Compliance and Regulation Law bilingual Dictionnary

Tarification

Pricing is the result of an act of will whereby an organization determines an amount or method of calculation to obtain an amount it allocates to a good or service. Pricing is in contrast with price, which in turn results spontaneously from the market mechanism and the competition that governs it.

Pricing is a preferred ex ante tool for Regulation. It is favored when it comes to fixing access costs for users to essential infrastructure networks, which are economic monopolies. In a process of liberalization, because Regulation is then designed to build competition, competitive maturation will lead to the exit from "regulated prices", ie pricing, to "free prices", that is to say market prices.

Electrical experience has shown that sometimes it is politically appropriate to allow those who have chosen the vagaries of market price movements to return under the shelter of tariffs.

There are multiple pricing methods, France preferring pricing in relation to costs, U.K. preferring the price cap method.

 

Telecommunications

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.

The telecommunications sector was liberalized by a Community directive, the 1996 transposition law having installed the French Telecommunications Regulatory Authority (ART, now ARCEP), whose task was to favor new entrants and build the The challenge today is no longer liberalization but the accompaniment of technological innovation and the incentive for operators to do so, for example in the ADSL Phenomena such as the failure of the "cable plan" are not renewed, that the "fiber plane" is going better, etc.
 
Competitive maturity of this sector means that the Competition Authority frequently intervenes in the field of telecommunications, particularly when merger authorizations must be given by the National or European Competition Authorities, since the Regulator gives only one opinion.
 
On the other hand, the current major issue that has put the discussions around the dialectic between container and content on the agenda is to determine the place that telecommunications have and will have in the digital domain and which could be a specific regulation of Internet, and thereby the Telecommunications Regulator.

Transition

The notion of transition was initially a sign of the transitional nature of the Regulatory Law and the proof of its consubstantiality with the Competition Law.

Indeed, especially in sectors where the ideal was thought to be Competition, as in telecommunications, it was thought that the competitive market was not present because of historical phenomena such as the constitution of public monopolies. It was therefore sufficient firstly and by a legal act to declare competition as a legitimate principle and then, because it is not enough to declare competition, it must still be constructed by treating the dominance of certain operators, in particular historical operators, it was necessary to set up a regulating apparatus. From this point of view, the Regulatory Law, in particular the constitution of Regulatory Authorities, would succeed through the establishment by the force of the Law of a competitive market, thus signing the end of this particular Law, replaced by the common Competition Law , under the sole and sufficient function of a Competition Authority.

In this perspective, the aim of the Regulatory Law was to make a transition to Competition Law.

That has not happened. The Regulatory Law has not dissolved in the Competition Law. It now seems clear that the Regulatory Law does not express a "transition", in any sector.


But this term has taken on quite a different meaning through the notion of "energy transition". Indeed, to take the French example of the Act of 18 August 2015 sur la transition énergétique pour une croissance verte  (on the energy transition for green growth), the Regulatory Law today expresses a political will for transformation which does not bring back to the ordinary merchant but on the contrary, towards an economy built on pillars that would not exist without a regulation which in this example rests both on the protection of the environment and the protection of people.

Thus, the notion of transition reconnects with the notion of public policies and allows the sectoral Regulators and the crucial operators to dynamically realize the transition from a regulation to another regulation, which the Politics alone can not do.

Translation

First of all, the Regulation and Compliance Law is difficult to understand in others languages than English, through translation, for example in French.  This corpus of rules and institutions suffers from ambiguity and confusion because of its vocabulary of Anglophone origin, in which words or expressions that are similar or identical have not the same meaning in English and, for example, in French..

To every lord all honor, this is the case for the term "Regulation".

In English, "regulation" refers to the phenomenon which the French language expresses by the term "Régulation". But it can also aim at the complete fitting of what will hold a sector reaching a market failure and in which regulation is only one tool among others. The expression "regulatory system" will be used with precision, but also the term "Regulation", the use of the capital letter indicating the difference between the simple administrative power to take texts ("regulation") and the entire system which supports the sector ("Regulation"). It is inevitable that in a quick reading, or even by the play of digital, which overwrites the capital letters, and the automatic translations, this distinction of formulation, which stands for a lower / upper case, disappears. And confusion arises.


The consequences are considerable. It is notably because of this homonymy, that frequently in the French language one puts at the same level the Droit de la Régulation ("regulatory law, Regulation") and the réglementation (regulation). It will be based on such an association, of a tautological nature, to assert that "by nature" the Regulatory Law  is "public law", since the author of the reglementation (regulation) is a person of public law, in particular the State or Independent administrative authorities such as Regulators. There remains the current and difficult justification for the considerable presence of contracts, arbitrators, etc. Except to criticize the very idea of Regulatory Law, because it would be the sign of a sort of victory of the private interests, since conceived by instruments of private law.

Thus two major disadvantages appear. First of all, it maintains in the Law of Regulation the summa divisio of Public and Private Law, which is no longer able to account for the evolution of Law in this field and leads observers, notably economists or international Institutions, to assert that the Common Law system would be more adapted today to the world economy notably because if it does indeed place administrative law, constitutional law, etc., it does not conceive them through the distinction Law Public / private law, as the Continental system of Civil Law continues to do.

Secondly, no doubt because this new Law draws on economic and financial theories that are mainly built in the United Kingdom and the United States, the habit is taken to no longer translate. In other languages, for example, texts written in French are phrases such as "le Régulateur doit être  accountable".

It is inaccurate that the idea of ​​accountability is reducible to the idea of ​​"responsibility". The authors do not translate it, they do not recopy and insert it in texts written in French.

One passes from the "translation-treason" to the absence of translation, that is to say to the domination of the system of thought whose word is native, here the U.K. and the U.S.A.

One of the current major issues of this phenomenon is in the very term of "Compliance". The French term "conformité" does not translate it. To respect what compliance is, it is appropriate for the moment to recopy the word itself, so as not to denature the concept by a translation. The challenge is to find a francophone word that expresses this new idea, particularly with regard to legal systems that are not common law, so that their general framework remains.

Transparency

Transparency is not a natural state, it is not even a legal principle of classical law. Situations, persons and information are only made known to those who are in the same situation, for example the parties to the contract, but they are not known to third parties. Thus the contract is not transparent, consequence of the basic rule that distinguish the parties and third parties to the contract. In the same way, in an ordinary market of goods and services, there is business secrecy, the secrecy of factories, and the secrecy of the strategies that remain the principle, preserved by the competition authorities. Information and transparency play only on the prices offered, not even on how they are established.

 

Trust

Trust has long been the very foundation of monetary, banking, financial and insurance systems. The banking and financial industry relies on the confidence that consumers, investors here, give to the securities they acquire. Goods issued on the market do not have a corporality and their value depends only on the confidence that the buyer inserts in the value that the other investors themselves grant to the security. This is why the financial market is said to be intersubjective. This very subjective character of the banking and financial markets is not shared with the markets for goods and services because on them goods have a physical existence that is palpable by the consumer. For example, there is no need to trust the apple vendor to know that the apple exists, and it takes little time to bite it and know its taste. The financial title can not have these virtues.

This subjectivization of the banking and financial markets has led more than elsewhere to the need for a charismatic regulator, and it is on these markets alone that there are central bankers - gurus - of whom Alan Greenspan has long been the paragon, since we now recognize the role of "regulator" of central bankers. Thus, people's behavior, image, reputation, expectations of behavior, etc., are essential, and gambling economic theory has largely developed in relation to banking and financial markets. Similarly, in these sectors, Regulation and Supervision are articulated, the personality of the people who run the systemic institutions being controlled.

But the question of trust can be asked in more general terms, which implies the question of the link between regulation, supervision and even reference to a "sector". The main difficulty is that trust is volatile and fear causes it to be lost, fear being self-fulfilling. As shown by the succession of financial crises of 2008, the major challenge is restoration through the regulation of confidence in the markets). The new mechanisms, in particular the banking union in Europe, in particular the banking resolution, are aimed at this.

The restoration of trust is extremely difficult, as legal texts and the law in a more general way are ill-equipped to give rise to feelings: one does not decree competition, one decrees still less confidence. Different States seek regulatory solutions either by increasing prudential requirements (European model) or by closely monitoring the use of funds by banks (the Volcker rule for the United States) or by internal reorganization in the event of default by The forecast of the bank wills and the intervention of resolutions.

In a more general way, it is the regulator that injects confidence. Independence and the absence of conflict of interest being a major element of this, central banks tend to move closer to the figure of the Regulator, which approximates the figure of the Judge and the Tribunal, obliged by the legal principle of Impartiality that oblige them.