Compliance and Regulation Law bilingual Dictionnary

In a self-regulated system (such as a market governed by free competition), the equilibrium operates spontaneously by the meeting of the whole of the supply with the whole of the demand, as soon as the information is given on prices. The snag that constitutes an anti-competitive practice, cartel or abuse of a dominant position, which prevents the emergence of the break-even price, is repaired on an ad hoc basis and ex post by the Competition Authority.

But Regulation intervenes in the event of a market failure: Regulation then has the primary function of building balances which are not established and do not maintain spontaneously. For example, this will involve a balance between competition between banks on the one hand and the prevention and management of systemic risk on the one hand, which implies a certain coordination between banks, coordination close to the agreement.

In the same way, the Regulator will have to build a balance between the principle of competition, with exact prices which can therefore be high, and social tariffs for populations in difficulty having nevertheless to gain access that the Politics will have posed as being a "common good. ", like certain drugs, even electricity.

These unstable balances must be maintained in the long term. This is why the Regulator, unlike the Competition Authority, does not intervene on an ad hoc basis but is permanently present, in a way internalized in the sector that it continuously monitors and controls. These long-term balances justify recourse to multi-year plans, in particular through contracts for example in postal matters or concerning airports (regulation contract), the contract making it possible to stabilize apprehension of the future.

Compliance and Regulation Law bilingual Dictionnary

Regulation has arisen from the need to take account of the specific nature of the sectors, often accompanied by their liberalization.

But, first of all, goods from different sectors can be substitutable. Thus, both gas and electricity can be heated, as intermodal competition makes the segmentation of regulation of the electricity sector and regulation of the gas sector less relevant to the idea of a single sector of "energy", which nevertheless allows the regulation of water and oil out of its grip. Similarly, a life insurance contract is both an instrument of protection for the future, a product that is therefore covered by insurance Regulation, but also a financial product placed with consumers by banking-insurance companies, objet to the banking regulatory control. This intimacy of regulation with respect to the internal technicality of the object on which it bears can not be erased.

The interregulation that will take place is initially institutional. That is why an alternative opens: either the regulatory authorities are merged, and thus the UK's Financial Services Authority (FSA) has merged financial and banking regulation in 2000, what has not done the French system. Thus, the first branch of the alternative is the institutional fusion, at the risk of constituting kinds of titans, or even reconstituting the State. Either procedures for consultation and joint work are established to create contact points, or even a common doctrine among regulators, as it is between ESMA, EBA and EIOPA in the UE regulatory mechanisms.

The other branch of the alternative is to respect this initial relationship between regulation and the sector and to take note of the links between sectors through the proposed concept of "interregulation". This involves setting up networks between autonomous authorities, but exchanging information, meeting, collaborating on common issues, and so on. This interregulation may initially be horizontal when authorities from several sectors collaborate, for example, ESMA, EBA and EIOPA. It may also be vertical when the authorities of national sectors collaborate with foreign authorities or European or international authorities, as envisaged by the Lamfalussy process in financial matters (extended to the banking and insurance sectors) or the Florence Process in the field of telecommunications or the Madrid Energy Process, where European national regulators meet and work together. This can take more formal institutional forms, such as in telecommunications, with BEREC, or in energy matters with ACER, with and around the European Commission. The comitology technique has generalized this institutional formula.

Interregulation is then notional, a "common law" of regulation developing, common between all sectors. This "common law" (horizontal law) came after the maturity of sectoral regulation laws (vertical laws). It develops in fact because regulated objects are located on the border of several sectors, or even ignore these borders : for example financial derivatives on underlying agricultural or energy. Moreover, "connected objects" generate interregulation in digital space. Thus, even though it is possible that the Internet may give rise to an "interregulation" before giving rise to a specific regulation, the latter can then justify that the first one is dispensed with. That has not happened yet. This regulation of the digital world should be global. It is therefore possible that there remains a mechanism of interregulation.

Compliance and Regulation Law bilingual Dictionnary

A monopoly refers to the power of a person to remove from a good its utility by excluding others. The monopoly refers to a situation on the market, the monopolist being the sole operator in the market. Lawyers are accustomed to the monopoly conferred by Law, for example the one that was the monopoly for the national public enterprise for electricity. In this case, what is done may be defeated, and the legislature may withdraw that privilege especially if the author of this norm is better placed in the hierarchy of norms than the previous author. For example, the European Union legislature withdrew the legal monopolies by means of directives from most of the operators holding them in the regulated sectors in order to liberalize them.

But the monopoly can have an economic source. Indeed, it may happen that a first operator constructs a structure, for example a wired telecommunications transport network. Because he is alone, agents on the market must resort to him to carry their communications, his business will be profitable. But from there, if a second operator built such an infrastructure, it would inevitably be in deficit for insufficient applicants. This is why no rational economic agent will build a second network. Thus, this network will remain unique. It is then an economically acquired monopoly that the legislative will can not change its nature. That is why it is called "natural".

Since what is can not be changed, Community law has taken note of the monopolistic nature of the majority of networks and the correlated power of their owner or manager, but has correlatively provided for their supervision by a regulator who not only Ex post to resolve possible differences between the infrastructure manager, the natural essential facility, and the one who wants to access it, but also, through an Ex ante power, to negotiate with that manager the return on his capital, his commitments investment in the network, etc., or even more directly by imposing on it the way in which it fixes access tariffs and so on.

These economically natural monopolies are therefore more powerful than legal monopolies, which States and lawyers have taken a long time to understand, but this also explains the reverse tendency of economists to write laws, The texts must handle this type of notions, its writers caring little about the political order and legal notions. The fact that the laws and regulations on regulated situations and supervised operators have long been elaborated solely from the point of view of lawyers, particularly of the public service, which was regrettable, does not justify this passage from one extreme to the other.

Compliance and Regulation Law bilingual Dictionnary

L’Autorité de Régulation des Communication Electroniques et de la Poste (ARCEP) est une Autorité Administrative Indépendante (AAI). Elle a succédé en 2005 à l’Autorité de Régulation des Télécommunications (ART), laquelle fut créée en 1996. L’ART fût la première autorité de régulation du genre, inaugurée sous l’impulsion du la vague de libéralisation des secteurs naguère en monopole .

L’ARCEP a une compétence plus vaste de celle de l’ART, régulant également les activités postales et a pour office de favoriser l’exercice d’une « concurrence effective et loyale au bénéfice des utilisateurs », ce qui la rapproche singulièrement de l’office général de l’Autorité de Concurrence. Ce régulateur doit encore tenir compte de l’ « intérêt des territoires » et de l’accès des utilisateurs aux services et aux équipements. L’ARCEP a compétence pour réguler ce qui transporte les informations (contenant) tandis que le a compétence pour réguler les informations transportées (contenu). Cette distinction contenant/contenu fonde donc la dualité des régulateurs. Mais en premier lieu elle est fragile et peu utilisée à l’étranger, d’autres pays préférant avoir un seul régulateur pour le contenant et pour le contenu, dans la mesure où les informations peuvent passer par divers contenants (par ex. télévision ou le téléphone). En second lieu Internet rend difficile le maniement de cette distinction. C’est pourquoi on évoque parfois l’hypothèse de fusion des deux autorités de régulation.

L’ARCEP surveille les marchés de gros, dans lesquels les opérateurs doivent se comporter d’une façon transparente, non discriminatoire et publier une offre de référence. Il les prix et oblige à une orientation du tarif vers le coût, favorisant en aval c'est-à-dire (marché du détail) le dynamisme concurrentiel. Sur celui-ci, le régulateur veille à de transport et au réseau de distribution jusqu’au final (problématique de la . L’ARCEP a le pouvoir d’attribuer les fréquences aux opérateurs, lesquelles sont des et dont l’attribution peut être retirée à l’opérateur en cas de . Mais au-delà de ces dimensions très techniques, le régulateur exerce une fonction parce qu’il projette dans le une certaine conception qu’il a du secteur. Ainsi il peut estimer ou non que la fibre optique doit être ou non favorisée et contraindre les opérateurs en ce sens. De la même façon, il peut adhérer à la théorie de la « » au nom de laquelle il va imposer aux propriétaires d’un réseau de l’ouvrir à des utilisateurs, même au prix d’investissements pour les accueillir, le régulateur fixant alors l’indemnisation d’un tel . L’adhésion à cette théorie, très discutée, n’est pas de nature technique mais politique.

L’ARCEP dispose du pouvoir précité de retirer des fréquences aux opérateurs ne remplissant pas leurs obligations et peut prendre des mesures conservatoires. Celles-ci peuvent être attaquées devant la Cour d’appel de Paris. L’autorité exerce un pouvoir deet d’un pouvoir de . L’ARCEP publie un rapport annuel, façon pour l’Autorité de , ce mode de étant mis en balance avec son .

 

Comme en 1996 pour les télécommunications, à partir de 2005 le régulateur a ouvert à la les activités , tout en veillant à la poursuite du postal. La Loi du 9 février 2010, tout en transformant la Poste en société anonyme a veillé à maintenir ses obligations de service public et les a même étendues en lui confiant des obligations d’aménagement du , montrant avec la régulation . Par ce contrôle, le régulateur exerce un pouvoir plus que technique.

Compliance and Regulation Law bilingual Dictionnary

"Network industry": this is an expression easily used to designate economic activities which involve a "transport network", which includes telecommunications (which carries voice, images, "data"), railways ( which carries cars, people, goods), electricity (which carries electrons), post office (which carries letters, packages), highways (on which cars and trucks run), etc.

It is also customary for them to oppose banking, finance and insurance activities, which develop in businesses (banks, insurance companies) or in places (financial markets).

This presentation, however usual it may be, is not very happy in that it opposes the two types of activity. This "opposition" undoubtedly corresponds more to the fact that the first economic activities are traditionally governed by public Law because they were the fruit of public enterprises under the supervision of the State and the control of the Conseil d'Etat, while the second activities economic, because the issuers of securities or insurance contracts are private companies, are subject to private Law and control by the judicial jurisdiction.

Indeed and in reality, financial centers, like networks, constitute essential facilities and banking regulation resembles energy regulation in many ways, both centered on risk. Having thus given way to the autonomous concept of network industries at this point is in practice harmful, in particular by the fragmentation of knowledge and jurisdictional skills.

Even more, the development of digital technology, which today constitutes a global space perhaps synonymous with "globalization", sweeps away this distinction because digital technology only develops with the support of a network (the web) and in this space all activities take place. deploying, in particular banking and finance, while the question of data becomes a primary issue there, data no longer being the prerogative of "network industries".

Compliance and Regulation Law bilingual Dictionnary

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.

Compliance and Regulation Law bilingual Dictionnary

Asymmetry is a key concept of regulation. Indeed, a competitive market works well when operators are in symmetrical relationships, ie there is no structural obstacle which prevents an agent from increasing his power solely on his merits (" competition by merits "). If there is an asymmetry, for example because a sector is monopolistic and the legislator has just declared it open to competition, there is a temporary asymmetry between the installed companies, the incumbent operators and the willing companies to enter this new market, the "new entrants". Historical operators, such as in the telecommunications or energy sector, when they were opened to competition by European directives, transposed by national laws (in french Law in 1996 for telecommunications and gas, in 2000 for electricity), benefit (sometimes referred to as grandfather clause), in particular because they have all the clients or all the know-how or all the patents, and that, in fact, the competitors can not enter the market. It is then necessary to establish a regulator also a priori temporary itself  to establish to forceps the competition, by an asymmetrical regulation.
 
Asymmetric regulation, particularly applied in Great Britain at the time of the liberalization of the aforementioned sectors, means that the regulator will systematically favor new entrants, for example by dispossessing the incumbents for their benefit to make them on the market. Today, in the telecommunications sector, competition, notably on mobiles, is established, but the regulator does not intend to leave its place to disappear and today supports "symmetric regulation" .... Instead, it acts as a specialized competition authority.
 
Asymmetry may not be temporary but definitive, when inequality between operators, regardless of merit, does not come from a context of liberalization but from a structural failure of the market. For example, there are transport networks, transport of passengers or goods, railways or airstrip for airplanes, data or voice communication networks, pipes where gas or electricity circulate, etc., which belong to a single operator because they constitute economically natural monopolies. Under these conditions, the competitors of the monopoly must nevertheless have fair and effective access to this service and a regulator must necessarily be established for the effectiveness of that right (see Access).
 
Moreover, the Nobel Prize of Joseph Stiglitz (2001) was justified by his work on the asymmetry of information on certain markets, in particular the financial markets on which companies offer securities. Through the theory of the agency, it appears that the ordinary partners or ordinary investors have less information than the managers, even though the latter have the function of making decisions that bring the most to the former. But information asymmetry offers managers an "information rent" that allows them to offer many benefits and transfer risks to others. Regulators, in particular banking and financial regulators, are needed to combat information asymmetry. Transparency is one of the procedural means to combat this asymmetry. The financial and banking crisis of 2008 showed the extent of this asymmetry and, in fact, the inability of regulators to remedy it, for example, the British government estimated in 2010 that it was the financial regulator itself that was responsible for the crisis for not having sufficiently watched over conflicts of interest. In general, the global financial crisis was often later characterized as a crisis of regulators and regulation.
 
 

Compliance and Regulation Law bilingual Dictionnary

Rating agencies are private companies that assess the risk of defaulting payment by debtors. As such, the rating of a borrower affects the value of the debt security it issued and that is to circulate in the markets. That is why the activity of credit rating agencies is critical to the security of financial instruments and the functioning of financial markets, but also to the whole global credit system. For instance, an AAA rating guarantees security to investors. Rating agencies helps building trust in financial markets and in the banking system. Henceforth, since everyone relies on them as they save people's time from seeking on their own information on securities or on those who issue them on the marks, international rating agencies have become crucial operators.

'Rating' has also become a business, which is now concentrated within the hands of three undertakings (two American and one French). It has often been said that these three are conflicted. Some have indeed brought up the fact as they have provided the markets with unreliable information (especially about subprime and securitization) prevented them to self-discipline, which eventually participated in the global spread of risks and defaults.

The difficult history between the rating agencies, whether they are considered as mere businesses, crucial operators or as companies undertaking a public service, which eventually led to implement a specific Regulation in the immediate aftermath of the financial crisis, shows how the information is a public common. This justifies the intervention of the Financial Regulator, namely to better protect the consumer. Should we go further on? Some have mentioned the idea of ​​nationalizing the business and hand it over to Government institutions (or at least public ones). This is, however, no longer on the agenda, as many conflicts of interests may arise since rating agencies keep on rating the paradoxical debtors that States are.

Compliance and Regulation Law bilingual Dictionnary

The United States established regulatory authorities at the end of the 19th century: starting from the principle of the market, they tempered it by setting up regulators, after noting market failures, for example in terms of transport, in the event of economically natural monopolies or essential facilities. The tradition of the European Union is the reverse since the States, in particular the French State, have considered that sectors of general interest, deemed unsuitable for the competitive pattern because not corresponding to the operational pattern of the meeting of supply and demand, and to serve the missions of public services, were to be held by the State, either directly by public establishments, or by public enterprises under the supervision of the ministries.

Evolution in Europe came from community Law. Indeed, after the Second World War, the idea was to build a market which was to be "common" to European countries so that they could no longer wage war on each other in the future. To achieve this goal, the borders between them were lifted thanks to the principles of free movement of people, goods and capital. In the same way, the defense by each of the States of its own national companies by State aid has been prohibited so that any company, even foreign, can enter its territory, so that a common internal market can be established. Finally, a competition Law was necessary to prohibit companies and States from hindering the free functioning of the market, which would have slowed down or even stopped the construction of this internal market, which was an essentially political goal of the Treaty of Rome.

To carry out this political goal, the European Commission and the Court of Justice of the European Union (CJEU, previously called the Court of Justice of the European Communities - CJEC - until the Treaty of Lisbon) have prohibited any behavior of agreement or of abuse of a dominant position, even on the part of public enterprises, as well as any state support (except in the event of a crisis). Likewise, in perfect political logic, but also in perfect contradiction with European national traditions, European texts, regulations or directives have liberalized previously monopolistic sectors, first of all telecommunications and then energy. This was the case for telecommunications with the 1993 directive, the 1996 directive for electricity and the 1998 directive for gas.

Because of the hierarchy of standards, the States, except to be sued before the Court of Justice by the European Commission in action for failure, were obliged to transpose by national laws these European texts. Thus, by force, community law, both through general competition Law, but above all to achieve its political goal of building a single and initially peaceful internal market, has triggered in Europe a system of economic regulation in all network industry sectors, a system which was nonetheless foreign to the culture of the Member States. This was not the case with banking and insurance regulations, sectors which have always been threatened by systemic risk, and as such have been regulated and supervised by national central banks for a very long time.

Community Law has for 30 years plunged into national Law while ignoring them, which could also be profitable, and on the basis of competition Law, the political dimension of the European project having been forgotten, no doubt over time as the War itself faded from people's minds.

The effects of globalization and the financial crisis have constituted a new turning point in Community Law which, since 2010, has been built no longer to modify national Laws - and destroy them in part - but to build a new Community Law which should neither to Competition Law nor to National Law: Community Regulation Law, which makes room for individual rights and attempts to build over time a system that is robust to crises. Thus, by texts of the European Union of 2014, both a Banking Union and a new Law on Market Abuse is being built, which aims to establish a common law for the integrity of financial markets.

One of the challenges is what could or should be reconciliation between the two Europe, an economic and still not very social Europe on the one hand and the Europe of Human Rights, which is based on the European Convention on Rights of Man. This is not on the agenda.

Compliance and Regulation Law bilingual Dictionnary

Network industries are built on transport infrastructure such as telecommunications waves or data, gas or electricity, which are essential facilities.

These essential infrastructures are monitored by regulators not only for the operators to have a concrete right of access but also for a complete network of these infrastructures to be built in a space, especially in Europe, for example to achieve a European railway system.

These infrastructures also exist in banking, financial and insurance matters, which it would be futile to oppose too easily to Network industries, as financial centers are based on huge computer systems, internalized clearing houses, which are themselves Infrastructure, deserving Regulation.

In this way, the optimal infrastructure solidity, the Regulator having its final responsibility in a permanent control over the manager, whether the State or an operator - whether the operator is an operator Public or a private operator -, and the competitive dynamism of the sector that the system can also entrust to the same regulator.

This is particularly the case in Financial Regulation, which aims to optimize the places, which compete with each other, and their respective security, which itself constitutes a competitive advantage, common to all operators.

Compliance and Regulation Law bilingual Dictionnary

Self-regulation refers to a system capable of defining its equilibrium by its own forces or, if there is a dysfunction in it, to restore them equally by its own forces. Self-regulation refers to a system capable of defining its equilibrium by its own forces or, if there is a dysfunction in it, to restore them equally by its own forces. Thus, the competitive market for ordinary goods and services is self-regulated. Indeed, since there are no barriers to entry and there is information on products and prices, coupled with mobility of atomized consumers, consumers permanently make functioning competition between offers, this elaborating the right price. If an agent fixes an abusive high price, a third party outside the market will enter it to offer consumers a lower price, the new entrant coveting that rent, and consumers, by nature unfaithful, thus changing supplier.  Essential is therefore free trade, the absence of a barrier to entry and the absence of eviction from one undertaking to another, eviction being the most serious anticompetitive practice. Thus, competition law is based on the premise of a self-regulated market. In these circumstances, it is only on a case-by-case basis that anti-competitive conducts, agreements and abuses of dominant position can be found. They are then sanctioned ex post by the competition authority which, by appropriate sanctions, somehow "repairs" the market.

The Regulation is based on an inverse postulate, since it postulates that the market in question has not had the strength to create or maintain its own equilibrium, either because liberalization is too recent or because it there is definitely an economically natural monopoly, either because there is an asymmetry of information, etc. Therefore, there can never be self-regulation. The border between competition and Regulation can not be simpler and need to be more clearly defined. It is true that competition authorities have sought to promote the notion of "competitive Regulation" and that the French law of 4 August 2008 sur la modernisation de l'économie (LME)  (on the modernization of the economy) adopted this vocabulary, in particular in the Ordinance of 13 November 2008 came to apply it expressly by modernizing the "regulation of competition". In France, the Competition Authority has become accustomed to labeling its annual report "Regulation", which expresses the claim of this body to practice what it calls "horizontal regulation", intervening directly in the organization of the structures and behaviors. We then leave the traditional and American notion of Regulation as a mark of liberalism, intervening only in the event of structural market failure, to return to the traditional French tendency to the administered economy. The doubt stems from the fact that no structural failure justifies such a general state control over ordinary markets.
 
It can also be argued that Regulation can be done in a way other than through the adjustment of interests between the bidders and the applicants, not in an exogenous way, in particular by injonctions of public regulator but by the endogenous prescriptions of the actors, for example via "codes of conduct" or "ethical charters". We must then distinguish a moral conception of self-regulation from a sociological conception of self-regulation. The moral conception aims at the idea that operators of the same sector have internalized norms of behaviors that are not natural, but that have been inculcated by impregnation, by moral sense, through ethics. Professional ethics therefore emphasizes professions, in particular the liberal professions, in that they are able to distance themselves from market values, essentially money, in order to prefer moral values ​​to them, essentially the protection of the weak persons, or the protection of the environment, or the concern for future generations. The competition authorities reject the relevance of this ethical self-regulation, which is claimed by professionals such as lawyers and doctors. The European Commission in particular tends to subject them to the ordinary law of companies in a competitive market for the right or the health service. In the same way, banks are treated in European law as "ordinary" firms and not as operators in charge of a public service (financing the economy, caring about social inclusion), still less expressing a specific professional morality.

Today we live at the same time a certain despair in front of the pretension of the self-regulation ethics, because the banks pretended to do it and the information brought by the financial crisis lead to take some distance in relation to this moral discourse, while that at the same time we are called to a renewal of this moral sense in business and in capitalism. Social responsibility can constitute this renewal.

Finally, self-regulation can be sociological when a sector is composed of people who know each other, whether they work in companies, in the administration or in the regulatory body. The case is all the more widespread because it corresponds to the organization of the network society. This is actually a self-regulation by club effect. The danger of this self-regulation is no longer at the risk of a moralizing discourse that is more a matter of marketing, but of an almost unconscious compromise of the regulator, thus captured by habit or friendship. The regulatory system must also seek to break this self-regulation, which is dangerous for the impartiality of the regulator.

Compliance and Regulation Law bilingual Dictionnary

The procedural guarantees from which the person benefits are mainly the right of action, the rights of defense and the benefit of the adversarial principle.

While the rights of the defense are subjective rights which are advantages given to the person at risk of having his situation affected by the decision that the body which is formally or functionally legally qualified as a "tribunal", may take, the adversarial principle is rather a principle of organization of the procedure, from which the person can benefit.

This principle, as the term indicates, is - as are the rights of the defense - of such a nature as to generate all the technical mechanisms which serve it, including in the silence of the texts, imply a broad interpretation of these.

The adversarial principle implies that the debate between all the arguments, in particular all the possible interpretations, is possible. It is exceptionally and justified, for example because of urgency or a justified requirement of secrecy (professional secrecy, secrecy of private life, industrial secrecy, defense secrecy, etc.) that the adversarial mechanism is ruled out. , sometimes only for a time (technique of deferred litigation by the admission of the procedure on request).

This participation in the debate must be fully possible for the debater, in particular access to the file, knowledge of the existence of the instance, the intelligibility of the terms of the debate, not only the facts, but also the language (translator, lawyer , intelligibility of the subject), but still discussion on the applicable legal rules). So when the court automatically comes under the rules of Law, it must submit them to adversarial debate before possibly applying them.

The application of the adversarial principle often crosses the rights of the defense, but in that it is linked to the notion of debate, it develops all the more as the procedure is of the adversarial type.

Compliance and Regulation Law bilingual Dictionnary

Europe is a political project.

This project was conceived at the end of the second world war with the aim of never having a war between the European countries. For this Jean Monnet had the idea of building an economic market as the first step, the second step being a political government. This second stage remains to be established today, since the European Constitution has failed.

Europe is therefore in the middle of the ford since Community law has built the three freedoms of movement and competition law, but we have no economic policy or market governance. Thus, for none of the regulated sectors of the European regulator, many say, for example, the need for a European banking and financial regulator. The financial crisis that the United States exported to Europe has generated the secondary benefit of laying the foundations of the European banking Union and coordination of financial markets is being put in place.

But historically, Europe has exercised its power and weight on the Member States by its own Competition Law and the principle of freedom of movement and installation without associating or replacing it with European regulatory perpective or that the Member States can effectively oppose their traditional system of centralized regulation, for example, through the mechanism of State control over public monopolistic enterprises.

Moreover, in a movement perceived at first as a great aggression but more in line with the prospect of building a "Europe of Regulation", through the directives of liberalization, first of all concerning telecommunications, then Electricity, and then gas, in energy or telecommunications, Europe has imposed on States the guidelines for the new regulatory systems, which continue to remain national. It was spontaneously that the National Regulators were in each of the sectors networked to exchange information, to increase their effectiveness. As long as Europe can not establish an economic government, because there will not be a political Europe, it will be difficult to argue that there is a Europe of Regulation, insofar as regulation is a triangle between economics, law and politics, and the latter is most often lacking at European level, for example in the technological choices to be made in the sectors.

The movement has historically been very differently in finance. It did not come from Europe, but from the United States and did not take a binding form. Countries, notably France, wanted to gain the confidence of foreign investors, decided in the late 1960s to opt for models of independent regulators: the "Commission des Opérations de Bourse -COB" was designed on the American model of the Securities and Exchanges Commission -SEC".

Only in the aftermath of the financial crisis, itself of banking origin, did Europe appear in these sectors. Europe is in the making. It is based on the European Central Bank (ECB). This evolution can produce a rebalancing of institutions and subjects, with the ECB coming in balance with the European Commission, which remains focused on Competition Law.

But there are "two Europes". The first, described above, is "economic" or of the "political economy." The second is the Europe of Human Rights, constructed by the same catastrophe constituted by the Second World War on the European Convention on Human Rights. Human Rights (ECHR). They are articulated closely, but sometimes with difficulty, in the Law of Regulation.

 

 

Compliance and Regulation Law bilingual Dictionnary

In a competitive market, information flows spontaneously through the prices that are communicated by sellers on the goods they offer, with demanders inquiring about the quality of the products. Admittedly, it may happen that there is a shortfall through collusion or abuse of a dominant position that disrupts the relevance of this information, which the competition authority will sanction and rectify ex post. But markets can be affected by structural market failure. This is especially so when there is an information asymmetry. In such a case, the regulation and its permanent conductor, the regulator, will capture the information and circulate it.

Information is crucial, especially in financial markets because financial instruments are themselves information about the economic value of the companies that issue them. The regulator must ensure not only that this information is accurately communicated to the market, but also that it is shared among all market players. This is why all financial regulatory systems provide for the sanction of insider trading, whereby the holder of information that he does not share with others (inside information) uses it to obtain information on the market. Benefit that others do not get.

The texts on market abuse, on breaches or insider trading or on the dissemination of false information on the financial markets are increasingly severe because, in a knowledge economy, information is the material of confidence in the financial industry and banks and ensures the dynamism of the system. This justifies that some have gone so far as to see it as a common good, that is to say a value to which everyone can have access. The movement is even more powerful in the area of ​​health, since information on health products and procedures is now a global good because of the dangers of this beneficial and regulated medical activity.

Compliance and Regulation Law bilingual Dictionnary

The Regulation is a balance between the principle of competition and another principle. This other principle is a technical principle, for example the prevention of systemic risks or the management of economically natural monopolies. The regulatory system can, maybe must, then remain "neutral". Indeed, neutrality can be defined as the absence of choice made by a few for the future of the group. But Regulatory Mecanism can also mean balancing the principle of competition with a principle that is no longer economic, technical or political, such as access to a common good such as health or culture. In such a case, Regulation ceases to be neutral since there has been a collective choice politically positing that health, education or culture are superior goods.

This has direct implications for the very existence of the Regulator. Indeed, regulators often present themselves as technical, neutral bodies that do not need political legitimacy, since they do not make choices for the social group. This is true only in the first hypotheses but not in the second, where only the democratic State is legitimate to operate them, which explains the return of the State to many regulated sector issues, for example as regards the preference in matter of energy production mode, from renewable energy to nuclear energy, involving the return to a ministry of energy, as well as the shift from financial regulation to ever greater power given to central banks.

The issue today is about the growing importance of what should be the principle of "net neutrality". The question is: Does the Internet, in that it has given birth to digital, assume that every Internet user can access any site without interference, or can content operators and access providers give priority to some websites by directing users to them, either to manage congestion (neutral technical justification) or because they have been paid contractually by this site (non-neutral justification)?

The question remains between the fundamental right of access of Internet users, the technical need to manage congestion, the need not to invest even more to increase bandwidth, and the freedom to undertake operators.

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The concept of 'Agency', sometimes confused with the one of 'Regulator', designates a way of deconcentrating the State. Away from a French Jacobin outlook, states have indeed gradually devolved their sovereign responsibilities to other institutions, which are often geographically distant from the state's political capital city. These agencies are a form of technical decentralization because they are in charge of operational tasks and specific expertise, e.g., as regards employment, environment or health issues. This model, which is very common in Scandinavian countries, is often associated with federal structures, like in the United States. It is still fairly remote to the French model that remains to this day built on the idea of a centralized and unified State. So far, France has only developed a few agencies (e.g., France Trésor, tasked with managing France's government debt and cash positions).

In a different perspective, although the two notions are homonyms, the American financial theory developed the notion of 'agency' to describe the relationship between the corporate officer (the agent) and the shareholder (the principal), who empowers the first to act on his behalf to serve his interest. Information asymmetry and conflict of interest mark this relationship, which explains that this theory helped developing multiple safeguards, conveyed by the Financial Regulation.

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Criminal law is a very special branch of law.
While it expresses in the highest degree the "legitimate monopoly of State violence”, which cannot develop beyond the borders because it is intimate to the regalian power, and should in this respect be governed by Public Law, it is traditionally inserted in Private Law. This is due to the fact that Criminal Law is conceived as a legitimate exception to the liberty of persons (to act as they wish - to which the criminal prohibitions are opposed - to come and go - Imprisonment contravenes). The judicial judge in so far as he is constitutionally the guarantor of the freedom of persons is therefore the natural criminal judge.
Criminal Law can therefore be applied only through the office of the judge, which is inseparable from criminal proceedings, whereas other substantive branchs of law (Civil Law, administrative Law, Commercial Law, etc.) applies apart from the corresponding procedure (civil procedure, administrative litigation, commercial procedure, etc.), or even to apply without trial.
Because it is an exception, Criminal Law is constitutionally limited, by the principle of legality of offenses and penalties, of by the principle ot strict interpretation, of interpretation in favorem. Because it has a logic of its own, it constitutes within the legal system a branch of the so-called "autonomous" law, which does not take account of other branches. Moreover, it takes precedence over them, the criminal decisions having absolute authority, the criminal holding the civilian in a state.

But economic law, and even more the regulatory law, has completely challenged this powerful classical conception.

Indeed, the teleological Regulatory Law aims at achieving its goal: to balance the principle of competition and other concerns, such as access to common goods or the prevention of systemic risks.
In this very dynamic and systemic conception, law is only an instrument. It is sought only in its ability to produce the desired effect. The criminal law then both enhanced and will fall from its pedestal.
Indeed, sanctioning power, including fines and prohibitions, is considered the necessary and ordinary core of what must be effective regulatory system. Thus the laws increased the amounts incurred.
But because the issue is effectiveness with regard to the goals, Criminal Law becoming an instrument, it thus loses its autonomy. Its interpretation is made in the light of the other rules which it ensures the effectiveness, rules of Public Law, Company Law, Civil Law, system of proofs, etc. Moreover, because it must be effective, its interpretation ceases to be strict: teleology often involves a broad interpretation.
Its intimacy with the State dissolves and the emergence of a criminal law from the markets imposes itself, whose contours follow the markets themselves. Thus, the repression of market abuse is organized on a European scale and most often a decal of American Law. Global Criminal Law is being put in place. It applies outside the trial, notably through the transaction or settlement, which flows the criminal law into the contract.
To apply more broadly, the evidence changes in nature, admits presumptions


Criminal law is dissolved in the law of repression, which is better conceived in a repressive administrative rules, applying objectively to breaches. The passage from one to the other, the cohabitation of one with the other, is done with difficulty, as shown in the European saga Non bis in idem.
Whatever the country, constitutional courts, whose office is to defend the rights and freedoms of individuals, tend to defend the classical conception of Criminal Law, while regulators tend to defend the regulatory conception of the objective sanction of failures.

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Accounting is a kind of photography of the "value" of the company, of its heritage, balancing its assets and liabilities but also integrating its past activity but possibly its future activity. Accounting, an information tool, becomes a tool not only for the manager, the shareholder, the co-contractors, but also for the present or future investor, that is to say the market.

Classical accounting, of German origin, valued the company's assets at their historical cost (for example the purchase price of goods), but the new accounting standards, under British influence and through the proposals of the International Accounting Standards Board (IASB), wanted to bring together the notion of value and that of the market. Indeed, a property has a value corresponding to the price that a potential buyer will give it and not to the price that its current owner has paid to acquire or control it. This notion of fair value or market value has led to the valuation of assets at their net asset value. We have therefore come closer to more exact prices, in line with the very notion of competitive prices but also extremely variable with the markets, the financial markets themselves being disconnected from the real economy by speculation. As a result, weakening markets weakened balance sheets and a domino effect playing between balance sheets and markets, especially with regard to banks, greatly contributed to the 2008 financial crisis. However, while financial activity did not cannot be thought of apart from an accountancy playing a central role in the information and in the confidence of the investors, the basis of the current accountancy, inseparable from the regulation of the banking and financial market, has not been replaced for the moment.

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Air

The airline industry was the first regulated sector in the 1920s This reflects the fact that air transport implies that people can travel from one state to another state, which justified an early multilateral system of international agreements between States , under public international law, each retaining its share of sovereignty and its national company (eg. British Airways).

But the principle of competition making the organization more complex through the mechanisms of open sky that allow an airline company to offer its services abroad, regulation must be more open to competition.

In addition, the regulation of air cares more risks by adopting global safety standards to be imposed on all operators in the conduct and maintenance procedures of the equipment.

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The Independent Administrative Authority (IAA) is the legal form that the legislator has most often chosen to build regulatory authorities. The IAA is only its legal form, but French law has attached great importance to it, following the often formalistic tradition of public law. They are thus independent administrative authorities, especially in the legal systems of continental law like France, Germany or Italy.

The essential element is in the last adjective: the "independent" character of the organism. This means that this organ, which is only administrative so has a vocation to be placed in the executive hierarchy, does not obey the Government. In this, regulators have often been presented as free electrons, which posed the problem of their legitimacy, since they could no longer draw upstream in the legitimacy of the Government. This independence also poses the difficulty of their responsibility, the responsibility of the State for their actions, and the accountability of their use of their powers. Moreover, the independence of regulators is sometimes questioned if it is the government that retains the power to appoint the leaders of the regulatory authority. Finally, the budgetary autonomy of the regulator is crucial to ensure its independence, although the authorities having the privilege of benefiting from a budget - which is not included in the LOLF - are very few in number. They are no longer referred to as "independent administrative authorities" but as "Independent Public Authorities", the legislator making a distinction between the two (French Law of 20 January 2017).

The second point concerns the second adjective: that it is an "administrative" body. This corresponds to the traditional idea that regulation is the mechanism by which the State intervenes in the economy, in the image of a kind of deconcentration of ministries, in the Scandinavian model of the agency. If we allow ourselves to be enclosed in this vocabulary, we conclude that this administrative body makes an administrative decision which is the subject of an appeal before a judge. Thus, in the first place, this would be a first instance appeal and not a judgment since the administrative authority is not a court. Secondly, the natural judge of the appeal should be the administrative judge since it is an administrative decision issued by an administrative authority. But in France the Ordinance of 1 December 1986 sur la concurrence et la libéralisation des prix (on competition and price liberalization), because it intended precisely to break the idea of ​​an administered economy in order to impose price freedom on the idea of ​​economic liberalism, required that attacks against the decisions of economic regulators taking the form of IAA are brought before the Court of Appeal of Paris, judicial jurisdiction. Some great authors were even able to conclude that the Paris Court of Appeal had become an administrative court. But today the procedural system has become extremely complex, because according to the IAA and according to the different kinds of decisions adopted, they are subject to an appeal either to the Court of Appeal of Paris or to the Conseil d'État (Council of State) . If one observes the successive laws that modify the system, one finds that after this great position of principle of 1986, the administrative judge gradually takes again its place in the system, in particular in the financial regulation. Is it logical to conclude that we are returning to a spirit of regulation defined as an administrative police and an economy administered by the State?

Finally, the third term is the name itself: "authority". It means in the first place an entity whose power holds before in its "authority". But it marks that it is not a jurisdiction, that it takes unilateral decisions. It was without counting the European Court of Human Rights (ECHR) and the judicial judge! Indeed, Article 6§1 of the European Convention on Human Rights states that everyone has the right to an impartial tribunal in civil and criminal matters. The notion of "criminal matter" does not coincide with the formal traditional concept of criminal law but refers to the broad and concrete factual concept of repression. Thus, by a reasoning which goes backwards, an organization, whatever the qualification that a State has formally conferred on it, which has an activity of repression, acts "in criminal matters". From this alone, in the European sense, it is a "tribunal". This automatically triggers a series of fundamental procedural guarantees for the benefit of the person who is likely to be the subject of a decision on his part. In France, a series of jurisprudence, both of the Cour de cassation (Court of Cassation), the Conseil d'État (Council of State) or the Conseil constitutionnel (Constitutional Council) has confirmed this juridictionnalization of the AAI.

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The contract is the main natural and legal instrument of the competitive market. It seems foreign to the regulatory system which, close to the "regulation" (texts) seems more express itself in administrative unilateral acts.

But this division is fading because the contract is an effective tool because it makes gained acceptance recipient of the norm, becoming the preferred instrument of public policy. The Regulator will use it the more so as on the one hand by the contract operators bring him information and on the other hand, operators have the power to disobey him. That is why the contract is a major figure in the Regulatory system.

The self-regulation mechanism goes further, since the Regulatory system itself is built on contractual commitments, exempting exogenous rules and regulator.

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The Ex Ante, the usual expression in Economic vocabulary, corresponds to the more traditional expression in Law of A priori, and refers to the apprehension of a situation before it is constituted. For example, a law or a regulation is an ex ante act, which will regulate situations after the adoption of the text, of the decision or general disposition adopted by an authority. There is no retroactivity. Conversely, Ex Post, the usual expression in Economics and which corresponds in Law to the A posteriori, refers to a reaction of an organism to a situation or a behavior observed. Thus all individual decisions on sanctions, or all dispute or mediation settlements, come under ex post. For example, judicial acts fall under ex post.

Competition Law is usually recognized in that it develops in the ex post, since the market is established and the competition authority reacts to anti-competitive practices, which may be sanctioned, ie in ex post . Conversely, because it is a question of building competition or of maintaining non-natural balances on a permanent basis in sectors, Regulation Law uses tools that could be called "blank pages", essentially regulations, that is to say ex ante. This explains why the English term of "regulation" express at the same time the regulatory system as a whole and the texts adopted, the regulations (in French "réglementation"), because this ex ante tool is so important, is to intimate with regulatory spirit and  perfectly expresses this ex ante distinguishing Regulation Law from Competition Law.

This opposition is fundamental because it not only sheds light on the distinction between competition and regulatory system, but also dictates the distribution and scope of powers. Indeed, to simply react ex post, it is enough to have a power to punish, to order reparations, to decide the different. Ex-ante intervention requires much greater powers since the regulatory authority dictates behavior in order to build markets and sectors. This magnitude of ex-ante powers explains that the title of regulator is so envied, and that even competition authorities sometimes present themselves as regulators of competition, as if constructing them beyond defending them, in particular by the adoption of provisional measures. Confusion is often made or even maintained by the oxymoron of "competitive regulatory system" made by these Competition Authorities, even if they are not limited to a specific sector.

This shows the fragility of the distinction between ex ante and ex post. Indeed, it may be open to criticism that competition authorities seek to appropriate ex-ante powers to exercise them on all markets, even though these markets do not justify the exercise of regulatory mechanism, but it is true that it exists a continuum between ex ante and ex post. This continuum is exercised in both directions. In the sense of the ex-ante to the ex-post, it is the Regulator himself who, after having taken the ex ante standards, ensures its effectiveness through continuous monitoring and sanctioning failures.

Moreover, in the sense of the ex-post to the ex-ante, because, as gaming theory shows, especially in the banking and financial markets, agents are anticipatory, a decision to sanction or to settle different is interpreted as a signal, for example of severity or warning, of tendency, a kind of act of doctrine of authority, that the operators have integrated into their future behaviors. Thus, the ex post act becomes the cognitive ex ante.

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In the traditional scheme, the administration does not need to be independent, since everyone has a sense of the general interest. In the system of regulation, which refers to a theory of suspicion, the regulator must necessarily be independent both from the government and from the operators, because both seek their particular interests (their own utility function).

Independence is defined as the material and psychological condition that allows the beneficiary to decide impartially, that is to say without having to follow orders formulated by a third party, or even be influenced by him. To meet this requirement, the regulator in France takes the form of the Independent Administrative Authority, with conditions for the appointment of members, the functioning of the institution and the allocation of the budget carefully established by Law.

The independence of European regulators is even stronger than in the United States, since they are not part of a check and balance system and as such no one keeps them.

The combination of their power, to which independence contributes, and their irresponsibility have been criticized.

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The theory of essential facilities was invented in the United States (essential facilities) by the Supreme Court in a judgment of 1911, based on competition Law alone.

The Court ruled that the operator of a transport network has a natural monopoly since no other economic agent will duplicate it. Therefore, by this fact alone, it is in a dominant position and has the power to impose its prices on companies that have no other solution than to request from it access to means of transport. The Court considered that there was abuse of a dominant position, either because there was refusal of access, or because there was too high a price for this access, the sanction then not being damages but compensation in kind consisting in forcing the network operator to open up access to it at a fair price to its competitors.

Thus the theory of essential facilities, taken up in Community Law in 1978 and then in French Law, made it possible on the sole basis of competition Law and by judicial ingenuity to achieve the same ex post result as an ex ante regulation system. network industries.

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Le Fond Monétaire International (FMI), crée en 1945, a pour fonction historique d’intervenir pour aider les États en cas de crise financière grave. Par la technique de conditionnalité des prêts, le FMI a dépassé ce rôle de prêteur pour devenir une sorte de tuteur et imposer des réformes structurelles, notamment de libéralisation des économies dont les gouvernements lui demandaient une aide financière.

La crise financière de 2008 lui a donné une nouvelle importance car le Fonds apparait aujourd’hui comme le seul organe apte à intervenir en cas de crise financière et économique systémique mondiale, puisqu’il est le seul organe mondial. En cela il aurait vocation à être le nouveau et pour le moment seul régulateur économique et financier mondial. Reste à ce qu’il en ait les moyens financiers et à ce que les États acceptent cette dépossession de souveraineté.