés et inscrits au bilan du prêteur. Son deuxième alinéa prévoit que la créance représentative de ces titres est inscrite distinctement au bilan à leur valeur d'origine. Son troisième alinéa indique que lors de leur restitution, ces titres sont inscrits au bilan à cette même valeur. Enfin, son quatrième alinéa dispose que la provision pour dépréciation constituée antérieurement sur ces titres n'est pas réintégrée lors du prêt et doit, jusqu'à la restitution des titres, figurer sur une ligne distincte du bilan et demeurer inchangée.
3. Les articles L. 211-25 et L. 211-26 du même code déterminent les conditions dans lesquelles les titres financiers empruntés sont inscrits au bilan de l'emprunteur. L'article L. 211-25 prévoit que ces titres financiers et la dette représentative de l'obligation de restitution sont inscrits distinctement au bilan au prix du marché au jour du...
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