All news

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.

The insurance sector has always been regulated in that it presents a very high systemic risk, since the economic operators' strength is required for the operation of the sector and the bankruptcy of one of them may weaken or even collapse all. In addition, insurance is the sector in which moral hazard is the highest, since the insured will tend to minimize the risks to which he is exposed in order to pay the lowest premium possible, even though ehe company is engaged to cover an accident whose size can not be measured in advance. Thus, the science of insurance is above all that of probabilities. The recent challenge of regulating insurance, both institutional, the construction and the powers of the regulator of the sector, and also functional, namely the relations that it must have with the other bodies and institutions, lies mainly in the relationship between the insurance regulator and the bank regulator, which refers to the concept of "interregulation." If the formal criteria are followed, the two sectors are distinct and the regulators must be similarly separated. There was the case in France before 2010. En 2010, considering activities, sensitive to the fact that insurance products, for example life insurance contracts, are mostly financial products, and moreover, through the notion of "bank-insurance", the same companies engage in both economic activities, the solution of an unique body has been chosen. A part from the fact that in Competition Law companies are defined by market activity, the main consideration is that the risk of contamination and spread is common between insurance sector and banking sector. For this reason, the French  Ordinance of 21 January 2010 created the Autorité de Contrôle Prudentiel -ACP (French Prudential Supervisory Authority), which covers both insurance companies and banks, since their soundness must be subject to similar requirements and to an organization common. The law of July 2013 entrusted this Authority with the task of organizing the restructuring of these enterprises, thus becoming the Autorité de Contrôle Prudentiel et de Résolution – ACPR  (French Prudential Control and Resolution Authority). However, the substantive rules are not unified, on the one hand because the insurers are not in favor of such assimilation with banks, secondly because the texts, essentially the European Directive on the insolvency of insurance companies ("Solvency II") , eemain specific to them, and at a distance from the Basel rules applying to banks, which contradict the institutional rapprochement exposed before. European construction reflects the specificity of the insurance sector, the Regulation of 23 November 2010 establishing EIOPA, which is a European quasi-regulator for pension funds, including insurance companies. The current issue of insurance regulatory system is precisely the European construction. While the Banking Union, the Europe of banking regulation, is being built, the Europe of Insurance Regulation is not being built. Already because, rightly, it does not want to merge into the banking Europe, negotiations of the texts of "Solvency II" stumbling on this question of principle. We find this first truth: in practice, it is the definitions that count. Here: Can an insurance company define itself as a bank like any other? L'enjeu actuel de la Régulation assurantielle est précisément la construction européenne. Tandis que par l’Union bancaire, l’Europe de la régulation bancaire se construit, l’Europe de la Régulation assurantielle ne se construit. Déjà parce que, à juste titre, elle ne veut pas se fondre dans l’Europe bancaire, les négociations des textes de « Solvabilité II » achoppant sur cette question de principe. L’on retrouve cette vérité première : en pratique, ce sont les définitions qui compte. Ici : une compagnie d’assurance peut-elle se définir comme une banque comme une autre ?  

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.

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).

Trust has long been the very foundation of monetary, banking, financial and insurance systems. The banking and financial industry relies on the confidence that consumers, investors here, give to the securities they acquire. Goods issued on the market do not have a corporality and their value depends only on the confidence that the buyer inserts in the value that the other investors themselves grant to the security. This is why the financial market is said to be intersubjective. This very subjective character of the banking and financial markets is not shared with the markets for goods and services because on them goods have a physical existence that is palpable by the consumer. For example, there is no need to trust the apple vendor to know that the apple exists, and it takes little time to bite it and know its taste. The financial title can not have these virtues. This subjectivization of the banking and financial markets has led more than elsewhere to the need for a charismatic regulator, and it is on these markets alone that there are central bankers – gurus – of whom Alan Greenspan has long been the paragon, since we now recognize the role of "regulator" of central bankers. Thus, people's behavior, image, reputation, expectations of behavior, etc., are essential, and gambling economic theory has largely developed in relation to banking and financial markets. Similarly, in these sectors, Regulation and Supervision are articulated, the personality of the people who run the systemic institutions being controlled. But the question of trust can be asked in more general terms, which implies the question of the link between regulation, supervision and even reference to a "sector". The main difficulty is that trust is volatile and fear causes it to be lost, fear being self-fulfilling. As shown by the succession of financial crises of 2008, the major challenge is restoration through the regulation of confidence in the markets). The new mechanisms, in particular the banking union in Europe, in particular the banking resolution, are aimed at this. The restoration of trust is extremely difficult, as legal texts and the law in a more general way are ill-equipped to give rise to feelings: one does not decree competition, one decrees still less confidence. Different States seek regulatory solutions either by increasing prudential requirements (European model) or by closely monitoring the use of funds by banks (the Volcker rule for the United States) or by internal reorganization in the event of default by The forecast of the bank wills and the intervention of resolutions. In a more general way, it is the regulator that injects confidence. Independence and the absence of conflict of interest being a major element of this, central banks tend to move closer to the figure of the Regulator, which approximates the figure of the Judge and the Tribunal, obliged by the legal principle of Impartiality that oblige them.  

Article 6 of the European Convention on Human Rights (ECHR) states that everyone has the right to an impartial tribunal. Insofar as the regulator in France is most often an Independent Administration Authority (IAA) and this is assimilated to a court, the regulator is required to comply with the ECHR. This contributes to the jurisdictionalization of regulation. Thus, when there is a sanction or dispute settlement procedure, a real trial is established, and companies, helped by their lawyers, must benefit from access to the file, from the adversarial principle, from rights defense, the right to participate in the debate at the hearing. These fundamental procedural guarantees also include the obligation for the regulator to justify its decisions, which facilitates the control exercised over it by the appeal courts, and to create by accumulation of decisions a sort of case law of the regulators themselves. . Thus, human rights by procedure have entered the regulatory authorities. This refers to one of the issues that is emerging, namely the balance that must be established between the laws of the market and the non-economic prerogatives of individuals.

Paradoxically, the notion of conflict of interest seems to be at the center of Economic Law only recently in Economic Law, in both Corporate and Public Law. This is due to the philosophy which animates these two branches of Law, very different for each, and which has changed in each. In fact, and in the first place in Public Law, in the Continental legal systems and especially in French legal tradition, on the side of the State, the one who serves it, by a sort of natural effect,, makes the general interest incarnated by the State pass before its personal interest. There is an opposition of interests, namely the personal interest of this public official who would like to work less and earn more, and the common interest of the population, who would like to pay less taxes and for example benefit trains that always arrive on time and the general interest which would be for example the construction of a European rail network. But this conflict would be resolved "naturally" because the public official, having "a sense of the general interest" and being animated by the "sense of public service", sacrifices himself to serve the general interes. He stays late at his office and gets the trains on time. This theory of public service was the inheritance of royalty, a system in which the King is at the service of the People, like the aristocracy is in the "service of the King." There could therefore be no conflict of interest, neither in the administration nor in the public enterprises, nor to observe, manage or dissolve. The question does not arise … Let us now take the side of the companies, seen by the Company Law. In the classical conception of corporate governance, corporate officers are necessarily shareholders of the company and the profits are mandatorily distributed among all partners: the partnership agreement is a "contract of common interest". Thus, the corporate officer works in the knowledge that the fruits of his efforts will come back to him through the profits he will receive as a partner. Whatever its egoism – and even the agent must be, this mechanism produces the satisfaction of all the other partners who mechanically will also receive the profits. Selfishness is indeed the motor of the system, as in the classical theory of Market and Competition. Thus, in the corporate mechanism, there is never a conflict of interest since the corporate officer is obligatorily associated: he will always work in the interest of the partners since in this he works for himself. As Company Law posits that the loss of the company will also be incurred and suffered by all partners, he will also avoid this prospect. Again, there is no need for any control. The question of a conflict of interest between the mandatary and those who conferred this function does not structurally arise… These two representations both proved inaccurate. They were based on quite different philosophies – the public official being supposed to have exceeded his own interest, the corporate officer being supposed to serve the common interest or the social interest by concern for his own interest – but this was by  a unique reasoning that these two representations were defeated. Let us take the first on Public Law: the "sense of the State" is not so common in the administration and the public enterprises, that the people who work there sacrifice themselves for the social group. They are human beings like the others. Researchers in economics and finance, through this elementary reflection of suspicion, have shattered these political and legal representations. In particular, it has been observed that the institutional lifestyle of public enterprises, very close to the government and their leaders, is often not very justified, whereas it is paid by the taxpayer, that is, by the social group which they claimed to serve. Europe, by affirming in the Treaty of Rome the principle of "neutrality of the capital of enterprises", that is to say, indifference to the fact that the enterprise has as its shareholder a private person or a public person, validated this absence of exceeding of his particular interest by the servant of the State, become simple economic agent. This made it possible to reach the conclusion made for Company Law. Disillusionment was of the same magnitude. It has been observed that the corporate officer, ordinary human being, is not devoted to the company and does not have the only benefit of the profits he will later receive as a partner. He sometimes gets very little, so he can receive very many advantages (financial, pecuniary or in kind, direct or indirect). The other shareholders see their profits decrease accordingly. They are thus in a conflict of interest. Moreover, the corporate officer was elected by the shareholders' meeting, that is to say, in practice, the majority shareholder or the "controlling" shareholder (controlling shareholder) and not by all. He may not even be associated (but a "senior officer"). The very fact that the situation is no longer qualified by lawyers, through the qualifications of classical Company Law, still borrowing from the Civil Contract Law, the qualifications coming more from financial theories, borrowing from the theory of the agency, adically changed the perspective. The assumptions have been reversed: by the same "nature effect", the conflict of interest has been disclosed as structurally existing between the manager and the minority shareholder. Since the minority shareholder does not have the de facto power to dismiss the corporate officer since he does not have the majority of the voting rights, the question does not even arise whether the manager has or has not a corporate status: the minority shareholder has only the power to sell his securities, if the management of the manager is unfavorable (right of exit) or the power to say, protest and make known. This presupposes that he is informed, which will put at the center of a new Company Law information, even transparency. Thus, this conflict of interests finds a solution in the actual transfer of securities, beyond the legal principle of negotiability. For this reason, if the company is listed, the conflict of interest is translated dialectically into a relationship between the corporate officer and the financial market which, by its liquidity, allows the agent to be sanctioned, and also provides information, Financial market and the minority shareholder becoming identical. The manager could certainly have a "sense of social interest", a sort of equivalent of the state's sense for a civil servant, if he had an ethics, which would feed a self-regulation. Few people believe in the reality of this hypothesis. By pragmatism, it is more readily accepted that the manager will prefer his interest to that of the minority shareholder. Indeed, he can serve his personal interest rather than the interest for which a power has been given to him through the informational rent he has, and the asymmetry of information he enjoys. All the regulation will intervene to reduce this asymmetry of information and to equip the minority shareholder thanks to the regulator who defends the interests of the market against the corporate officers, if necessary through the criminal law. But the belief in managerial volunteerism has recently taken on a new dimension with corporate social responsability, the social responsibility of the company where managers express their concern for others. The identification of conflicts of interests, their prevention and their management are transforming Financial Regulatory Law and then the Common Law of Regulation, because today it is no longer believed a priori that people exceed their personal interest to serve the interest of others. It is perhaps to regain trust and even sympathy that companies have invested in social responsibility. The latter is elaborated by rules which are at first very flexible but which can also express a concern for the general interest. In this, it can meet Compliance Law and express on behalf of the companies a concern for the general interest, if the companies provide proof of this concern. To take an example of a conflict of interest that resulted in substantial legal changes, the potentially dangerous situation of credit rating agencies has been pointed out when they are both paid by banks, advising them and designing products, While being the source of the ratings, the main indices from which the investments are made. Banks being the first financial intermediaries, these conflicts of interest are therefore systematically dangerous. That is why in Europe ESMA exercises control over these rating agencies. The identification of conflicts of interest, which most often involves changing the way we look at a situation – which seemed normal until the point of view changes – the moral and legal perspective being different, Trust one has in this person or another one modifying this look, is today what moves the most in Regulation Law. This is true of Public and Corporate Law, which are extended by the Regulation Law, here itself transformed by Compliance Law, notably by the launchers of alerts. But this is also true that all political institutions and elected officials. For a rule emerges: the more central the notion of conflict of interest becomes, the more it must be realized that Trust is no longer given a priori, either to a person, to a function, to a mechanism, to a system. Trust is no longer given only a posteriori in procedures that burden the action, where one must give to see continuously that one has deserved this trust.

In principle, competition Law does not protect either competitors or consumers. The European Commission always recalls this fundamental rule, the consumer being the measure of the proper functioning of the market and its ultimate but not necessarily immediate concern. Regulation Law, a law of equilibrium which balances the principle of competition with another principle, can establish consumer protection as an autonomous principle in balance with the concern for competition. In fact, regulation can ex ante set prices at a price lower than the market price, in particular in telecommunications or energy, to develop demand, and continue to establish social tariffs in these two sectors, which competitive system could not admit. In addition, always thanks to this ex ante power wielded by the regulators, while the competition authorities are ex post bodies, information to consumers is organized in advance, in particular with regard to the quality of the product they consume. This is particularly clear in terms of banking and financial regulation. Indeed, the texts oblige banks to inform their customers of the financial products they plan to acquire and of the risks that these present. In this, consumer protection appears to be a goal served by regulation, in balance with free competition in which the consumer has the vocation to inform itself on the market in contact with suppliers. In banking and financial matters, consumer information is currently a particularly important issue because by informing the consumer-investor about the risks, regulation restores his confidence, through transparency, in the system. By balancing competition and risk, regulation injects confidence in the banking and financial sector, which is based on it.

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.

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.    

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).

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.

In an ordinary market, goods and services are content to circulate through the interplay of supply and demand. Innovation appears when the supplier chooses to seduce the applicant no longer by offering a lower price, but by putting on the market a different product that is more suited to a need, or even by creating a need, in short, by innovating. Even more innovation occurs through the scientific spirit, which would be "natural", in that it corresponds to the desire to understand the world, a research process which results in discovery, which generates the establishment of a technical object. But this distinction is undoubtedly over. In fact, with some exceptions, inventions also require colossal financial investments, for example in the pharmaceutical field. If we want there to be innovation, that is to say progress, for example in medicine, operators must be encouraged to invest in R&D, because the taste for knowledge of the 18th century is no longer enough. Incentive regulation to obtain innovation will operate mainly through patent Law, that is to say the attribution of an exclusive right, which contradicts the original pattern of competition. The profitability of the patent encourages companies to risk such research investments. The relationships between competition and intellectual property remain difficult and reflect those existing between competition and regulation.

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.

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.

For the benefit of the consumer and the efficiency of systems, networks should cover as large a territory as possible, for example Europe. For this, there must be a mesh between the different networks so that, for example, travelers or electric or electronic waves can pass from one to the other. This capability is referred to as interconnection. This interconnection is particularly delicate at the borders between countries and that is why regulators often have specific and greater powers with regard to the interoperability of cross-border networks. Thus, to take the example of the European telecommunications agency, set up in 2010, this simple agency has no real regulatory power, more like a simple observatory gathering and disseminating data, except in this regard. which concerns cross-border interconnections. If there is no interconnection, there cannot be a common system. This can be set up by the standards. A classic example is that taken from the gauge of railway tracks, different between France and Germany, which prohibited the interconnection of the railways of the two countries, to which the standardization of materials and constructions has put a term.

The traditional theory of competition assumes atomized agents. Conversely, any large operator, even if this configuration is not prohibited, presents as an anomaly. Even more, if it performs several functions in a value chain, by a "vertical integration", for example at the same time a function of production, transport, distribution and sale, and that it is about a monopoly enterprise, the classical construction is thwarted. This is why the liberalization of sectors has been accompanied by a systematic destruction of the vertical integrations of incumbent operators, for example EDF. Horizontal integration, for its part, corresponds to the merger of companies that are in the same segment of economic activity and which thus increase their market shares and their power, by playing in particular on economies of scale. Focusing on the assessment criteria for merger control, the question that arises more in regulated sectors is: should a very strong concentration of crucial or systemic operators be allowed to take place? Indeed, we observe that the banks concentrate it more and more. Likewise, there are only three global rating agencies and four global audit firms. One can consider that the concentration in the regulated systems is a factor of more systemic fragility. On the contrary, it can be argued that in order to perform their "crucial" function these operators must be powerful and, if they are properly supervised, they should be rather concentrated.

"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'État, 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".

"Liberalization" refers to the process of the legal end of a monopolistic organization of an economy, a sector or a market, in order to open it up to Competition. Since it is rare for an economy to be entirely monopolistic (which presupposes an extreme concentration of political power), the phenomenon is more particularly characteristic of public sectors. Liberalization, if it is translated into Law only by a declaration of openness to Competition, is actually achieved only by a much slower implementation of the latter, since the incumbent operators have the power to check the entry of potential new entrants. This is why the process of liberalization is only effective if strong regulatory authorities are established to open up the market, weakening incumbent operators where necessary and offering benefits to new entrants through asymmetric regulation . This Regulation aims to build Competition, now permitted by law. This is why, in a process of Liberalization, Regulation aims to concretizeCcompetition by constructing it. This transitional regulation is intended to be withdrawn and the institutions set up to disappear, for example by becoming merely specialized chambers of the General Competition Authority, Regulation being temporary when linked to liberalization. It is distinct from the Regulation of essential infrastructures which, as natural monopolies, must be definitively regulated. Quite often, in liberal economies, the State has asked public enterprises to manage such monopolies, particularly in the network industries, to which it has also entrusted the economic activity of the entire sector. By the liberalization phenomenon, most States have opted to retain the management of infrastructure for this operator, now an incumbent operator competing on the competing activities offered to consumers. In this respect, the Regulator forces it in two ways: in a transitional way to establish competition for the benefit of new entrants, in a definitive way insofar as it has been chosen by the State to manage the economic monopoly of infrastructure. Even in the only relationship between competitors, Regulation has difficulty to retreat, and this often due to the Regulator. Max Weber's sociological rules  administration show about administration that the regulatory authorities, even in view of the purpose of competitive development, for example in the field of telecommunications, seek to remain, even though competition has actually been built. It does it by finding new purposes (in the above sector, the regulator could be the guardian of Net Neutralityt) or by affirming to practice a permanent "symmetric Regulation".

The market is the place, physical or virtual, where the supply and the demand meet, allowing the emergence of exact prices. For this, it is governed by the principle of free competition. The market is thus the alpha and the omega of competition law, since the competition authority must determine the relevant market, in particular to penalize anti-competitive practices, and has the function of repairing the damage done to the market. Regulation does not make the same place on the market except where the regulatory apparatus is temporary and its purpose is to build a competitive market. Its reference is more that of a sector, a wider space than that of the market. However, the finesse of regulatory techniques and the proximity of competition law and regulation law have led to the maturity of regulation of telecommunications to distinguish ex ante a series of markets. In the same way in finance one distinguishes the regulated markets and those organized by mutual agreement which are not subjected to the same rules. However, regulation tends to encompass the different markets, different horizontally or vertically (upstream market and downstream market) in the same perspective and in correlated rules to ensure the general equilibrium of the sector since precisely, There is no such economic law of competition that would spontaneously give rise to such a balance. There is much debate as to whether the market is a fact, a historical and geographical construction situated, or even a political idea or an philosophy or ideology claiming to be the first. The "regulation" is then colored in counterpoint: thus, the "regulation of the globalization" refers to the political idea of fight against the "all-market".