Compliance and Regulation Law bilingual Dictionnary

Gambling, as Article 1 of the Law of April 6, 2010 on the regulation of online games shows, is not an ordinary sector left to the competition mechanism. Indeed, in the first place, it is the easy vector of illicit activities, mainly money laundering, and casinos have always been subject to licensing and supervision. Second, some games give rise to personal injury, whether it is inherently dangerous games or what can be done for players to increase their performance, for example by doping them. Third, the activity of gambling presents risks for those who engage in it, in particular that of incurring large sums without consideration and by going broke. It can be considered that this is a market risk that an adult has the right to run but the right of which must protect the weak, here minors. Finally, there is a risk of addiction, which is even stronger for them. France had so far tried to solve the problem by entrusting the monopoly of this activity to a public company, the Française des Jeux.

The CJEU by a judgment of September 8, 2009 confirmed, with regard to the Portuguese system, the legitimacy of such a step in the name of the imperious overriding public interest. But in the meantime, the European Commission has designed a liberalization directive, France having then chosen to regulate where it could no longer technically defend its legal monopoly system, that is to say Internet games. This is why the law of May 12, 2010 set up a regulator, ARJEL, which approves operators, imposes warnings for minors, monitors operations, prohibits certain bets, etc.

In the continental tradition, particularly in France and Germany, the general interest is served by the State. In the more liberal British and American tradition, the general interest is merely the addition of individual interests, the market being thus able to serve the latter. This assertion, which is essential for the way competition law and the public service are articulated, is questioned in continental culture, particularly in France.

In this historical, philosophical and cultural context, Regulation can have the function of balancing the principle of competition which would be limited to the particular interests of those who have the ability to be market players on account of their solvency and knowledge , and the general interest that cares and the interest of the weak (in money, knowledge, technical skills) and the interest of the social group in the long term.

This general interest has long been expressed through the French notion of public service. It was still reflected in the theory of Regulation when it is the policy that imposes that competition should give way to a consideration that is contrary to it, for example access to a common good such as health or education.

Today, by the concepts of Compliance and, adjacent to it, Corporate Social Responsibility, it is possible that the general interest is the notion on which "public interest entities" can find themselves, in order to serve a Interest that goes beyond the people who compose, direct and serve these entities, whether public (state) or private (large international groups, crucial operators).

We must give a strict definition of globalization. Globalization isn't simply the intensification of economic exchanges through the lowering of borders and the rapidity of trade, a phenomenon known since antiquity and of which the World Trade Organization (WTO) is today the guardian. Globalization aims at a radically new phenomenon, that of economic exchanges without any constraint of time or place, dealing with goods without corporality since it is information. This is the case for all personal data, all information and all finance (because financial instruments can be analyzed as information), which through technology flows out of space and in an instant. In what can be called "real virtuality", states and law do not know how to grasp normatively this new reality, because until now they had only apprehended palpable objects in spaces enclosed by their borders . Globalization, therefore, is a radical change the world, that has radically changed the game.

The goal for which a mechanism, a solution an institution or a rule is adopted, instituted or elaborated, is in principle external to them. Knowledge of this goal is a tool to better understand them and is only that.

On the contrary, in Regulation Law, the goal is the heart itself. By definition, Regulation Law is a set of instruments that articulate to take their meaning in relation to a goal. Moreover, these instruments are legitimate to represent a constraint only because they realize a goal which is itself legitimate. The interpretation of Regulation Law is based on the aims pursued: the reasoning is teleological.

This teleological nature explains that efficiency is no longer merely a concern - as for ordinary legal mechanisms, but rather a principle of Regulation Law. It explains the welcome, especially through the European Union Law of the theory of the useful effect. This link between rules, which are only means, and aims, refers to the principle of proportionality, which requires that constraints and exceptions be applied only when they are necessary, proportionality being the form off the classic principle of necessity.

Because the aim is the center, it must be expressed by the author of the Regulation standards, and this is all the more so if they are of a political nature, being not limited to mitigating technical failures of markets. This goal can be varied: the management of systemic risks, but also the consideration of the fundamental rights of people, the preservation of the environment, public health, civilization, education, etc. The silence of the legislature, which limits itself to the making of rules whereas these are merely instruments, without explicating the goal whereas the latter is a political decision, is a fault in the legislative art.

Moreover, in order that the person who applies the Regulation norm, in particular the Regulator and the Judge, has no excessive margin for interpretation and does not substitute for political power, the author of the Regulation norm needs to aim specifically for one goal : in this way, the one who applies the norm will be constrained. Or, if the author targets several purposes, then he must articulate them in relation to each other, by hierarchizing them for example. If he fails to do so, the institution which applies the regulatory standards will itself have to choose the purpose and exercise a power which he does not possess.

This express designation of purpose has been made for the European Banking Union,  this Regulation and Supervision construction, whose primary aim is to prevent systemic risks and resolve crises. Similarly, the purpose of the Regulation of essentiel infrastructures is to provide third parties access to the network. Similarly, in the case of a transitional regulation introduced following liberalization, the aim is to establish competition, the principle of which has been declared by the liberalization law. When this is not clearly stated, there is a lapse in the legislative art.