Independent Administrative Authority

► Full Reference: P. Bonis & M.-A. Frison-Roche, "Réguler le numérique, ou Sisyphe heureux" (Regulating Digital, or a happy Sisyphus), in P. Bonis & L. Castex (dir.), Compliance et Nouvelles Régulations, Les Annales des Mines, series "Enjeux numériques, June 2025, pp. 5-7. - 📝read the article (in French) - 📗read the table of content of this special issue of Enjeux numérique, Régulation et Compliance (in French), in which this introductory article is published. - ► English Summary of this article: This introduction to the collective publication on Regulation and Compliance, which aims to bring order to the Digital space, takes up the idea expressed by Camus when he referred to 'happy' Sisyphus, and expresses the idea that Regulation and Compliance are applied to this area with difficulty, relentlessness and failure, with texts constantly being adopted, modified and amplified on all sides, while the Digital Space is constantly changing, and the slope is constantly being climbed again. But this should not be seen as a failure, not even a flaw, because it is in the nature of digital regulation to always place the regulatory apparatus on our shoulders. This weight is shared by all, by the Authorities of all countries, because there is something common to all and also because there is something specific for each, because the techniques differ and because the visions of the world that the Politicians print in the texts and project in the Digital will always differ. This weight is also shared by companies, which internalise the rules through Compliance mechanisms, making them necessary agents for the efficiency and sustainability of the digital system, but also players in it, in articulation with Internet users in a permanent and unstable articulation with the local to the finest and this global that the Internet has invented. This presentation opens the series of contributions to the collective publication Régulation et Compliance, which makes up this special issue of Enjeux numériques in Annales des Mines. - 🌐read also the English presentation of:🕴️Marie-Anne Frison-Roche, 📝Le Droit de la compliance, voie royale pour réguler l'espace numérique (Compliance Law as a Royal Road for regulating the Digital Space) - 🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law 🌐subscribe to the Video Newsletter MAFR Surplomb 🌐subscribe to the Newsletter MaFR Droit & Art

► Full Reference: Regulation (EU) 2024/1620 of the European Parliament and of the Council of 31 May 2024 establishing the Authority for Anti-Money Laundering and Countering the Financing of Terrorism and amending Regulations (EU) No 1093/2010, (EU) No 1094/2010 and (EU) No 1095/2010 - ► read the text -

► Full Reference: S. Schiller, "Un juge unique en cas de manquement international à des obligations de compliance ?" ("A single judge in the event of an international breach of compliance obligations?"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, pp. 453-464.  - 📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published - ► Summary of the article (done by the author, translated by the Journal of Regulation & Compliance): Given the very international nature of the topic apprehended, the actors involved and therefore the compliance disputes, it is essential to know if a person can be implicated before several judges, attached to different states or even if he can be condemned by several jurisdictions. The answer is given by the non bis in idem principle, which is the subject of a abondant case law on the basis of Article 4 of Protocol n°7 of the ECHR, clearly inapplicable for jurisdictions emanating from different States. To assess whether breaches of compliance obligations may be subject to multiple sanctions in different states, it will first be necessary to ascertain whether there is a textual basis to be invoked. At European level, Article 50 of the Charter of Fundamental Rights now allows the principle of ne bis in idem to be invoked. Applicable to all areas of compliance, it provides very strong protection which covers not only sanctions, but also prosecutions. Like its effects, the scope of Article 50 is very broad. The procedures concerned are those which have a repressive nature, beyond those pronounced by criminal courts in the strict sense, which makes it possible to cover the convictions pronounced by one of the many regulatory authorities competent in matters of compliance. Internationally, the situation is less clear. Article 14-7 of the International Covenant on Civil and Political Rights may be invoked, if several obstacles are overcome, including the decision of 2 November 1987 of the Human Rights Committee which restricted it to the internal framework, requiring a double conviction by the same State. Even if these principles are applicable, two specificities of compliance situations risk hampering their application, the first related to the applicable procedural rules, in particular the rules of jurisdiction, the second related to the specificities of the situation. The application of the non bis in idem rule is only formally accepted with regard to universal jurisdiction and personal jurisdiction, that is to say extraterritorial jurisdiction, which is only part of the jurisdiction. . The Cour de cassation (French Judiciary Supreme Court) confirmed this in the famous so-called “Oil for food” judgment of March 14, 2018. The refusal to recognize this principle as universal, regardless of the jurisdiction rule in question, deprives French companies of a defense. Moreover, the repression of breaches of compliance rules is more and more often resolved through transactional mechanisms. The latter will not always fall within the scope of European and international rules laying down the non bis in idem principle, for lack of being sometimes qualified as "final judgment" under the terms of Article 50 of the Charter of Fundamental Rights of the European Union and Article 14-7 of the International Covenant on Civil and Political Rights. Breaches in terms of compliance are often based on multiple acts. This results from prescriptions the starting point of which is delayed at the last event and a facilitated jurisdiction for French courts when only one of the constitutive facts is found in France. In terms of compliance, the non bis in idem principle therefore generally does not protect companies and does not prevent them from being sued before the courts of two different countries for the same case. It nevertheless grants them another protection by obliging them to take into account foreign decisions in determining the amount of the penalty. The sanction against Airbus SE in the Judicial Convention of Public Interest (CJIP) of January 29, 2020 is a perfect illustration of this. Breaches in terms of compliance are often based on multiple acts. This causes delays in the starting point of prescriptions, starting point delayed at the last event, and this facilitates judicial jurisdiction for French courts when only one of the constitutive facts is found in France. In terms of compliance, the non bis in idem principle therefore generally does not protect companies and does not prevent them from being sued before the courts of two different countries for the same case. It nevertheless grants them another protection by obliging them to take into account foreign decisions in determining the amount of the penalty. The sanction against Airbus SE in the Convention judiciaire d'intérêt public -CJIP (French Judicial Convention of Public Interest)  of January 29, 2020 is a perfect illustration of this. -

Full reference: Loi n°2017-55 du 20 janvier 2017 portant statut général des autorités administratives indépendantes et des autorités publiques indépendantes (Law about status of public agencies) Read the law (in French)

To read more (in french).

Political power has often difficulties, or takes a long time to admit the principles of law, such as express the judges. So it was quite certain that the penalty proceedings held before the Autorité de Régulation des Communications Electroniques et de la Poste -ARCEP  (French Regulatory Authority for Electronic Communications and Post, as the investigation body and the judgment body were not sufficiently distinct crumpled the constitutional principle of impartiality. It was acquired about 15 years. Yet the organization has continued. It has been enough that an operator has been sanctioned. He used the procedure of Question Prioritairre de Constitutionnalité -Q.P.C.  Priority Question of Constitutionality) and Numéricable July 5, 2013 decision by the Constitutional Council came to declare that any sanction proceedings before ARCEP unconstitutional, because of objective procedural partialité, thus causing difficulty to the regulator. It took until the 0rdonnance of March 12, 2014 and finally the decree of 1st August 2014 to organize an efficient sanctions procedure, making this time an intern wall within the ARCEP between the services responsible for the instruction and those which are responsible for judging. The great judge Pierre Drai used to say: "Ne pas respecter le droit coûte cher (Do not respect the law is expensive)". We see here that this is true also for the Government which writes laws and regulations. So, for months, the regulator has been without power, to the delight of the operators, who often are tacticians or turbulent.

Documents decisions_des_juges.pdf 4em_de_couv.pdf programme_22_11_2013.pdf

Documents scan0024.pdf scan0026-2.pdf

Translated Summaries In The Journal of Regulation the summaries’ translation are done by the Editors and not by the authors ENGLISH The debate on Net Neutrality faces a major difficulty, namely that of its legal status: does there exist a “legal principle”—meaning a rule somewhere within the entire body of law—with mandatory force that could be used to counter infrastructure operators’ discriminatory practices?   FRENCH Le débat sur la neutralité du Net fait face à une difficulté majeure, à savoir son statut juridique: existe-t-il un «principe juridique», qui exprime une règle dans l’ensemble du système juridique – avec une force obligatoire qui pourrait être utilisée pour contrer les pratiques discriminatoires des opérateurs d’ infrastructure ? SPANISH El debate sobre la Neutralidad de la Red se enfrenta a una gran dificultad, primordialmente en cuanto a su estatus legal: ¿realmente existe un “principio legal” – es decir, una regla que se encuentra dentro de la disciplina del derecho – con fuerza mandataria que podría ser usado para enfrentar a las prácticas discriminatorios que practican los operadores de infraestructura? ITALIAN Il dibattito sulla neutralità della rete si trova di fronte ad una difficoltà rilevante dal punto di vista del suo fondamento giuridico: esiste una norma giuridica obbligatoria – intesa come una norma legale – che possa essere utilizzata contro le pratiche discriminatorie degli operatori? ……………….. Other translations forthcoming.

Translated Summaries ENGLISH Two and a half years after having been established by the LME, the French Competition Authority has uncontestably acquired its “place in the sun” amongst the competition authorities of other countries, as demonstrated by multiple indicators.   ITALIAN Articolo: L’Autorità garante della concorrenza tra “regolazione” e politica in materia di concorrenza Due anni e mezzo dopo l’instaurazione da parte del LME, l’Autorità francese garante della libera concorrenza ha trovato il suo posto tra le diverse autorità degli altri paesi, così come è stato dimostrato da diversi indicatori. SPANISH Artículo: La Autoridad de la competencia, entre “regulación” y política competitiva.   Después de dos años y medio de haber sido establecido por el LME, la Autoridad francesa de la competencia ha incontestablemente adquirido su “lugar bajo el sol” entre las autoridades de la competencia de otros países, como demostrado por varios indicadores. ………………… Other translations forthcoming.

Documents 5_fev_1999_oury.pdf