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The competition authority is generally an independent administrative authority (AAI). This is the case in France with the Autorité de la Concurrence (ADLC) which succeeded the Conseil de la Concurrence and which, like it, was designed to intervene ex post. Whatever the market considered, thus benefiting from almost universal jurisdiction over any economic activity of production, distribution and service, it can be seized or even self-seized when elements of anti-competitive behavior are alleged. The competition authority does not monitor the markets as such, nor does it build them or maintain their balance. These functions are precisely devolved to regulators. We can thus see that the competition authority has a much broader competence than that of the regulators, since the latter's office is limited to a sector while, conversely, the competition authority has a much weaker power than that of the regulators. regulators, since it has no ex ante powers and only intervenes on an ad hoc basis. This distinction in no way precludes coordination between regulators and the competition authority, in particular because they can reciprocally transmit cases or information to each other, just as they can solicit each other for their respective opinions. The more competitively mature the sector for which a regulator is responsible, the more active this collaboration will be, as can be seen in telecommunications. But things are not so simple, we will take two examples: first, the competition authorities, whether French (since the law on the modernization of the economy – LME of August 4, 2008 ) or European since the Community regulation of 1985, the competition authority operates merger control. This considerable function and power consists in assessing the conformity with the law of the will of two companies to come together (for example, by a merger). But, insofar as the competition authorities very often put conditions to accept the concentration, for example disposals of assets or behavioral commitments, we arrive at a kind of economic and industrial mechanic operated ex ante, comparable to a regulatory power. These commitments are in fact negotiated between companies and the Competition Authority: what are presented as unilateral conditions appear to be a kind of contract. More generally, the more the competition authority develops the technique of commitments, including with regard to anti-competitive practices, the more it contracts its behavior vis-à-vis companies, renouncing sanctions, that is to say abandoning its attitude ex post, to organize a new situation for the company adopted by it through its commitments, the competition authority then acting ex ante, behavior characteristic of a regulator. Secondly, the European Commission, a multi-headed organization, on the one hand sanctions anti-competitive behavior and operates merger controls, and on the other hand, drafts the texts of the directives of the community regulations that the European Parliament and the European Council will adopt thereafter. However, in the regulated sectors, the European Commission adopts and writes dozens of directives and regulations to such an extent that it has become accustomed to designing them by “package”, apprehending developments in energy or regulation. environment, banking or telecommunications, etc., by packages containing several directives and regulations. In these texts, which therefore come under ex ante, the regulatory organizations of the sectors are deeply affected. This sort of Janus that the European Commission constitutes means that it is, at European level, both the Competition Authority and the Regulatory Authority. However, national competition authorities tend to claim that they are "small European commissions", which reinforces their tendency to want to regulate the economy. They come to propose in texts of “soft law” the concept of “competitive regulation”, which constitutes an oxymoron.

The Autorité de Régulation des Communications Electroniques et de la Poste (ARCEP) is an independent administrative authority (AAI). In 2005, it took over from the Autorité de Regulation des Télécommunications (ART), which was created in 1996. ART was the first regulatory authority of its kind, inaugurating under the impetus of European Union Law the wave of liberalization of previously monopolistic sectors. ARCEP has a broader competence than that of ART, also regulating postal activities and its role is to promote the exercise of "effective and fair competition for the benefit of users", which brings it particularly close to the general office of the Autorité de la concurrence. This regulator must still take into account the "interest of the territories" and user access to services and equipment. ARCEP has jurisdiction to regulate what carries information (container) while the Conseil Supérieur de l'Audiovisuel (CSA) has jurisdiction to regulate the information transported (content). This distinction between container and content therefore forms the basis of the duality of regulators. But in the first place it is fragile and little used abroad, other countries preferring to have a single regulator for the container and for the content, insofar as the information can pass through various containers (e.g. television or the telephone) as in the United States (Federal Communication Commission – FCC). Second, the Internet makes it difficult to handle this distinction. This is why the hypothesis of a merger of the two French regulatory authorities is sometimes mentioned. ARCEP monitors wholesale markets, in which operators must behave in a non-discriminatory manner and publish a reference offer. It controls prices and forces a price orientation towards cost, favoring downstream, that is to say (retail market), competitive dynamism. On this, the regulator ensures access to the transmission network and the distribution network to the end consumer (local loop issue). ARCEP has the power to allocate frequencies to operators, which are scarce resources, the allocation of which can be withdrawn from the operator in the event of a breach. But beyond these very technical dimensions, the regulator exercises a political function because it projects into the future a certain conception it has of the sector. Thus it can estimate or not that the optical fiber should or not be favored and force the operators in this direction. Likewise, it can adhere to the theory of “net neutrality” in the name of which it will force the owners of a network to open it up to users, even at the cost of investments to accommodate them, the regulator then fixing the compensation for such a right of access. Adherence to this much debated theory is not technical but political in nature. ARCEP has the aforementioned power to withdraw frequencies from operators not fulfilling their obligations and can take protective measures. These can be challenged before the Paris Court of Appeal. The authority exercises the power of dispute resolution and the power of sanction. ARCEP publishes an annual report, a way for the Authority to report, this mode of responsibility being balanced against its independence. As in 1996 for telecommunications, from 2005 the regulator opened up postal activities to competition, while ensuring the continuation of the public postal service. The Law of February 9, 2010, while transforming La Poste into a public limited company, ensured that its public service obligations were maintained and even extended them by entrusting it with spatial planning obligations, showing interregulation with environmental regulation. Through this control, the regulator exercises more political than technical power.

Complete reference : Antoine, A., Droit constitutionnel britannique, préface de Lord Mance, coll. "Systèmes", L.G.D.J. – Lextenso éditions, 2016, 184 p.   Read the fourth of cover. Read the table of contents.

Professions play a key role in self-regulatory systems, especially the liberal professions, as soon as they are respected by companies and professionals. Professions are increasingly institutionalized, either by orders or by professions, which form networks or international associations. In this way, unlike the States, which are challenged by their borders, the professions are adapted to globalization because they develop global associations that adopt common technical standards and ethical charters of behavior. The other side of the coin is probably procedural, in the transparency of procedures and sanctions, since professional organizations take responsibility for sanctioning their own members themselves, exposing them to capture or even pushing them to conflict of interest. Professions such as banking and finance must now demonstrate that they can create the confidence they need and fuel their industry.

A public enterprise has long been characterized by the fact that a public person, for example the State or a local public authority, holds the majority of its capital, which is before a formal legal criterion. The  European Union Law, in a more concrete perspective, has apprehended it more directly purely and simply as an enterprise, that is to say, an organization having an economic activity on a market, irrespective of the private or public nature of the capital of the company, a legal instrument by which the undertaking enters into the legal under the "decisive influence" of a public person, not only actively (alliance in bodies or by contracts) but also passive (guarantees, etc.). Competition law, analyzing people by their activities, could be said to have "killed" the public enterprises by ignoring the particular nature of this public shareholder (the figure of the "shareholder state") since legal reasoning wants to see State only as an ordinary shareholder, where the subject of public law identifies itself as defending the general interest. This banalisation is not definitive: by the nationalization of banks as a remedy to the financial crisis in Great Britain or in the United States, the State again claims that a public company does not have the same purpose as a private company, because the former, like its shareholder, pursues the general interest through its intrinsic mission, while the private company, through its ordinary shareholder, pursues the maximization of profits, mirroring that pursued by the expectation of dividends by the ordinary shareholder. There is a fundamental ideological rupture between the Regulation exercised by the undertakings themselves, insofar as they are public (and supervised by the supervision of the State), and the Regulation exercised by a Regulator over all companies in the imposed indifference of their shareholders. This difference continues to be like a wound between the different models of Regulation and more generally between the conceptions of relations and modalities of relations between the State and the market economy.

The liberal professions such as lawyers, doctors or accountants are organized into professional bodies and consider that they can not be reduced to mere companies operating in markets because the service they offer includes a human and moral dimension, translated by ethics, under the supervision of their internal professional organization, particularly through ex ante their power to adopt their own standards of behavior, and in ex post, the disciplinary power of their professional order. Competition law refutes this organization from the Old Regime and simply considers the "markets of legal or medical services, firms having to compete with each other and not having to organize the sector, by  or fixing Numerus clausus, etc. In the perspective of regulation, the liberal professions are, on the contrary, the ones most pertinento organize self-regulation in a globalized economy from the moment they give rise to a credible surveillance system and thus deserve the confidence of customers and public regulators.

🌐 follow Marie-Anne Frison-Roche on LinkedIn 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law  - This general bibliography brings together some general references, which overlap or cross over the more specific bibliographies on Compliance, through different subjects or branches of Law, in French Law or in foreign and supra-national Law having a direct influence, so that one can understand what results in nation law. It is composed of doctrinal documents (books and articles), legislative or regulatory texts applicable in France and other countries (and, where applicable, draft laws or regulations), as well as documents of gray literature . It may be relevant to cross this bibliography with the broader Bibliography on the General Regulation Law, or with the more focused Bibliography on the Law of Banking and Financial Regulation.