Aug. 5, 2014


In France, a decree of 1st August 2014 finally reorganizes the sanction procedure before the French telecommunication Regulator (ARCEP), after the condemnation by the French Constitutional Council for partiality

by Marie-Anne Frison-Roche

Political power has often difficulties, or takes a long time to admit the principles of law, such as express the judges.

So it was quite certain that the penalty proceedings held before the Autorité de Régulation des Communications Electroniques et de la Poste -ARCEP  (French Regulatory Authority for Electronic Communications and Post, as the investigation body and the judgment body were not sufficiently distinct crumpled the constitutional principle of impartiality.

It was acquired about 15 years. Yet the organization has continued.

It has been enough that an operator has been sanctioned. He used the procedure of Question Prioritairre de Constitutionnalité -Q.P.C.  Priority Question of Constitutionality) and Numéricable July 5, 2013 decision by the Constitutional Council came to declare that any sanction proceedings before ARCEP unconstitutional, because of objective procedural partialité, thus causing difficulty to the regulator.

It took until the 0rdonnance of March 12, 2014 and finally the decree of 1st August 2014 to organize an efficient sanctions procedure, making this time an intern wall within the ARCEP between the services responsible for the instruction and those which are responsible for judging.

The great judge Pierre Drai used to say: "Ne pas respecter le droit coûte cher (Do not respect the law is expensive)".

We see here that this is true also for the Government which writes laws and regulations. So, for months, the regulator has been without power, to the delight of the operators, who often are tacticians or turbulent.

Read the Decree of 1st August 2014 (in French).


It is often said the law is unpredictable. Operators are frequently complain, stressing the legal certainty they are valuable, sometimes evoking their "right to legal certainty".

But here the situation is reversed.

It is since 1999 that by a resounding decision, the Cour de cassation  (French Court of Cassation), in its judgment Oury, posed that the lack of a clear distinction between the investigating body and the judgment body  within the financial regulatory institution (the Commission des Opérations de Bourse - COB), which was defined by the Court of Cassation as a "tribunal" constitues an incompatibility with the European principle impartiality, in its objective meaning.

Certainly at the time, this judicial affirmation surprised. But since 1999, the rule has been assimilated. Especially since she has been reaffirmed many times, for example about the Commission bancaire  (French Banking Commission), before which the proceedings were similarly organized.  The confusion of functions in the hands of the same people justified the condemnation of France in Dubus decision ruled by the European Court of Human rights. In 1999, the French Government reformed the COB. Several years after, the Autorité des Marchés Financiers - A.M.F.  (Frenche Financial Markets Authority) adopted the same pattern of distinction. Similarly, taking the consequences of the judgment Dubus, the organization of the Autorité de Contrôle Prudentiel - A.C.P. (French Banking and Insurance Supervision administrative Body), now Autorité de Contrôle Prudentiel et de Résolution - A.C.P.R. (French Banking and Insurance Supervision and Failures Resolution administrative Body) clearly distinguishes the investigating department and the judgment department inside the regulatory body.


But about the ARCEP, the old organization still remained and some very subtle analyzes said that it was sustainable.

But when basic procedural principles are at stake, we need to go more directly. And just when one analyzes the situation, breach of the principle of impartiality was visible.

As to bowling, the first operator who thought fit, because he was heavily condemned by ARCEP, reaching the Conseil constitutionnel  (French Constitutional Council) to submit the case, took the top prize, that is to say its subtracting any penalty, since the texts on which the sanctions had been imposed were affected by the pronouncement of unconstitutionality what did the constitutional Council in its decision of 5 July 2013, Numéricable.

Mr President of the ARCEP made ​​statements in the press to complain, not the decision itself, but the fact that he was now powerless. Mi-June 2014, the regulator still could not work in an industry that is changing fast, the President complaining to Parliament June 18, 2014.

Indeed, a regulator without power is a dead regulator in regulated systems in which any kind, repression seems now the watchword.

And it is more than a year after that, after the Order of 4 March 2014 sur l'économie numérique (on the digital economy) poses only very general principles on the powers of the ARCEP in articles 2-4, this decree organizing the sanction procedure is adopted on 1st August 2014.

It is not a satisfactory time frame.

Let us not forget that legal security is the most economic value that the law can offer.

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