Food for thoughts

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.

 

 

► Full Reference: B. Deffains, "La dette comme fondement de l'obligation de compliance" ("From the Debt to the Compliance Obligation"), in M.-A. Frison-Roche (ed.), L'Obligation de Compliance, Journal of Regulation & Compliance (JoRC) and Dalloz, "Régulations & Compliance" Serie, 2024, to be published

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📕read the general presentation of the book, L'Obligation de Compliance, in which this contribution is published

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► Summary of this contribution  (done by the Journal  of Regulation  & Compliance):  The contribution builds on the definition of Compliance in that it requires large companies to contribute to the achievement of Monumental Goals, including the preservation of human rights and systems, e.g. climate system.  

This requirement is confronted with the notion of Debt as it results today from classic and new works available in economic science. In fact, in the primitive economy, debt refers not only to exchanges, but also to an ethical and social obligation leading back to the collective. The Economic Analysis of Law has highlighted this situation, where some of the entities involved in a situation benefit from positive externalities, or endure negative externalities on their own, thus creating a situation of debt: this generates an obligation to correct market failure through an obligation to manage risks, as expressed by Compliance Obligation. This implies that economic calculation can be used to quantify this debt, leading to new proposals for biodiversity accounting.

The author then highlights the recognition of Debt as the source of an Compliance Obligation. This can be expressed through the classical notion of natural obligation, which can be traced back to the French Civil Code, or through more solidarist or political conceptions of Law, linked to moral responsibility, with the overall moral equilibrium referring to civic duty, superimposed on the accounting equilibrium. The political dimension is very much present, as shown by Grotius and Kant, then Bourgeois (solidarism), Rawls and Sen (social justice), who link the deep commitment of each individual with the group. This sheds light on the essential role played by the State and public institutions in formalising and enforcing the Compliance Obligation, not only to ensure its effectiveness, but also to make everyone aware of its fairness dimension.

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🦉This article is available in full text to those registered for Professor Marie-Anne Frison-Roche's courses

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► Full Reference: J.-B. Racine, "Compliance Obligation and Human Rights​", in M.-A. Frison-Roche (ed.), Compliance Obligation, Journal of Regulation & Compliance (JoRC) and Bruylant, "Compliance & Regulation" Serie, to be published

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📘read a general presentation of the book, Compliance Obligation, in which this article is published

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► Summary of the article (done by the Journal of Regulation & Compliance - JoRC): The author asks whether human rights can, over and above the many compliance obligations, form the basis of the Compliance Obligation. The consideration of human rights corresponds to the fundamentalisation of Law, crossing both Private and Public Law, and are considered by some as the matrix of many legal mechanisms, including international ones. They prescribe values that can thus be disseminated.

Human rights come into direct contact with Compliance Law as soon as Compliance Law is defined as "the internalisation in certain operators of the obligation to structure themselves in order to achieve goals which are not natural to them, goals which are set by public authorities responsible for the future of social groups, goals which these companies must willingly or by force aim to achieve, simply because they are in a position to achieve them". These "Monumental Goals" converge on human beings, and therefore the protection of their rights by companies. 

In a globalised context, the State can either act through mandatory regulations, or do nothing, or force companies to act through Compliance Law. For this to be effective, tools are needed to enable 'crucial' operators to take responsibility ex ante, as illustrated in particular by the French law on the Vigilance Obligation of 2017.

This obligation takes the form of both a "legal obligation", expression which is quite  imprecise, found for example in the duty of vigilance of the French 2017 law, and in a more technical sense through an obligation that the company establishes, in particular through contracts.

Legal obligations are justified by the fact that the protection of human rights is primarily the responsibility of States, particularly in the international arena. Even if it is only a question of Soft Law, non-binding Law, this tendency can be found in the Ruggie principles, which go beyond the obligation of States not to violate human rights, to a positive obligation to protect them effectively. The question of whether this could apply not only to States but also to companies is hotly debated. If we look at the ICSID Urbaser v. Argentina award of 2016, the arbitrators accepted that a company had an obligation not to violate human rights, but rejected an obligation to protect them effectively. In European Law, the GDPR, DSA and AIA, and in France the so-called Vigilance law, use Compliance Lools, often Compliance by Design, to protect human rights ex ante.

Contracts, particularly through the inclusion of multiple clauses in often international contracts, express the "privatisation" of human rights. Care should be taken to ensure that appropriate sanctions are associated with them and that they do not give rise to situations of contractual imbalance. The relationship of obligation in tort makes it necessary to articulate the Ex Ante logic and the Ex Post logic and to conceive what the judge can order.

The author concludes that "la compliance oblige à remodeler les catégories classiques du droit dans l’optique de les adosser à l’objectif même de la compliance : non pas uniquement un droit tourné vers le passé, mais un droit ancré dans les enjeux du futur ; non pas un droit émanant exclusivement de la contrainte publique, mais un droit s’appuyant sur de la normativité privée ; non pas un droit strictement territorialisé, mais un droit appréhendant l’espace transnational" ("Compliance requires us to reshape the classic categories of Law with a view to bringing them into line with the very objective of Compliance: not just a Law turned towards the past, but a Law anchored in the challenges of the future; not a Law emanating exclusively from public constraint, but a Law based on private normativity; not a strictly territorialised Law, but a law apprehending the transnational space".

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🦉This article is available in full text to those registered for Professor Marie-Anne Frison-Roche's courses

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► Full Reference: Marty, F., The Case for Compliance Programs in International Competitiveness: A Competition Law and Economics Perspective, in Frison-Roche, M.-A. (ed.),Compliance Monumental Goals, series "Compliance & Regulation", Journal of Regulation & Compliance (JoRC) and Bruylant, to be published.

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► Article Summaryésumé de l'article (done by the Journal of Regulation & Compliance): The author analyzes economically the question of whether the compliance programs set up to respect competition rules are for the sole purpose of avoiding sanctions or also contribute to the goal of increasing the international economic performance of companies. which submit to them.

The author explains that companies integrate by duplication external standards to minimize the risk of sanctions, developing a "culture of compliance", which produces their competitiveness increase and the effectiveness of the legal and economic system. In addition, it reduces the cost of investment, which increases the attractiveness of the company.

In this, this presentation based on the postulate of the rationality of companies and investors, compliance programs can fall under self-regulation. The duplication of the law that they operate takes place largely according to "procedural" type methods.

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📝 go to the general presentation of the book 📘Compliance Monumental Goals, in which this article is published

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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.

Référence complète : Boursier, M.-E., L’irrésistible ascension du whistleblowing en droit financier s’étend aux abus de marché, Bulletin Joly Bourse, 1ier septembre 2016.

 

Les étudiants de Sciences po peuvent lire l'article en accédant au dossier "MAFR - Régulation"

► Full Reference: B. Deffains, "Debt as the basis of the Compliance Obligation", in M.-A. Frison-Roche (ed.), Compliance Obligation, Journal of Regulation & Compliance (JoRC) and Bruylant, "Compliance & Regulation" Serie, to be published

____

📘read a general presentation of the book, Compliance Obligation, in which this article is published

____

► Summary of the article (done by the Journal of Regulation & Compliance - JoRC): The contribution builds on the definition of Compliance in that it requires large companies to contribute to the achievement of Monumental Goals, including the preservation of human rights and systems, e.g. climate system.  

This requirement is confronted with the notion of Debt as it results today from classic and new works available in economic science. In fact, in the primitive economy, debt refers not only to exchanges, but also to an ethical and social obligation leading back to the collective. The Economic Analysis of Law has highlighted this situation, where some of the entities involved in a situation benefit from positive externalities, or endure negative externalities on their own, thus creating a situation of debt: this generates an obligation to correct market failure through an obligation to manage risks, as expressed by Compliance Obligation. This implies that economic calculation can be used to quantify this debt, leading to new proposals for biodiversity accounting.

The author then highlights the recognition of Debt as the source of an Compliance Obligation. This can be expressed through the classical notion of natural obligation, which can be traced back to the French Civil Code, or through more solidarist or political conceptions of Law, linked to moral responsibility, with the overall moral equilibrium referring to civic duty, superimposed on the accounting equilibrium. The political dimension is very much present, as shown by Grotius and Kant, then Bourgeois (solidarism), Rawls and Sen (social justice), who link the deep commitment of each individual with the group. This sheds light on the essential role played by the State and public institutions in formalising and enforcing the Compliance Obligation, not only to ensure its effectiveness, but also to make everyone aware of its fairness dimension.

____

🦉This article is available in full text to those registered for Professor Marie-Anne Frison-Roche's courses

________

🌐follow Marie-Anne Frison-Roche on LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

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► Full Reference: M.-A. Frison-Roche, "Concevoir l'Obligation de Compliance : faire usage de sa position pour participer à la réalisation des Buts Monumentaux de la Compliance" ("Conceiving the Compliance Obligation: Using its Position to take part in achieving the Compliance Monumental Goals"), in M.-A. Frison-Roche (ed.), L'Obligation de Compliance, Journal of Regulation & Compliance (JoRC) and Dalloz, "Régulations & Compliance" Serie, 2024, to be published

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📝read the article (in French)

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🚧read the bilingual Working Paper on the basis this contribution has been built, with  more developments, technical references and hyperlinks. 

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📕read a general presentation of the book, L'Obligation de Compliance, in which this article is published 

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► English summary of this contribution: Rather than getting bogged down in definitional disputes, given that Compliance Law is itself a incipient branch of Law, the idea of this contribution is to take as a starting point the different regimes of so many different compliance obligations to which laws and regulations subject large companies: sometimes they must apply them to the letter and sometimes they are only penalised in the event of fault or negligence. This brings us back to the distinction between obligations of result and obligations of means.

Although it might be risky to transpose the expression and regime of contractual obligations to legal obligations, starting from this observation in the Compliance Evidentiary System of a plurality of obligations of means and of result, depending on whether we are dealing with this or that technical compliance obligation, we must first classify them. It would appear that this plurality does not constitute a definitive obstacle to the creation of a single definition of the Compliance Obligation. On the contrary, it makes it possible to clarify the situation, to trace the paths through what is so often described as a legal jumble, an unmanageable mass of regulations.

Indeed, insofar as the company obliged under Compliance Law participates in the achievement of the Monumental Goals on which this branch of Law is normatively based, a legal obligation which may be relayed by contract or even by ethics, it can only be an obligation of means, by virtue of this very teleological nature and the scale of the goals targeted, for example the happy outcome of the climate crisis which is beginning or the desired effective equality between human beings. This established principle leaves room for the fact that the behaviour required is marked out by processes put in place by structured tools, most often legally described, for example the establishment of a vigilance plan or regularly organised training courses (effectiveness), are obligations of result, while the positive effects produced by this plan or these training courses (efficacy) are obligations of means. This is even more the case when the aim is to transform the system as a whole, i.e. to ensure that the system is solidly based, that there is a culture of equality, and that everyone respects everyone else - all of which come under the heading of efficiency.

The Compliance Obligation thus appears unified because, gradually, and whatever the various compliance obligations in question, their intensity or their sector, its structural process prerequisites are first and foremost structures to be established which the Law, through the Judge in particular, will require to be put in place but will not require anything more, whereas striving towards the achievement of the aforementioned Monumental Goals will be an obligation of means, which may seem lighter, but corresponds to an immeasurable ambition, linked with these Goals. Moreover, because these structures (warning platforms, training, audits, contracts and clauses, etc.) only have meaning in order to produce effects and behaviour leading to changes converging towards the Monumental Goals, it is the obligations of means that are most important and not the obligations of result. The judge must also take this into account.

Finally, the Compliance Obligation, which therefore consists of this interweaving of multiple compliance obligations of result and means of using the Entreprise's position, ultimately aims at system efficiency, in Europe at system civilisation, for which companies must show not so much that they have followed the processes correctly (result) but that this has produced effects that converge with the Goals sought by the legislator (effects produced according to a credible trajectory). This is how a crucial economic operator, responsible Ex Ante, should organise itself and behave.

 

 

 

 

 

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In Europe, Community Law prohibits States from providing aid to companies, which are analyzed as means for the benefit of their country which the State cares about (and sometimes wrongly)  having the effect and maybe the object of maintaining or constructing borders between peoples, thus contradicting the first European political project of a common area of peace and exchanges between the peoples of Europe. That is why this prohibition does not exist in the United States, since Antitrust Law is not intended to build such a space, which is already available to businesses and people.

This essential difference between the two zones changes industrial policies because the US federal Government can help sectors where Member States can not. The European prohibition of State Aid can not be called into question because it is associated with the political project of Europe. This seems to be an aporia since Europe is handicapped against the United States.

In any form it takes, Aid is prohibited because it distorts equality of opportunity in competition between  operators in the markets and constitutes a fundamental obstacle to the construction of a unified European internal market. On the basis of this simple principle, a branch of technical and specific law has developed, because States continue to support their entreprises and sectors, and many rules and cases divide this principe of prohibition into as many exceptions and nuances. Is built over the years a probation system related to it. Thus, the concept of a public enterprise was able to remain despite this principle of prohibition.

But if there is a crisis of such a nature or magnitude that the market does not succeed by its own forces to overcome and / or the European Union itself pursues a-competitive objectives, exogenous Regulation, which can then take the form of legitimate State Aid. Thus a sort of synonymy exists between State Aid and Regulation.

For this reason, the European institutions have asserted that State Aid becomes lawful when it intervenes either in strategic sectors, such as energy production in which the State must retain its power over assets, or the defense sector. Far from diminishing, this hypothesis is increasing. European Union Law also allows the State to intervene by lending to financial operators threatened with default or already failing, the State whose function is to fight systemic risk, directly or through its Central Bank. The aid can come from the European Central Bank itself helping States in issuing sovereign debt, the Court of Justice having admitted in 2015 the non-conventional monetary policy programs compliance with the treaties. In 2010, the European Commissioner for Competition stressed that public aid is essential tools for States to deal with crises, before regulations come to the fore in 2014 to lay the foundations of the European Banking Union.

► Full Reference: F. Raynaud, "The administrative judge and compliance", in M.-A. Frison-Roche (ed.), Compliance Jurisdictionalisation, coll. "Compliance & Regulation", Journal of Regulation & Compliance (JoRC) and Bruylant, 2023, p. 

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📘read a general presentation of the book, Compliance Jurisdictionalisation, in which this article is published

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► Summary of the article:

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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

Référence complète Fox, E., The new world order, in Mélanges Joël Monéger, Liber Amicorum en l'honneur du Professeur Joël Monéger, LexisNexis, 2017, 818 p.  

 

Sont ici répertoriés les sujets proposés chaque année, soit au titre du travail à faire en parallèle du cours, à remettre à la fin du semestre (le jour de l'examen étant la date limite de remise), soit les sujets à traiter sur table, sans documentation extérieure et sous surveillance le jour de l'examen final. 

A partir de 2019, en raison du règlement administratif de la scolarité, l'examen final ne peut plus se dérouler en dehors du cours.

Les étudiants cessent donc de bénéficier d'une durée de 4 heures pour réaliser l'examen.

Le contrôle final est donc nécessairement réalisé pendant la durée de 2 heures du dernier cours de l'enseignement, supprimé pour être remplacé par ce contrôle sur table. Les sujets sont désormais choisis en considération de ce format. 

 

Retourner sur la description générale du Cours de Droit commun de la Régulation, comprenant notamment des fiches méthodologiques. 

 

La régulation est née de la nécessité de prendre en compte la spécificité des secteurs, souvent en accompagnement de la libéralisation de ceux-ci.

Mais, en premier lieu, des biens de différents secteurs peuvent être substituables. Ainsi, l’on peut se chauffer aussi bien au gaz qu’à l’électricité, la concurrence intermodale rendant moins pertinente la segmentation de la régulation du secteur de l’électricité et la régulation du secteur du gaz. Pareillement, un contrat d’assurance-vie est à la fois un instrument de protection pour l’avenir, un produit relevant donc de la régulation assurantielle, mais aussi produit financier placé auprès des consommateurs par des entreprises de banque-assurance, relevant donc de la régulation bancaire et financière. Cette intimité de la régulation par rapport à la technicité interne de l’objet sur lequel elle porte ne peut être effacée.

L'interrégulation qui va se mettre en place est d'abord institutionnelle. C’est pourquoi, une alternative s’ouvre : soit on fusionne les autorités, et  ainsi la Grande Bretagne par la Financial Services Authority (FSA) a, dès 2000, fusionné la régulation financière et bancaire, ce que la France n’a pas fait (tandis que la France a fusionné la régulation des assurances et la régulation bancaire à travers l’ACPR). Ainsi, la première branche de l’alternative est la fusion institutionnelle, au risque de constituer des sortes de Titans, voire de reconstituer l’État. Soit on établit des procédures de consultation et de travaux communes, pour faire naître des points de contact, voire une base de doctrine commune contre les régulateur. L’autre branche de l’alternative consiste à respecter ce rapport initial entre régulation et secteur et de prendre acte des liens entre les secteurs à travers la notion proposée de « inter-régulation ». Cela suppose alors de mettre en place des réseaux entre des autorités demeurées autonomes, mais qui s’échangent des informations, se rencontrent, collaborent sur des dossiers communs, etc. Cette interrégulation peut d’abord être horizontale lorsque des autorités de plusieurs secteurs collaborent, par exemple l’autorité de contrôle prudentiel et l’autorité des marchés financiers, ou l’ARCEP et le CSA. Elle peut être aussi de type vertical lorsque les autorités de secteurs nationaux collaborent avec des autorités étrangères ou des autorités européennes ou internationales, comme le prévoit le processus Lamfalussy en matière financière (élargi aux secteurs de la banque et des assurances) ou le processus de Madrid en matière énergétique par lesquels chaque régulateur nationaux se rencontrent et travaillent en commun, avec et autour de la Commission européenne (technique de la comitologie).

L'interrégulation qui est ensuite notionnelle, un "droit commun" de la régulation s'élaborant, commun entre tous les secteurs. Ce "droit commun" (droit horizontal) est venu après la maturation des droits sectoriels de la régulation (droits verticaux). Il s'élabore de fait parce que les objets régulés se situent à la frontière de plusieurs secteurs, voire ignorent celle-ci : par exemple les produits financiers dérivés sur sous-jacent agricole ou énergétique. Plus encore, les "objets collectés" engendrent de l'interrégulation dans l'espace numérique. Ainsi, alors même qu'il est possible qu'Internet, donne lieu à une "interrégulation" avant de donner lieu à une régulation spécifique, celle-ci pouvant justifier que l'on se passe de la première. 

The Federal Communications Commission (FCC) is the independent regulatory authority in the United States that regulates at the federal level both the container and the content of telecommunications.

In this, the United States differs from the European Union, a legal space in which most often the regulatory institutions of the container and the content are distinct (for example in France ARCEP / CSA / CNIL) and in which the regulations of communications remain substantially at the level of the Member States of the Union.

Like other audiovisual regulators, it ensures pluralism of information by limiting the concentration of capital - and therefore of power - in the television and radio sector. We can thus see that the American system is not in principle different from the European system.

In addition, the FCC is characterized first of all by a very great power, imposing at the same time substantial principles on the operators, like that of the "decency", going in the name of this principle until sanctioning television channels which had let show a bare breast of a woman. The control is therefore more substantial than in Europe, this control weighing against the constitutional freedom of expression which is more powerful in the United States than in Europe. It is true that today the leading digital companies tend to formulate for us what is beautiful, good and decent, in place of public authorities.

The FCC continued to develop the major principles of the public communication system, as in 2015 that of the Open Internet (Open Internet) or to formulate the principle of "digital neutrality", adopted by a federal law, this principle having considerable economic and political implications.

But at the same time, a general mark of American law, the judge moderates this power, according to the principle of Check and Balance. Thus the Supreme Court of the United States in FCC v. Pacifica Foundation in 1978 this power of direct control of the content but also operates the control of the control.

The election in 2016 of a new president who is, among other things, totally hostile to the very idea of ​​Regulation is a test in the probative sense of the term. In January 2017, he appointed a new president of the FCC, hostile to any regulation and in particular to the principle of neutrality. The question which arises is to know if technically a regulation already established on these principles can resist, how and for how long, a political will violently and expressly contrary. And what will the judges do.

► Full Reference: M. Torre-Schaub, "La compliance environnementale et climatique" ("Environmental and Climate Compliance"), in M.-A. Frison-Roche (dir.), L'Obligation de Compliance, Journal of Regulation & Compliance (JoRC) and Dalloz, coll. "Régulations & Compliance", to be published

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📕lire une présentation générale de l'ouvrage, L'Obligation de Compliance, dans lequel cet article est publié

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► Summary of this contribution  (done by the Journal of Regulation & Compliance) : The author starts from the fact that Compliance Law, in that it is not limited to conformity process, and Environmental Law are complementary, both based above all on the prevention of risks and harmful behaviour, environmental crises and the right to a healthy environment involving the strengthening of Environmental Vigilance. It is all the more important to do this because definitions remain imprecise, not least those of Environment and Climate, which are diffuse concepts.

Firstly, the contribution sets out the purpose of Environmental Compliance, which is to ensure that companies are vigilant with regard to all kinds of risks: they put in place and follow a series of processes to obtain "progress" in accordance with a standard of "reasonable vigilance". This requires them to go beyond mere conformity and encourages them to develop their own soft law tools within a framework of information and transparency, so that the climate system itself benefits in accordance with its own objectives.

Then the author stresses the preventive nature of Environmental Vigilance mechanisms, which go beyond providing Information to managing risks upstream, in particular through the vigilance plan, which may be unified or drawn up risk by risk, and which must be adapted to the company, particularly in the risk mapping drawn up, with assessment being carried out on a case-by-case basis.

Lastly, in the light of recent French case law, the author describes the implementation of the system, which may bring the parties before the Tribunal judiciaire de Paris (Paris Court of First Instance) and then the specialised chamber of the Paris Court of Appeal. The author believes that judges must clarify the obligation of Environmental Vigilance so that companies can adjust to it, and these 2 courts are in the process of doing so.

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🦉This article is available in full text to those registered for Professor Marie-Anne Frison-Roche's courses

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En principe, l'exercice constituant le contrôle final de connaissance à la fin du semestre est, au choix de l'étudiant, soit une dissertation, soit une note de synthèse. L'étudiant dispose de trois heures pour faire l'exercice dans une copie, dont le volume ne doit pas dépasser 6 pages. 

Jusqu'en 2017 un exercice de mi- semestre se déroulait, de structure identique à celui de fin de semestre, permettant aux étudiants de se préparer à celui-ci. Depuis 2017 la direction de l'Ecole a désiré qu'il n'y ait plus un tel galop d'essai organisé. Dans un même souci de simplification, l'exercice de commentaire de texte en a été éliminé. La possibilité de proposer un choix entre deux dissertations a été exclue. 

Les copies sont corrigées par l'ensemble de l'équipe pédagogique, professeur d'amphi et maîtres de conférences. Un contrôle supplémentaire est assuré selon les modalités générales de l'Ecole. 

La situation sanitaire qui marqua l'année 2021 avait justifié qu'un autre système de contrôle de connaissance soit adopté. C'est pourquoi l'examen final avait été pour cette année supprimé, remplacé par une dissertation à faire en parallèle du cours et des conférences. L'étudiant avait à choisir entre deux sujets, élaborés en équipe par Marie-Anne Frison-Roche, pour faire une dissertation. Les sujets avaient été proposés à la m-semestre et les copies devaient être restituées à l'administration à la fin du semestre pour être corrigées par l'ensemble de l'équipe pédagogique. Parce qu'il ne s'agit donc pas d'une épreuve de vitesse, il n'avait pas été proposé d'exercice pratique. 

L'année 2022 permettant un retour à davantage de normalité, un retour a été possible vers un examen final en présentiel se déroule à la fin du semestre. Les principes n'en sont pas modifiés : il consiste , au choix de l'étudiant, dans soit une dissertation, soit une note de synthèse. L'étudiant dispose de trois heures pour faire l'exercice dans une copie, dont le volume ne doit pas dépasser 6 pages. 

Référence complète : Boy, , "Réflexion sur le "droit de la régulation". A propos du texte de Marie-Anne Frison-Roche",  D., chron., 2001, p.3031 et s.

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Complete reference : Archives de Philosophie du Droit (APD), Droit et économie, tome 37, ed. Sirey, 1992, 426 p. 

 

Read the table of contents.

Read the summaries of the articles in english. 

 

See the presentation of others volumes of Archives de Philosophie du Droit.

Référence complète : Toth, A., Framework for the recognition of Competition Compliance programs and Dilemmas faced by Competition Authorities, Loyola Consumer Law Review, 2018, p.95-108.

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.

A monopoly refers to the power of a person to remove from a good its utility by excluding others. The monopoly refers to a situation on the market, the monopolist being the sole operator in the market. Lawyers are accustomed to the monopoly conferred by Law, for example the one that was the monopoly for the national public enterprise for electricity. In this case, what is done may be defeated, and the legislature may withdraw that privilege especially if the author of this norm is better placed in the hierarchy of norms than the previous author. For example, the European Union legislature withdrew the legal monopolies by means of directives from most of the operators holding them in the regulated sectors in order to liberalize them.

But the monopoly can have an economic source. Indeed, it may happen that a first operator constructs a structure, for example a wired telecommunications transport network. Because he is alone, agents on the market must resort to him to carry their communications, his business will be profitable. But from there, if a second operator built such an infrastructure, it would inevitably be in deficit for insufficient applicants. This is why no rational economic agent will build a second network. Thus, this network will remain unique. It is then an economically acquired monopoly that the legislative will can not change its nature. That is why it is called "natural".

Since what is can not be changed, Community law has taken note of the monopolistic nature of the majority of networks and the correlated power of their owner or manager, but has correlatively provided for their supervision by a regulator who not only Ex post to resolve possible differences between the infrastructure manager, the natural essential facility, and the one who wants to access it, but also, through an Ex ante power, to negotiate with that manager the return on his capital, his commitments investment in the network, etc., or even more directly by imposing on it the way in which it fixes access tariffs and so on.

These economically natural monopolies are therefore more powerful than legal monopolies, which States and lawyers have taken a long time to understand, but this also explains the reverse tendency of economists to write laws, The texts must handle this type of notions, its writers caring little about the political order and legal notions. The fact that the laws and regulations on regulated situations and supervised operators have long been elaborated solely from the point of view of lawyers, particularly of the public service, which was regrettable, does not justify this passage from one extreme to the other.

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Retourner à la présentation générale du cours, tel qu'il était bâti et proposé en 2018.

 

 

 

 

 

The United States established regulatory authorities at the end of the 19th century: starting from the principle of the market, they tempered it by setting up regulators, after noting market failures, for example in terms of transport, in the event of economically natural monopolies or essential facilities. The tradition of the European Union is the reverse since the States, in particular the French State, have considered that sectors of general interest, deemed unsuitable for the competitive pattern because not corresponding to the operational pattern of the meeting of supply and demand, and to serve the missions of public services, were to be held by the State, either directly by public establishments, or by public enterprises under the supervision of the ministries.

Evolution in Europe came from community Law. Indeed, after the Second World War, the idea was to build a market which was to be "common" to European countries so that they could no longer wage war on each other in the future. To achieve this goal, the borders between them were lifted thanks to the principles of free movement of people, goods and capital. In the same way, the defense by each of the States of its own national companies by State aid has been prohibited so that any company, even foreign, can enter its territory, so that a common internal market can be established. Finally, a competition Law was necessary to prohibit companies and States from hindering the free functioning of the market, which would have slowed down or even stopped the construction of this internal market, which was an essentially political goal of the Treaty of Rome.

To carry out this political goal, the European Commission and the Court of Justice of the European Union (CJEU, previously called the Court of Justice of the European Communities - CJEC - until the Treaty of Lisbon) have prohibited any behavior of agreement or of abuse of a dominant position, even on the part of public enterprises, as well as any state support (except in the event of a crisis). Likewise, in perfect political logic, but also in perfect contradiction with European national traditions, European texts, regulations or directives have liberalized previously monopolistic sectors, first of all telecommunications and then energy. This was the case for telecommunications with the 1993 directive, the 1996 directive for electricity and the 1998 directive for gas.

Because of the hierarchy of standards, the States, except to be sued before the Court of Justice by the European Commission in action for failure, were obliged to transpose by national laws these European texts. Thus, by force, community law, both through general competition Law, but above all to achieve its political goal of building a single and initially peaceful internal market, has triggered in Europe a system of economic regulation in all network industry sectors, a system which was nonetheless foreign to the culture of the Member States. This was not the case with banking and insurance regulations, sectors which have always been threatened by systemic risk, and as such have been regulated and supervised by national central banks for a very long time.

Community Law has for 30 years plunged into national Law while ignoring them, which could also be profitable, and on the basis of competition Law, the political dimension of the European project having been forgotten, no doubt over time as the War itself faded from people's minds.

The effects of globalization and the financial crisis have constituted a new turning point in Community Law which, since 2010, has been built no longer to modify national Laws - and destroy them in part - but to build a new Community Law which should neither to Competition Law nor to National Law: Community Regulation Law, which makes room for individual rights and attempts to build over time a system that is robust to crises. Thus, by texts of the European Union of 2014, both a Banking Union and a new Law on Market Abuse is being built, which aims to establish a common law for the integrity of financial markets.

One of the challenges is what could or should be reconciliation between the two Europe, an economic and still not very social Europe on the one hand and the Europe of Human Rights, which is based on the European Convention on Rights of Man. This is not on the agenda.