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Market regulation is defined as the set of mechanisms that allow markets to establish and maintain long-term balances that they cannot establish and maintain in the long term by their own forces. It is therefore a set of institutions and rules that relate to the markets and against which they are "black boxes". On the other hand, it may happen that certain companies, because they are "crucial operators", justify that a public authority looks in transparency and controls its structure and its functioning. It is then a supervisory function. It may happen that this supervisory function is exercised by the Regulatory Authority, when it ensures the solidity of a crucial operator, which the sector absolutely needs, for example because it manages a monopoly network. natural. It also happens that it is a separate Supervisory Authority, as is often the case in banking matters, supervision being provided by central bankers. Supervision then takes the form of prudential supervision, ensures the solidity of the operators, that is to say enters into the operators and thus controls the adequacy of equity and quasi-equity , the organization of the company (rule of "four eyes" for the, which assumes that they not only a Chairman but also a CEO), control of managers etc. Thus prudential standards are indifferent to the market context. Regulation is for the outside, prudential is for the inside.   This opposition has turned out to be catastrophic since precisely there is communication between the inside and the outside when it comes to financial markets, since the financial market is a market of and information is designed inside. companies issuing the securities. Therefore, there can only be effective regulation if there is a well-designed prudential framework, and the opposition itself does not make sense, which is why many countries first identified the internal organs. to companies as soon as they emit information, thus feeding the markets and influencing the behavior of investors and other operators, as falling under regulation. This was the case with banks or investment service providers which are fully subject to financial regulation. The 2008 law gave full awareness of this continuum between prudential and regulatory and justified the creation of the Autorité de Control Prudentiel, which later became the Autorité de Control Prudential et de Résolution (ACPR), the integrity of the markets implying that the control of the reliability of the internal organization of certain operators with regard to their organization, the confidence that one can have in them and their way of exercising power, being the pledge of the solidity of the market itself. This is why the new reflections on financial regulation, then on Regulation in general, highlight the notion of “”, which we could also call “crucial operators”, and which sets apart operators whose weight is so important. important on the market (regulatory criterion) that their internal organization must be special or particularly supervised (prudential criterion). Thus, regulation and governance, which were opposed, have become inseparable. This is aimed at all operators that a sector cannot do without. They become transparent to the public authority which supervises them.

The market is normally self-regulated. It suffers from one-time failures when economic agents engage in anti-competitive behavior, mainly the abuse of dominant positions in the ordinary markets, or the abuse of markets in the financial markets, sanctioned ex post by the authorities in individual decisions. But some sectors suffer from structural failures, which prevent them, even without malicious intent of agents, from reaching this mechanism of adjustment of supply and demand. The existence of an economically natural monopoly, for example a transport network, constitutes a structural failure. Another agent will not duplicate once the first network has been built, which prevents competition. An a-competitive regulation, either by nationalization, by a state control or by a control by a regulatory authority, is needed to ensure everyone's access to an essential facility. Also constitutes a market failure asymmetry of information, theorized through the notion of agency that hinders the availability and circulation of exhaustive and reliable information on markets, especially financial markets. This market failure carries with it a systemic risk, against which regulation is definitely built and entrusted to financial regulators and central banks. In these cases, the implementation of regulations is a reaction of the State not so much by political rejection of the Market, but because the competitive economy is unfit to function. This has nothing to do with the hypothesis that the State is distancing itself from the Market, not because it is structurally flawed in relation to its own model, but because politics wants to impose higher values, expressed By the public service, whose market does not always satisfy the missions.    

The expression is always left in the English language even when it is used in other languages because it is not translatable. It refers to the basic institutional and political mechanism of the American system. Regulatory theorists and practitioners often refer to it as the right political and institutional framework on which to base an economic organization of Regulation. This would mean a need to reform the political systems built on another mode of separation of powers. This strong basis conforts the fact that the system of Regulation is not neutral, it is the reflection of a political organization. The shock between these different philosophical and political conceptions explains why economic regulation has been difficult to accept in Europe, and especially in France for a long time. Indeed, according to the French political scheme resulting from the Revolution, there are two powers: the executive and the legislative, the judiciary being only an authority. The executive is built on the hierarchical principle of which the head is constituted by the government, any administration ultimately coming from a minister. It is therefore a vertical system, which has the merit of simplicity. Regulatory authorities have been imposed by European directives since the 1990s, in the form of bodies which may be administrative and Under this title of the State but must be necessarily independent of the government from the moment that operated on the market of the public enterprises which also obeyed the government through the theory of the state shareholder.   Le choc entre les deux conceptions philosophiques et politiques  explique que la régulation économique ait eu du mal à être acceptée en France pendant une longue période. En effet, selon le schéma politique français issu de la Révolution, il existe deux pouvoirs : l’exécutif et le législatif, le judiciaire n’étant qu’une autorité. L’exécutif est construit sur le principe hiérarchique dont la tête est constituée par le gouvernement, toute administration relevant finalement d’un ministre. Il s’agit donc d’un système vertical, qui a pour lui le mérite de la simplicité.Les autorités de régulation ont été imposées par des directives européennes à partir des années 90, sous la forme d’organes pouvant être de nature administrative et relevant à ce titre de l’État mais devant être nécessairement indépendants du gouvernement dès l’instant qu’opéraient sur le marché des entreprises publiques qui elles aussi obéissaient au gouvernement à travers la théorie de l’État-actionnaire. This is the fundamental European rule of the impossibility of cumulation of the regulatory / operator state, a situation constituting a conflict of interests. The French State, which intends to remain owner of public operators, in particular EDF, has preferred to relax control of regulation by creating independent administrative authorities (AAI). Consequently, the vertical model of the hierarchy of the executive has been disrupted since these authorities no longer report (as free electrons) of it. For them to be held accountable, judicial review of the authorities through appeals has been increased. In the same way, through public reports to Parliament, the IAAs began reporting directly to the IAA. The political model becomes horizontal. This then refers to a completely different tradition: that of the United States. Indeed, in the United States, the executive (the White House) has both the Parliament (the Congress) and a very powerful judiciary (the Supreme Court); No one has taken over the others, each however being able to hold the others accountable. This is called Check and Balance. Not least because the Regulation has been institutionalized by economists who, through the current Law and Economics, have perceived what they consider to be the most appropriate right as American law, which must impose itself almost "by nature". Thus, through this small corner in the door that is the institutional reform introduced by regulation, the French political system evolves towards this American system of check and balance, being observed that the United States were the first historically to put in Regulators. This rapprochement of the systems can be carried out all the more so as in Europe the organs in charge of the control of the constitutionality control do not stop increasing in power. Thus, in France, since the constitutional reform of 23 July 2008, the Constitutional Council can assess the constitutionality of laws not only before their promulgation but even when they have entered the legal order, It is becoming a "Supreme Court" on the American model. The political models remain very different, in particular because the French Parliament does not have the same blocking power as the US Congress, and the Constitutional Council does not have the same doctrinal power as the US Supreme Court. Leaves France in the place of a presidential system virtually without balance, face to face Regulators and the system of the European Union, Europe more and more a Europe of Regulation.

The notion of "Common Goods" refers to a political conception insofar as it concerns objectively commercial goods such as cultural goods or medical services, but which the community is going to demand that everyone should have access to it even though the individual does not have the ability to pay the exact price. It is then the taxpayer – present or future – or the social partners who bear the cost, or even some companies, through the corporal social social responsibility mechanism. This protection of Common Goods can be done by the State in the name of the interest of the social group for which it is responsible and whose it expresses the will, particularly through the notion of the general interest. In this now restricted framework which is the State, this reference runs counter to the principle of competition. This is particularly clear in Europe, which is based on a Union built on an autonomous and integrated legal order in the Member States in which competition continues to have a principled value and benefits from the hierarchy of norms. The evolution of European Law has balanced the principle of competition with other principles, such as the management of systemic risks, for example health, financial or environmental risks and the creation of the banking union shows that the principle of competition is no longer an apex in the European system. But it still remains to an economic and financial conception of Europe, definition that the definition of the Regulatory Law  when it is restricted to the management of the market failures feeds. It is conceivable that Europe will one day evolve towards a more humanistic conception of Regulatory  Law, the same one that the European States practice and defend, notably through the notion of public service. Indeed and traditionally, public services give people access to common goods, such as education, health or culture. Paradoxically, even though Law is not set up on a global scale, it is at this level that the legal notion of "common goods" has developed. When one refers to goods that are called "global goods", one then seeks goods that are common to humanity, such as oceans or civilizations. It is at once the heart of Nature and the heart of Human Being, which plunges into the past and the future. Paradoxically, the concept of "global goods" is still more political in substance, but because of a lack of global political governance, effective protection is difficult, as their political consecration can only be effective nationally or simply declaratory internationally. That is why this balance is at present only at national level, which refers to the difficulty of regulating globalization. Thus, the "common goods" legally exist more under their black face: the "global evils" or "global ills" or "global failures", against which a "Global Law" actually takes place. The notion of "global evils" constitutes a sort of mirror of Common Goods. It is then observed that countries that develop legal discourse to regulate global evils and global goods thus deploy global unilateral national Law. This is the case in the United States, notably in financial regulatory Law or more broadly through the new Compliance Law, which is being born. Companies have a role to play, particularly through Codes of Conduct and Corporate Social Responsibility.

The competition authority is generally an independent administrative authority (AAI). This is the case in France with the Autorité de la Concurrence (ADLC) which succeeded the Conseil de la Concurrence and which, like it, was designed to intervene ex post. Whatever the market considered, thus benefiting from almost universal jurisdiction over any economic activity of production, distribution and service, it can be seized or even self-seized when elements of anti-competitive behavior are alleged. The competition authority does not monitor the markets as such, nor does it build them or maintain their balance. These functions are precisely devolved to regulators. We can thus see that the competition authority has a much broader competence than that of the regulators, since the latter's office is limited to a sector while, conversely, the competition authority has a much weaker power than that of the regulators. regulators, since it has no ex ante powers and only intervenes on an ad hoc basis. This distinction in no way precludes coordination between regulators and the competition authority, in particular because they can reciprocally transmit cases or information to each other, just as they can solicit each other for their respective opinions. The more competitively mature the sector for which a regulator is responsible, the more active this collaboration will be, as can be seen in telecommunications. But things are not so simple, we will take two examples: first, the competition authorities, whether French (since the law on the modernization of the economy – LME of August 4, 2008 ) or European since the Community regulation of 1985, the competition authority operates merger control. This considerable function and power consists in assessing the conformity with the law of the will of two companies to come together (for example, by a merger). But, insofar as the competition authorities very often put conditions to accept the concentration, for example disposals of assets or behavioral commitments, we arrive at a kind of economic and industrial mechanic operated ex ante, comparable to a regulatory power. These commitments are in fact negotiated between companies and the Competition Authority: what are presented as unilateral conditions appear to be a kind of contract. More generally, the more the competition authority develops the technique of commitments, including with regard to anti-competitive practices, the more it contracts its behavior vis-à-vis companies, renouncing sanctions, that is to say abandoning its attitude ex post, to organize a new situation for the company adopted by it through its commitments, the competition authority then acting ex ante, behavior characteristic of a regulator. Secondly, the European Commission, a multi-headed organization, on the one hand sanctions anti-competitive behavior and operates merger controls, and on the other hand, drafts the texts of the directives of the community regulations that the European Parliament and the European Council will adopt thereafter. However, in the regulated sectors, the European Commission adopts and writes dozens of directives and regulations to such an extent that it has become accustomed to designing them by “package”, apprehending developments in energy or regulation. environment, banking or telecommunications, etc., by packages containing several directives and regulations. In these texts, which therefore come under ex ante, the regulatory organizations of the sectors are deeply affected. This sort of Janus that the European Commission constitutes means that it is, at European level, both the Competition Authority and the Regulatory Authority. However, national competition authorities tend to claim that they are "small European commissions", which reinforces their tendency to want to regulate the economy. They come to propose in texts of “soft law” the concept of “competitive regulation”, which constitutes an oxymoron.

The Autorité de Régulation des Communications Electroniques et de la Poste (ARCEP) is an independent administrative authority (AAI). In 2005, it took over from the Autorité de Regulation des Télécommunications (ART), which was created in 1996. ART was the first regulatory authority of its kind, inaugurating under the impetus of European Union Law the wave of liberalization of previously monopolistic sectors. ARCEP has a broader competence than that of ART, also regulating postal activities and its role is to promote the exercise of "effective and fair competition for the benefit of users", which brings it particularly close to the general office of the Autorité de la concurrence. This regulator must still take into account the "interest of the territories" and user access to services and equipment. ARCEP has jurisdiction to regulate what carries information (container) while the Conseil Supérieur de l'Audiovisuel (CSA) has jurisdiction to regulate the information transported (content). This distinction between container and content therefore forms the basis of the duality of regulators. But in the first place it is fragile and little used abroad, other countries preferring to have a single regulator for the container and for the content, insofar as the information can pass through various containers (e.g. television or the telephone) as in the United States (Federal Communication Commission – FCC). Second, the Internet makes it difficult to handle this distinction. This is why the hypothesis of a merger of the two French regulatory authorities is sometimes mentioned. ARCEP monitors wholesale markets, in which operators must behave in a non-discriminatory manner and publish a reference offer. It controls prices and forces a price orientation towards cost, favoring downstream, that is to say (retail market), competitive dynamism. On this, the regulator ensures access to the transmission network and the distribution network to the end consumer (local loop issue). ARCEP has the power to allocate frequencies to operators, which are scarce resources, the allocation of which can be withdrawn from the operator in the event of a breach. But beyond these very technical dimensions, the regulator exercises a political function because it projects into the future a certain conception it has of the sector. Thus it can estimate or not that the optical fiber should or not be favored and force the operators in this direction. Likewise, it can adhere to the theory of “net neutrality” in the name of which it will force the owners of a network to open it up to users, even at the cost of investments to accommodate them, the regulator then fixing the compensation for such a right of access. Adherence to this much debated theory is not technical but political in nature. ARCEP has the aforementioned power to withdraw frequencies from operators not fulfilling their obligations and can take protective measures. These can be challenged before the Paris Court of Appeal. The authority exercises the power of dispute resolution and the power of sanction. ARCEP publishes an annual report, a way for the Authority to report, this mode of responsibility being balanced against its independence. As in 1996 for telecommunications, from 2005 the regulator opened up postal activities to competition, while ensuring the continuation of the public postal service. The Law of February 9, 2010, while transforming La Poste into a public limited company, ensured that its public service obligations were maintained and even extended them by entrusting it with spatial planning obligations, showing interregulation with environmental regulation. Through this control, the regulator exercises more political than technical power.