Compliance and Regulation Law bilingual Dictionnary


by Marie-Anne Frison-Roche


First of all the responsibility of the Regulator. Because the Regulator, although independent of the government, belongs to the State, when it commits a fault in the exercise of its functions, it is the responsibility of the State which is engaged. According to the principles of public law in this area, the demonstration of gross negligence is required. Some saw a contradiction between the fact that the government could not give any order to the regulator and that nevertheless the State and the public finances had to answer for its actions. For this reason, more recent laws have conferred legal personality on the new regulator, for example in France the Autorité des Marchés Financiers - AMF (Frech Financial Markets Authority), which makes it possible for the Regulator to own a proprietary asset that enables him to answer for his own faults To third parties. Moreover, according to a problem similar to that developed in relation to judges, the regulator is independent, and as such must remain politically not accountable for the use he makes of his powers. However, he must be held accountable.

Accountability, which is difficult to implement, is expressed for all regulators through an annual public report to the Head of State, the government and Parliament. The existence of recourse against its decisions before the judges is a kind of accountability. Finally, some regulators believe that the collegiality of their functioning and that the motivation of their decision is an essential way for them to be accountable.

Then, the responsibility of the operators. At first it tends to be "objective". In a system based on the aims and effectiveness of the realization of these, operators will be "responsible" without even intending to do wrong (subjective definition of fault, imputation of damage , f liability), because there was a "breach", because the operator was "in a position" to prevent a situation which was contrary to the aim pursued by the regulatory system, or was in position to ensure that a situation crystallizing a goal pursued by the regulatory system materializes and that this has not happened.

This responsibility creates sanctions. What is more, it migrates from the ex-post to the ex-ante, for moving towards a more common sense of what a "responsibility" is: a power to better fulfill a duty, The operator must use his force in an effective way so that the goals of the regulation system become concrete thanks to him, in alliance with the action of regulation: it is the concept and mechanism of compliance.

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