Food for thoughts

Référence complète : Response to the Study on Directors’ Duties and Sustainable Corporate Governance by Nordic Company Law Scholars, octobre 2020.

Lire le rapport

► Référence complète : A.-M. Ilcheva, "Condamnation de Shell aux Pays-Bas : la responsabilité climatique des entreprises pétrolières se dessine", D. 2021, pp. 1968-1970

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► Résumé de l'article : Après une brève description de l'affaire en cause au principal, l'auteure explicite dans un premier les fondements du jugement dit "Shell". Elle explique que l'action engagée était fondée sur le droit de la responsabilité civile délictuelle néerlandais, plus précisément le "duty of care" de l'article 6:162 du code civil néerlandais, lequel amène le juge, afin d'établir le fait générateur, à apprécier le comportement de l'entreprise défenderesse au regard du standard de comportement de la personne prudente et raisonnable. Sont également mobilisés par le juge des travaux scientifiques (rapport du GIEC), des normes de droit international (CEDH) et des normes de droit souple (Principes directeurs de l'ONU), afin de caractériser tant le fait générateur que le dommage (notamment futur). Dans un second temps, l'auteure envisage la portée de ce jugement, frappé d'appel au moment de la rédaction de son article. Elle souligne que le juge s'est appuyé sur la notion d'entreprise, permettant ainsi de contourner l'obstacle traditionnel lié à la personnalité morale, et qu'il a retenu ici une responsabilité préventive, tournée vers le futur. Elle termine en mettant en avant les conditions nécessaires pour que ce jugement soit effectif et constate que l'effort demandé à l'entreprise est plus important que celui préconisé par les rapports d'experts.

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🦉Cet article est accessible en texte intégral pour les personnes inscrites aux enseignements de la Professeure Marie-Anne Frison-Roche

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Le légicentrisme exprime avant tout une bataille de normes, puisque cette doctrine pose que la loi est la seule et unique expression de la souveraineté de la Nation. En cela, la loi dispose d'une autorité indépassable et c'est elle qui fonde l'État légal.

Ainsi, si l'on devait donner une figure au système juridique, ce serait un cercle avec en son cœur d'une façon unique la loi souveraine, à la fois autosuffisante dans son fondement (souveraineté) et dans sa production (principe de légalité).

Cette conception moniste (unité de la loi) a pour principale source la philosophie politique de Jean-Jacques Rousseau, c'est encore sur celui-ci que la France conserve le principe de souveraineté parlementaire (le Gouvernement est responsable devant le Parlement) et de souveraineté de la loi. Mais depuis la Révolution française, les esprits et les faits ont changé.

Ainsi, s'est construite une doctrine inverse : le "pluralisme juridique" qui pose en contradiction que le droit vient de nombreuses sources, comme la coutume, les pratiques, les jugements, etc. Il n'est pas étonnant que les auteurs qui affirment le pluralisme juridique ne viennent pas de la philosophie politique mais davantage de la sociologie comme Gurvitch ou Carbonnier.

En outre, les frontières nationales ont perdu de leur consistance, de fait et de droit. C'est pourquoi un auteur comme Mireille Delmas-Marty s'appuie sur le fait même de la construction de l'Europe des droits de l'homme d'une part et de la globalisation d'autre part pour affirmer que le légicentrisme a fait place à un pluralisme juridique généralisé.

Cependant, en droit positif les textes restent les mêmes. C'est ainsi que l'article 6 de la Déclaration des droits de l'homme et du citoyen de 1789, qui fait partie du bloc de constitutionnalité, dispose de la loi que "la loi est l'expression de la volonté générale".

De la même façon, l'article 5 du Code civil continue d'interdire au juge de rendre des jugements contraignants pour d'autres cas que celui particulier sur lequel il se prononce.

Cette permanence des textes les plus gradés, à savoir l'article 5 du Code civil et l'article 6 de la déclaration pose de nombreux problèmes aux juges. En effet, depuis l'arrêt du Tribunal des conflits Blanco, le droit administratif n'est plus lié par ce qui est posé par le Code civil et sans doute la puissance normative du Conseil d'Etat s'exprime plus ouvertement que celle de la Cour de cassation, qui feint de ne rendre que des arrêts de principe pour pouvoir affirmer qu'elle ne rend pas d'arrêt de règlement.

D'une façon plus complexe, le Conseil constitutionnel rappelle régulièrement que certes il est le gardien de la norme constitutionnelle supérieure à la loi mais quand le même temps, seul le législateur, puisque celui est le souverain, peut exprimer la volonté générale, ce à quoi le Conseil constitutionnel ne peut se substituer.

Mais le Droit de l'Union européenne, qui constitue un Ordre juridique à la fois autonome et dont les normes sont pourtant intégrées dans les ordres juridiques des Etats-membres, rend difficilement soutenable la conception du légicentrisme. Y a succédée une hiérarchie des normes complexes. Mais les fondements politiques de l'idée de légicentrisme alimente en grande partie l'hostilité à l'égard de l'Europe, aussi bien celle de l'Union que celle de la CEDH.

 

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.

Sont ici répertoriés les sujets proposés chaque année,

- soit au titre du travail à faire en parallèle du cours, à remettre à la fin du semestre (le jour de l'examen étant la date limite de remise),

- soit les sujets à traiter sur table, sans documentation extérieure et sous surveillance le jour de l'examen final. 

 

Retourner sur la description générale du Cours de Droit de la Compliance, comprenant notamment des fiches méthodologiques. 

 

 

Référence : Beauvais, P., Méthode transactionnelle et justice pénale, in  Gaudemet, A. (dir.), La compliance : un nouveau monde? Aspects d'une mutation du droit, coll. "Colloques", éd. Panthéon-Assas, Panthéon-Assas, 2016, pp. 79-90.

Voir la présentation générale de  l'ouvrage dans lequel l'article a été publié.

Banks are regulated because they do not engage in an ordinary economic activity, as their are likely to create systemic risk. In the real economy indeed, banks play the role of providing credit to entrepreneurs who operate on the markets for goods and services. These credits are mainly financed through deposits made by depositors and, to a lesser extent, by shareholders (i.e., capitalists). That is how liberalism and capitalism are bound up. However, banks also have the power to create money by the book entries they make when they grant loans ('book money'). As such, the banks share with the State this extraordinary power to exercise monetary authority, which some describe as sovereign power. It is possible that the digital eventually calls this power into question, since the Regulation currently hesitates to seize control over new instruments that are called "virtual currency" and that are used as proper "currency" or as an ordinary instrument for cooperative relation.

Banks' prominent sovereign character justifies, first and foremost, that the State is granted the power to choose the institutions which benefit from the privilege of creating book money- in this regard, the banking industry has always been a monopoly. Hence, Banking Regulation is first an ex ante control to enter the profession, and also a careful monitor of the people and institutions that claim they are in.

In addition, banks and credit institutions lend more money than their own funds can allow: the whole banking system is necessarily based on the trust that each creditors place within the bank, including depositaries who leave their funds at the banks' disposal for it to use them. That is where Bank Regulation intervenes to establish what is called 'prudential ratios', i.e., ratios that ensure the soundness of the institution by determining the amount of money that banks can lend based on the equity and quasi-equity they actually have.

Moreover, banks are constantly monitored by their supervisory Regulator, the Central Bank (in France, the Banque de France) that ensures the safety of the whole system by setting the State as the lender of last resort. This can, however, incentivize a large financial institution to take excessive risks based on its reliance on the fact that the State will save it eventually- that is what the 'moral hazard' theory systematized. All monetary and financial systems are built on these central banks that are independent from governments, which are far too reliant on political strategies and which cannot generate the same trust that a Central Bank inspires. Since the missions of central banks have increased over the years, and since the notions of Regulation and Supervision have come together, we tend to consider that Central Banks are now fully fledged Regulators.

Besides, Banking Regulation has become all the more central since banking is no longer primarily about loaning but rather about financial intermediation.  Banking Regulation and Financial Regulation are mixing. In Europe , European Central Bank is in the center.

►Full Reference: Delalieu, G., La loi sur le devoir de vigilance des sociétés multinationales : parcours d’une loi improbable, Droit et Société, 2020/3, n°106, p.649-665.

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►English Summary of the Article (done by the Author): (Corporate Duty of Vigilance in France: The Path of an Improbable Statute). This article offers an analysis of the resistance encountered by defenders (NGOs and trade unions) of the French Law on Corporate Duty of Vigilance. These actors sought to behave as institutional entrepreneurs deploying intense advocacy and lobbying efforts to successfully have this bill tabled, examined, and ultimately passed by the French government. Considering this case, the concept of “institutional entrepreneurship” is discussed and then relativized using Machiavelli’s notion of “Fortuna,” to describe the “improbable” adoption of this statute. The results tend to put into perspective the importance that individual actors, including collective ones, can have in the explanation of institutional change, in favor of a multilevel analysis of change (micro, meso, macro).

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Impartiality is the quality, maybe the virtue, that is demanded of the judge, not only the one who is called like that but also the one who has the function to judge the others (maybe without this name).

It can not be defined as the absolute positive aptitude, namely the total absence of prejudice, the heroic aptitude for a person to totally ignore his or her personal opinions and personal history. This heroic virtue is nonsense because not only is it inaccurate, impossible but it is also not desirable because a person is not a machine. It must not be so because good justice is human justice. In this respect, impartiality refers to a philosophical conception of what is justice and what is Regulation, not machines, but systems that must keep the human person in their center (Sunstein).

Thus Impartiality is articulated with the subjective nature of the assessment not only inevitable but also desirable that the judge makes of situations. Because Law is reasonable, Impartiality is defined only negatively: the absence of bias.

Impartiality is defined first and foremost as a subjective and individual quality, namely, the prohibition on the person who makes a decision affecting the situation of others (as is the case of a judge) to a a personal interest in this situation. The constitutional prohibition of being "judge and party" is thus the expression of the principle of impartiality. This definition is in line with the otherwise general requirement of no conflict of interests.

Impartiality is defined secondly as an objective and individual quality, namely the prohibition for a person who has already known of the case to know again (because he or she has already had an opinion about it, this having constituted an objective pre-judgment).

Impartiality is defined thirdly as an objective and structural quality, which obliges the organ which takes judgments to "give to see" a structure that makes it fit for this impartiality, objective impartiality that third parties can see and which generates confidence in its ability to judge without bias. This theory of English origin has been taken up by European law in the interpretation given to the European Convention on Human Rights. The expression "apparent impartiality" has sometimes given rise to misunderstandings. Indeed, far from being less demanding (in that it is "only" to be satisfied with an appearance of impartiality and not of a true impartiality), it is rather a matter of demanding more, not only of a true impartiality, but also of an impartiality which can be seen by all. This leads in particular to the obligation of transparency, to which the institutions, notably the State, were not necessarily bound by the law.

For a long time the Regulator, in that it took the form of an Administrative Authority, was not considered a jurisdiction, it was long considered that it was not directly subject to this requirement. It is clear from the case law that the national courts now consider that the regulatory authorities are courts "in the European sense", which implies a fundamental procedural guarantee for the operators concerned

Référence complète : Marcou, G., L'ordre public économique aujourd'hui. Un essai de redéfinition, in, Revet, TH. et Vidal, L. Annales de la régulation, IRJS, 2009, p.79 et s.

Competition is the law of the market. It allows the emergence of the exact price, which is often referred to as "fair price". It means and requires that agents on the market are both mobile, that is to say free to exercise their will, and atomized, that is to say, not grouped together. This is true for those who offer a good or service, the offerers, as well as for those seeking to acquire them, the applicants: the bidders seek to attract the applicants so that they buy them the goods and services that they propose.  Bidders are in competition with each other.

In the competitive market, buyers are indulging in their natural infidelity: even if they have previously bought a product from an A supplier, they will be able to turn away from him in favor of a B supplier if the latter offers them a product more attractive in terms of quality or price. Price is the main signal and information provided by the suppliers on the market to excite this competitive mobility of the offerers. Thus, free competition accelerates market liquidity, the circulation of goods and services, raises the quality of products and services and lowers prices. It is therefore a moral and virtuous system, as Adam Smith wanted, a system which is the fruits of individual vices. That is why everything that will inject "viscosity" into the system will be countered by Competition Law as "non-virtuous": not only frontal coordination on prices but for example, exclusivity clauses, agreements by which companies delay their entry on the market or intellectual property rights which confer on the patentee a monopoly.

Admittedly, Competition Law can not be reduced to a presentation of such simplicity, since it admits economic organizations which deviate from this basic model, for example distribution networks or patent mechanisms on which, inter alia, is built the pharmaceutical sector. But the impact is probative: in the sphere of Competition Law, if one is in a pattern that is not part of the fundamental figure of the free confrontation of supply and demand, he has to demonstrate the legitimacy and efficiency of its organization, which is a heavy burden on the firm or the State concerned.

Thus, in the field of Regulation, if regulatory mechanis were to be regarded as an exception to competition, an exception admitted by the competition authorities, but which should be constantly demonstrated before them by its legitimacy and effectiveness in the light of the "competitive order", then public organizations and operators in regulated sectors would always face a heavy burden of proof. This is what the competition authorities consider.

But if we consider that regulated sectors have a completely different logic from competitive logic, both from an economic and a legal point of view, the Law of Regulation refers in particular to the notion of public service and having its own institutions, which are the regulatory authorities, then certain behaviors, in particular monopolies, are not illegitimate in themselves and do not have to justify themselves in relation to the competitive model, for they are not the exception ( Such as the public education or health service).

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.

► Full Reference: F. Raynaud, "The administrative judge and compliance", in M.-A. Frison-Roche (ed.), Compliance Jurisdictionalisation, coll. "Compliance & Regulation", Journal of Regulation & Compliance (JoRC) and Bruylant, 2023, p. 

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📘read a general presentation of the book, Compliance Jurisdictionalisation, in which this article is published

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► Summary of the article:

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Cette bibliographie indicative vise des :

• ouvrages généraux

 

• ouvrages abordant la Régulation et la Compliance bancaire et financière à l'occasion d'un autre sujet principalement traité

 

• sites pertinents pour l'étude du Droit de la Régulation bancaire et financière

 

• ouvrages et articles portant spécifiquement sur la Régulation et la Compliance bancaire et financière

 

In an ordinary market of goods and services, access to the market is open to everyone, whether it is the one who offers the good or service (potential supplier) or who wants to own it (potential applicant ). Freedom of competition presupposes that these new entrants can, at their will, become effective agents on the market, the potential supplier if its entrepreneurial dynamism drives him there, and the potential applicant if he has the desire and the tools to do it(money, Information and proximity, in particular ; but first of all, money). The absence of barriers to entry is presumed; a barrier resulting from anti-competitive behavior will be penalized ex post by the competition authority.

The barrier is therefore what undermines the principle of access to the market. This is why the World Trade Organization (WTO), in that it fights against barriers to ensure global free trade, can be regarded as a forerunner of a sort of World Competition Authority.

But it may happen that it is necessary to organize by the force of Law the market access in a first situation, when there has been a liberalization decision of a previously monopolistic sector, access can not be exercised solely by the strength of demand and the power of potential new entrants, notably prevented by the de facto power of the formerly monopolistic enterprises. The Regulatory Authority will build access to sectoral markets whose sole principle of Competition has been declared by Law. Secondly this necessity can also result from phenomena that definitely impede this ideal competitive functioning of the sector, such as natural monopolies or asymmetries of information: Law will make this access concrete by distributing rights of access to the interested operators.

This is the case in network industries for operators' access rights to essential infrastructure networks. Even if this act is carried out by contract, this contract merely crystallizes a right of access conferred by the Legislator to the operator in order this one can penetrate the market. This is particularly true in the energy and telecommunications sectors.

In a more political way and not directly related to a desire to set up competition or to compensate for a market failure, this access organization may still be required because there is a political decision to provide everyone with access to common goods. The decision then goes hand in hand with the notion of a "fundamental right", such as the fundamental right of access to the healthcare system or vital medicines, or the fundamental right of access to the digital system, which the Regulator becomes the guardian in Ex Ante but also in Ex Post.

 

The notion of "Common Goods" refers to a political conception insofar as it concerns objectively commercial goods such as cultural goods or medical services, but which the community is going to demand that everyone should have access to it even though the individual does not have the ability to pay the exact price. It is then the taxpayer - present or future - or the social partners who bear the cost, or even some companies, through the corporal social social responsibility mechanism.

This protection of Common Goods can be done by the State in the name of the interest of the social group for which it is responsible and whose it expresses the will, particularly through the notion of the general interest. In this now restricted framework which is the State, this reference runs counter to the principle of competition. This is particularly clear in Europe, which is based on a Union built on an autonomous and integrated legal order in the Member States in which competition continues to have a principled value and benefits from the hierarchy of norms. The evolution of European Law has balanced the principle of competition with other principles, such as the management of systemic risks, for example health, financial or environmental risks and the creation of the banking union shows that the principle of competition is no longer an apex in the European system.

But it still remains to an economic and financial conception of Europe, definition that the definition of the Regulatory Law  when it is restricted to the management of the market failures feeds. It is conceivable that Europe will one day evolve towards a more humanistic conception of Regulatory  Law, the same one that the European States practice and defend, notably through the notion of public service. Indeed and traditionally, public services give people access to common goods, such as education, health or culture.

Paradoxically, even though Law is not set up on a global scale, it is at this level that the legal notion of "common goods" has developed.

When one refers to goods that are called "global goods", one then seeks goods that are common to humanity, such as oceans or civilizations. It is at once the heart of Nature and the heart of Human Being, which plunges into the past and the future. Paradoxically, the concept of "global goods" is still more political in substance, but because of a lack of global political governance, effective protection is difficult, as their political consecration can only be effective nationally or simply declaratory internationally. That is why this balance is at present only at national level, which refers to the difficulty of regulating globalization.

Thus, the "common goods" legally exist more under their black face: the "global evils" or "global ills" or "global failures", against which a "Global Law" actually takes place. The notion of "global evils" constitutes a sort of mirror of Common Goods. It is then observed that countries that develop legal discourse to regulate global evils and global goods thus deploy global unilateral national Law. This is the case in the United States, notably in financial regulatory Law or more broadly through the new Compliance Law, which is being born. Companies have a role to play, particularly through Codes of Conduct and Corporate Social Responsibility.

► Full Reference: Segonds, M., Compliance, Proportionality and Sanction. The example of the sanctions taken by the French Anticorruption Agency, in Frison-Roche, M.-A. (ed.),Compliance Monumental Goals, series "Compliance & Regulation", Journal of Regulation & Compliance (JoRC) and Bruylant, to be published.

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► Article Summary:  Before devoting the developments of his article to the sole perspective of sanctions imposed under "Anti-corruption Compliance", the author recalls in a more general way that, as is the sanction, Compliance is in essence proportional: Proportionality is inherent to Compliance as it conditions any sanction, including a sanction imposed under Compliance.

This link between Proportionality and Compliance has been underlined by the French Anti-Corruption Agency (Agence française anticorruption - AFA) with regard to risk mapping, which must measure risks to arrive at effective and proportional measures. This same spirit of proportionality animates the recommendations of the AFA which are intended to apply according to the size of the company and its concrete organisation. It governs sanctions even more, in that punitive sanctions refer on one hand to Criminal Law, centered on the requirement of proportionality. Punitive sanctions It governs sanctions even more, in that punitive sanctions refer on the other hand to the disciplinary power of the manager who, from other sources of law, must integrate the legal requirement of proportionality when he/she applies external and internal compliance norms.

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📘see the general presentation of the book, Compliance Monumental Goals, in which this article is published

 

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Control is a concept so central in Regulation that, in the difficult exercise of translation, the English term of "Regulation" or the expression "Regulatory system" are often translated, for example in French,, by the French word "control" (contrôle). Indeed, the Regulator controls the sector for which he  is responsible. This control is carried out ex ante by the adoption of standards of behavior, whether the Regulator prohibits behavior or obliges the operators to do so. In addition, the Regulators exercises his control powers through the power to approve companies entering the sector or the power to certify certain types of products sold on the markets for which he is responsible. In addition, he continuously monitors the sectors for which he is responsible since his function is either to construct them to bring them to maturity or to remain in balance between the principle of competition and another concern, for example to ensure that they do not fall into a systemic crisis.

These ex ante controls radically distinguish the regulatory authority from the competition authority, which intervenes only ex post. Finally, the regulatory authority controls the sector in ex post: in this he works on a temporal continuum, sanctioning the failings he finds on the part of the operators to the prescriptions he has adopted himself. he often has the power to settle disputes if two operators compete in a dispute between them and bring it before him.

This control function specific of the regulatory authority, which it often shares with the traditional administration and which opposes it to the activity of the competition authority and the courts, is made difficult by its possible lack of independence. Indeed, because the Regulator is a State boddy, if the regulator has to control a public operator, it may risk being captured by the government, since the whole organization of the regulatory system must therefore ensure its independence not only statutory but also budgetary in relation to it. This risk of capture is permanent not only because of the government but also because of the sector. Secondly, control can be inefficient if the regulator lacks adequate, reliable and timely information, risk generated by information asymmetry.

To fight against this, according to the childish image of the stick and the carrot, we must at the same time give the regulator powers to extirpate information that the operators do not want to provide, the texts never ceasing to give regulators new powers, such as perquisitions power ou sanction ou settlemeent. Symmetrically, operators are encouraged to provide information to the market and the regulator, for example through leniency programs or the multiplication of information to be inserted in company documents. Finally, there is a difficult balance between the need to combat the capture of the regulator and the need to reduce the asymmetry of information since the best way for the latter to obtain information from the sector is by frequent attendance by operators: , This exchange that they accept very willingly is the open voice to the capture. It is therefore an art for the regulator to keep operators at a distance while obtaining from them information that only untended relationships allow him to obtain.

Moreover, the Compliance Law which is in the process of being put in place is intended to resolve this major difficulty, since the operator becomes the primary agent for the implementation of the Regulation Law, whose aims are internalized in the " crucial " and global operators perator, operator crucial and global, the Regulator ensuring the effective structural change of the operator to realize these goals of this Global Regulation Law.

 

 

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.

Référence complète : Gibert, M., Faire la morale aux robots. Une introduction à l'éthique des algorithmes, Flammarion, 2021, 168 p.

 

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Retourner à la présentation générale du cours, tel qu'il était bâti et proposé en 2018.

 

 

 

 

 

►Référence complète : Galli, M., Une justice pénale propre aux personnes morales : Réflexions sur la convention judiciaire d'intérêt public , Revue de Sciences Criminelle, 2018, pp. 359-385.

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► Full Reference: Deffains, B., Compliance and International Competitiveness, in Frison-Roche, M.-A. (ed.), Compliance Monumental Goals, series "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Bruylant, to be published.