Droit de la Régulation et de la Compliance

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".

The very term 'media' is ambiguous since in the literal sense it designates what makes it possible to convey information between two people, that is to say the container rather than the content. In fact, today the media designate the content, that is to say the information as well as the media on which it circulates. If the media are regulated, it is above all for political purposes and in a different way depending on the medium. Indeed, if we take the audiovisual sector, it is above all a question of preserving public television stations from the temptation of political power to use its power as owner to use it as a propaganda tool and to ensure pluralism. politics during election campaigns. The regulator of these public freedoms is the CSA. The print media does not have a regulator per se; it is directly held at arm's length financially by the state through the Directorate of Media Development, attached to the Prime Minister. But today the major medium appears to be the Internet, a space for which global regulation remains to be found. Finally, because it is not possible to distinguish between content and container, the dynamism of communication and the dynamism of content creation are inseparable. Therefore, the regulation of communication must eventually be associated with the regulation of content creation, that is to say, cultural regulation. In the United States, this is left to the market, where a film industry has notably been built, guided by the needs of applicants. France continues to defend the idea that culture and the audiovisual sector are not a neutral object of the market and should therefore be removed from the WTO, the regulation of culture, because it is a question of common good, to which everyone must have access, justifying the entire ex ante system of public aid for creation and the desire for cultural diversity.

Network industries are built on transport infrastructure such as telecommunications waves or data, gas or electricity, which are essential facilities. These essential infrastructures are monitored by regulators not only for the operators to have a concrete right of access but also for a complete network of these infrastructures to be built in a space, especially in Europe, for example to achieve a European railway system. These infrastructures also exist in banking, financial and insurance matters, which it would be futile to oppose too easily to Network industries, as financial centers are based on huge computer systems, internalized clearing houses, which are themselves Infrastructure, deserving Regulation. In this way, the optimal infrastructure solidity, the Regulator having its final responsibility in a permanent control over the manager, whether the State or an operator – whether the operator is an operator Public or a private operator -, and the competitive dynamism of the sector that the system can also entrust to the same regulator. This is particularly the case in Financial Regulation, which aims to optimize the places, which compete with each other, and their respective security, which itself constitutes a competitive advantage, common to all operators.

Regulation has arisen from the need to take account of the specific nature of the sectors, often accompanied by their liberalization. But, first of all, goods from different sectors can be substitutable. Thus, both gas and electricity can be heated, as intermodal competition makes the segmentation of regulation of the electricity sector and regulation of the gas sector less relevant to the idea of a single sector of "energy", which nevertheless allows the regulation of water and oil out of its grip. Similarly, a life insurance contract is both an instrument of protection for the future, a product that is therefore covered by insurance Regulation, but also a financial product placed with consumers by banking-insurance companies, objet to the banking regulatory control. This intimacy of regulation with respect to the internal technicality of the object on which it bears can not be erased. The interregulation that will take place is initially institutional. That is why an alternative opens: either the regulatory authorities are merged, and thus the UK's Financial Services Authority (FSA) has merged financial and banking regulation in 2000, what has not done the French system. Thus, the first branch of the alternative is the institutional fusion, at the risk of constituting kinds of titans, or even reconstituting the State. Either procedures for consultation and joint work are established to create contact points, or even a common doctrine among regulators, as it is between ESMA, EBA and EIOPA in the UE regulatory mechanisms. The other branch of the alternative is to respect this initial relationship between regulation and the sector and to take note of the links between sectors through the proposed concept of "interregulation". This involves setting up networks between autonomous authorities, but exchanging information, meeting, collaborating on common issues, and so on. This interregulation may initially be horizontal when authorities from several sectors collaborate, for example, ESMA, EBA and EIOPA. It may also be vertical when the authorities of national sectors collaborate with foreign authorities or European or international authorities, as envisaged by the Lamfalussy process in financial matters (extended to the banking and insurance sectors) or the Florence Process in the field of telecommunications or the Madrid Energy Process, where European national regulators meet and work together. This can take more formal institutional forms, such as in telecommunications, with BEREC, or in energy matters with ACER, with and around the European Commission. The comitology technique has generalized this institutional formula. Interregulation is then notional, a "common law" of regulation developing, common between all sectors. This "common law" (horizontal law) came after the maturity of sectoral regulation laws (vertical laws). It develops in fact because regulated objects are located on the border of several sectors, or even ignore these borders : for example financial derivatives on underlying agricultural or energy. Moreover, "connected objects" generate interregulation in digital space. Thus, even though it is possible that the Internet may give rise to an "interregulation" before giving rise to a specific regulation, the latter can then justify that the first one is dispensed with. That has not happened yet. This regulation of the digital world should be global. It is therefore possible that there remains a mechanism of interregulation.

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 Common Law systems, judges are powerful, respected and create the Law. In the countries of Civil Law, to which for example France belongs, since the French Revolution, judges have been neutral agents for the application of the law. France is a country built on the legislation, where Law is synomyne to the legislation. But the decisions of the regulatory authorities, which are nevertheless administrative authorities (Independent Administrative Authorities – IAA), can be challenged not only before the administrative courts, which is often said to be close to the administration (judge- Administrator theory), but more often before the European Court of Human Rights (ECHR) before the European Court of Human Rights (ECHR) because of the applicability of the European Convention on Human Rights or before the ECJ or before the the Constitutional Council. Thus, the judge becomes a central figure in the systems of Regulation, which neither the government nor the administration, nor the companies, nor the economists of the countries of continental law (Civil Law) had until now used. To the extent that the judge has always been at the center of British and American Law, not only the jurists and economists of these anglo-american countries are more at ease, but also the new law which applies in the new Regulatory Systems tends to be inspired by Common Law rather than by Civil Law. It is then often asserted that the former would be more adequate than the latter. This is not established, but there is more a sort of coincidence between the two traditions, between legal Common Law systems and Regulatory concepts. However, Europe is in the process of constructing a corpus of jurisprudential rules, notably through the national Constitutional Courts, with regard to economic regulation, which is peculiar to the European space.

The intensification of the exchanges around the planet is distinguished from globalization in that the first phenomenon refers to the acceleration of economic exchanges without being confused with the disappearance of the space and time of the combined mechanisms of finance and digital, which is expressed by the term "Globalization". In its strict  and classical sense of intensification of exchanges around the globe, globalization ("mondialisation" in French) is not a new phenomenon; it has simply taken on a new dimension: globalization is an intensification of trade in goods and people. It is not a disappearance of circulations, encounters and exchanges, which on the contrary constitutes "globalization,, in the new sense of the term. Free world trade presupposes that borders can not be opposed to the movement of goods and the World Trade Organization (WTO) has been set up for this purpose, the Marrakesh Accords of 1994 conferring on this organization a very great power , Since two conflicting states have their own disputes settled by a dispute settlement body whose report is endorsed by the WTO itself. The State whose enterprises have been the victim of an illegitimate tariff or non-tariff barrier, can itself inflict retaliatory measures on the guilty state by a kind of private justice. The WTO mechanism is concerned with goods and not with financial mechanisms, which do not even need to remove borders and other barriers, since their immateriality has already destroyed the limits and is thus a matter of "globalization", in the second and new sense of this term. Globalization, in its strict sense of intensification of exchanges, is thus establishing market law on a global scale, even though this system has not yet become legalized to the point of establishing a global Competition Law as such, since the absence of a barrier to entry is just the first principle of this Law. But there is also no Regulation, that is to say that for the time being, the principle of free adjustment of supply – even foreign suppliers – and the demand of domestic consumers is not in balance with other principles, such as public service, risk prevention, preservation of common goods, etc. So we are still waiting, not only in the political sense but also in the technical sense, for the establishment of the Regulation of Globalization, in both senses of this term. This is particularly needed in environmental regulation, as the outline of a global environmental organization has not flourished. It is feared that what is called "regulation of globalization", that is to say, such a balance, does not come from the public authorities alone, for lack of a global Public international public order sufficiently powerful and coherent. But it could come from the crucial global operators, through the mechanisms of compliance and social responsibility.