Food for thoughts

Le plan est  actualisé chaque semaine au fur et à mesure que les leçons se déroulent en amphi.

Il est disponible ci-dessous.

 

Retourner à la présentation générale du cours.

 

 

(Avant le début des enseignements de Droit de la Régulation bancaire et financière, un aperçu du plan général du Cours avait été mis à disposition.)

Référence complète : Lagarde, Ch., A regulatory Approch to FinTech, mai 2018. 

 

Lire l'article. 

"Liberalization" refers to the process of the legal end of a monopolistic organization of an economy, a sector or a market, in order to open it up to Competition.

Since it is rare for an economy to be entirely monopolistic (which presupposes an extreme concentration of political power), the phenomenon is more particularly characteristic of public sectors. Liberalization, if it is translated into Law only by a declaration of openness to Competition, is actually achieved only by a much slower implementation of the latter, since the incumbent operators have the power to check the entry of potential new entrants. This is why the process of liberalization is only effective if strong regulatory authorities are established to open up the market, weakening incumbent operators where necessary and offering benefits to new entrants through asymmetric regulation .

This Regulation aims to build Competition, now permitted by law.

This is why, in a process of Liberalization, Regulation aims to concretizeCcompetition by constructing it. This transitional regulation is intended to be withdrawn and the institutions set up to disappear, for example by becoming merely specialized chambers of the General Competition Authority, Regulation being temporary when linked to liberalization.

It is distinct from the Regulation of essential infrastructures which, as natural monopolies, must be definitively regulated. Quite often, in liberal economies, the State has asked public enterprises to manage such monopolies, particularly in the network industries, to which it has also entrusted the economic activity of the entire sector. By the liberalization phenomenon, most States have opted to retain the management of infrastructure for this operator, now an incumbent operator competing on the competing activities offered to consumers. In this respect, the Regulator forces it in two ways: in a transitional way to establish competition for the benefit of new entrants, in a definitive way insofar as it has been chosen by the State to manage the economic monopoly of infrastructure.

Even in the only relationship between competitors, Regulation has difficulty to retreat, and this often due to the Regulator. Max Weber's sociological rules  administration show about administration that the regulatory authorities, even in view of the purpose of competitive development, for example in the field of telecommunications, seek to remain, even though competition has actually been built. It does it by finding new purposes (in the above sector, the regulator could be the guardian of Net Neutralityt) or by affirming to practice a permanent "symmetric Regulation".

The procedural safeguards enjoyed by a person whose situation may be affected by a future judgment are principally the right to bring proceedings before the court, the rights of the defense and the benefit of the contradictory principle.

The legal action was for a long time considered as a "power", that is to say, a mechanism inserted in the organization of the judicial institution, since it was by this act of seizure, access by which the person enters the judicial machine, through the latter starts up.

But in particular since the work of René Cassin and Henri Motulsky, legal proceedings are considered as a subjective right, that is to say, a prerogative of any person to ask a judge to rule on the claim that the plaintiff articulates in an allegation, that is a story mixing the fact and the law in a building and on which he asks the judge to give an answer, such as the cancellation of an acte, or the award of damages, or the refusal to convict him (because the defense is also the exercise of this right of action).

The legal action is now recognized as a "right of action", the nature of which is independent of the application made to the court, a subjective procedural right which doubles the substantive subjective right (eg the right to reparation) and ensures the effectiveness of the latter but which is autonomous of it. This autonomy and this uniqueness in contrast with the variety of the sort of disputes (civil, criminal or administrative) makes the right of action a pillar of the "Procedural Law" on which a part of European and Constitutional Law are built. In fact, Constitutional Law in Europe is essentially constituted by procedural principles (rights of defense, impartiality, right of action), since the principle of non bis in idem is only an expression of the right of action. Non bis in idem is a prohibition of double judgment for the same fact which does not prohibit a double trigger of the action (and criminal, civil and administrative). This unified due process of Law has helped to diminish the once radical separation between criminal law, administrative law and even civil law, which are clearly separated from one another in the traditional construction of legal systems and which converge today in the Regulatory and Compliance Law.

Moreover, the subjective right of action is a human right and one of the most important. Indeed, it is "the right to the judge" because by its exercise the person obliges a judge to answer him, that is to say to listen to his claim (the contradictory resulting therefore from the exercise of the right of action ).

Thus the right of action appears to be the property of the person, of the litigant, of the "party". This is why the attribution by the law of the power for the Regulators to seize itself, which is understood by reason of the efficiency of the process, poses difficulty from the moment that this constitutes the regulatory body in "judge and party", since the Regulator is in criminal matters regarded as a court, and that the cumulation of the qualification of court and of the quality of party is a consubstantial infringement of the principle of impartiality. In the same way, the obligation that Compliance Law creates for operators to judge themselves obliges them to a similar duplication which poses many procedural difficulties, notably in internal investigations.

There is a classical distinction between public action, which is carried out by the public prosecutor, by which the public prosecutor calls for protection of the general interest and private action by a person or an enterprise, which seeks to satisfy its legitimate private interest. The existence of this legitimate interest is sufficient for the person to exercise his or her procedural right of action.

In the first place, the person could not claim the general interest because he or she was not an agent of the State and organizations such as associations or other non-governmental organizations pursued a collective interest, which could not be confused with the general interest. This procedural principle according to which "no one pleads by prosecutor" is today outdated. Indeed, and for the sake of efficiency, Law admits that persons act in order that the rule of law may apply to subjects who, without such action, would not be accountable. By this procedural use of the theory of incentives, because the one who acts is rewarded while and because he or she serves the general interest, concretizing the rule of law and contributing to produce a disciplinary effect on a sector and powerful operators, procedural law is transformed by the economic analysis of the law. The US mechanism of the class action was imported into France by a recent law of 2014 on "group action" (rather restrictive) but this "collective action" , on the Canadian model, continues not to be accepted in the European Union , Even if the European Commission is working to promote the mechanisms of private enforcement, participating in the same idea.

Secondly, it may happen that the law requires the person not only must have a "legitimate interest in acting" but also must have a special quality to act. This is particularly true of the various corporate officers within the operators. For the sake of efficiency, the legal system tends to distribute new "qualities to act" even though there is not necessarily an interest, for example in the new system of whistleblowers, which can act even there is no apparent interest.

Complete reference : Archives de Philosophie du Droit (APD), Droit et économie, tome 37, ed. Sirey, 1992, 426 p. 

 

Read the table of contents.

Read the summaries of the articles in english. 

 

See the presentation of others volumes of Archives de Philosophie du Droit.

Banks are regulated because they do not engage in an ordinary economic activity, as their are likely to create systemic risk. In the real economy indeed, banks play the role of providing credit to entrepreneurs who operate on the markets for goods and services. These credits are mainly financed through deposits made by depositors and, to a lesser extent, by shareholders (i.e., capitalists). That is how liberalism and capitalism are bound up. However, banks also have the power to create money by the book entries they make when they grant loans ('book money'). As such, the banks share with the State this extraordinary power to exercise monetary authority, which some describe as sovereign power. It is possible that the digital eventually calls this power into question, since the Regulation currently hesitates to seize control over new instruments that are called "virtual currency" and that are used as proper "currency" or as an ordinary instrument for cooperative relation.

Banks' prominent sovereign character justifies, first and foremost, that the State is granted the power to choose the institutions which benefit from the privilege of creating book money- in this regard, the banking industry has always been a monopoly. Hence, Banking Regulation is first an ex ante control to enter the profession, and also a careful monitor of the people and institutions that claim they are in.

In addition, banks and credit institutions lend more money than their own funds can allow: the whole banking system is necessarily based on the trust that each creditors place within the bank, including depositaries who leave their funds at the banks' disposal for it to use them. That is where Bank Regulation intervenes to establish what is called 'prudential ratios', i.e., ratios that ensure the soundness of the institution by determining the amount of money that banks can lend based on the equity and quasi-equity they actually have.

Moreover, banks are constantly monitored by their supervisory Regulator, the Central Bank (in France, the Banque de France) that ensures the safety of the whole system by setting the State as the lender of last resort. This can, however, incentivize a large financial institution to take excessive risks based on its reliance on the fact that the State will save it eventually- that is what the 'moral hazard' theory systematized. All monetary and financial systems are built on these central banks that are independent from governments, which are far too reliant on political strategies and which cannot generate the same trust that a Central Bank inspires. Since the missions of central banks have increased over the years, and since the notions of Regulation and Supervision have come together, we tend to consider that Central Banks are now fully fledged Regulators.

Besides, Banking Regulation has become all the more central since banking is no longer primarily about loaning but rather about financial intermediation.  Banking Regulation and Financial Regulation are mixing. In Europe , European Central Bank is in the center.

Sont ici répertoriés les sujets proposés chaque année,

- soit au titre du travail à faire en parallèle du cours, à remettre à la fin du semestre (le jour de l'examen étant la date limite de remise),

- soit les sujets à traiter sur table, sans documentation extérieure et sous surveillance le jour de l'examen final. 

 

Retourner sur la description générale du Cours de Droit de la Compliance, comprenant notamment des fiches méthodologiques. 

 

 

► Full reference : M.-A. Frison-Roche, Scientific coprdination and co-hosting of the colloquia series Compliance and Contract, organised on the initiative of the Journal of Regulation & Compliance (JoRC) and its academic partners

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► The Symposium Series in a nutshell : As a direct continuation of the previous symposium series co-organised by the Journal of Regulation & Compliance and its partner universities on "Compliance Obligation", which served as the basis for the publication of the book 📘Compliance Obligation,  The series, some elements of which began in 2024 and others are already present in this book, explored in depth the specific theme of the links between compliance law and contracts. Indeed, compliance law is often analysed as the construction of laws and regulations to achieve "📘 Monumental Goals " of a political nature desired by States and public authorities, to the achievement of which systemic economic operations contribute through 📘Compliance Tools that are now well documented. Contracts are still relatively little studied, or even developed, in compliance systems that are often perceived through the orders issued, the technologies put in place and the 📘sanctions to be avoided or endured. On the contrary, the future of compliance law, particularly in its European conception, which places human beings at the centre of concerns for the sustainability of systems and the use of contracts, is the new conception that we must adopt. Contracts then appear to be both the means by which the subject company fulfils its legal obligations, forges relationships with other actors and deploys the necessary innovations. Contract law is both used and renewed as a result. The series of symposiums will examine various aspects of this general issue. It will result in the publication of a 📘book Compliance and Contrat.

► Presentation of symposiums in development : 

• 29 May 2026🧮THE JUDGE CONFRONTED WITH CONTRACTS OF COMPLIANCE AND COMPLIANCE CLAUSES: read the presentation

 

• 12 June 2026🧮THE "CONTRACT OF COMPLIANCE" : read the presentation

 

• 25  Septembre 2026🧮COMPLIANCE: CLAUSE BY CLAUSE: read the presentation

 

• October 2026🧮COMPLIANCE AND COMMON CONTRACT LAW : read the presentation

 

• September 2026🧮COMPLIANCE, VALUE CHAINS AND CONTRACT: read the presentation

 

• 2 November 2026 🧮COMPLIANCE AND THE STRATEGIC CONTRACTUAL ORGANISATION OF CHAINS VALUE BY ENTERPRISES: read the presentation 

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Legally, the State is a public law subject defined by territory, people and institutions. It acts in the international space and emits norms. Politically, it has the legitimacy required to express the will of the social body and to exercise the violence of which it deprives the other subjects of law. It is often recognizable by its power: its use of public force, its budgetary power, its jurisdictional power. These three powers, declining or being challenged by private, international and more satisfying mechanisms, some predicted the disappearance of the State, to deplore it or to dance on its corpse.

With such a background, in current theories of Regulation, primarily constructed by economic thought and at first sight one might say that the State is above all the enemy. And this for two main reasons. The first is theoretical and of a negative nature. The advocates of the theory of regulation deny the State the political qualities set out above. The State would not be a "person" but rather a group of individuals, civil servants, elected officials and other concrete human beings, expressing nothing but their particular interests, coming into conflict with other interests, and using their powers to serve the former rather than the latter as everyone else. The Regulation theory, adjoining the theory of the agency, is then aimed at controlling public agents and elected representatives in whom there is no reason to trust a priori.

The second reason is practical and positive. The State would not be a "person" but an organization. Here we find the same perspective as for the concept of enterprise, which classical lawyers conceive as a person or a group of people, while economists who conceive of the world through the market represent it as an organization. The state as an organization should be "efficient" or even "optimal". It is then the pragmatic function of the Regulation Law. When it is governed by traditional law, entangled by that it would be an almost religious illusions of the general interest, or even the social contract, it is suboptimal. The Regulation purpose is about making it more effective.

To this end, as an organization, the State is divided into independent regulatory agencies or independent administrative authorities that manage the subjects as close as possible, which is fortunate in reducing the asymmetry of information and in reviving trust in a direct link. The unitary, distant and arrogant State is abandoned for a flexible and pragmatic conception of a strategic state (without capital ...) that would finally have understood that it is an organization like any other ...

Competition law adopts this conception of the State, which it posed from the beginning that it was an economic operator like any other. This is how this conception which would be  more "neutral" of the world is often presented.

Successive crises, whether sanitary or financial, have produced a pendulum effect.

Now, the notions of general interest or common goods are credited of an autonomous value, and the necessity of surpassing immediate interests and of finding persons to bear superior interests or to take charge of the interests of others, even a non-immediate one, emerged.

Thus, the State or the public authority, reappears in the globalization. The Compliance Law or the Corporal Social Responsibility of the crucial companies are converging towards a consideration of the State, which can not be reduced to a pure and simple organization receptacle of externalities.

 

Référence générale, Cohendet, M.-A. et Fleury, M., Droit constitutionnel et droit international de l'environnement, Revue française de droit constitutionnel , PUF, » 2020/2, n°122, p.271-297. 

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Résumé de l'article : 

In an ordinary market of goods and services, access to the market is open to everyone, whether it is the one who offers the good or service (potential supplier) or who wants to own it (potential applicant ). Freedom of competition presupposes that these new entrants can, at their will, become effective agents on the market, the potential supplier if its entrepreneurial dynamism drives him there, and the potential applicant if he has the desire and the tools to do it(money, Information and proximity, in particular ; but first of all, money). The absence of barriers to entry is presumed; a barrier resulting from anti-competitive behavior will be penalized ex post by the competition authority.

The barrier is therefore what undermines the principle of access to the market. This is why the World Trade Organization (WTO), in that it fights against barriers to ensure global free trade, can be regarded as a forerunner of a sort of World Competition Authority.

But it may happen that it is necessary to organize by the force of Law the market access in a first situation, when there has been a liberalization decision of a previously monopolistic sector, access can not be exercised solely by the strength of demand and the power of potential new entrants, notably prevented by the de facto power of the formerly monopolistic enterprises. The Regulatory Authority will build access to sectoral markets whose sole principle of Competition has been declared by Law. Secondly this necessity can also result from phenomena that definitely impede this ideal competitive functioning of the sector, such as natural monopolies or asymmetries of information: Law will make this access concrete by distributing rights of access to the interested operators.

This is the case in network industries for operators' access rights to essential infrastructure networks. Even if this act is carried out by contract, this contract merely crystallizes a right of access conferred by the Legislator to the operator in order this one can penetrate the market. This is particularly true in the energy and telecommunications sectors.

In a more political way and not directly related to a desire to set up competition or to compensate for a market failure, this access organization may still be required because there is a political decision to provide everyone with access to common goods. The decision then goes hand in hand with the notion of a "fundamental right", such as the fundamental right of access to the healthcare system or vital medicines, or the fundamental right of access to the digital system, which the Regulator becomes the guardian in Ex Ante but also in Ex Post.

 

► Référence complète : D. Esty et M. Hautereau-Boutonnet, "Derrière les procès climatiques français et américains : des systèmes politique, juridique et judiciaire en opposition", D.2022, p.1606 et s.

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Référence complète : Response to the Study on Directors’ Duties and Sustainable Corporate Governance by Nordic Company Law Scholars, octobre 2020.

Lire le rapport

Le plan est  actualisé chaque semaine au fur et à mesure que les leçons se déroulent en amphi.

Il est disponible ci-dessous.

 

 

Retourner à la présentation générale du cours, tel qu'il était bâti et proposé en 2018.

 

 

 

 

 

The economic theory of incentives implicitly assumes that an operator can not be compelled to act against his will, or at least that it is more efficient to offer him advantages in such a way that he does what he wants . In this, this conception is opposed to the traditional conception of Law, which posits, on the contrary, that subjects obey the order dictated by the legal norm.

But in globalized markets, operators have the tools to disobey and the asymmetry of information diminishes the power of control of the Regulators, which raises doubts as to the effectiveness of the legal constraint: it is not enough that the Law orders. In these circumstances, texts, regulators and judges must produce conditions that encourage agents to adopt behaviors that are consistent with the aims sought by the Regulators because the operators themselves have an interest in them.

Thus, whilst regulatory systems in any sector become increasingly repressive, even in liberal economies, it is not so much to punish the perpetrator but to incite others who are tempted to commit crimes, To abandon them. It is the system of exemplarity. This thought prior to Beccaria participates in the re-feoadization of the Law, demonstrated by Pierre Legendre, associated with the decline of the State and to which the Regulation fully participates. Judgeshave little inclination to handle repression in this way, which creates a clash between Criminal Law and Regulatory Law, which nevertheless puts repression at its center.

In the same way, Regulatory Systems must inject positive incentives, for example rewards for communication of information, which encourages delation, or incentives done by the regulator for the network manager make investments in the maintenance of it, against the immediate interest of its shareholder. Finally, all patent law and economics are now thought of as an incentive to inn/en/article/innovation/ovate. But, some incentives have proven perverse such as stock-options or bonuses. As a result, new texts seek to regulate these.

► Référence complète : J.-Ch. Roda, « Pouvoir économique et concurrence : le cas des Big Techs », in M. Fabre-Magnan et P. Lokiec (dir.), Les limites juridiques au pouvoir économique, Lefebvre-Dalloz, coll. « Thèmes et Commentaires – Etudes », 2026, pp.117-141.

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Référence complète : Gibert, M., Faire la morale aux robots. Une introduction à l'éthique des algorithmes, Flammarion, 2021, 168 p.

 

Lire le commentaire de l'ouvrage sur le site NonFiction. 

Cette bibliographie indicative vise des :

• ouvrages généraux

 

• ouvrages abordant la Régulation et la Compliance bancaire et financière à l'occasion d'un autre sujet principalement traité

 

• sites pertinents pour l'étude du Droit de la Régulation bancaire et financière

 

• ouvrages et articles portant spécifiquement sur la Régulation et la Compliance bancaire et financière

 

The telecommunications sector was the first sector to be liberalized in Europe, not so much by political will but because technological progress had in fact already brought competition into the sector and it was better to organize it rather than to To allow competition to settle in disorder.

Le légicentrisme exprime avant tout une bataille de normes, puisque cette doctrine pose que la loi est la seule et unique expression de la souveraineté de la Nation. En cela, la loi dispose d'une autorité indépassable et c'est elle qui fonde l'État légal.

Ainsi, si l'on devait donner une figure au système juridique, ce serait un cercle avec en son cœur d'une façon unique la loi souveraine, à la fois autosuffisante dans son fondement (souveraineté) et dans sa production (principe de légalité).

Cette conception moniste (unité de la loi) a pour principale source la philosophie politique de Jean-Jacques Rousseau, c'est encore sur celui-ci que la France conserve le principe de souveraineté parlementaire (le Gouvernement est responsable devant le Parlement) et de souveraineté de la loi. Mais depuis la Révolution française, les esprits et les faits ont changé.

Ainsi, s'est construite une doctrine inverse : le "pluralisme juridique" qui pose en contradiction que le droit vient de nombreuses sources, comme la coutume, les pratiques, les jugements, etc. Il n'est pas étonnant que les auteurs qui affirment le pluralisme juridique ne viennent pas de la philosophie politique mais davantage de la sociologie comme Gurvitch ou Carbonnier.

En outre, les frontières nationales ont perdu de leur consistance, de fait et de droit. C'est pourquoi un auteur comme Mireille Delmas-Marty s'appuie sur le fait même de la construction de l'Europe des droits de l'homme d'une part et de la globalisation d'autre part pour affirmer que le légicentrisme a fait place à un pluralisme juridique généralisé.

Cependant, en droit positif les textes restent les mêmes. C'est ainsi que l'article 6 de la Déclaration des droits de l'homme et du citoyen de 1789, qui fait partie du bloc de constitutionnalité, dispose de la loi que "la loi est l'expression de la volonté générale".

De la même façon, l'article 5 du Code civil continue d'interdire au juge de rendre des jugements contraignants pour d'autres cas que celui particulier sur lequel il se prononce.

Cette permanence des textes les plus gradés, à savoir l'article 5 du Code civil et l'article 6 de la déclaration pose de nombreux problèmes aux juges. En effet, depuis l'arrêt du Tribunal des conflits Blanco, le droit administratif n'est plus lié par ce qui est posé par le Code civil et sans doute la puissance normative du Conseil d'Etat s'exprime plus ouvertement que celle de la Cour de cassation, qui feint de ne rendre que des arrêts de principe pour pouvoir affirmer qu'elle ne rend pas d'arrêt de règlement.

D'une façon plus complexe, le Conseil constitutionnel rappelle régulièrement que certes il est le gardien de la norme constitutionnelle supérieure à la loi mais quand le même temps, seul le législateur, puisque celui est le souverain, peut exprimer la volonté générale, ce à quoi le Conseil constitutionnel ne peut se substituer.

Mais le Droit de l'Union européenne, qui constitue un Ordre juridique à la fois autonome et dont les normes sont pourtant intégrées dans les ordres juridiques des Etats-membres, rend difficilement soutenable la conception du légicentrisme. Y a succédée une hiérarchie des normes complexes. Mais les fondements politiques de l'idée de légicentrisme alimente en grande partie l'hostilité à l'égard de l'Europe, aussi bien celle de l'Union que celle de la CEDH.

 

Référence complète : Marcou, G., L'ordre public économique aujourd'hui. Un essai de redéfinition, in, Revet, TH. et Vidal, L. Annales de la régulation, IRJS, 2009, p.79 et s.

The notion of "Common Goods" refers to a political conception insofar as it concerns objectively commercial goods such as cultural goods or medical services, but which the community is going to demand that everyone should have access to it even though the individual does not have the ability to pay the exact price. It is then the taxpayer - present or future - or the social partners who bear the cost, or even some companies, through the corporal social social responsibility mechanism.

This protection of Common Goods can be done by the State in the name of the interest of the social group for which it is responsible and whose it expresses the will, particularly through the notion of the general interest. In this now restricted framework which is the State, this reference runs counter to the principle of competition. This is particularly clear in Europe, which is based on a Union built on an autonomous and integrated legal order in the Member States in which competition continues to have a principled value and benefits from the hierarchy of norms. The evolution of European Law has balanced the principle of competition with other principles, such as the management of systemic risks, for example health, financial or environmental risks and the creation of the banking union shows that the principle of competition is no longer an apex in the European system.

But it still remains to an economic and financial conception of Europe, definition that the definition of the Regulatory Law  when it is restricted to the management of the market failures feeds. It is conceivable that Europe will one day evolve towards a more humanistic conception of Regulatory  Law, the same one that the European States practice and defend, notably through the notion of public service. Indeed and traditionally, public services give people access to common goods, such as education, health or culture.

Paradoxically, even though Law is not set up on a global scale, it is at this level that the legal notion of "common goods" has developed.

When one refers to goods that are called "global goods", one then seeks goods that are common to humanity, such as oceans or civilizations. It is at once the heart of Nature and the heart of Human Being, which plunges into the past and the future. Paradoxically, the concept of "global goods" is still more political in substance, but because of a lack of global political governance, effective protection is difficult, as their political consecration can only be effective nationally or simply declaratory internationally. That is why this balance is at present only at national level, which refers to the difficulty of regulating globalization.

Thus, the "common goods" legally exist more under their black face: the "global evils" or "global ills" or "global failures", against which a "Global Law" actually takes place. The notion of "global evils" constitutes a sort of mirror of Common Goods. It is then observed that countries that develop legal discourse to regulate global evils and global goods thus deploy global unilateral national Law. This is the case in the United States, notably in financial regulatory Law or more broadly through the new Compliance Law, which is being born. Companies have a role to play, particularly through Codes of Conduct and Corporate Social Responsibility.

Formally, the legal system had constructed the regulatory authorities in the form of Independent Administrative Authorities (AAI).

The stake being to build their independence in an institutional and consubstantial way, the Legislator conferred a new status: that of Independent Public Authority (API). Thus, the Autorité des Marchés Financiers (AMF), the Commission Nationale Informatique et Libertés (CNIL), the Haute Autorité de Santé (HAS) or HADOPI are classified among APIs and not only among IAAs.

We must therefore see two distinct legal categories, AAI on the one hand and APIs on the other.

Thus the two laws of January 20, 2017 relate, to better supervise them, both on AAIs and on APIs, but reading the preparatory work shows that the two categories show that they are treated in a fairly common way. Even more if one consults the sites of certain regulatory authorities themselves, such as HADOPI, for example, it presents itself as an "Independent Public Authority" but defines this legal category as being that which targets the Authorities. Independent Administrative .....

It thus appears that the category of Independent Public Authorities is above all marked by the symbol of a greater dignity than that of the category of "simply" Administrative Independent Authorities. From a technical point of view, the two categories are essentially distinguished from a budgetary point of view, financial autonomy being the nerve of independence. This is how the AMF's budget is based on the size of market operations, through tax mechanisms that are not included in the LOLF. Independence does not extend to autonomy, the API does not negotiate its budget with Parliament, since an Independent Public Authority is not a Constitutional Authority.

The State's traditional view is that it serves the general interest through its public services, either directly (by its administrations, or even by public enterprises), or by delegation (eg through the concession mechanism). Public service is generally defined in a functional way, ie through public service missions that the organization must perform, such as providing public transport or caring for the population whatever (Eg in France by the public firm the SNCF). The liberalization of those public sectors, the primary reference to the market as a means of achieving the general interest, the primary reference to competition and the play of the European Law has destroyed this intimacy between public service, general interest, public enterprise and State.

Today, in a dialectical game, the Regulation keeps this concern for public service missions in balance with the competition, in a competitive context and under the control of a Regulator. The system is more complex and challenging because it creates new difficulties, such as information asymmetry or less easy integration of long-term planning, but it is better suited to an open and globalized economy.