Glossary

A monopoly refers to the power of a person to remove from a good its utility by excluding others. The monopoly refers to a situation on the market, the monopolist being the sole operator in the market. Lawyers are accustomed to the monopoly conferred by Law, for example the one that was the monopoly for the national public enterprise for electricity. In this case, what is done may be defeated, and the legislature may withdraw that privilege especially if the author of this norm is better placed in the hierarchy of norms than the previous author. For example, the European Union legislature withdrew the legal monopolies by means of directives from most of the operators holding them in the regulated sectors in order to liberalize them. But the monopoly can have an economic source. Indeed, it may happen that a first operator constructs a structure, for example a wired telecommunications transport network. Because he is alone, agents on the market must resort to him to carry their communications, his business will be profitable. But from there, if a second operator built such an infrastructure, it would inevitably be in deficit for insufficient applicants. This is why no rational economic agent will build a second network. Thus, this network will remain unique. It is then an economically acquired monopoly that the legislative will can not change its nature. That is why it is called "natural". Since what is can not be changed, Community law has taken note of the monopolistic nature of the majority of networks and the correlated power of their owner or manager, but has correlatively provided for their supervision by a regulator who not only Ex post to resolve possible differences between the infrastructure manager, the natural essential facility, and the one who wants to access it, but also, through an Ex ante power, to negotiate with that manager the return on his capital, his commitments investment in the network, etc., or even more directly by imposing on it the way in which it fixes access tariffs and so on. These economically natural monopolies are therefore more powerful than legal monopolies, which States and lawyers have taken a long time to understand, but this also explains the reverse tendency of economists to write laws, The texts must handle this type of notions, its writers caring little about the political order and legal notions. The fact that the laws and regulations on regulated situations and supervised operators have long been elaborated solely from the point of view of lawyers, particularly of the public service, which was regrettable, does not justify this passage from one extreme to the other.

Pricing is the result of an act of will whereby an organization determines an amount or method of calculation to obtain an amount it allocates to a good or service. Pricing is in contrast with price, which in turn results spontaneously from the market mechanism and the competition that governs it. Pricing is a preferred ex ante tool for Regulation. It is favored when it comes to fixing access costs for users to essential infrastructure networks, which are economic monopolies. In a process of liberalization, because Regulation is then designed to build competition, competitive maturation will lead to the exit from "regulated prices", ie pricing, to "free prices", that is to say market prices. Electrical experience has shown that sometimes it is politically appropriate to allow those who have chosen the vagaries of market price movements to return under the shelter of tariffs. There are multiple pricing methods, France preferring pricing in relation to costs, U.K. preferring the price cap method.  

A crisis is an unexpected and destructive dysfunction of an organization. In an ordinary market of goods and services, crises are internal to companies, for example through social conflicts, and may even lead to the disappearance of the firm. But this does not lead to a market crisis because the internal crisis of the company is not communicated to the market. This is why market theories do not need to apprehend the internal functioning of companies which are thus deliberately designated, by reason of this indifference, as "black boxes". Indeed, a corporate bankruptcy in an ordinary market shows the dynamism of the market since it is the weak and inadequate companies that are eliminated for the benefit of the innovative companies, pushing more dynamic third parties to enter the market to take the place, according to the schema of the creative destruction of Schumpeter,which the Law of competition endorses. Thus, the crisis is not only not a problem for the ordinary market but even supposing that we care, it is a sign of good functioning. This is absolutely different in the case of systemic operation in particular sectors. The best known case is the banking and financial markets. Indeed, if investors begin to lose confidence in intermediaries, mainly in banks by a self-realizing effect, the market begins to collapse, leading investors, backed by fear, to withdraw their assets and realize the total collapse of the market by a domino effect that destroys the whole system. By the globalization of the financial and banking markets, now achieved by the dematerialization of securities and technology, the systemic crisis is global. Banking and financial regulators are therefore primarily responsible for fighting the crisis in order to prevent it, through information, transparency and protection of the investor, secondly to manage it, by supporting the defaulting operators And the sanction of the guilty operators, and thirdly to get out of the crisis, by restoring the confidence of the operators in the markets. By the globalization of the financial and banking markets, now achieved by the dematerialization of securities and technology, the systemic crisis is global. Banking and financial regulators are therefore primarily responsible for fighting the crisis in order to prevent it, through information, transparency and protection of the investor, secondly to manage it, by supporting the defaulting operators and the sanction of the guilty operators, and thirdly to get out of the crisis, by restoring the confidence of the operators in the markets. But this prevalence of the crisis in the regulatory system should not be limited to banking and financial markets alone. Indeed, two major phenomena prevent goods and services from being left to the simple and ordinary market system, that is to say, to the simple mere competition law. Indeed, the competitive market presupposes the infinite nature of the production of goods and services as soon as there is demand on the one hand, and the instantaneous nature of production and trade on the other. First, many goods and services are scarce resources. These include energy resources, which are the primary stakes in the global economy. They are then the necessary object of regulation, since it is not possible, for example, to produce gas or oil. The issue of water is even more important, even though the regulation of water is still in its infancy. In the same way, the instantaneous nature of production and trade does not apply to all agricultural activity, which presupposes the passage of time to produce goods, plants and animals, and which is subject to the vagaries of man's climate which, if allowed to play the law of the market, entails an exact price, but of a very great variability (King's law). Agricultural regulation then intervenes to smooth out prices over time and make possible that economic activity which exists only on annual or multiannual rhythms, to which the ordinary market scheme does not correspond. If an agricultural crisis occurs, such as the crisis in the price of pigs or the crisis in the price of milk, the solution is to avoid competition mechanisms to find a solution either through multi-annual contracts between producer and retailer or by State aids justified by the crisis, or even by means of tariffs. We see that the crisis is no longer a peripheral and welcome notion in the model but rather the central and permanent concern of the model. It is true that today we have moved from the competitive model to the regulatory model. This is particularly true in Europe, since 2010, Europe has been building banking Europe, the Banking Union based on regulation.

The Regulation is a balance between the principle of competition and another principle. This other principle is a technical principle, for example the prevention of systemic risks or the management of economically natural monopolies. The regulatory system can, maybe must, then remain "neutral". Indeed, neutrality can be defined as the absence of choice made by a few for the future of the group. But Regulatory Mecanism can also mean balancing the principle of competition with a principle that is no longer economic, technical or political, such as access to a common good such as health or culture. In such a case, Regulation ceases to be neutral since there has been a collective choice politically positing that health, education or culture are superior goods. This has direct implications for the very existence of the Regulator. Indeed, regulators often present themselves as technical, neutral bodies that do not need political legitimacy, since they do not make choices for the social group. This is true only in the first hypotheses but not in the second, where only the democratic State is legitimate to operate them, which explains the return of the State to many regulated sector issues, for example as regards the preference in matter of energy production mode, from renewable energy to nuclear energy, involving the return to a ministry of energy, as well as the shift from financial regulation to ever greater power given to central banks. The issue today is about the growing importance of what should be the principle of "net neutrality". The question is: Does the Internet, in that it has given birth to digital, assume that every Internet user can access any site without interference, or can content operators and access providers give priority to some websites by directing users to them, either to manage congestion (neutral technical justification) or because they have been paid contractually by this site (non-neutral justification)? The question remains between the fundamental right of access of Internet users, the technical need to manage congestion, the need not to invest even more to increase bandwidth, and the freedom to undertake operators.

Classically, the People are sovereign and through the game of representation Parliament expresses its will, while a more Hegelian schema confers on the State, being superior, the power to express through the same channels, essentially Law, its general will. The State therefore imposes its will without more justification than the very existence of its upstream legitimacy, since it is the People who have conferred its powers on it: the State is sovereign and is not accountable. This is why Regulation is philosophically a "theory of suspicion", which refuses to grant relevance to these political presuppositions and rather sees in the situation of powers an arrangement of administrations and of particular persons who defend their particular interests, in inside and outside the country. This is why Europe by liberalizing regulated sectors, those even where the State strongly claimed its sovereignty, for example through nuclear planning, by requiring regulatory authorities to attack incumbent operators from within through regulation. asymmetric, destroyed the ideology of sovereign states, reducing them to the ordinary. This question remains open.

The Regulator, which generally takes the form of an independent administrative authority (IAA), is the person or body that monitors and controls the sector in order to maintain a balance between the principle of competition and another principle. For example, the telecommunications regulator will ensure the licensing of mobile telephony; or the energy regulator will monitor the access conditions of competitors to the electricity transmission grid ; or the financial regulator will monitor the reliability of the financial information it will make available to investors. The regulator must either build competition to achieve the liberalization of a sector or preserve it of the systemic risks that threaten it. For this it must have very large powers both in ex ante and ex post. Thus, in most cases, it has an ex ante regulatory power, for example through a general power to adopt texts, such has the French Financial Markets Authority (Autorité des Marchés Financiers – AMF). Ex post, it has also an administrative power to sanction and settle the disputes. The diversity of objectives, their heterogeneity, and even their contradiction, makes it difficult to satisfy everyone, but also – and it is another issue – offers the regulatory authority a large margin of discretion since it can easily justify its use of his powers by aiming one objective or another. The theoretical and practical question of the "discretion of the regulator" is a major political problem, especially for those who claim that the regulator would only be an expert and not exercise political power, that is to say do not make discretionary choices for the social group. All these powers are nonetheless exercised in compliance with fundamental procedural safeguards, since the persons concerned may challenge the acts before the courts. Finally, according to Hannah Arendt's model, beyond the law, the Regulator must first of all have "authority" (gravitas), that is, sufficiently impress and the sector and the government to be respected, and its prescriptions taken in consideration. For this, the regulatory body must have the information, belong itself to the same private circles of its interlocutors and widely communicate with its foreign counterparts. In this, the Regulator sometimes appears as a sort of minister, who would hold its power of the sector itself, but must always remain neutral. The issue of its independence and its absence of capture is all the more crucial.

Transparency is not a natural state, it is not even a legal principle of classical law. Situations, persons and information are only made known to those who are in the same situation, for example the parties to the contract, but they are not known to third parties. Thus the contract is not transparent, consequence of the basic rule that distinguish the parties and third parties to the contract. In the same way, in an ordinary market of goods and services, there is business secrecy, the secrecy of factories, and the secrecy of the strategies that remain the principle, preserved by the competition authorities. Information and transparency play only on the prices offered, not even on how they are established.  

Ideas lead the world, even in the disenchanted period in which we live, for disenchantment is a philosophical Weberian idea. Thus, as the market does, Regulation too often appears as a state of nature, the two being correlated since Regulatory mechanisms is simply the response to a market failure. In reality, regulation obeys a certain conception of the State, the common goods, the benefits attributed to competition, the balance between competition and other principles, the balance between political powers, etc. : So many philosophical ideas. If we are to relate the Regulation to a more particular philosophy, it would be a philosophy of liberal economy, which posits that in the ordinary, on ordinary goods, supply and demand produce a satisfactory result The supplier and the applicant, the economic life not summarizing the life of the person. But the Regulation is a philosophy because, independently of the technical market failures, to qualify or not an "ordinary" good is a philosophical position. Thus, the training of people or the level of protection of the health of individuals and the assumption of responsibility for the social group and the assumption of responsibility for this service is a political position reflected in the Regulation. This is why regulation can not be confined to economic science, the law of which being merely its translation. In the same way, regulation, because it is the scientific response to market failures, can not be the pure secular arm of a political will, because economic theory must make its voice heard. Philosophically, Regulation is therefore a complex figure, a triangle whose points are Law, Economics and Politics, none of which can claim to have entirely taken over the others.

Intellectual property is an exclusive right conferred by the right to the author of a work (literary or artistic property) or of a technical invention (industrial property), which allows the latter to prohibit others from duplicating this which it produced without its consent. This exclusive right thwarts the competitive system, in which copying is ordinary behavior, a form of circulation, of increasing wealth, a situation conducive to innovation. Tensions are therefore strong between competition Law and intellectual property and competition authorities tend to see abuses of a dominant position where, for example, pharmaceutical companies believe that they are claiming the use of their intellectual property rights. Digital technology gives rise to theoretical and practical confrontations of the same magnitude. But if intellectual property is inserted intellectually into the Regulation, the State no longer grants this exclusive right ex post to reward the author for having created or invented. In a more dynamic and global way, intellectual property is for the State an incentive public policy tool to lead economic agents to innovate with the prospect of receiving the financial fruits increased by the absence of competition for several years. For example, currently in the field of patents, economists only see them as part of a state-led policy. It is undoubtedly still different in matters of literary and artistic property which remains with a more romantic vision of an artist whose mainspring is not the lure of gain but the desire for the beautiful and whom it does not suit. to encourage creation. This has undoubtedly affected the prospect of creating industries in the cultural sector. Digital technology is converging the two schemes, perhaps towards the same obsolescence.

"Regulation Law" (with a capital on "Regulation" in order to distingu with regulations wihch are simply texts) or "Regulatory Law" is defined as the balance between the principle of competition and another principle, a-competitive, even anticompetitive. It is thus connected with a liberal theory since the principle of competition is always there. However, it does not depend on the complete and sufficient organization of a market, a sector or a channel. This may be due to technical or economic data that make the market itself unworkable: there are  market failures. For example, transport networks constitute economically natural monopolies which make network industries, such as telecommunications, railways or energy, need to be replaced by monopolies, ie powers which no competition will counterbalance and which, except to nationalize, so to leave the liberal perspective, independent regulators will monitor. Thus, regulation always has a political background, since it is a choice of general framework of liberal economy, reacting to market failures in a different way than by the administered economy which operates through state intervention. The heart of the Regulation is therefore the Regulator. In many countries, it often takes the institutional form of independent administrative authorities (IAA), which coordinate operators, whether public or private. But politics is still present in another and very strong way alongside Law and Economy, for the principle weighed against the principle of competition may not be another economic principle as the above-mentioned example of the natural monopoly or the systemic risk of money and financial markets, but a purely political principle. For example, it is necessary to assert, because the People have decided it and accept to pay its collective price through taxes, that everyone is entitled to a certain level of social protection, to access to health, to education, to a healthy environment, to information, etc., with the fair price being able to go as far as being free of charge, without any relation to the fair market price. Each person has to accede to this good because in this he accedes to his very humanity – notion of commons goods or universal good or "good of humanity". This notion is both relative and political but marks a civilization. Whether it is a matter of building a market, of maintaining heterogeneous equilibriums or of maintaining marks of civilization in them, Regulation is always an artefact which presupposes the deployment of a great power ( wich was expressed by the State, but today it is that of the regulators). In this respect, it is the goal of efficiency which is above all the aim sought, for example an effective access to the transport network ora successful management of crisis and risk. All the Regulation Law is deduced from the purpose served, is only an instrument at the service of the finality. That is why its legal reasoning is teleological, that is to say, constructed from ends. This instrumentalisation of Law can be expressed trivially: "the end justifying the means". It has legitimized ample legal powers, including sanctions, cumulated by regulators, against which the classical jurists have protested, to which the Constitutional Courts have set limits. But it is in the nature of regulatory techniques to be teleological. Regulation then engenders a confrontation between Law and Economy, of which Politics holds the scourge. Thus, for example, while technical market failures impose, can – or maybe must – be resolved internationally, and do not require political consensus, the political dimension of the Regulation Law (notably the "rights of access to … .. ") must on the contrary meet the adhesion of peoples and / or nations. This is why Regulation, which is too often enclosed in economic theory alone, has not only a very strong legal translation, but also major political implications. Indeed, by putting the Regulator at heart and the decisions it adopts, Regulation leads to the increasing power of the judges who control these decisions, whereas the legislative acts are unharmed. For example, the continental countries saw the power of judges to increase, bringing them closer to Common Law countries, ni so many crucial sectors, such as network industries, banking and finance. In addition, Regulators are necessarily autonomous of sector but also of government, creating a game of political equilibrium where each is both independent but accountable to each other : a check and balance mechanism, fundamental to the United States but hitherto unknown in many continental countries, such as France. Thus, if one speaks so much of the Regulation, it is on the one hand because it concerns activities which, even if they are locked up in specific sectors such as telecommunications, energy, banking or Finance, are all indispensable underpinners to the prosperity and sustainability of the general economy: there is no proper functioning of ordinary markets and a satisfactory European construction if there is no sectorial regulations.. But it is also because the Regulation Law has upset the organization of political powers in many countries, bringing them to a model close to that which organizes the relations of political powers in the United States..

The expression "new comer" designates an operator outside the sector or the market but who is going or has just entered it. On a fully competitive market, this entry is made for him without difficulty, without "transaction cost", and it is naturally encouraged to do so by his entrepreneurial taste or because he has innovated (Schumpeterian temperament), thus being able to seduce applicants in place, potential customers who will then turn away from their usual supplier. But, when there is liberalization of a monopoly sector, the incumbent operators are powerful enough to establish barriers to entry, because they notably hold the know-how and the confidence of the customers ("stickiness" of the market). It is therefore necessary to institute transitional regulators, most often in the form of Independent Administrative Authorities (IAA) to build competition, which can only occur through asymmetric regulation, notably in the form of systematic favors for the benefit of new comers. Thus, for example, the British telecommunications regulator forced British Telecom to open its entire telecommunications network free of charge to newcomer Mercury. This asymmetrical exercise of power is nevertheless neutral since it is applied mechanically to the detriment of incumbent operators to make room for new entrants, only applying to the benefit of new entrants in a blind manner, so that competition can arise. The European Commission wants the same to be true in the pharmaceutical field, generic drug laboratories being assimilated to new comers compared to originator laboratory drugs on the same active ingredient, but this is undoubtedly confusing the liberalization process and exclusive right arising from an intellectual property right.

On markets, prices result in competition. They are "exact" in that they express the meeting of offers and demands, and are sometimes even called "fair prices". Prices are free and constitute the indices of free competition. The simplest and most serious anti-competitive clue is thus abnormal prices. In the same way, the financial market has been qualified by Walras as the "purest market" notably by the quotation which mechanically crystallizes the instantaneousness of the meeting of offers and demands by the mobility of prices. Freedom of competition and contractual freedom have the price as a paradoxical commun point, since both parties use the autonomy of their will to determine freely the price, an essential element of the contract, and it is nevertheless the market which by their "law" brings out a "market price that each contract reflects. But this correctness of price does not exclude a price being "unfair" for example when it is too high for the consumer while it is a necessary good, or even a "common good" for which everyone should have a "right of access" and that in fact the rarity of this one has raised the price. The "fair price" can then be equal to 0, when it realizes such a fundamental right of access and that, rather than solvabilizing the demand, the political choice is made to declare free: free museums one day a week , free education, etc. The amount at which the good is going to be offered to the applicant can then result not so much from a price but from a tariff. One has left the merely competitive market logic to enter the logic of Regulation Law. This corresponds to two hypotheses. First, when there is a monopoly, by definition the absence of competition precluding the development of a price which presupposes competitive pressure, an amount must be fixed by calculation, possibly by reconstituting a hypothetical market, France has been particularly successful in its capacity to develop pricing models for electricity (eg Ramsey-Boiteux) or for telecommunications (eg Laffont-Tirole calculations). Pricing is an art because the company must be encouraged not to make excessive rents while making the necessary investments. Thus, the British preferred tariffs by price cap, while the French favored pricing by costs, the European institutions admitting both. Secondly, pricing can be no longer economic or political when it comes to imposing an amount that is not a market price for the benefit of people who would not have the financial means to enter a market. The social tariffs are then aimed at regulated goods only if they contain common goods such as telephone or electricity, each of which must have access, even at very modest income. It is then for the Legislator to concretize subjective rights that he creates, such as the "right to electricity"

Any agent who has an economic activity in a space can be qualified as an "operator". Competition law sees in this the very definition of "the enterprise". In this respect, Competition Law "neutralizes" all that the agent can have of specificity, for example the fact that it is the State itself, since in a merely competitive market, an operator is equal to another. . Thus, a dominant operator is not monitored as such. Similarly, the neutrality of capital means that a public operator is not subject to a special regime. In Regulation Law, on the contrary, it is sought to qualify the operators to determine their specific function in the balance between competition and other principles. This is the case of the "crucial operator". The "crucial operator" is one whose existence is absolutely necessary for the proper functioning of the system, for example because it is the transmission system operator, or because it is the clearing house of the financial market or because thank to it a common good is accessible to all. As such, it is established by the legal system as a second level regulator. This can be done directly by the law, as is the case for transmission system operators who constitute economically natural monopolies. It can also be done by its peers, as is the case for professional orders, or when market places constitute their board through the dominant operators of the place itself. This crucial operator, as a second-tier regulator, has more prerogatives than ordinary competitive operators; These prerogatives, which may even be organized on a contractual basis (for example, the network access contract), are "powers" rather than "rights", in that they are conferred and exercised more often in order to the operator be able to fulfill obligations, which often refer to the notions of public service and general interest. Crucial operator also has more obligations (such as opening up their transport networks for anyone) that these competitors, often to the direct benefit of the latter. Because these operators are crucial, public institutions, such as the State, Europe or international institutions, will not allow them to disappear in the event of financial difficulties, and the regulator ensures their profitability so that their activity develops in the time. This is why, for example, banking failure is more than ever excluded by the introduction of the new bank resolution mechanism.

Any agent who has an economic activity in a space can be qualified as an "operator". Competition Law sees this as the very definition of "business". In this respect, Competition Law “neutralizes” anything specific that the agent may have, for example the fact that it is the State itself, since in a simply competitive market, any operator is is worth. Thus, a dominant operator is not monitored as such. Likewise, the neutrality of capital means that a public operator is not subject to a special regime. In Regulatory Law, on the contrary, we seek to qualify operators to determine their specific function in the balance between competition and other principles. This is the case with the "incumbent". The historical operator is the one and present at the time of the liberalization of the sector. In this, by nature, it is the obstacle to the realization of competition, the principle of which is laid down by the liberalization law and the realization of which comes up against the very fact of the power of the incumbent operator. This is why asymmetric regulation is implemented by the Regulator. It will consist in harming the incumbent operator, in a way that is nonetheless impartial because it is not a question of making effective the competition, the development of which is the finality of liberalization, by depriving it of its so-called "grandfather" advantages. for the benefit of new entrants. Experience shows that in fact, incumbent operators remain, particularly in network industries, more powerful than new entrants. This is due to the fact that the formerly monopolistic national incumbents are reconstituting their power by making agreements between them.   The great interest of these three qualifications is that they are not legal but economic and therefore make it possible to regulate adequately, even if the operator is not expressly the operator in title of the network, to take its place directly and of its role in the sector.

First of all the responsibility of the Regulator. Because the Regulator, although independent of the government, belongs to the State, when it commits a fault in the exercise of its functions, it is the responsibility of the State which is engaged. According to the principles of public law in this area, the demonstration of gross negligence is required. Some saw a contradiction between the fact that the government could not give any order to the regulator and that nevertheless the State and the public finances had to answer for its actions. For this reason, more recent laws have conferred legal personality on the new regulator, for example in France the Autorité des Marchés Financiers – AMF (Frech Financial Markets Authority), which makes it possible for the Regulator to own a proprietary asset that enables him to answer for his own faults To third parties. Moreover, according to a problem similar to that developed in relation to judges, the regulator is independent, and as such must remain politically not accountable for the use he makes of his powers. However, he must be held accountable. Accountability, which is difficult to implement, is expressed for all regulators through an annual public report to the Head of State, the government and Parliament. The existence of recourse against its decisions before the judges is a kind of accountability. Finally, some regulators believe that the collegiality of their functioning and that the motivation of their decision is an essential way for them to be accountable. Then, the responsibility of the operators. At first it tends to be "objective". In a system based on the aims and effectiveness of the realization of these, operators will be "responsible" without even intending to do wrong (subjective definition of fault, imputation of damage , f liability), because there was a "breach", because the operator was "in a position" to prevent a situation which was contrary to the aim pursued by the regulatory system, or was in position to ensure that a situation crystallizing a goal pursued by the regulatory system materializes and that this has not happened. This responsibility creates sanctions. What is more, it migrates from the ex-post to the ex-ante, for moving towards a more common sense of what a "responsibility" is: a power to better fulfill a duty, The operator must use his force in an effective way so that the goals of the regulation system become concrete thanks to him, in alliance with the action of regulation: it is the concept and mechanism of compliance.

The traditional conception of the State is that it serves the general interest through its public services, either directly or by entrusting them to operators, by delegation (eg by the concession technique). The public service is now generally defined in a functional way, ie through public service missions that the organization must carry out, such as ensuring public transport or caring for the population regardless of the solvency of the patient. For a long time, this has been a sort of "fixed sequence": State – public service – public enterprise (eg public school, post office, in France SNCF or EDF). The liberalization of the sectors, the first reference to the market as a means of attaining the general interest, the first reference to Competition and, in Europe, the central play of Community Law have converged to shatter this intimacy. Today, in a fragmented game, regulation retains this concern for public service missions in balance with competition, but this concern is placed in a competitive context and under the control of a regulator. The system is more difficult because this breakdown poses new difficulties, such as the asymmetry of information and the difficulty of long-term planning It better corresponds to an economy open to a globalized system.

Prudential standards are safety requirements ("prudence") imposed on companies so that they are solid, this solidity being required because a failure would be catastrophic for the sector to which they belong. The banking sector is the paragon of the sector in which prudential standards apply, banks and credit institutions being thus protected from the systemic risk of default, the effectiveness of these standards being ensured by the vigilance of the supervisory authorities, the most often the Central Bank. But prudential and regulatory standards are getting closer and closer, especially since the 2008 global financial crisis. The “Basel Committee”, a committee bringing together in Basel, under the aegis of the Bank for International Settlements, central bankers and regulators, formulated “recommendations” at the end of the 1980s (Basel I Accord, transposed into law national on the basis of state voluntary service) in order to ensure the stability of the international banking system by setting a minimum amount of bank capital. Initially set at 8% of equity in relation to the loans granted, this "Cooke ratio", the main limit of which was to take into account for this calculation only the total amount of loans distributed and not the customer risk attached to them. . It was consolidated and surrounded by two additional guarantees when the Basel II accord was signed in 2004. This is based on three pillars: the first, based on the “McDonough ratio” (not only taking into account the amount of credits allocated but the probabilities of default of the counterparty and of the credit line), was intended to offer a better assessment of credit risks by authorizing the use of ratings from approved agencies (eg Standard & Poor's) or risk models internal to banks; the second allows the regulator to monitor the application of these standards and to increase the capital requirement if necessary; the third requires the transparency of information communicated by banks to the public on assets and their risk. Because the crisis has shown that regulation could not be thought of, only in a regulatory way but had to include a part of prudential, through the notion of "macro prudential", the so-called "Basel III" standards were developed. These are of the "regulatory prudential" type, that is to say prudential standards that have become sensitive to the market context and aim, as regulatory standards do, to maintain effective balances in the markets which cannot establish them. by themselves. In particular, the Basel III agreements take into account the risk, not previously considered, of the widespread practice of derivatives (securities presenting significant off-balance sheet risks), involving prudential measures, which had participated in the misinformation. on the risks that may circulate on the markets, thus requiring regulatory measures, market transparency then being the key means pursued by regulation. Moreover, the Basel III standards revise the definition of “Tier-1 capital” (hard core of banks making it possible to cope with losses linked to a crisis) so that these can no longer be constituted as ordinary shares and profits put in reserves by the bank, thus preventing the risk of contamination of the system. Systemic risk being an objective of a regulatory nature, we can thus see that the regulatory and prudential, previously clearly distinguished, are linked, come closer, or even merge. However, prudential refers to supervision more than regulation and the supervisory authorities are distinct from the regulatory authorities …

The United States established regulatory authorities at the end of the 19th century: starting from the principle of the market, they tempered it by setting up regulators, after noting market failures, for example in terms of transport, in the event of economically natural monopolies or essential facilities. The tradition of the European Union is the reverse since the States, in particular the French State, have considered that sectors of general interest, deemed unsuitable for the competitive pattern because not corresponding to the operational pattern of the meeting of supply and demand, and to serve the missions of public services, were to be held by the State, either directly by public establishments, or by public enterprises under the supervision of the ministries. Evolution in Europe came from community Law. Indeed, after the Second World War, the idea was to build a market which was to be "common" to European countries so that they could no longer wage war on each other in the future. To achieve this goal, the borders between them were lifted thanks to the principles of free movement of people, goods and capital. In the same way, the defense by each of the States of its own national companies by State aid has been prohibited so that any company, even foreign, can enter its territory, so that a common internal market can be established. Finally, a competition Law was necessary to prohibit companies and States from hindering the free functioning of the market, which would have slowed down or even stopped the construction of this internal market, which was an essentially political goal of the Treaty of Rome. To carry out this political goal, the European Commission and the Court of Justice of the European Union (CJEU, previously called the Court of Justice of the European Communities – CJEC – until the Treaty of Lisbon) have prohibited any behavior of agreement or of abuse of a dominant position, even on the part of public enterprises, as well as any state support (except in the event of a crisis). Likewise, in perfect political logic, but also in perfect contradiction with European national traditions, European texts, regulations or directives have liberalized previously monopolistic sectors, first of all telecommunications and then energy. This was the case for telecommunications with the 1993 directive, the 1996 directive for electricity and the 1998 directive for gas. Because of the hierarchy of standards, the States, except to be sued before the Court of Justice by the European Commission in action for failure, were obliged to transpose by national laws these European texts. Thus, by force, community law, both through general competition Law, but above all to achieve its political goal of building a single and initially peaceful internal market, has triggered in Europe a system of economic regulation in all network industry sectors, a system which was nonetheless foreign to the culture of the Member States. This was not the case with banking and insurance regulations, sectors which have always been threatened by systemic risk, and as such have been regulated and supervised by national central banks for a very long time. Community Law has for 30 years plunged into national Law while ignoring them, which could also be profitable, and on the basis of competition Law, the political dimension of the European project having been forgotten, no doubt over time as the War itself faded from people's minds. The effects of globalization and the financial crisis have constituted a new turning point in Community Law which, since 2010, has been built no longer to modify national Laws – and destroy them in part – but to build a new Community Law which should neither to Competition Law nor to National Law: Community Regulation Law, which makes room for individual rights and attempts to build over time a system that is robust to crises. Thus, by texts of the European Union of 2014, both a Banking Union and a new Law on Market Abuse is being built, which aims to establish a common law for the integrity of financial markets. One of the challenges is what could or should be reconciliation between the two Europe, an economic and still not very social Europe on the one hand and the Europe of Human Rights, which is based on the European Convention on Rights of Man. This is not on the agenda.

Accounting is a kind of photography of the "value" of the company, of its heritage, balancing its assets and liabilities but also integrating its past activity but possibly its future activity. Accounting, an information tool, becomes a tool not only for the manager, the shareholder, the co-contractors, but also for the present or future investor, that is to say the market. Classical accounting, of German origin, valued the company's assets at their historical cost (for example the purchase price of goods), but the new accounting standards, under British influence and through the proposals of the International Accounting Standards Board (IASB), wanted to bring together the notion of value and that of the market. Indeed, a property has a value corresponding to the price that a potential buyer will give it and not to the price that its current owner has paid to acquire or control it. This notion of fair value or market value has led to the valuation of assets at their net asset value. We have therefore come closer to more exact prices, in line with the very notion of competitive prices but also extremely variable with the markets, the financial markets themselves being disconnected from the real economy by speculation. As a result, weakening markets weakened balance sheets and a domino effect playing between balance sheets and markets, especially with regard to banks, greatly contributed to the 2008 financial crisis. However, while financial activity did not cannot be thought of apart from an accountancy playing a central role in the information and in the confidence of the investors, the basis of the current accountancy, inseparable from the regulation of the banking and financial market, has not been replaced for the moment.

Almost all energies are products whose economic circuit is regulated, in a more or less homogeneous way. Thus, gas and electricity are often regulated by the same authorities, as in France, regulation entrusted to an authority which in 2000 was first the Commission de Régulation de l’Électricité – CRE (French Commission of regulation of the electricity) to become the Commission de Régulation de l'Energie -CRE (French Commission of regulation of the energy), extending its competence to gas. Renewable energies, such as photovoltaic (solar panels), or wind energy (wind) or energy through water (dams) are more subject to State plans in the hands of the traditional administration. As for oil, it is currently regulated only through an agreement between producing countries, OPEC (Organization of Petroleum Exporting Countries), which smooths the market movements  with the perverse effects that are known. Energy is a regulated sector because at the same time it is made up of scarce resources (except the renewable energy hypothesis, which is currently privileged and elevated to the rank of European policy) even though energy is the support of all ordinary markets for goods and services since there can be no economic activity without an efficient and reliable energy system over the long term. As regards transport, which is based on the control of an essential infrastructure, Community aw still tolerates that the companies which manage it remain the property of the incumbent operators of which they are the subsidiaries, There is an accounting separation between its producers and its managers, consolidated by a distinction of legal personalities. The network operator is a "crucial operator", since all energy is a network industry. It therefore has multiple public service obligations, in particular to assure th buyers' and sellers"e right of access of energy. It is common for disputes to arise between the latter and the network operator, which are then brought before the regulator, in France the CRE giving a solution ;;  its decision may be challenged before the Court. The distribution activity is closely linked to the transport activity in terms of energy, and the same difficulties with respect to access to the meter are not found in access to the meter to the local telecommunication loop. Moreover, acts of sales and purchases in the energy sector are not part of a competitive logic. Often, it is still the Government that sets the selling price of electricity and gas, while oil Is left to the price resulting from an agreement between dominant producers of the market. France has experienced the saga of the possibility for consumers to leave the regulated price system to adopt the free price, the French Parliament by the law of 10 July 2008 having chosen to leave the free prices to return to the regulated prices if they are more favorable to the consumer. We therefore see that the aim of energy regulatory system is to open up to competition but also to optimally manage these scarce resources, which are rare even when they are indispensable. That is why the nuclear issue is central to the countries that have made the choice and are continuing to do so. The issue of energy transition is now a major major issue. In France, it is now based on the Law of 17 August 2015 on the Energy Transition for Green Growth. Here we see how long-term regulation, industrial policy and innovation are linked. Finally, energy generates activity both at very long term and at very high risk. This is why it does not support the simple mechanism of the competitive market. We must think of this sector as the banking sector because it is characterized by systemic risks, the system not being able to authorize itself for example a nuclear explosion. The Californian energy crisis is equivalent to a financial crisis. Energy requires decennial planning and considerable investment. States are required.