Compliance and Regulation Law bilingual Dictionnary

Crucial Operator

by Marie-Anne Frison-Roche

Any agent who has an economic activity in a space can be qualified as an "operator". Competition law sees in this the very definition of "the enterprise". In this respect, Competition Law "neutralizes" all that the agent can have of specificity, for example the fact that it is the State itself, since in a merely competitive market, an operator is equal to another. . Thus, a dominant operator is not monitored as such. Similarly, the neutrality of capital means that a public operator is not subject to a special regime.

In Regulation Law, on the contrary, it is sought to qualify the operators to determine their specific function in the balance between competition and other principles.

This is the case of the "crucial operator". The "crucial operator" is one whose existence is absolutely necessary for the proper functioning of the system, for example because it is the transmission system operator, or because it is the clearing house of the financial market or because thank to it a common good is accessible to all.

As such, it is established by the legal system as a second level regulator. This can be done directly by the law, as is the case for transmission system operators who constitute economically natural monopolies. It can also be done by its peers, as is the case for professional orders, or when market places constitute their board through the dominant operators of the place itself.

This crucial operator, as a second-tier regulator, has more prerogatives than ordinary competitive operators; These prerogatives, which may even be organized on a contractual basis (for example, the network access contract), are "powers" rather than "rights", in that they are conferred and exercised more often in order to the operator be able to fulfill obligations, which often refer to the notions of public service and general interest. Crucial operator also has more obligations (such as opening up their transport networks for anyone) that these competitors, often to the direct benefit of the latter.

Because these operators are crucial, public institutions, such as the State, Europe or international institutions, will not allow them to disappear in the event of financial difficulties, and the regulator ensures their profitability so that their activity develops in the time. This is why, for example, banking failure is more than ever excluded by the introduction of the new bank resolution mechanism.

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