Articles in The Journal of Regulation & Compliance « JoRC »

This working paper is a basis for an article published in the Recueil Dalloz.  Compliance Law is a so recent branch of Law that some still doubt of its existence¹Frison-Roche, M.-A., Compliance Law, working paper, 2016.. It is not about taking back this question, nor the one of "definition" of Compliance and of its Law or of its appropriate translation.  The purpose of the thought is rather to observe the movement which came from precise sectorial Laws requirements, as Financial Law, Banking Law, which correspond without any doubt to "sectors", Compliance Law being thus the extension of Regulation Law²Frison-Roche, M.-A., From Regulation Law to Compliance Law, 2017 and quoted references.  , extension which transforms this one, to spread over beyond regulated sectors now³Frison-Roche, M.-A., Compliance: before, now, after, working paper, 2017..   CONSEQUENCES ON COMPANIES OF A COMPLIANCE LAW BEYOND REGULATION LAW   Read the development below. 

► Full Reference: B. de Juvigny, "La compliance, bras armé de la régulation financière" ("Compliance, the arm of financial regulation"), in M.-A. Frison-Roche (ed.), Régulation, Supervision, Compliance, Dalloz, coll. "Thèmes & Commentaires", "Régulations" Serie, 2017, pp. 17-28 - 📕read a general presentation of the book, Régulation, Supervision, Compliance, in which this article is published - ► English summary of the article (done by the Journal of Regulation & Compliance – JoRC):  - 🦉This article is available in full text to those registered for Professor Marie-Anne Frison-Roche's courses -

The cost issue of regulation is a recurring issue. One can complain specifically, when companies are protesting about the "cost of regulation" or when the topic is taken as an object of study, through the cost / benefit calculation. A practical question of importance is whether there is a "legal question" or not. The "juridicity" of a question is defined by the fact that discussing about this question has an effect on the outcome of a case before a judge. This concrete definition, leaving the judge's power, binding nature of the rule (here the balance between cost and benefit) the effectiveness of its decision before the judge, its consideration by him in the decision he makes, has been proposed in France by Carbonnier. It is opposed to a definition of Law by the source, the author of the rule, which identifies law for example through Parliament Acts, because the text is adopted by the legislator, listed source of law. The first definition, more sociological, more flexible, giving the spotlight on judge better corresponds to a legal system which gives more room for ex post and for the judge. It is logical that we find more demonstrations of this conception in the common law systems. However, the issue of cost / benefit is being debated before the Supreme Court of the United States, about the latest environmental regulations, adopted by the Environment Protection Agency (EPA). It is a question of law. It is under the empire of the judge. For it is in this light that President Barack Obama in November 2014 asked a very costly regulation, and it was under his leadership that the Environmental Protection Agency has developed texts. Indeed, pollution of certain plants are the cause of asthma and laid in public health imperative to fight a regulation that results in a direct cost on firms. Indeed, some plants pollution is the cause of asthma and President Obama has asked public health imperative to combat by a regulation that results in a direct cost on the industry. The regulations adopted in 2012 they cost a $ 9 million, some claiming that future ones could result in billions of costs directly related to business The President emphasized by stating that the health of children was priceless. By challenging those of 2012 before the Supreme Court, in the case Michigan v. EPA, this is the other texts that conservative states and companies have in mind because it is the principle that is posed: : does A regulator have the right to take regulations very "expensive" when the advantage, however legitimate it is, is small-scale in terms of costs? The Supreme Court, having chosen to handle the case, listened to March 25, 2015, the arguments of each other and discussed the case. The question is the integration or not into the constitutional notion of "necessity of the law" of the "cost / benefit" calculation. This is a crucial point because the concept of "necessity of the law" is a common notion to the constitutions of many countries. However, not only the so-called judges "conservatives" as Justice Antonio Scalia, took position felt it was crazy not "consider" the cost of new regulations from the expected health benefits, but also Justice Stephen Breyer called "progressive," said "irrational" the environmental regulator has not taken in consideration such an imbalance between cost and benefit. It is true that Justice Breyer was formerly professor of competition law at Harvard. Judgment will be given in June.

February 17, 2015, as the previous "Contrat de Régulation Économique" (Economie Regulatory Contract), the firm Aéroport de Paris (ADP)  has made available on its site to all "for consultation" the draft  "Contrat de Régulation Economique ("Economic Regulatory Contract)  for the period 2016 -2020. Published in the wake of the meeting of the Board of ADP, the text is presented as a tool "for the Paris place", especially for air transport. This shows that the document is primarily intended for investors and financial markets, the document being placed on the company website in the section for the "investors". This illustrates the evolution from the traditional "contrats de plan" (plan contracts). But then, who are the parties to these types of contract? Indeed, the very term "Regulatory contract"  is new in public Law. It appears as a sort of  modernization of "plan contract." The Conseil d'État (French State Council) finally admitted the contractual nature of these planning contracts. In these contracts, are parties were the State and the company in charge of a public service. Because here the contract is an instrument of "economic regulation" the open public consultation draft rather expresses a global conception of  ADP, the company which manages the Paris airports,  for the future of the development of critical infrastructure that is the airport as the heart of global development of air transport. The enterprise manager of the airport in the heart of the contract (rather than the State) in setting objectives for the coming four years is the letter and spirit of the French law of 20 April 2005 about Airports, which put the apparatus of this "Contrat de Régulation Economique" in place. In this, the infrastructure manager is set by law as a "regulator of second degree", as can be a financial market enterprise. The company that manages and develops the Paris airports undoubtedly belongs to the category of " critical firms", as well it manages the future of the sector and helps to keep France a place in the world. More, A.D.P. behaves like a Regulator, since it is carrying out the "public consultation", the consultation paper prepared by it,  being placed on its site and developing its ambitions for the sector and for France. But A.D.P. also expressed as a financial and economic actor, emphasizing the competitive environment,  demanding in passing more stability and clarity in the regulation in which it moves … That is why the consultation mechanism provided by the law must be more complex. Indeed, ADP can not be judge and jury. Therefore if the project raises observations, they must be formuled not to ADP but to the Ministries of Aviation and Economy, within a month. They shall communicate theiir content to ADP . Then the Commission consultative aéroportaire (French Airport Consultative Committee) will be consulted. At the end of this process, the "Contrat de Régulation Economique" will be signed. Seing the end of the process, it remains in line with the plan contracts, since it remains the Economic Regulatory Contract is signed between the State and the essential infrastructure manager. But the consultation process shows firstly investors are the first recipients of the statements made by a privatized company presenting its draft primarily in terms of competitive context and international development and secondly the airlines that use daily services of the airports are also directly involved by theses questions of tarification. Airlines protest against the increase in the money that will be asked. This will be imposed, since it is tarification and princing public policy. We are in unilateral rules. But it is indeed a "price" they feel to pay, they also heard a speech referring to competition in what the mechanism is presented as a "contract". But then, does it take to admit that these "contracts for economic regulation" are not between two parties that are the state and the regulator of second degree that is the infrastructure manager but must be three, the State, the infrastructure manager and "stakeholders" that are mainly airlines? This practical difficulty is much to the fact that the qualification of "contract" is difficult to justify in proceeding in which prevail unilateral mechanisms.