June 21, 2021
Compliance: at the moment
📧Regarding Compliance: Observations on the first steps of the European Public Prosecutor and her conception of the EPPO's Action: on Health, Infrastructures and Agriculture
► It is in its "Risk and Compliance" section that the Wall Street Journal, by its article of June 18, 2021 (➡️📝Europe's Chief Prosecutor Has 300 Cases on Her Plate Already), presents the first steps of the European Public Prosecutor’s Office, since June 1, 2021.
This inclusion presupposes that it is through a Compliance Law perspective that this new body must be understood, in order to understand and anticipate its action.
►In this perspective :
➡️📧Frison-Roche, M.-A., European Public Prosecutor's Office comes on stage: the company having itself become a private prosecutor, are we going towards an alliance of all prosecutors?, June 2, 2021
➡️ 💬Frison-Roche, « Le parquet européen est un apport considérable au Droit de la Compliance » (“The European Public Prosecutor's Office is a remarkable contribution to Compliance Law"), June 14, 2021
I. AN ACTION THAT WILL FOCUS ON FIGHTING THE MEANS USED TO DAMAGE THE FINANCIAL INTERESTS OF THE EUROPEAN UNION
The article of the Wall Street Journal takes the form of an interview with the European Prosecutor. Her responses also confirm the consubstantial link between European Public Prosecutor's Office and Compliance Law.
It is remarkable that she immediately says that she hopes the treatment of many cases, especially on healthcare and infrastructure sectors: "Our expectation is to have more cases, especially in the healthcare system, in public procurement, infrastructure, and also in agriculture ".
However, the 2017 European Regulation which established the European Public Prosecutor’s Office said that its "mandate" is to prosecute offenses affecting the "financial interests of the European Union", without being hampered by the cumbersome procedures for cooperation between States while these offenses are most often cross-border.
But one could think that, knowingly taking the means (corruption, money laundering) for the goal, the European Public Prosecutor's Office would immediately pursue not only the defense of the financial interests of the Union (admittedly financial interests damaged by corruption or money laundering) but these facts themselves: thus the European Public Prosecutor's Office works with the European Supervisory Authorities, in particular banking and financial authorities, which fight in Ex Ante against these offenses and prevent them.
II. AN ACTION THAT FOCUSES ON SECTORS NOT LEGALLY REGULATED IN EX ANTE BY SECTORAL REGULATORY AUTHORITIES
Moreover, it will be noted that the European Prosecutor is targeting three economic sectors which are not "regulated sectors" in the legal sense of the qualification, that is to say not monitored by a sectoral Regulatory and/or Supervision Authority: Health, Infrastructure and Agriculture.
Thus, the power of Regulatory Law, which relies in its Ex Ante, and its weakness, which derives from the pre-required existence of a sectoral Authority, is compensated: the action of the Public Prosecutor's Office is not limited to legally regulated sectors.
While Competition Authorities are mandated (➡️📅La concurrence dans tous ses états, June 25 and 26, 2021) to protect the competitive functioning of the markets, a Public Prosecutor's Office can deal with any infringement without having to determine a market.
For instance, Infrastructures don't constitute pertinent markets but can constitute fields for criminal activities, such as corruption or money laundering, justifying Compliance Law mechanisms.
What the new European Prosecutor is aiming for, namely Health, Infrastructures and Agriculture, have undoubtedly been damaged both by the sole primacy of the Competition perspective and by a Criminal Law constrained by the difficult inter-State cooperation, even though they are not subject to a supranational Ex Ante Regulation.
The European Public Prosecutor's Office aims to directly improve this, through Entreprises acting in Health, Infrastructures and Agriculture.
March 25, 2021
Compliance: at the moment
Toujours réguler en tenant compte de la nature des choses : le Droit de la Régulation énergétique et l'obligation de stockage
Aug. 24, 2020
Newsletter MAFR - Law, Compliance, Regulation
The control by regulator of the essential infrastructure manager's investment plan: example of electric network and the notion of "doctrine"
Full reference: Frison-Roche, M.-A., The control by regulator of the essential infrastructure manager's investment plan: example of electric network and the notion of "doctrine", Newsletter MAFR - Law, Compliance, Regulation, 24th of August 2020
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Summary of the news
On 31st of July 2020, the Commission de Régulation de l'Energie (CRE and French energy regulator) has examined the investment plan of the French electric network manager (RTE) as it does every year. This investment plan is an economic document but it also contains societal purposes, especially the adaptation of the electric network in order to integrate renewable energies.
The control by the CRE is not a financial control. The crucial operator (RTE) is free to decide the way it wants to manage its budget. The CRE just advices on the financial side by recommending for exemple to be more flexible in its financial strategies. The true CRE's control is about the investment plan's general orientations, the methodology of needs analysis and crucial operator's investment choices which must be aligned with those of the regulator.
Such a control leads to the emergence of an "investment doctrine" from the side of the crucial operator, mixing its own choices and the regulator's guidelines. Beyond this, the elaboration of the investment plan is the result of a true co-writing between the regulator and the firm which discuss together, exchanges points of view and methods. Such a method, expressing a kind of coregulation, could be used in other sectors.
May 21, 2009
Économie et droit de la régulation des infrastructures essentielles. Perspectives des pays en voie de développement (co-dir.)
Lire le résumé de l'ouvrage ci-dessous.
Consulter l'ensemble de la Collection dans laquelle l'ouvrage a été publié.