Glossary

Traditionally, a branch of Law and each of the rules that make it up is developed, interpreted and applied according to a vertical model: the hierarchy of norms implies this. The reason why the rule was adopted, the effects pursued by its application, the effects sought by the person who adopted a rule are peripheral elements, which can certainly shed light but are auxiliary. In addition, certain provisions are by their very nature exceptions, such as Criminal Law, or the "criminal matter" to which Repressive Administrative Law belongs, which implies that their interpretation and application are always restrictive, because of their exceptional nature with regard to the principle of Freedom. Everything changes if the heart of the branch of Law becomes the goal: the rules, or even the particular decisions, become "teleological" ("telos" in Greek means "goal").  A branch of Teleological Law is built around one or more Goals, in relation to which everything has the status of a means. For example, Competition Law is a branch of Teleological Law: its Goal is to safeguard, or even build, Competition. This is why not only are all the technical rules interpreted in this way, but also the role of the Independent Administrative Authorities (IAA), in this case the Administrative Competition Authorities, is defined in this way (safeguarding the free functioning of competitive markets), as is the role of the courts when they rule on competition matters. This gives rise to principles of effectiveness, because the means provided by the legal rules, "instrumentalised" in this way, must tend towards these goals. The principle of "useful effect" follows from this: the necessary burdens on operators are justified, but no more than is necessary to achieve the ends. The principle of proportionality is also generated. It is clear that the teleological nature of a branch of Law entirely determines its application. This gives rise to specificities and even difficulties. The specificity comes from the fact that it was pleasant and erudite to know the ratio legis et decidendi of classical Law: it has become imperative and central to master the ends of the teleological branches of Law. But not only is this not always said, it is sometimes disputed. For example, this tautological conception, which restricts the Goal of Competition Law to Competition, is contested by those who want a more humanist conception. But if you change the Goal, the whole interpretation and technical application of the rules changes. The practical implications of these disputes, which could be described as almost philosophical (the place of human beings in society), are immense. Moreover, a teleological branch of Law may have several goals, which must be arranged, classified and ranked. For example, the day the French Cour de Cassation (French Judicial Supreme Court) decided that the goal of safeguarding the business was more important than safeguarding the interests of its creditors, the Bankruptcy  Law has changed. What is more, since the legal system is an architecture of branches of Law, the Goal of one branch of Law may interfere with the Goals of another branch of Law, for example Insolvency Law, the Goal of which being to preserve the company, and Banking Resolution Law, the Goal of which being to preserve the banking system.  The branches of Economic Law are all concerned with teleological logic, which explains why, since their Goals are also economic, financial, political and social, they are more open to other disciplines, principally Economics and Finance. The resulting risk of the vassalisation of Law in relation to Economics has often been denounced. It is the duty of the Regulator and the Judge, whose place is central, to ensure the balance between the disciplines. This is particularly true of Regulatory Law, an Ex Ante branch governed by Goals, and Compliance Law, whose normativity is housed in Monumental Goals, all of which imply a teleological application of legal rules and techniques.             -        

Look at the video defining the "subjective right"

Watch the video explaining the "right to be forgotten". The "right to be forgotten" is a recent and specifically European invention. It was designed by the Court of Justice of the European Union in the Google Spain judgment of May 13, 2014, so that in this world without time, in which all information is eternally stored and available that is the digital world, the individual thus exposed can be protected against this new phenomenon, since forgetting no longer exists, by Law which by its power endows it with a "right to be forgotten". In this the term Right to be forgotten is more accurate. Because Law is made to protect human beings, the technological efficiency which created the digital world is limited by the new legal prerogative of the person to make unattainable information which concerns him when it takes on a "personal character". This was taken up by the community regulation of April 27, 2016, often called GDPR, transposed in the member states of the European Union no later than May 25, 2018. More than in the laws which have taken up the idea of ​​protection of persons in the handling of "data" by others, expressing more the concern to protect the consumer in a market economy, it is a question of directly protecting persons. in a technological world allowing blind obedience, Europe rejecting this model because the technique of the files left him a terrible memory because of the Second World War. However, Law is the memory of peoples and expresses the “spirit” of these (Savigny).

Subsidiarity in the current sense is the idea that those closest to the action to be carried out must do so rather than the one who is far from it, because the latter is on the one hand less legitimate to do so and on the other hand less effective to do so. Subsidiarity is therefore a mechanism of both efficiency and legitimacy. In this respect, it constitutes both a political and a management principle: it is a principle of governance. It is also found in the form of a legal principle in European Union law, with a strong impact in Regulatory Law. Indeed, the principle of subsidiarity is a pillar of the European Union. Article 5 of the Treaty states that the power which enables public authorities to act legally by setting standards and by coercion is and remains with the Member States. But – and this is the very meaning of the Treaty which founded the Community, then the European Union – powers and objectives have been conferred on the European Union. In a first formulation, it was stated that within the "limits" of these "competences" and these "objectives", the European Union (as a legal person endowed with powers) and its institutions – in particular the Commission – can to act. The first meaning of the principle of subsidiarity is therefore that which one could say of a "sovereignty retained" by the Member States: everything that is not vested in the European Union is retained by the Member States. But we can see that as much as it is easy enough to define the "limits of competences", the line is less certain concerning the "objectives". Indeed, the "objectives" conferred on the Union are so broad that, depending on the interpretation given by the Court of Justice of the European Union (CJEU), there may not be much left of the principle of subsidiarity. This is why the text was completed, a principle indicating more of a method. Indeed, the Treaty firstly states that in certain matters the European Union has "exclusive competence". It is also exceptional, since it is vested in the Member States. This mainly concerns customs jurisdiction outside the Union, monetary jurisdiction outside the euro zone, competition law and common commercial policy. In this case, the European institutions exercise their full normative powers. When this transfer has not taken place, the European Union is no longer prima facie legitimate, that is to say its institutions cannot act since the Member States remain the legitimate authors of the standards. But if it turns out that the European Union is best placed to effectively achieve the desired objectives, even if there is no transfer of exclusive competence to the Union, then if the European institution can provide this proof that it is "better placed" to act effectively, it will be able to act. Completed, Article 5 of the Treaty now provides: By virtue of the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union intervenes only if, and to the extent that, the objectives of the action envisaged cannot be sufficiently achieved by the Member States, both at central, regional and local level, but may be better achieved, due to the dimensions or effects of the envisaged action, at the level of the Union. The end of Article 5 is above all methodological: the method of comparing the effectiveness of the action of a Member State – for example a law – and the action of a Union institution – for example a draft Regulation drawn up by the European Commission. When the two claim to be the most effective in achieving the Community objective – for example – energy security, then the question of the burden of proof arises. This is where the principle of subsidiarity takes all its power, which is above all proof: it is indeed for the European Union, in the above example the European Commission – to demonstrate that it is proved its project for an instrument (here an energy security regulation) which will be more effective in serving the objective, which the Member State could not achieve alone. A very heavy burden of proof for the Union and numerous objects of proof: the inability of the Member State to achieve this objective and the capacity of the Union to achieve it. If the Union provides this proof, then, even if there has not been a transfer of exclusive competence to its benefit, it will be able to act and lay down the principle that in Europe the normative power remains in the Member States. The legal principle of subsidiarity is essential in Regulatory Law. Indeed, because of its link with Politics, sectoral regulations are generally not transferred exclusively to the level of the European Union. This is why, strictly speaking, there are no "European regulators", but rather agencies which centralize information and its access. However and to take the most topical example, the need generated by the financial and banking situation in Europe justified the regulatory, supervisory and institutional mechanisms being brought to community level by the Banking Union, from 2010. But we do not find the same transfers, for example in energy, rail or telecommunications, which would undoubtedly contradict the legal principle of subsidiarity.

The sector is the first historical reference for Regulation since, independently of the notion of market, it is a set of economic activities which have a technical object in common, for example the telephone, rail or banking. It is precisely because these objects have a particular technicality, for example conveying innovation or presenting a risk, or developing only in the long term, that definitive regulations are put in place, because there is a failure of market. The breakdown by sector seems to be obvious, for example the post office on the one hand, the telephone on the other hand, and the media on the third. But the evolution of technology means that if one takes into consideration the transmission of information first, these sectors become interchangeable. This is why the primary criterion of technicality that justifies recourse to the sector to define the contours of regulation, the construction of a regulator and its powers, necessarily evolves over time with the technical modifications of the objects in question. This is why, for example, we have chosen to segment the telecommunications sector into around twenty markets, while the minds of the possible merger of regulators of the container and content in telecommunications and the media or that we hesitate between 'interregulation and the merger between banking, finance and insurance, while the entry into the digital "era" would give the idea of ​​a new regulator, while it is difficult to say that the digital is a sector. The question then arises as to whether the "sector" is an outdated benchmark. Internet and digital can make it think so. The sector, if it is not an outdated concept, is at least for regulation a changing concept, for example in that it must give way to the concept of sector.

Post refers to the economic activity of delivering letters and parcels. Community Law has liberalized postal activity with regard to parcels of a certain size, rapid mail having been the subject of competitive activity for a very long time, while exchanges which were carried out by letters take place today by digital or telephone communications. However, postal activity is not moving towards the competitive model, in particular because the delivery of mail by the postman contributes to the social bond while the establishment of post offices is an element of regional planning. But the obligation of national public posts, whatever the country, to have a very large number of post offices, to deliver letters daily, to have a stamp rate that only the State sets ( since we are in a pricing system and not a competitive price), puts these companies at risk. Successive reports on various positions have shown that these, by dint of being forced to meet public service obligations, to which the weight of their employees' pensions largely contributes, are threatened with bankruptcy. In France, postal activities are regulated by ARCEP.

Deontology is classically distinguished from morality, in that morality is the awareness of good and evil specific to each individual, while deontology is the awareness of good behavior determined by a particular group. In this, we bring deontology closer to ethics. Thus, ethics is most often specific to a profession, which then draws up a code of ethics, or an ethical charter, through the care of its professional order, or the result of a code of ethics established by a company. From a normative point of view, ethics belongs to soft law, flexible law, devoid of immediate binding force but expressing a corporate or professional culture and whose non-compliance by the professional or the employee may constitute a fault. In this, deontology is situated between morality and Law and constitutes a privileged tool of self-regulation. As such, it has its advantages and disadvantages. The development of Compliance has further increased the role of ethics and the writing of these charters and various codes by which the operators themselves express their commitments towards some or towards all.

The distinction between "Public Law" and "Private Law" is important. In the systems of Continental Law, or still called under Roman-Germanic Law, or even called Civil Law systems, it is even around it that legal systems are built: it can be a basic distinction, a summa divisio, as it it in the Civil Law systems. In the so-called Common Law or Anglo-American systems, the distinction is less fundamental, but it remains, justifying in particular that the rules and disputes concerning the administration call for special rules and are apprehended by special tribunals. In principle, this distinction is based on the nature of the persons whose legal situation is examined. Under"Public Law" a legal situation involving a person who is itself a public-law entity: the State, a local authority, a public undertaking, etc. That is why, for example, the contract which may be concluded will be of public law, and the judge who may be seized of it will be an administrative court. If the situation does not involve a person governed by public law, then it will be governed by "Private Law". There are a thousand exceptions, but this is the starting and basic and fondamental principle. Two essential remarks, bearing a system of values, explaining that the systems of Civil Law and Common Law are in fact confronting each other. The two bodies of rules and institutions are not of equal strength because one of the categories is "closed", corresponding to one criterion (the "public person"), while the other is open: Public Law is a closed category; on the contrary, Private law becomes "active" as soon as there is no public person (a "private person" who or which must define himself or itself as a "non-public person"). One can consider this articulation between Public Law and Private Law in two ways, radically opposed. It may express a mark of inferiority in disfavour of private law: we are all "ordinary" persons in "ordinary" situations with "ordinary" activities (this will be the French conception ….). On the contrary, Public Law is the mark of the State, of Public Order, of Sovereignty, of public power, of the general will, in the interstices of which individuals slip in to act and satisfy their small particular interests On the contrary, Private Law can be considered as the expression of the "common law": people are free and do what they want, through ownership and contract. As an exception and because they have elected people to do so, the rulers (whom they control), by exception, enact norms that constrain them. But this is an exception, since repression – public law and criminal law, which has the same status in this respect – is only a tribute to the freedom of persons, since this freedom remains wholly in the form of the private enterprise on the market. It is then measured that the articulation between Public and Private Law profoundly reflects a philosophy and a political position. If it is considered that Regulation is the underlying order by which the Sovereign allows the deployment of his subjects who also benefit from a long-term policy constructed by the autonomous and measured political will, then Public Law in Is the master, the Regulation Law expressing a renewed search for efficiency, this but only this. If we believe that Regulation is whereby economic rationality manages to protect persons and companies from risks and to compensate for market failures, a market whose liberal principle remains the ideal, then Private Law is the core, whith contract and private property as basis tools. France and the Latin countries adhere rather to this metaphysics of values which entrusts to the Public Authorities and the State the legitimacy and the power to express the general interest by Public Law, Regulators and Constitutional Courts, expressing it on a technical form renewed by the Regulatory tools: incitations, soft law, etc. The legal systems whose history draws on British history put more trust in the person of the entrepreneur and conceive of Regulation Law as an efficient outsourcing of functions to administrations that are efficient, informed and impartial. Certainly, in the technical daily of the Law of Regulation and following the different sectors, Public and Private Law mix up:  public companies take the form of publicly traded companies under private law or private companies will be entrusted with missions of public service, instituting them as second-level regulators as are the infrastructure network operators. But the fundamental conception of systems (rooted in the history of the people) and practice marry. In the silence of regulations (and the more they are gossiping and the more the judge must interpret them, which amounts to a "silence"), what sense to give to the system? To take only a few questions, frequent in practice:      What judge to seize? The administrative judge or the civil judge? What is the "natural judge" of the Regulatory Law?      What standard to apply? The contractual will? The implicit will of the legislator? What is the "natural author" of the Law of Regulation?      Does the silence of the text prohibit action for operators or on the contrary does silence mean their freedom to act? The absence of a firm and shared definition of what is the Law of Regulation does not facilitate practice. Hesitations in translations from one language to another increase confusion. For the time being, there is a tendency to refer to Public Law in the sectors where whe take precedence over public operators' monopolies, such as telecommunications, energy, railways, air and postal services, and to refer to Private Law in the sectors which have long been the subject of competition between operators, namely banking, finance and insurance. It should be recognized that the criterion of distinction has little economic rationale. The notion of risk would be a clearer and more manageable criterion. But it would then lead to a greater challenge to the distinction between Public and Private Law. Because the Law of Regulation, impregnated with Economy and Economic Analysis of Law, has sometimes little basis of legal tradition, it put in question of this summa divisio. If this were to be the case, it would be the totality of the legal systems which would be upset, especially in its judicial organization, since the judicial civil and commercial system is so distinctly distinguished (that of "ordinary" persons, that of "common law ) and the administrative judge (the "natural judge" of the State). It is then realized that the Law of Regulation challenges the whole Law, especially in the Latin countries and the Civil Law systems.

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

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

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

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

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

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

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

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

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

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