Compliance and Regulation Law bilingual Dictionnary

Regulation Law

by Marie-Anne Frison-Roche


"Regulation Law" (with a capital on "Regulation" in order to distingu with regulations wihch are simply texts) or "Regulatory Law" is defined as the balance between the principle of competition and another principle, a-competitive, even anticompetitive.

It is thus connected with a liberal theory since the principle of competition is always there. However, it does not depend on the complete and sufficient organization of a market, a sector or a channel. This may be due to technical or economic data that make the market itself unworkable: there are  market failures. For example, transport networks constitute economically natural monopolies which make network industries, such as telecommunications, railways or energy, need to be replaced by monopolies, ie powers which no competition will counterbalance and which, except to nationalize, so to leave the liberal perspective, independent regulators will monitor. Thus, regulation always has a political background, since it is a choice of general framework of liberal economy, reacting to market failures in a different way than by the administered economy which operates through state intervention.

The heart of the Regulation is therefore the Regulator. In many countries, it often takes the institutional form of independent administrative authorities (IAA), which coordinate operators, whether public or private. But politics is still present in another and very strong way alongside Law and Economy, for the principle weighed against the principle of competition may not be another economic principle as the above-mentioned example of the natural monopoly or the systemic risk of money and financial markets, but a purely political principle.

For example, it is necessary to assert, because the People have decided it and accept to pay its collective price through taxes, that everyone is entitled to a certain level of social protection, to access to health, to education, to a healthy environment, to information, etc., with the fair price being able to go as far as being free of charge, without any relation to the fair market price. Each person has to accede to this good because in this he accedes to his very humanity - notion of commons goods or universal good or "good of humanity". This notion is both relative and political but marks a civilization.

Whether it is a matter of building a market, of maintaining heterogeneous equilibriums or of maintaining marks of civilization in them, Regulation is always an artefact which presupposes the deployment of a great power ( wich was expressed by the State, but today it is that of the regulators). In this respect, it is the goal of efficiency which is above all the aim sought, for example an effective access to the transport network ora successful management of crisis and risk.

All the Regulation Law is deduced from the purpose served, is only an instrument at the service of the finality. That is why its legal reasoning is teleological, that is to say, constructed from ends. This instrumentalisation of Law can be expressed trivially: "the end justifying the means". It has legitimized ample legal powers, including sanctions, cumulated by regulators, against which the classical jurists have protested, to which the Constitutional Courts have set limits. But it is in the nature of regulatory techniques to be teleological.

Regulation then engenders a confrontation between Law and Economy, of which Politics holds the scourge.

Thus, for example, while technical market failures impose, can - or maybe must - be resolved internationally, and do not require political consensus, the political dimension of the Regulation Law (notably the "rights of access to ... .. ") must on the contrary meet the adhesion of peoples and / or nations. This is why Regulation, which is too often enclosed in economic theory alone, has not only a very strong legal translation, but also major political implications. Indeed, by putting the Regulator at heart and the decisions it adopts, Regulation leads to the increasing power of the judges who control these decisions, whereas the legislative acts are unharmed. For example, the continental countries saw the power of judges to increase, bringing them closer to Common Law countries, ni so many crucial sectors, such as network industries, banking and finance. In addition, Regulators are necessarily autonomous of sector but also of government, creating a game of political equilibrium where each is both independent but accountable to each other : a check and balance mechanism, fundamental to the United States but hitherto unknown in many continental countries, such as France.

Thus, if one speaks so much of the Regulation, it is on the one hand because it concerns activities which, even if they are locked up in specific sectors such as telecommunications, energy, banking or Finance, are all indispensable underpinners to the prosperity and sustainability of the general economy: there is no proper functioning of ordinary markets and a satisfactory European construction if there is no sectorial regulations.. But it is also because the Regulation Law has upset the organization of political powers in many countries, bringing them to a model close to that which organizes the relations of political powers in the United States..

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