Monographs
Monographs
Monographs
At first glance, only areas are regulated and the State doesn't enter private enterprises. But the imperative is reversed when a company absorbs the entire area, or when a firm has the project to absorb the area, such as Google has. The firm becomes "crucial" and the State must enter the company and intervene. It is necessary to give the definition of a "crucial firm". A firm is "crucial", in a negative sense, when its failures could cause the collapse of the system; a firm is positively "crucial" if through it the industry is facing the purpose to serve the future of the social group. The State is then legitimate to enter the company to make its voice heard, sometimes to exercise its decision-making powers. The competitive dynamism and power of property don't exclude the superimposition of the common concern for the future, which some call the general interest.
Monographs
► Full Reference: Frison-Roche, M.-A., "Proposition pour une notion : l’opérateur crucial" (Proposal for a notion: the "Crucial Operator"), D. 2006, pp. 1895-p. 1900. - ► Article English Summary: The market is conceived as having two kinds of actors: operators and regulators. But we can suggest a third term: the crucial operator. This notion, proposed here, assumes that the sector cannot function without it. It could be a network manager or a systemic company, the failure of which produces a domino effect, or a structure that maintains a system like the financial market companies. These kinds of "second-tier regulators" then have more rights and more obligations. They are either holders of essential infrastructure, or bearer of capital innovation, or centralize system risks. The regulatory systems should be rethought by integrating these "crucial operators". - 📝read the article. - ► More developed Article English Summary: Competition Law neutralizes economic agents who act on the markets, by the rule of capital neutrality. Thus, the company is a transparent legal concept, which erases the specificities of organizations. Public enterprises are therefore only considered as an enterprise and the notion of "national champion" is rejected. To escape this neutrality, without falling into the arbitrariness of the States against which Competition Law rightly fights, there is great interest and relevance in developing the concept of crucial operator. The idea of a crucial operator is to no longer think of it in a neutral way, not in relation to its capital or those who govern it, but in relation to its market behavior. In fact, cruciality can be defined as the quality of an organization which puts in its dependence the efficiency and the good functioning of other organizations. In this, cruciality is the opposite of competition, which postulates that the company not only does not depend on others but also will seek by nature to harm it by appropriating demand to the detriment of its competitors. But it may happen that the market cannot be satisfied with the aggressive mobility that is competition and supposes the stability and support of others operated by the crucial operator. This is so when the operator is the manager of an essential infrastructure since the other operators depend on it. This is also the case when the operator is the bearer of market innovation, which justifies access rights under essential facilities or agreements to produce research. The third case is when the operator carries the risks of the system, which explains why banks and financial institutions are most often crucial operators in that they carry the systemic risks of the banking and financial system. It is thus measured that the public or private character does not interfere in the qualification of crucial operator any more than the monopolistic character or not of the operator considered. The consequences of such a qualification as a crucial operator is that the operator must have more obligations than an ordinary operator. Thus, the infrastructure manager has the obligation to open it to third parties, even though control usually generates a power of exclusion. Similarly, financial or insurance institutions, because they must prevent risks, will be obliged by specific prudential standards. But the crucial nature of the operator gives him rights but also powers. This is how market companies, operators of private law who hold the places, have a disciplinary power of exclusion that some have compared to the power of the State. What is more, the crucial operator then appears to be a "second tier" regulator. Indeed, according to a pyramid figure, ordinary operators are subject to the disciplinary power of crucial operators who themselves are governed by public regulators, who are the first rank regulators. This quality of second-level regulator obliges the operator to behave towards his competitors with the same virtue as that which characterizes the regulator and first of all impartiality. This is the case with non-discrimination in accessing the network from its own competitors. In addition, a regulator must be accountable and behave in a transparent manner, while the ordinary operator is not subject to this principle, since competition law does not require transparency of structures and behavior. This link between regulation and governance clearly applies to financial operators, but it is also observed with regard to network operators. We thus measure that if positive law, giving form by a last effort of vocabulary to established rules, recognized the existence of the notion of crucial operator, it would better identify this intermediate category between the ordinary operator and the regulator, because the crucial operator is a company, entering into the game of supply and demand but it also supports the stable structure of the market and the stability of this market, which is not the usual aim of companies. -
Monographs
► Full reference: Frison-Roche, M.-A., "Le droit de la régulation", D. 2001, chron., pp. 610-616. - ► Read the article (in french) -
Monographs
► Full Reference: M.-A. Frison-Roche, "Remarques sur la distinction entre la volonté et le consentement en droit des contrats" ("Remarks on the distinction between will and consent in Contract Law"), Revue trimestrielle de droit civil, 1995, p. 573 s. - 📝read the article (in French) -
Monographs
► Full Reference: M.-A. Frison-Roche, in collaboration with Serge Bories, "La jurisprudence massive" ("The Massive Jurisprudence"), D. 1993, chron., pp. 287-330 - 📝read the article (in French) - ► English Summary of the article: The term "jurisprudence" is likely to have several meanings: on the one hand, jurisprudence stricto sensu, that emanating from the High Courts; on the other hand, "massive jurisprudence", designating all legal decisions rendered by the courts. This study of "mass case law" is divided into two parts: the first sets out the advantages of analysing mass judgments (I.), and the second develops the method that should be used to study these judgments (II.). The analysis of massive jurisprudence is of threefold interest: educational, scientific and practical. Educational, in that it provides a more concrete, comprehensive and detailed view of the subject being taught. Scientific, in that it provides a global perspective, making it possible to take a closer look at reality and thus analyse the phenomena of pluralism in case law and anticipate 'elite case law' or legislative developments. And lastly, it is practical, in that it enables legislators to learn as quickly as possible about the practical application of the law and its consequences, so that they can potentially react to counter any perverse effects and/or use this information to adapt their legal policy decisions. The analysis method involves 3 stages. Firstly, a prior qualitative analysis of the banal judgment must be carried out, based on the extraction of key words and concepts contained in the decision, in order to transform the raw information into data. Next, categories of analysis need to be established, based on the structure of the data collected and the research hypotheses, in order to process the mass of refined data collected. It is also essential to have access to all the data used to adopt the decision. In the final stage, complementary methods, such as studying the case file or interviewing magistrates, should be added to the textual analysis. - 🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law