Glossary

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

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

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

Professions play a key role in self-regulatory systems, especially the liberal professions, as soon as they are respected by companies and professionals. Professions are increasingly institutionalized, either by orders or by professions, which form networks or international associations. In this way, unlike the States, which are challenged by their borders, the professions are adapted to globalization because they develop global associations that adopt common technical standards and ethical charters of behavior. The other side of the coin is probably procedural, in the transparency of procedures and sanctions, since professional organizations take responsibility for sanctioning their own members themselves, exposing them to capture or even pushing them to conflict of interest. Professions such as banking and finance must now demonstrate that they can create the confidence they need and fuel their industry.

A public enterprise has long been characterized by the fact that a public person, for example the State or a local public authority, holds the majority of its capital, which is before a formal legal criterion. The  European Union Law, in a more concrete perspective, has apprehended it more directly purely and simply as an enterprise, that is to say, an organization having an economic activity on a market, irrespective of the private or public nature of the capital of the company, a legal instrument by which the undertaking enters into the legal under the "decisive influence" of a public person, not only actively (alliance in bodies or by contracts) but also passive (guarantees, etc.). Competition law, analyzing people by their activities, could be said to have "killed" the public enterprises by ignoring the particular nature of this public shareholder (the figure of the "shareholder state") since legal reasoning wants to see State only as an ordinary shareholder, where the subject of public law identifies itself as defending the general interest. This banalisation is not definitive: by the nationalization of banks as a remedy to the financial crisis in Great Britain or in the United States, the State again claims that a public company does not have the same purpose as a private company, because the former, like its shareholder, pursues the general interest through its intrinsic mission, while the private company, through its ordinary shareholder, pursues the maximization of profits, mirroring that pursued by the expectation of dividends by the ordinary shareholder. There is a fundamental ideological rupture between the Regulation exercised by the undertakings themselves, insofar as they are public (and supervised by the supervision of the State), and the Regulation exercised by a Regulator over all companies in the imposed indifference of their shareholders. This difference continues to be like a wound between the different models of Regulation and more generally between the conceptions of relations and modalities of relations between the State and the market economy.

The liberal professions such as lawyers, doctors or accountants are organized into professional bodies and consider that they can not be reduced to mere companies operating in markets because the service they offer includes a human and moral dimension, translated by ethics, under the supervision of their internal professional organization, particularly through ex ante their power to adopt their own standards of behavior, and in ex post, the disciplinary power of their professional order. Competition law refutes this organization from the Old Regime and simply considers the "markets of legal or medical services, firms having to compete with each other and not having to organize the sector, by  or fixing Numerus clausus, etc. In the perspective of regulation, the liberal professions are, on the contrary, the ones most pertinento organize self-regulation in a globalized economy from the moment they give rise to a credible surveillance system and thus deserve the confidence of customers and public regulators.

The contract is the main natural and legal instrument of the competitive market. It seems foreign to the regulatory system which, close to the "regulation" (texts) seems more express itself in administrative unilateral acts. But this division is fading because the contract is an effective tool because it makes gained acceptance recipient of the norm, becoming the preferred instrument of public policy. The Regulator will use it the more so as on the one hand by the contract operators bring him information and on the other hand, operators have the power to disobey him. That is why the contract is a major figure in the Regulatory system. The self-regulation mechanism goes further, since the Regulatory system itself is built on contractual commitments, exempting exogenous rules and regulator.

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.

In an ordinary market of goods and services, access to the market is open to everyone, whether it is the one who offers the good or service (potential supplier) or who wants to own it (potential applicant ). Freedom of competition presupposes that these new entrants can, at their will, become effective agents on the market, the potential supplier if its entrepreneurial dynamism drives him there, and the potential applicant if he has the desire and the tools to do it(money, Information and proximity, in particular ; but first of all, money). The absence of barriers to entry is presumed; a barrier resulting from anti-competitive behavior will be penalized ex post by the competition authority. The barrier is therefore what undermines the principle of access to the market. This is why the World Trade Organization (WTO), in that it fights against barriers to ensure global free trade, can be regarded as a forerunner of a sort of World Competition Authority. But it may happen that it is necessary to organize by the force of Law the market access in a first situation, when there has been a liberalization decision of a previously monopolistic sector, access can not be exercised solely by the strength of demand and the power of potential new entrants, notably prevented by the de facto power of the formerly monopolistic enterprises. The Regulatory Authority will build access to sectoral markets whose sole principle of Competition has been declared by Law. Secondly this necessity can also result from phenomena that definitely impede this ideal competitive functioning of the sector, such as natural monopolies or asymmetries of information: Law will make this access concrete by distributing rights of access to the interested operators. This is the case in network industries for operators' access rights to essential infrastructure networks. Even if this act is carried out by contract, this contract merely crystallizes a right of access conferred by the Legislator to the operator in order this one can penetrate the market. This is particularly true in the energy and telecommunications sectors. In a more political way and not directly related to a desire to set up competition or to compensate for a market failure, this access organization may still be required because there is a political decision to provide everyone with access to common goods. The decision then goes hand in hand with the notion of a "fundamental right", such as the fundamental right of access to the healthcare system or vital medicines, or the fundamental right of access to the digital system, which the Regulator becomes the guardian in Ex Ante but also in Ex Post.  

Self-regulation refers to a system capable of defining its equilibrium by its own forces or, if there is a dysfunction in it, to restore them equally by its own forces. Self-regulation refers to a system capable of defining its equilibrium by its own forces or, if there is a dysfunction in it, to restore them equally by its own forces. Thus, the competitive market for ordinary goods and services is self-regulated. Indeed, since there are no barriers to entry and there is information on products and prices, coupled with mobility of atomized consumers, consumers permanently make functioning competition between offers, this elaborating the right price. If an agent fixes an abusive high price, a third party outside the market will enter it to offer consumers a lower price, the new entrant coveting that rent, and consumers, by nature unfaithful, thus changing supplier.  Essential is therefore free trade, the absence of a barrier to entry and the absence of eviction from one undertaking to another, eviction being the most serious anticompetitive practice. Thus, competition law is based on the premise of a self-regulated market. In these circumstances, it is only on a case-by-case basis that anti-competitive conducts, agreements and abuses of dominant position can be found. They are then sanctioned ex post by the competition authority which, by appropriate sanctions, somehow "repairs" the market. The Regulation is based on an inverse postulate, since it postulates that the market in question has not had the strength to create or maintain its own equilibrium, either because liberalization is too recent or because it there is definitely an economically natural monopoly, either because there is an asymmetry of information, etc. Therefore, there can never be self-regulation. The border between competition and Regulation can not be simpler and need to be more clearly defined. It is true that competition authorities have sought to promote the notion of "competitive Regulation" and that the French law of 4 August 2008 sur la modernisation de l'économie (LME)  (on the modernization of the economy) adopted this vocabulary, in particular in the Ordinance of 13 November 2008 came to apply it expressly by modernizing the "regulation of competition". In France, the Competition Authority has become accustomed to labeling its annual report "Regulation", which expresses the claim of this body to practice what it calls "horizontal regulation", intervening directly in the organization of the structures and behaviors. We then leave the traditional and American notion of Regulation as a mark of liberalism, intervening only in the event of structural market failure, to return to the traditional French tendency to the administered economy. The doubt stems from the fact that no structural failure justifies such a general state control over ordinary markets.   It can also be argued that Regulation can be done in a way other than through the adjustment of interests between the bidders and the applicants, not in an exogenous way, in particular by injonctions of public regulator but by the endogenous prescriptions of the actors, for example via "codes of conduct" or "ethical charters". We must then distinguish a moral conception of self-regulation from a sociological conception of self-regulation. The moral conception aims at the idea that operators of the same sector have internalized norms of behaviors that are not natural, but that have been inculcated by impregnation, by moral sense, through ethics. Professional ethics therefore emphasizes professions, in particular the liberal professions, in that they are able to distance themselves from market values, essentially money, in order to prefer moral values ​​to them, essentially the protection of the weak persons, or the protection of the environment, or the concern for future generations. The competition authorities reject the relevance of this ethical self-regulation, which is claimed by professionals such as lawyers and doctors. The European Commission in particular tends to subject them to the ordinary law of companies in a competitive market for the right or the health service. In the same way, banks are treated in European law as "ordinary" firms and not as operators in charge of a public service (financing the economy, caring about social inclusion), still less expressing a specific professional morality. Today we live at the same time a certain despair in front of the pretension of the self-regulation ethics, because the banks pretended to do it and the information brought by the financial crisis lead to take some distance in relation to this moral discourse, while that at the same time we are called to a renewal of this moral sense in business and in capitalism. Social responsibility can constitute this renewal. Finally, self-regulation can be sociological when a sector is composed of people who know each other, whether they work in companies, in the administration or in the regulatory body. The case is all the more widespread because it corresponds to the organization of the network society. This is actually a self-regulation by club effect. The danger of this self-regulation is no longer at the risk of a moralizing discourse that is more a matter of marketing, but of an almost unconscious compromise of the regulator, thus captured by habit or friendship. The regulatory system must also seek to break this self-regulation, which is dangerous for the impartiality of the regulator.

The insurance sector has always been regulated in that it presents a very high systemic risk, since the economic operators' strength is required for the operation of the sector and the bankruptcy of one of them may weaken or even collapse all. In addition, insurance is the sector in which moral hazard is the highest, since the insured will tend to minimize the risks to which he is exposed in order to pay the lowest premium possible, even though ehe company is engaged to cover an accident whose size can not be measured in advance. Thus, the science of insurance is above all that of probabilities. The recent challenge of regulating insurance, both institutional, the construction and the powers of the regulator of the sector, and also functional, namely the relations that it must have with the other bodies and institutions, lies mainly in the relationship between the insurance regulator and the bank regulator, which refers to the concept of "interregulation." If the formal criteria are followed, the two sectors are distinct and the regulators must be similarly separated. There was the case in France before 2010. En 2010, considering activities, sensitive to the fact that insurance products, for example life insurance contracts, are mostly financial products, and moreover, through the notion of "bank-insurance", the same companies engage in both economic activities, the solution of an unique body has been chosen. A part from the fact that in Competition Law companies are defined by market activity, the main consideration is that the risk of contamination and spread is common between insurance sector and banking sector. For this reason, the French  Ordinance of 21 January 2010 created the Autorité de Contrôle Prudentiel -ACP (French Prudential Supervisory Authority), which covers both insurance companies and banks, since their soundness must be subject to similar requirements and to an organization common. The law of July 2013 entrusted this Authority with the task of organizing the restructuring of these enterprises, thus becoming the Autorité de Contrôle Prudentiel et de Résolution – ACPR  (French Prudential Control and Resolution Authority). However, the substantive rules are not unified, on the one hand because the insurers are not in favor of such assimilation with banks, secondly because the texts, essentially the European Directive on the insolvency of insurance companies ("Solvency II") , eemain specific to them, and at a distance from the Basel rules applying to banks, which contradict the institutional rapprochement exposed before. European construction reflects the specificity of the insurance sector, the Regulation of 23 November 2010 establishing EIOPA, which is a European quasi-regulator for pension funds, including insurance companies. The current issue of insurance regulatory system is precisely the European construction. While the Banking Union, the Europe of banking regulation, is being built, the Europe of Insurance Regulation is not being built. Already because, rightly, it does not want to merge into the banking Europe, negotiations of the texts of "Solvency II" stumbling on this question of principle. We find this first truth: in practice, it is the definitions that count. Here: Can an insurance company define itself as a bank like any other? L'enjeu actuel de la Régulation assurantielle est précisément la construction européenne. Tandis que par l’Union bancaire, l’Europe de la régulation bancaire se construit, l’Europe de la Régulation assurantielle ne se construit. Déjà parce que, à juste titre, elle ne veut pas se fondre dans l’Europe bancaire, les négociations des textes de « Solvabilité II » achoppant sur cette question de principe. L’on retrouve cette vérité première : en pratique, ce sont les définitions qui compte. Ici : une compagnie d’assurance peut-elle se définir comme une banque comme une autre ?  

The airline industry was the first regulated sector in the 1920s This reflects the fact that air transport implies that people can travel from one state to another state, which justified an early multilateral system of international agreements between States , under public international law, each retaining its share of sovereignty and its national company (eg. British Airways). But the principle of competition making the organization more complex through the mechanisms of open sky that allow an airline company to offer its services abroad, regulation must be more open to competition. In addition, the regulation of air cares more risks by adopting global safety standards to be imposed on all operators in the conduct and maintenance procedures of the equipment.

Competition is the law of the market. It allows the emergence of the exact price, which is often referred to as "fair price". It means and requires that agents on the market are both mobile, that is to say free to exercise their will, and atomized, that is to say, not grouped together. This is true for those who offer a good or service, the offerers, as well as for those seeking to acquire them, the applicants: the bidders seek to attract the applicants so that they buy them the goods and services that they propose.  Bidders are in competition with each other. In the competitive market, buyers are indulging in their natural infidelity: even if they have previously bought a product from an A supplier, they will be able to turn away from him in favor of a B supplier if the latter offers them a product more attractive in terms of quality or price. Price is the main signal and information provided by the suppliers on the market to excite this competitive mobility of the offerers. Thus, free competition accelerates market liquidity, the circulation of goods and services, raises the quality of products and services and lowers prices. It is therefore a moral and virtuous system, as Adam Smith wanted, a system which is the fruits of individual vices. That is why everything that will inject "viscosity" into the system will be countered by Competition Law as "non-virtuous": not only frontal coordination on prices but for example, exclusivity clauses, agreements by which companies delay their entry on the market or intellectual property rights which confer on the patentee a monopoly. Admittedly, Competition Law can not be reduced to a presentation of such simplicity, since it admits economic organizations which deviate from this basic model, for example distribution networks or patent mechanisms on which, inter alia, is built the pharmaceutical sector. But the impact is probative: in the sphere of Competition Law, if one is in a pattern that is not part of the fundamental figure of the free confrontation of supply and demand, he has to demonstrate the legitimacy and efficiency of its organization, which is a heavy burden on the firm or the State concerned. Thus, in the field of Regulation, if regulatory mechanis were to be regarded as an exception to competition, an exception admitted by the competition authorities, but which should be constantly demonstrated before them by its legitimacy and effectiveness in the light of the "competitive order", then public organizations and operators in regulated sectors would always face a heavy burden of proof. This is what the competition authorities consider. But if we consider that regulated sectors have a completely different logic from competitive logic, both from an economic and a legal point of view, the Law of Regulation refers in particular to the notion of public service and having its own institutions, which are the regulatory authorities, then certain behaviors, in particular monopolies, are not illegitimate in themselves and do not have to justify themselves in relation to the competitive model, for they are not the exception ( Such as the public education or health service).

Trust has long been the very foundation of monetary, banking, financial and insurance systems. The banking and financial industry relies on the confidence that consumers, investors here, give to the securities they acquire. Goods issued on the market do not have a corporality and their value depends only on the confidence that the buyer inserts in the value that the other investors themselves grant to the security. This is why the financial market is said to be intersubjective. This very subjective character of the banking and financial markets is not shared with the markets for goods and services because on them goods have a physical existence that is palpable by the consumer. For example, there is no need to trust the apple vendor to know that the apple exists, and it takes little time to bite it and know its taste. The financial title can not have these virtues. This subjectivization of the banking and financial markets has led more than elsewhere to the need for a charismatic regulator, and it is on these markets alone that there are central bankers – gurus – of whom Alan Greenspan has long been the paragon, since we now recognize the role of "regulator" of central bankers. Thus, people's behavior, image, reputation, expectations of behavior, etc., are essential, and gambling economic theory has largely developed in relation to banking and financial markets. Similarly, in these sectors, Regulation and Supervision are articulated, the personality of the people who run the systemic institutions being controlled. But the question of trust can be asked in more general terms, which implies the question of the link between regulation, supervision and even reference to a "sector". The main difficulty is that trust is volatile and fear causes it to be lost, fear being self-fulfilling. As shown by the succession of financial crises of 2008, the major challenge is restoration through the regulation of confidence in the markets). The new mechanisms, in particular the banking union in Europe, in particular the banking resolution, are aimed at this. The restoration of trust is extremely difficult, as legal texts and the law in a more general way are ill-equipped to give rise to feelings: one does not decree competition, one decrees still less confidence. Different States seek regulatory solutions either by increasing prudential requirements (European model) or by closely monitoring the use of funds by banks (the Volcker rule for the United States) or by internal reorganization in the event of default by The forecast of the bank wills and the intervention of resolutions. In a more general way, it is the regulator that injects confidence. Independence and the absence of conflict of interest being a major element of this, central banks tend to move closer to the figure of the Regulator, which approximates the figure of the Judge and the Tribunal, obliged by the legal principle of Impartiality that oblige them.  

Article 6 of the European Convention on Human Rights (ECHR) states that everyone has the right to an impartial tribunal. Insofar as the regulator in France is most often an Independent Administration Authority (IAA) and this is assimilated to a court, the regulator is required to comply with the ECHR. This contributes to the jurisdictionalization of regulation. Thus, when there is a sanction or dispute settlement procedure, a real trial is established, and companies, helped by their lawyers, must benefit from access to the file, from the adversarial principle, from rights defense, the right to participate in the debate at the hearing. These fundamental procedural guarantees also include the obligation for the regulator to justify its decisions, which facilitates the control exercised over it by the appeal courts, and to create by accumulation of decisions a sort of case law of the regulators themselves. . Thus, human rights by procedure have entered the regulatory authorities. This refers to one of the issues that is emerging, namely the balance that must be established between the laws of the market and the non-economic prerogatives of individuals.

Paradoxically, the notion of conflict of interest seems to be at the center of Economic Law only recently in Economic Law, in both Corporate and Public Law. This is due to the philosophy which animates these two branches of Law, very different for each, and which has changed in each. In fact, and in the first place in Public Law, in the Continental legal systems and especially in French legal tradition, on the side of the State, the one who serves it, by a sort of natural effect,, makes the general interest incarnated by the State pass before its personal interest. There is an opposition of interests, namely the personal interest of this public official who would like to work less and earn more, and the common interest of the population, who would like to pay less taxes and for example benefit trains that always arrive on time and the general interest which would be for example the construction of a European rail network. But this conflict would be resolved "naturally" because the public official, having "a sense of the general interest" and being animated by the "sense of public service", sacrifices himself to serve the general interes. He stays late at his office and gets the trains on time. This theory of public service was the inheritance of royalty, a system in which the King is at the service of the People, like the aristocracy is in the "service of the King." There could therefore be no conflict of interest, neither in the administration nor in the public enterprises, nor to observe, manage or dissolve. The question does not arise … Let us now take the side of the companies, seen by the Company Law. In the classical conception of corporate governance, corporate officers are necessarily shareholders of the company and the profits are mandatorily distributed among all partners: the partnership agreement is a "contract of common interest". Thus, the corporate officer works in the knowledge that the fruits of his efforts will come back to him through the profits he will receive as a partner. Whatever its egoism – and even the agent must be, this mechanism produces the satisfaction of all the other partners who mechanically will also receive the profits. Selfishness is indeed the motor of the system, as in the classical theory of Market and Competition. Thus, in the corporate mechanism, there is never a conflict of interest since the corporate officer is obligatorily associated: he will always work in the interest of the partners since in this he works for himself. As Company Law posits that the loss of the company will also be incurred and suffered by all partners, he will also avoid this prospect. Again, there is no need for any control. The question of a conflict of interest between the mandatary and those who conferred this function does not structurally arise… These two representations both proved inaccurate. They were based on quite different philosophies – the public official being supposed to have exceeded his own interest, the corporate officer being supposed to serve the common interest or the social interest by concern for his own interest – but this was by  a unique reasoning that these two representations were defeated. Let us take the first on Public Law: the "sense of the State" is not so common in the administration and the public enterprises, that the people who work there sacrifice themselves for the social group. They are human beings like the others. Researchers in economics and finance, through this elementary reflection of suspicion, have shattered these political and legal representations. In particular, it has been observed that the institutional lifestyle of public enterprises, very close to the government and their leaders, is often not very justified, whereas it is paid by the taxpayer, that is, by the social group which they claimed to serve. Europe, by affirming in the Treaty of Rome the principle of "neutrality of the capital of enterprises", that is to say, indifference to the fact that the enterprise has as its shareholder a private person or a public person, validated this absence of exceeding of his particular interest by the servant of the State, become simple economic agent. This made it possible to reach the conclusion made for Company Law. Disillusionment was of the same magnitude. It has been observed that the corporate officer, ordinary human being, is not devoted to the company and does not have the only benefit of the profits he will later receive as a partner. He sometimes gets very little, so he can receive very many advantages (financial, pecuniary or in kind, direct or indirect). The other shareholders see their profits decrease accordingly. They are thus in a conflict of interest. Moreover, the corporate officer was elected by the shareholders' meeting, that is to say, in practice, the majority shareholder or the "controlling" shareholder (controlling shareholder) and not by all. He may not even be associated (but a "senior officer"). The very fact that the situation is no longer qualified by lawyers, through the qualifications of classical Company Law, still borrowing from the Civil Contract Law, the qualifications coming more from financial theories, borrowing from the theory of the agency, adically changed the perspective. The assumptions have been reversed: by the same "nature effect", the conflict of interest has been disclosed as structurally existing between the manager and the minority shareholder. Since the minority shareholder does not have the de facto power to dismiss the corporate officer since he does not have the majority of the voting rights, the question does not even arise whether the manager has or has not a corporate status: the minority shareholder has only the power to sell his securities, if the management of the manager is unfavorable (right of exit) or the power to say, protest and make known. This presupposes that he is informed, which will put at the center of a new Company Law information, even transparency. Thus, this conflict of interests finds a solution in the actual transfer of securities, beyond the legal principle of negotiability. For this reason, if the company is listed, the conflict of interest is translated dialectically into a relationship between the corporate officer and the financial market which, by its liquidity, allows the agent to be sanctioned, and also provides information, Financial market and the minority shareholder becoming identical. The manager could certainly have a "sense of social interest", a sort of equivalent of the state's sense for a civil servant, if he had an ethics, which would feed a self-regulation. Few people believe in the reality of this hypothesis. By pragmatism, it is more readily accepted that the manager will prefer his interest to that of the minority shareholder. Indeed, he can serve his personal interest rather than the interest for which a power has been given to him through the informational rent he has, and the asymmetry of information he enjoys. All the regulation will intervene to reduce this asymmetry of information and to equip the minority shareholder thanks to the regulator who defends the interests of the market against the corporate officers, if necessary through the criminal law. But the belief in managerial volunteerism has recently taken on a new dimension with corporate social responsability, the social responsibility of the company where managers express their concern for others. The identification of conflicts of interests, their prevention and their management are transforming Financial Regulatory Law and then the Common Law of Regulation, because today it is no longer believed a priori that people exceed their personal interest to serve the interest of others. It is perhaps to regain trust and even sympathy that companies have invested in social responsibility. The latter is elaborated by rules which are at first very flexible but which can also express a concern for the general interest. In this, it can meet Compliance Law and express on behalf of the companies a concern for the general interest, if the companies provide proof of this concern. To take an example of a conflict of interest that resulted in substantial legal changes, the potentially dangerous situation of credit rating agencies has been pointed out when they are both paid by banks, advising them and designing products, While being the source of the ratings, the main indices from which the investments are made. Banks being the first financial intermediaries, these conflicts of interest are therefore systematically dangerous. That is why in Europe ESMA exercises control over these rating agencies. The identification of conflicts of interest, which most often involves changing the way we look at a situation – which seemed normal until the point of view changes – the moral and legal perspective being different, Trust one has in this person or another one modifying this look, is today what moves the most in Regulation Law. This is true of Public and Corporate Law, which are extended by the Regulation Law, here itself transformed by Compliance Law, notably by the launchers of alerts. But this is also true that all political institutions and elected officials. For a rule emerges: the more central the notion of conflict of interest becomes, the more it must be realized that Trust is no longer given a priori, either to a person, to a function, to a mechanism, to a system. Trust is no longer given only a posteriori in procedures that burden the action, where one must give to see continuously that one has deserved this trust.

In principle, competition Law does not protect either competitors or consumers. The European Commission always recalls this fundamental rule, the consumer being the measure of the proper functioning of the market and its ultimate but not necessarily immediate concern. Regulation Law, a law of equilibrium which balances the principle of competition with another principle, can establish consumer protection as an autonomous principle in balance with the concern for competition. In fact, regulation can ex ante set prices at a price lower than the market price, in particular in telecommunications or energy, to develop demand, and continue to establish social tariffs in these two sectors, which competitive system could not admit. In addition, always thanks to this ex ante power wielded by the regulators, while the competition authorities are ex post bodies, information to consumers is organized in advance, in particular with regard to the quality of the product they consume. This is particularly clear in terms of banking and financial regulation. Indeed, the texts oblige banks to inform their customers of the financial products they plan to acquire and of the risks that these present. In this, consumer protection appears to be a goal served by regulation, in balance with free competition in which the consumer has the vocation to inform itself on the market in contact with suppliers. In banking and financial matters, consumer information is currently a particularly important issue because by informing the consumer-investor about the risks, regulation restores his confidence, through transparency, in the system. By balancing competition and risk, regulation injects confidence in the banking and financial sector, which is based on it.

The Ex Ante, the usual expression in Economic vocabulary, corresponds to the more traditional expression in Law of A priori, and refers to the apprehension of a situation before it is constituted. For example, a law or a regulation is an ex ante act, which will regulate situations after the adoption of the text, of the decision or general disposition adopted by an authority. There is no retroactivity. Conversely, Ex Post, the usual expression in Economics and which corresponds in Law to the A posteriori, refers to a reaction of an organism to a situation or a behavior observed. Thus all individual decisions on sanctions, or all dispute or mediation settlements, come under ex post. For example, judicial acts fall under ex post. Competition Law is usually recognized in that it develops in the ex post, since the market is established and the competition authority reacts to anti-competitive practices, which may be sanctioned, ie in ex post . Conversely, because it is a question of building competition or of maintaining non-natural balances on a permanent basis in sectors, Regulation Law uses tools that could be called "blank pages", essentially regulations, that is to say ex ante. This explains why the English term of "regulation" express at the same time the regulatory system as a whole and the texts adopted, the regulations (in French "réglementation"), because this ex ante tool is so important, is to intimate with regulatory spirit and  perfectly expresses this ex ante distinguishing Regulation Law from Competition Law. This opposition is fundamental because it not only sheds light on the distinction between competition and regulatory system, but also dictates the distribution and scope of powers. Indeed, to simply react ex post, it is enough to have a power to punish, to order reparations, to decide the different. Ex-ante intervention requires much greater powers since the regulatory authority dictates behavior in order to build markets and sectors. This magnitude of ex-ante powers explains that the title of regulator is so envied, and that even competition authorities sometimes present themselves as regulators of competition, as if constructing them beyond defending them, in particular by the adoption of provisional measures. Confusion is often made or even maintained by the oxymoron of "competitive regulatory system" made by these Competition Authorities, even if they are not limited to a specific sector. This shows the fragility of the distinction between ex ante and ex post. Indeed, it may be open to criticism that competition authorities seek to appropriate ex-ante powers to exercise them on all markets, even though these markets do not justify the exercise of regulatory mechanism, but it is true that it exists a continuum between ex ante and ex post. This continuum is exercised in both directions. In the sense of the ex-ante to the ex-post, it is the Regulator himself who, after having taken the ex ante standards, ensures its effectiveness through continuous monitoring and sanctioning failures. Moreover, in the sense of the ex-post to the ex-ante, because, as gaming theory shows, especially in the banking and financial markets, agents are anticipatory, a decision to sanction or to settle different is interpreted as a signal, for example of severity or warning, of tendency, a kind of act of doctrine of authority, that the operators have integrated into their future behaviors. Thus, the ex post act becomes the cognitive ex ante.