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The goal for which a mechanism, a solution an institution or a rule is adopted, instituted or elaborated, is in principle external to them. Knowledge of this goal is a tool to better understand them and is only that. On the contrary, in Regulation Law, the goal is the heart itself. By definition, Regulation Law is a set of instruments that articulate to take their meaning in relation to a goal. Moreover, these instruments are legitimate to represent a constraint only because they realize a goal which is itself legitimate. The interpretation of Regulation Law is based on the aims pursued: the reasoning is teleological. This teleological nature explains that efficiency is no longer merely a concern – as for ordinary legal mechanisms, but rather a principle of Regulation Law. It explains the welcome, especially through the European Union Law of the theory of the useful effect. This link between rules, which are only means, and aims, refers to the principle of proportionality, which requires that constraints and exceptions be applied only when they are necessary, proportionality being the form off the classic principle of necessity. Because the aim is the center, it must be expressed by the author of the Regulation standards, and this is all the more so if they are of a political nature, being not limited to mitigating technical failures of markets. This goal can be varied: the management of systemic risks, but also the consideration of the fundamental rights of people, the preservation of the environment, public health, civilization, education, etc. The silence of the legislature, which limits itself to the making of rules whereas these are merely instruments, without explicating the goal whereas the latter is a political decision, is a fault in the legislative art. Moreover, in order that the person who applies the Regulation norm, in particular the Regulator and the Judge, has no excessive margin for interpretation and does not substitute for political power, the author of the Regulation norm needs to aim specifically for one goal : in this way, the one who applies the norm will be constrained. Or, if the author targets several purposes, then he must articulate them in relation to each other, by hierarchizing them for example. If he fails to do so, the institution which applies the regulatory standards will itself have to choose the purpose and exercise a power which he does not possess. This express designation of purpose has been made for the European Banking Union,  this Regulation and Supervision construction, whose primary aim is to prevent systemic risks and resolve crises. Similarly, the purpose of the Regulation of essentiel infrastructures is to provide third parties access to the network. Similarly, in the case of a transitional regulation introduced following liberalization, the aim is to establish competition, the principle of which has been declared by the liberalization law. When this is not clearly stated, there is a lapse in the legislative art.    

Legally, the State is a public law subject defined by territory, people and institutions. It acts in the international space and emits norms. Politically, it has the legitimacy required to express the will of the social body and to exercise the violence of which it deprives the other subjects of law. It is often recognizable by its power: its use of public force, its budgetary power, its jurisdictional power. These three powers, declining or being challenged by private, international and more satisfying mechanisms, some predicted the disappearance of the State, to deplore it or to dance on its corpse. With such a background, in current theories of Regulation, primarily constructed by economic thought and at first sight one might say that the State is above all the enemy. And this for two main reasons. The first is theoretical and of a negative nature. The advocates of the theory of regulation deny the State the political qualities set out above. The State would not be a "person" but rather a group of individuals, civil servants, elected officials and other concrete human beings, expressing nothing but their particular interests, coming into conflict with other interests, and using their powers to serve the former rather than the latter as everyone else. The Regulation theory, adjoining the theory of the agency, is then aimed at controlling public agents and elected representatives in whom there is no reason to trust a priori. The second reason is practical and positive. The State would not be a "person" but an organization. Here we find the same perspective as for the concept of enterprise, which classical lawyers conceive as a person or a group of people, while economists who conceive of the world through the market represent it as an organization. The state as an organization should be "efficient" or even "optimal". It is then the pragmatic function of the Regulation Law. When it is governed by traditional law, entangled by that it would be an almost religious illusions of the general interest, or even the social contract, it is suboptimal. The Regulation purpose is about making it more effective. To this end, as an organization, the State is divided into independent regulatory agencies or independent administrative authorities that manage the subjects as close as possible, which is fortunate in reducing the asymmetry of information and in reviving trust in a direct link. The unitary, distant and arrogant State is abandoned for a flexible and pragmatic conception of a strategic state (without capital …) that would finally have understood that it is an organization like any other … Competition law adopts this conception of the State, which it posed from the beginning that it was an economic operator like any other. This is how this conception which would be  more "neutral" of the world is often presented. Successive crises, whether sanitary or financial, have produced a pendulum effect. Now, the notions of general interest or common goods are credited of an autonomous value, and the necessity of surpassing immediate interests and of finding persons to bear superior interests or to take charge of the interests of others, even a non-immediate one, emerged. Thus, the State or the public authority, reappears in the globalization. The Compliance Law or the Corporal Social Responsibility of the crucial companies are converging towards a consideration of the State, which can not be reduced to a pure and simple organization receptacle of externalities.  

"Compliance" is the typical example of a translation problem. Indeed and for example, the term "Compliance" is most often translated by the French term "Conformité". But to read the texts, notably in Financial Law, "Conformité" is aimed rather at professional obligations, mainly aimed at the ethics and conduct of market professionals, especially service providers of investment. It is both a clearer definition in its contours (and in this more certain) and less ambitious than that expressed by the "Compliance". It is therefore, for the moment, more prudent to retain, even in French, the expression "Compliance". The definition of Compliance is both contentious and highly variable, since according to the authors, it goes solely from the professional obligations of financial market participants to the obligation to comply with laws and regulations. In this latter sense, that is, the general obligation that we all have to respect the Law. To admit that, Compliance would be Law itself. Viewed from the point of view of Law, Compliance is a set of principles, rules, institutions and general or individual decisions, corpus of which the primary concern is efficiency, in space and in time. The purpose is to put into practice general interest goal targeted by these gathered techniques. The list of these goals, whether negative ("fighting": corruption, terrorism, embezzlement of public funds, drug trafficking, trafficking in human beings, organ trafficking, trafficking in poisonous and contagious goods – medicines, financial products, etc.) or positive ("fighting for": access to essential goods for everyone, preservation of the environment, fundamental human rights, education, peace , transmission of the planet to future generations) shows that these are political goals. These goals correspond to the political definition of the Regulatory Law. These political goals require means which exceed the forces of the States, which are also confined within their borders. These monumental goals have therefore been internalized by public authorities in global operators. The Compliance Law corresponds to a new structuring of these global operators. This explains why the new laws put in place not only objective but structural repressions, as in France the "Sapin 2 Law" (2016) or the "obligation of vigilance Law" (2017) . This internationalization of the Regulatory Law  in companies implies that the public authorities now supervise the latter, even if they do not belong to a supervised sector, or even to a regulated sector, but participate, for example, in international trade. The Law of Compliance thus expresses a global political will relayed by this violent new Law, most often repressive, on companies. But it can also express on the part of the operators, in particular the "crucial operators" a desire to have themselves concern for these monumental global goals, whether of a negative or a positive nature. This ethical dimension, expressed in particular by the Corporate Social Responsibility, is the continuation of the spirit of the public service and the concern for the general interest, raised world-wide.

Full reference: Autorité de la concurrence (French Competition Authority), Decision relating to practices implemented in natural gas, electricity and energy services supply sector, Engie vs Direct Energie/UFC que choisir, 21st of March 2017, n°17-D-06 Read the decision (in French) Read the press release Read the press release of the decision of 9th of September 2014 on which this decision is based    

A Central Bank is for the Law a rather mysterious object. Despite what some competition authorities have said, it is not an ordinary bank. It is at the root of monetary creation and its primary mission is to fight against inflation, contributing more or less directly and in a more or less independent way according to political and legal systems to the economic policy pursued by governments. Thus, while central banks all have constitutional status which guarantees autonomy, they have a more limited mission in Europe than in the United States. This is even more evident since monetary cre – ation has been transferred to the European Central Bank (ECB), which makes it even more necessary to interpret what the Central Bank can do, Reminded the Court of Justice of the European Union (CJEU) in 2015 of the ECB's non-conventional monetary policy programs. The central bankers either directly by a department or indirectly by an independent administrative authority (IAA) backed by them and who, although independent, have no legal personality with regard to them ( for example in the French system concerning the " Autorité de contrôle prudentiel et de resolution – ACPR) exercises regulatory and supervisory powers over the banking and insurance sectors. As such, they are regulators. When en Europe the power to create money has been taken away from them, passing from the Member States to the European Central Bank (ECB)  through the Euro Zone, it is this regulatory and supervisory power which remains their own, their mission being only to participate in the European collective mechanism. But for exercising its regulatory and supervisory role, the central bankers have considerable powers, including approval, sanction and, since 2013 and 2014, resolution. But in this respect it must be considered that, in particular with regard to the European Convention on Human Rights, central bankers are like courts and in the exercise of numerous powers, procedural guarantees must be conferred on operators who are the object of those powers.

First of all, the Regulation and Compliance Law is difficult to understand in others languages than English, through translation, for example in French.  This corpus of rules and institutions suffers from ambiguity and confusion because of its vocabulary of Anglophone origin, in which words or expressions that are similar or identical have not the same meaning in English and, for example, in French.. To every lord all honor, this is the case for the term "Regulation". In English, "regulation" refers to the phenomenon which the French language expresses by the term "Régulation". But it can also aim at the complete fitting of what will hold a sector reaching a market failure and in which regulation is only one tool among others. The expression "regulatory system" will be used with precision, but also the term "Regulation", the use of the capital letter indicating the difference between the simple administrative power to take texts ("regulation") and the entire system which supports the sector ("Regulation"). It is inevitable that in a quick reading, or even by the play of digital, which overwrites the capital letters, and the automatic translations, this distinction of formulation, which stands for a lower / upper case, disappears. And confusion arises. The consequences are considerable. It is notably because of this homonymy, that frequently in the French language one puts at the same level the Droit de la Régulation ("regulatory law, Regulation") and the réglementation (regulation). It will be based on such an association, of a tautological nature, to assert that "by nature" the Regulatory Law  is "public law", since the author of the reglementation (regulation) is a person of public law, in particular the State or Independent administrative authorities such as Regulators. There remains the current and difficult justification for the considerable presence of contracts, arbitrators, etc. Except to criticize the very idea of Regulatory Law, because it would be the sign of a sort of victory of the private interests, since conceived by instruments of private law. Thus two major disadvantages appear. First of all, it maintains in the Law of Regulation the summa divisio of Public and Private Law, which is no longer able to account for the evolution of Law in this field and leads observers, notably economists or international Institutions, to assert that the Common Law system would be more adapted today to the world economy notably because if it does indeed place administrative law, constitutional law, etc., it does not conceive them through the distinction Law Public / private law, as the Continental system of Civil Law continues to do. Secondly, no doubt because this new Law draws on economic and financial theories that are mainly built in the United Kingdom and the United States, the habit is taken to no longer translate. In other languages, for example, texts written in French are phrases such as "le Régulateur doit être  accountable". It is inaccurate that the idea of ​​accountability is reducible to the idea of ​​"responsibility". The authors do not translate it, they do not recopy and insert it in texts written in French. One passes from the "translation-treason" to the absence of translation, that is to say to the domination of the system of thought whose word is native, here the U.K. and the U.S.A. One of the current major issues of this phenomenon is in the very term of "Compliance". The French term "conformité" does not translate it. To respect what compliance is, it is appropriate for the moment to recopy the word itself, so as not to denature the concept by a translation. The challenge is to find a francophone word that expresses this new idea, particularly with regard to legal systems that are not common law, so that their general framework remains.

The procedural safeguards enjoyed by a person whose situation may be affected by a future judgment are principally the right to bring proceedings before the court, the rights of the defense and the benefit of the contradictory principle. The legal action was for a long time considered as a "power", that is to say, a mechanism inserted in the organization of the judicial institution, since it was by this act of seizure, access by which the person enters the judicial machine, through the latter starts up. But in particular since the work of René Cassin and Henri Motulsky, legal proceedings are considered as a subjective right, that is to say, a prerogative of any person to ask a judge to rule on the claim that the plaintiff articulates in an allegation, that is a story mixing the fact and the law in a building and on which he asks the judge to give an answer, such as the cancellation of an acte, or the award of damages, or the refusal to convict him (because the defense is also the exercise of this right of action). The legal action is now recognized as a "right of action", the nature of which is independent of the application made to the court, a subjective procedural right which doubles the substantive subjective right (eg the right to reparation) and ensures the effectiveness of the latter but which is autonomous of it. This autonomy and this uniqueness in contrast with the variety of the sort of disputes (civil, criminal or administrative) makes the right of action a pillar of the "Procedural Law" on which a part of European and Constitutional Law are built. In fact, Constitutional Law in Europe is essentially constituted by procedural principles (rights of defense, impartiality, right of action), since the principle of non bis in idem is only an expression of the right of action. Non bis in idem is a prohibition of double judgment for the same fact which does not prohibit a double trigger of the action (and criminal, civil and administrative). This unified due process of Law has helped to diminish the once radical separation between criminal law, administrative law and even civil law, which are clearly separated from one another in the traditional construction of legal systems and which converge today in the Regulatory and Compliance Law. Moreover, the subjective right of action is a human right and one of the most important. Indeed, it is "the right to the judge" because by its exercise the person obliges a judge to answer him, that is to say to listen to his claim (the contradictory resulting therefore from the exercise of the right of action ). Thus the right of action appears to be the property of the person, of the litigant, of the "party". This is why the attribution by the law of the power for the Regulators to seize itself, which is understood by reason of the efficiency of the process, poses difficulty from the moment that this constitutes the regulatory body in "judge and party", since the Regulator is in criminal matters regarded as a court, and that the cumulation of the qualification of court and of the quality of party is a consubstantial infringement of the principle of impartiality. In the same way, the obligation that Compliance Law creates for operators to judge themselves obliges them to a similar duplication which poses many procedural difficulties, notably in internal investigations. There is a classical distinction between public action, which is carried out by the public prosecutor, by which the public prosecutor calls for protection of the general interest and private action by a person or an enterprise, which seeks to satisfy its legitimate private interest. The existence of this legitimate interest is sufficient for the person to exercise his or her procedural right of action. In the first place, the person could not claim the general interest because he or she was not an agent of the State and organizations such as associations or other non-governmental organizations pursued a collective interest, which could not be confused with the general interest. This procedural principle according to which "no one pleads by prosecutor" is today outdated. Indeed, and for the sake of efficiency, Law admits that persons act in order that the rule of law may apply to subjects who, without such action, would not be accountable. By this procedural use of the theory of incentives, because the one who acts is rewarded while and because he or she serves the general interest, concretizing the rule of law and contributing to produce a disciplinary effect on a sector and powerful operators, procedural law is transformed by the economic analysis of the law. The US mechanism of the class action was imported into France by a recent law of 2014 on "group action" (rather restrictive) but this "collective action" , on the Canadian model, continues not to be accepted in the European Union , Even if the European Commission is working to promote the mechanisms of private enforcement, participating in the same idea. Secondly, it may happen that the law requires the person not only must have a "legitimate interest in acting" but also must have a special quality to act. This is particularly true of the various corporate officers within the operators. For the sake of efficiency, the legal system tends to distribute new "qualities to act" even though there is not necessarily an interest, for example in the new system of whistleblowers, which can act even there is no apparent interest.

The procedural guarantees from which the person benefits are mainly the right of action, the rights of defense and the benefit of the adversarial principle. While the rights of the defense are subjective rights which are advantages given to the person at risk of having his situation affected by the decision that the body which is formally or functionally legally qualified as a "tribunal", may take, the adversarial principle is rather a principle of organization of the procedure, from which the person can benefit. This principle, as the term indicates, is – as are the rights of the defense – of such a nature as to generate all the technical mechanisms which serve it, including in the silence of the texts, imply a broad interpretation of these. The adversarial principle implies that the debate between all the arguments, in particular all the possible interpretations, is possible. It is exceptionally and justified, for example because of urgency or a justified requirement of secrecy (professional secrecy, secrecy of private life, industrial secrecy, defense secrecy, etc.) that the adversarial mechanism is ruled out. , sometimes only for a time (technique of deferred litigation by the admission of the procedure on request). This participation in the debate must be fully possible for the debater, in particular access to the file, knowledge of the existence of the instance, the intelligibility of the terms of the debate, not only the facts, but also the language (translator, lawyer , intelligibility of the subject), but still discussion on the applicable legal rules). So when the court automatically comes under the rules of Law, it must submit them to adversarial debate before possibly applying them. The application of the adversarial principle often crosses the rights of the defense, but in that it is linked to the notion of debate, it develops all the more as the procedure is of the adversarial type.

The procedural guarantees enjoyed by a person whose situation may be affected by a forthcoming judgment are mainly the right of action, the rights of defense and the benefit of the adversarial principle. The rights of the defense have constitutional value and constitute human rights, benefiting everyone, including legal persons. The mission of positive Law is to give effect to them in good time, that is to say from the moment of the investigation or custody, which is manifested for example by the right to the assistance of a lawyer or the right to remain silent or the right to lie. Thus the rights of the defense are not intended to help the manifestation of the truth, do not help the judge or the effectiveness of repression – which is what the principle of adversarial law does – they are pure rights, subjective for the benefit of people, including even especially people who may be perfectly guilty, and seriously guilty. The rights of the defense are therefore an anthology of prerogatives which are offered to the person implicated or likely to be or likely to be affected. It does not matter if it possibly affects the efficiency. These are human rights. This is why their most natural holder is the person prosecuted in criminal proceedings or facing a system of repression. This is why the triggering of the power of a tribunal or a judge offers them in a consubstantial way to the one who is by this sole fact – and legitimately – threatened by this legitimate violence (one of the definitions of the State ). The rights of the defense therefore begin even before the trial because the "useful time" begins from the investigation phase, from the searches, even from the controls, and continues on the occasion of appeals against the decision adversely affecting the decision. The legal action being a means of being a party, that is to say of making arguments in its favor, and therefore of defending its case, shows that the plaintiff in the proceedings also holds legal defense rights since he is not only plaintiff in the proceedings but he also plaintiff and defendant to the allegations which are exchanged during the procedure: he alleged to the allegation of his opponent is not correct. They take many forms and do not need to be expressly provided for in texts, since they are principled and constitutionally benefit from a broad interpretation (ad favorem interpretation). This is the right to be a party (for example the right of intervention, the right of action – which some distinguish from the rights of the defense – the right to be questioned, such as the right to be brought into question (or examination), right to be assisted by a lawyer, right to remain silent, right not to incriminate oneself, right of access to the file, right to intervene in the debate (the rights of the defense thus crossing the adversarial principle), right to appeal, etc. It is essential to qualify an organ as a tribunal because this triggers for the benefit of the person concerned the procedural guarantees, including the rights of the defense, which on the basis of Article 6 of the European Convention on Human Rights man was made about the Regulators yet formally organized in Independent Administrative Authorities (AAI). This contributed to the general movement of jurisdictionalization of Regulation.

The art and the power of Law are in the words. This is why we sometimes attach the Law to the Acts of languages. The notion of "tribunal" is a good example. One can define a tribunal by locating the occurrences of this term in the texts: is thus a "tribunal" the body which is called "tribunal" and is not a "tribunal" that which is not so called . The power of such a literal tautology has long been that of French law. The technical consequence is considerable since the person whom the decision an agency may take may affect is much less protected when the agency is a "tribunal" than when it is not, for example. of an administration, or of a company, or of the family. Indeed, the person before a court is naturally endowed and in particular with rights of defense and benefits from the adversarial principle. And even before the benefit of these procedural guarantees, the person has the right to have his judge independent and impartial. All of these principles have constitutional value because it is the essential freedoms of individuals that are then at stake. In the formal and tautological conception, this hardly concerns the law of regulation, since it is rather institutionally built on regulatory authorities which certainly have great cumulative powers but which are administrative authorities and not jurisdictions. This is all the more distant since these administrative authorities take administrative decisions and not civil or criminal judgments. It is therefore outside of them that a criminal law of regulated markets is developing. But one can handle the art of qualification in a non-formal and non-tautological way. This is what was done by the European Court of Human Rights in the interpretation it gave of Article 6 of the European Convention on Human Rights. Indeed, it provides that "everyone has the right to an impartial tribunal in civil and criminal matters". According to a teleological reasoning and by being concerned above all with the situation of the person concerned, the ECHR considered that when a person is punished in a significant way for a fault that he has committed, we are in "criminal matters" , as when the decision affects his personal or patrimonial situation, we are in "civil matters", even though national law handles rules, for example formally administrative in an administrative dispute. Even more, by this fact alone, by the effect that it produces on the person and the danger that the prospect of such a decision represents for that, it institutes the organization in "court", and triggers for the benefit of this person all procedural guarantees. National law has only gradually accepted this reasoning which does not respect the division of the legal system into a branch of law and the successive decisions of the courts, the Cour de Cassation, the Conseil d'État and the Conseil d'État, sanctioned the Regulators. or invalidated the texts organizing their procedures for not having respected the consequences of their nature as a "court in the European sense", in particular not the requirement of objective impartiality, or the consequences of the applicability of the principle Non bis in idem. Begun in the 1980s, this continuing saga shows the power of words combined with the art of qualification and the force of inertia of an administrative system, both because it is always difficult to change and because a repressive administrative law can claim to be more effective because it gives less weapons to the suspected operative.

The notion of transition was initially a sign of the transitional nature of the Regulatory Law and the proof of its consubstantiality with the Competition Law. Indeed, especially in sectors where the ideal was thought to be Competition, as in telecommunications, it was thought that the competitive market was not present because of historical phenomena such as the constitution of public monopolies. It was therefore sufficient firstly and by a legal act to declare competition as a legitimate principle and then, because it is not enough to declare competition, it must still be constructed by treating the dominance of certain operators, in particular historical operators, it was necessary to set up a regulating apparatus. From this point of view, the Regulatory Law, in particular the constitution of Regulatory Authorities, would succeed through the establishment by the force of the Law of a competitive market, thus signing the end of this particular Law, replaced by the common Competition Law , under the sole and sufficient function of a Competition Authority. In this perspective, the aim of the Regulatory Law was to make a transition to Competition Law. That has not happened. The Regulatory Law has not dissolved in the Competition Law. It now seems clear that the Regulatory Law does not express a "transition", in any sector. But this term has taken on quite a different meaning through the notion of "energy transition". Indeed, to take the French example of the Act of 18 August 2015 sur la transition énergétique pour une croissance verte  (on the energy transition for green growth), the Regulatory Law today expresses a political will for transformation which does not bring back to the ordinary merchant but on the contrary, towards an economy built on pillars that would not exist without a regulation which in this example rests both on the protection of the environment and the protection of people. Thus, the notion of transition reconnects with the notion of public policies and allows the sectoral Regulators and the crucial operators to dynamically realize the transition from a regulation to another regulation, which the Politics alone can not do.

Impartiality is the quality, maybe the virtue, that is demanded of the judge, not only the one who is called like that but also the one who has the function to judge the others (maybe without this name). It can not be defined as the absolute positive aptitude, namely the total absence of prejudice, the heroic aptitude for a person to totally ignore his or her personal opinions and personal history. This heroic virtue is nonsense because not only is it inaccurate, impossible but it is also not desirable because a person is not a machine. It must not be so because good justice is human justice. In this respect, impartiality refers to a philosophical conception of what is justice and what is Regulation, not machines, but systems that must keep the human person in their center (Sunstein). Thus Impartiality is articulated with the subjective nature of the assessment not only inevitable but also desirable that the judge makes of situations. Because Law is reasonable, Impartiality is defined only negatively: the absence of bias. Impartiality is defined first and foremost as a subjective and individual quality, namely, the prohibition on the person who makes a decision affecting the situation of others (as is the case of a judge) to a a personal interest in this situation. The constitutional prohibition of being "judge and party" is thus the expression of the principle of impartiality. This definition is in line with the otherwise general requirement of no conflict of interests. Impartiality is defined secondly as an objective and individual quality, namely the prohibition for a person who has already known of the case to know again (because he or she has already had an opinion about it, this having constituted an objective pre-judgment). Impartiality is defined thirdly as an objective and structural quality, which obliges the organ which takes judgments to "give to see" a structure that makes it fit for this impartiality, objective impartiality that third parties can see and which generates confidence in its ability to judge without bias. This theory of English origin has been taken up by European law in the interpretation given to the European Convention on Human Rights. The expression "apparent impartiality" has sometimes given rise to misunderstandings. Indeed, far from being less demanding (in that it is "only" to be satisfied with an appearance of impartiality and not of a true impartiality), it is rather a matter of demanding more, not only of a true impartiality, but also of an impartiality which can be seen by all. This leads in particular to the obligation of transparency, to which the institutions, notably the State, were not necessarily bound by the law. For a long time the Regulator, in that it took the form of an Administrative Authority, was not considered a jurisdiction, it was long considered that it was not directly subject to this requirement. It is clear from the case law that the national courts now consider that the regulatory authorities are courts "in the European sense", which implies a fundamental procedural guarantee for the operators concerned

The term "breach" is new in Law. In the legal order, the term "fault" is that which is retained to designate the behavior of a person who deviates from a rule and must be sanctioned, because by this act he has manifested a fraudulent intention which may is reproached to him. But the legal notion of fault, which was central in the classic Law of civil liability and was essential in criminal liability Law has the major drawback of calling for proof: that of the intention to "do wrong". This seems all the less adequate when it comes to assessing the behavior of organizations, such as companies, whose behavior and power must be controlled more than the faulty behavior of their leaders sanctioned. This is why both to lighten the burden of proof concerning natural persons, in particular those with the power and the function of deciding for others (managers, "senior executives") and to better correspond to the distribution of the power of The action, which is now held by organizations, in particular companies, are "failures" and no longer faults or negligence which constitute the triggering events triggering their liability or justifying repression. It is more particularly an administrative repression, the end of which is not to sanction misconduct but to effectively protect the regulated sectors. The sanction for breaches is therefore both easier, because it is always necessary to prove the intention, and more violent, because the sanctions attached can relate to a share of the profits withdrawn, to a share of the turnover. business of the operator or can take the form of commitments by the operator for the future, a very restrictive and new form of sanction that the compliance technique has inserted into the law. Thus the breach can be defined as a behavior, even an organization which is away from the behavior or the situation that the author of a text has posed as being that which he posits as adequate. This definition, which is at the same time broad, abstract, teleological and prescription, which makes it possible to apprehend not only behaviors but also structures, makes the sanction of breaches a daily tool of Regulatory Law.

On the one hand, repression is the prerogative of the State which expresses it through the Criminal Law. Even though the administration has always exercised a power of sanction, the constitution of a kind of new branch of law, the "Repressive Administrative Law" was born from the regulatory Law. Indeed, it was necessary that the Economic and Financial Regulatory Authorities should be established so that the idea of ​​an administrative police, whose deployment must be effective, implies a continuum between the Ex Ante and the Ex Post, this Ex Post taking the first form of repression (next to the fonction of the  dispute resolution). The repression exercised by the Regulator, which itself has the institutional form of an Independent Administrative Authority (IAA), is expressed by Repressive Administrative Law. This Repressive Administrative Law is of a different conception of Criminal Law since it aims to reinforce the effectiveness of the Regulation of the sectors. Therefore, the French Constitutional Council (Conseil constitutionnel) was able to state in 1981 that criminal and administrative penalties were not like "in nature", the first aiming at punishing wrongdoing while the latter were aimed at yo regulate economic systems, except to respect the principle of proportionality. But this Constitutional Council in 2015 conceived rather the identity of the two repression and concluded the prohibition of punishing twice the same operator for the same fact (Non bis in idem). The two rules bodies are therefore mirrored. The administrative power of sanction is essential for a regulator, ensures the effectiveness of the prescriptions it issues and the legislator keeps increasing this power. At the same time, it has become possible for operatoirs in recent years to agree on commitments and to avoid sanctions. This mechanism of "administrative composition" is not contradictory because, as the repression, which it arrests nevertheless, it ensures the effectiveness of the Regulation.

Criminal law is a very special branch of law. While it expresses in the highest degree the "legitimate monopoly of State violence”, which cannot develop beyond the borders because it is intimate to the regalian power, and should in this respect be governed by Public Law, it is traditionally inserted in Private Law. This is due to the fact that Criminal Law is conceived as a legitimate exception to the liberty of persons (to act as they wish – to which the criminal prohibitions are opposed – to come and go – Imprisonment contravenes). The judicial judge in so far as he is constitutionally the guarantor of the freedom of persons is therefore the natural criminal judge. Criminal Law can therefore be applied only through the office of the judge, which is inseparable from criminal proceedings, whereas other substantive branchs of law (Civil Law, administrative Law, Commercial Law, etc.) applies apart from the corresponding procedure (civil procedure, administrative litigation, commercial procedure, etc.), or even to apply without trial. Because it is an exception, Criminal Law is constitutionally limited, by the principle of legality of offenses and penalties, of by the principle ot strict interpretation, of interpretation in favorem. Because it has a logic of its own, it constitutes within the legal system a branch of the so-called "autonomous" law, which does not take account of other branches. Moreover, it takes precedence over them, the criminal decisions having absolute authority, the criminal holding the civilian in a state. But economic law, and even more the regulatory law, has completely challenged this powerful classical conception. Indeed, the teleological Regulatory Law aims at achieving its goal: to balance the principle of competition and other concerns, such as access to common goods or the prevention of systemic risks. In this very dynamic and systemic conception, law is only an instrument. It is sought only in its ability to produce the desired effect. The criminal law then both enhanced and will fall from its pedestal. Indeed, sanctioning power, including fines and prohibitions, is considered the necessary and ordinary core of what must be effective regulatory system. Thus the laws increased the amounts incurred. But because the issue is effectiveness with regard to the goals, Criminal Law becoming an instrument, it thus loses its autonomy. Its interpretation is made in the light of the other rules which it ensures the effectiveness, rules of Public Law, Company Law, Civil Law, system of proofs, etc. Moreover, because it must be effective, its interpretation ceases to be strict: teleology often involves a broad interpretation. Its intimacy with the State dissolves and the emergence of a criminal law from the markets imposes itself, whose contours follow the markets themselves. Thus, the repression of market abuse is organized on a European scale and most often a decal of American Law. Global Criminal Law is being put in place. It applies outside the trial, notably through the transaction or settlement, which flows the criminal law into the contract. To apply more broadly, the evidence changes in nature, admits presumptions Criminal law is dissolved in the law of repression, which is better conceived in a repressive administrative rules, applying objectively to breaches. The passage from one to the other, the cohabitation of one with the other, is done with difficulty, as shown in the European saga Non bis in idem. Whatever the country, constitutional courts, whose office is to defend the rights and freedoms of individuals, tend to defend the classical conception of Criminal Law, while regulators tend to defend the regulatory conception of the objective sanction of failures.