Glossary

In a self-regulated system (such as a market governed by free competition), the equilibrium operates spontaneously by the meeting of the whole of the supply with the whole of the demand, as soon as the information is given on prices. The snag that constitutes an anti-competitive practice, cartel or abuse of a dominant position, which prevents the emergence of the break-even price, is repaired on an ad hoc basis and ex post by the Competition Authority. But Regulation intervenes in the event of a market failure: Regulation then has the primary function of building balances which are not established and do not maintain spontaneously. For example, this will involve a balance between competition between banks on the one hand and the prevention and management of systemic risk on the one hand, which implies a certain coordination between banks, coordination close to the agreement. In the same way, the Regulator will have to build a balance between the principle of competition, with exact prices which can therefore be high, and social tariffs for populations in difficulty having nevertheless to gain access that the Politics will have posed as being a "common good. ", like certain drugs, even electricity. These unstable balances must be maintained in the long term. This is why the Regulator, unlike the Competition Authority, does not intervene on an ad hoc basis but is permanently present, in a way internalized in the sector that it continuously monitors and controls. These long-term balances justify recourse to multi-year plans, in particular through contracts for example in postal matters or concerning airports (regulation contract), the contract making it possible to stabilize apprehension of the future.

The power to "settle disputes" is usually less held by the Regulator than is the power to sanction. Indeed, if we can say that a Regulator without the power to sanction effectively loses his grip on the sector, a Regulator does not necessarily need to settle disputes to hold his sector. It is no less important. Indeed, settling a dispute consists in settling an opposition of interest between two legal persons who are expressly opposed. This transforms the Regulator into a sort of "civil judge", while the power of sanction makes him look like a sort of "criminal judge". With regard to the sector, the discipline of this one may require more that the Regulator punishes the breaches and punish the operators who do not respect the standards that it has decreed, more than it comes to separate the operators who quarrel among themselves. for personal interests. However, almost all regulators, except the Autorité des marchés financiers (AMF) (French Financial Regulator), have the power to settle certain types of dispute between operators, for example between the operator of a network and the one who wants to access it, when the manager refuses access or demands a price that is estimated to be too high or requires technical adjustments from his co-contractor. The regulator then intervenes as a sort of civil court which settles the dispute between the parties, outside any idea of ​​administrative police, and it is logically that this type of decision can be challenged before the Cour d'Appel de Paris, judicial judge.  This can be explained by what has been called the "civilization" of economic law, its progress causing it to leave the archaic violence of repression. This is also due to the fact that, by exercising this power, the operators provide information to the Regulator if it lacks it, encouraged to do so by the fact that their interests are thus directly protected, and the fact that through this the Regulator watches over the keys of the sector itself. For example, by settling a dispute over the right of access, it makes the interconnection effective, that is to say what the Regulation is objectively put in place. Thus, even if from a procedural point of view when the Regulator settles a dispute between an operator or sanctions an operator for non-compliance, it acts as a Court and logically receives the qualification, thus being legitimately by the procedure, in particular the fundamental guarantees of parties which it must respect, it uses its power to settle disputes and to sanction in an office which remains of regulation, which continues in substance to distinguish it from an administrative or judicial jurisdiction.

Montesquieu has written the theory of the political separation of powers. The French political model, by its Constitution and since the French Revolution, has separated the legislative power stemming from universal suffrage and, in France, the executive power, the head of state being directly elected. Formally, the judiciary is not a power but a mere "authority". This last statement still corresponds to the letter of the texts, in particular to the letter of the French Constitution, but the evolution of the texts and especially the evolution of practices has led to the formation of a sort of "jurisdictional power",  linking today to the existence of a judicial power, since the judicial power includes both the power of the administrative courts and the judicial courts. There are therefore three Powers which must be "separated": the legislative power, the executive power on the one hand and the jurisdictional power on the other hand. Regulation does not correspond to this constitutional scheme of separation of powers on several fundamental points. In the first place, the Regulator combines the legislative power, of the quasi-legislative type, with the executive power notably when it adopts individual decisions, and the judicial power when sanctioning or resolving the disputes. This cumulation of all powers makes it a kind of "miniature State", or even a sort of "little king", referring to the phenomenon of reforodalisation of society. This has been strongly criticized in the name of the principle of separation of powers. Second, the regulator, an organ of the State, does not obey the executive, since by nature it must be independent. As such, the Regulator, if it most often belongs to the State taking the form of an Independent Administrative Authority (IAA), does not belong to any power. Should we consider that regulators, whose powers are extreme in economically and politically crucial sectors, constitute a kind of fourth political power, going beyond the traditional organization? Some think so. Others also go very far, but in another direction. They believe that the Regulatory Law has destroyed the continental system of separation of powers to lead the countries concerned towards a more English or American political system of check and balance.

The telecommunications sector was the first sector to be liberalized in Europe, not so much by political will but because technological progress had in fact already brought competition into the sector and it was better to organize it rather than to To allow competition to settle in disorder. The telecommunications sector was liberalized by a Community directive, the 1996 transposition law having installed the French Telecommunications Regulatory Authority (ART, now ARCEP), whose task was to favor new entrants and build the The challenge today is no longer liberalization but the accompaniment of technological innovation and the incentive for operators to do so, for example in the ADSL Phenomena such as the failure of the "cable plan" are not renewed, that the "fiber plane" is going better, etc.   Competitive maturity of this sector means that the Competition Authority frequently intervenes in the field of telecommunications, particularly when merger authorizations must be given by the National or European Competition Authorities, since the Regulator gives only one opinion.   On the other hand, the current major issue that has put the discussions around the dialectic between container and content on the agenda is to determine the place that telecommunications have and will have in the digital domain and which could be a specific regulation of Internet, and thereby the Telecommunications Regulator.

Health is a common good. This is why, particularly in France, it is largely removed from the market mechanism, which by its nature excludes people who do not have the means, particularly pecuniary, to be applicants, and removed from which is consubstantial with the market, namely competition, to be regulated by the State. This is primarily due to the fact that the State intervenes directly in its public establishments, which are the hospitals and the public officials who work there. This traditional regulation is retained in terms of price, since it is the State which sets the daily price in health establishments, and the pharmaceutical laboratories have validated in the transparency committee the prices of drugs reimbursed through health insurance funds and by the social group, through the Economic Committee for Medicines. Even though there is no monopoly and many private players (pharmaceutical companies, clinics, health workers, etc.), we are very far from a regulatory scheme by authorities independent of the executive. However, France is approaching the Scandinavian model of the agency through the regional health agencies (ARS) which, in a decentralized way, oversee the overall organization of the health sector in a French region. We are thus more in a movement of deconcentration than in the movement of dismemberment that the Regulation Law has expressed. In the same way, the European Agency set up has for the moment a role of concentration of information and observation, more than of regulation. This is undoubtedly due to the fact that health remains a question of political choice of level of protection, such as the social group is ready to pay, through compulsory levies weighing on all, problematic in distance of the competitive pattern.

The economic theory of incentives implicitly assumes that an operator can not be compelled to act against his will, or at least that it is more efficient to offer him advantages in such a way that he does what he wants . In this, this conception is opposed to the traditional conception of Law, which posits, on the contrary, that subjects obey the order dictated by the legal norm. But in globalized markets, operators have the tools to disobey and the asymmetry of information diminishes the power of control of the Regulators, which raises doubts as to the effectiveness of the legal constraint: it is not enough that the Law orders. In these circumstances, texts, regulators and judges must produce conditions that encourage agents to adopt behaviors that are consistent with the aims sought by the Regulators because the operators themselves have an interest in them. Thus, whilst regulatory systems in any sector become increasingly repressive, even in liberal economies, it is not so much to punish the perpetrator but to incite others who are tempted to commit crimes, To abandon them. It is the system of exemplarity. This thought prior to Beccaria participates in the re-feoadization of the Law, demonstrated by Pierre Legendre, associated with the decline of the State and to which the Regulation fully participates. Judgeshave little inclination to handle repression in this way, which creates a clash between Criminal Law and Regulatory Law, which nevertheless puts repression at its center. In the same way, Regulatory Systems must inject positive incentives, for example rewards for communication of information, which encourages delation, or incentives done by the regulator for the network manager make investments in the maintenance of it, against the immediate interest of its shareholder. Finally, all patent law and economics are now thought of as an incentive to inn/en/article/innovation/ovate. But, some incentives have proven perverse such as stock-options or bonuses. As a result, new texts seek to regulate these.

Regulation has historically been built on the idea of ​​a sector, for example telecommunications, energy, rail, banking, audiovisual etc. This was linked to the fact that the regulations were thought by Europe and more particularly the European Commission as a means of establishing effective competition in a process of liberalization of sectors. But that was to think excessively about regulation over competition, that is, regulation as a means of building competition. In fact, regulation can be today, in a primary way, a means of preventing crises and managing risks, as well as a means of long-term management of goods and services that do not support the instantaneousness of markets, even led to competitive maturity. However, in this second perspective, the risks are in no way confined to a sector. On the contrary, they move from one sector to another. Likewise, a good, over time, passes from one sector to another. Thus, the time has come to qualify the thought of regulation in relation to the sector and to conceive the regulation in relation to the movement of goods that do not only move in a flat way on markets but also in chains within which they develop, which supposes long-term planning (as in energy matters), and in which they carry risks with them, which confinement in a sector does not make it possible to manage. Thus, the contamination of the banking risk inflamed the financial sector and the insurance sector in a manner as devastating as does a health risk ranging from the water sector to that of food, medicine, etc. the same way that data moves from the television sector to the telephone sector, to the digital sector. Moreover, agriculture, whose regulation is still very poorly thought out, except for an old report on the “timber industry”, shows that the good goes from the purely agricultural sector to the food sales or pharmaceutical production sector, themselves. regulated without connection. The agricultural organizations spontaneously coordinated to integrate this reality of the chains. If we better integrate this reality of the chains, which corresponds to the way in which risks spread, a major issue of regulation, a dimension that has nothing to do with competition, we would have to disconnect regulation from its strict link with the notion of sector, or at least, better organize interregulation.

Europe is a political project. This project was conceived at the end of the second world war with the aim of never having a war between the European countries. For this Jean Monnet had the idea of building an economic market as the first step, the second step being a political government. This second stage remains to be established today, since the European Constitution has failed. Europe is therefore in the middle of the ford since Community law has built the three freedoms of movement and competition law, but we have no economic policy or market governance. Thus, for none of the regulated sectors of the European regulator, many say, for example, the need for a European banking and financial regulator. The financial crisis that the United States exported to Europe has generated the secondary benefit of laying the foundations of the European banking Union and coordination of financial markets is being put in place. But historically, Europe has exercised its power and weight on the Member States by its own Competition Law and the principle of freedom of movement and installation without associating or replacing it with European regulatory perpective or that the Member States can effectively oppose their traditional system of centralized regulation, for example, through the mechanism of State control over public monopolistic enterprises. Moreover, in a movement perceived at first as a great aggression but more in line with the prospect of building a "Europe of Regulation", through the directives of liberalization, first of all concerning telecommunications, then Electricity, and then gas, in energy or telecommunications, Europe has imposed on States the guidelines for the new regulatory systems, which continue to remain national. It was spontaneously that the National Regulators were in each of the sectors networked to exchange information, to increase their effectiveness. As long as Europe can not establish an economic government, because there will not be a political Europe, it will be difficult to argue that there is a Europe of Regulation, insofar as regulation is a triangle between economics, law and politics, and the latter is most often lacking at European level, for example in the technological choices to be made in the sectors. The movement has historically been very differently in finance. It did not come from Europe, but from the United States and did not take a binding form. Countries, notably France, wanted to gain the confidence of foreign investors, decided in the late 1960s to opt for models of independent regulators: the "Commission des Opérations de Bourse -COB" was designed on the American model of the Securities and Exchanges Commission -SEC". Only in the aftermath of the financial crisis, itself of banking origin, did Europe appear in these sectors. Europe is in the making. It is based on the European Central Bank (ECB). This evolution can produce a rebalancing of institutions and subjects, with the ECB coming in balance with the European Commission, which remains focused on Competition Law. But there are "two Europes". The first, described above, is "economic" or of the "political economy." The second is the Europe of Human Rights, constructed by the same catastrophe constituted by the Second World War on the European Convention on Human Rights. Human Rights (ECHR). They are articulated closely, but sometimes with difficulty, in the Law of Regulation.    

The environment expresses the concern that man has henceforth of nature, either in itself, or because in destroying it he destroys himself. The interests are thus crossed and cumulated: nature is protected in itself, for him and for the generations to come. A branch of law was born, "Environmental Law", of which it can not be said whether it belongs to public or private law. It was until recently conceived as an administrative police, based on declarations, authorizations, classifications of the activities generating pollution, and organization of the treatment of waste. We are in the process of switching to environmental regulation, as shown by the new texts of European law, designed by the European Commission that link energy regulation and environmental regulation. In the long term, it is a question of planning and organizing a healthy environment, thanks to renewable energies, not so much on the basis of constraints or one-off interventions but rather on the basis of incentives and market mechanisms such as CO2 quotas (allocation of quotas to companies by the state and then emergence of prices by meeting the supply and demand thanks to the market), this construction of long-term equilibria on and from the market being itself the sign of regulation. The "environmental concern" has also been established with financial regulation, in two ways. In the first place, financial techniques are a means of developing tools for the environment, as are the CO2 markets, but also the specific obligations of what would be an environmental compliance for listed companies. Financial regulators of new missions. In the second place, environmental issues are themselves financialized, as if they identify new risks and reveal new uncertainties: as such, the Banking and Financial Regulators appreciate them.  

Nuclear power is a way of producing electricity by power plants which at the same time have the advantage of being non-polluting in the immediate future, and of providing the energy autonomy of the country which obtains it, and of producing electricity at low cost. But nuclear power is also a method of producing electricity which involves a very high risk of catastrophe ("nuclear catastrophe", in the event of an accident in a power plant) and stranded costs, the calculation of which if not uncertain to say the least little known. France had made the choice, after the Second World War, of nuclear power, in particular because of its absence of fossil energy resources and taking advantage of the quality of its technical teams. . The French nuclear fleet soon coming to an end and the establishment of a new fleet requiring many years of work and investment, the government had requested a report from François Roussely, former president of EDF, but its classification " secrecy "makes it difficult to expose. The articulation between civilian nuclear power and military nuclear power is a technical, political and regulatory issue. This three-fold question has repercussions on the structuring choices of the crucial operator in the sector. Indeed, while EDF and Areva had been separated, the two companies are reunited again, the reunion of the two operators being justified for technical, economic and governance reasons. The specific risk of nuclear power, which in law translates into a regime of objective liability of the State and the uninsurable nature of the activity, and its proximity to military and defense issues, justify the prospect of liberalization, even of privatization, as they have been experienced in the UK, have gone no further than experimentation. The placing on the financial market of part, even a minority, of the capital of companies which design, build and sell nuclear power plants, was discussed.

The law of December 8, 2009 created the Regulatory Authority for Railway Activities, ARAF. The law of August 6, 2015 (known as the "Macron law") extended its powers on road issues, which justified the modification of its name, now the Railway and Road Activity Authority, ARAFER. The function of this regulatory authority is to support the liberalization of the economic activity of rail transport, first of all freight, then passengers, to end the monopoly of the historical operator, SNCF. This regulator is necessary so that new entrants can fight against the power of an incumbent operator, because it is a network industry and transport is an economically natural monopoly. The 2009 law transferred the ownership of the network to a public establishment, Réseau Ferré de France (RFF) separate from the main public operator, but the 2015 law created a "public rail group" with a holding company. having operational powers, restoring powers to the SNCF, in particular through the stations. The Regulator has issued a reserved opinion on this matter. The regulator ensures non-discriminatory access for competing operators to these essential facilities. ARAFER is an AAI, composed of 7 members, appointed for six years. It has broad investigative powers, can be consulted on any draft law on rail transport and on investment programs in the network. It also has the power to impose penalties on operators.

We must give a strict definition of globalization. Globalization isn't simply the intensification of economic exchanges through the lowering of borders and the rapidity of trade, a phenomenon known since antiquity and of which the World Trade Organization (WTO) is today the guardian. Globalization aims at a radically new phenomenon, that of economic exchanges without any constraint of time or place, dealing with goods without corporality since it is information. This is the case for all personal data, all information and all finance (because financial instruments can be analyzed as information), which through technology flows out of space and in an instant. In what can be called "real virtuality", states and law do not know how to grasp normatively this new reality, because until now they had only apprehended palpable objects in spaces enclosed by their borders . Globalization, therefore, is a radical change the world, that has radically changed the game. To answer it, one can certainly look outside the Law and the States, for example to rely on the moral sense of the actors and the self-regulation of the sectors by the actors, the actors themselves being self-regulated. Except for imagining the constitution of a world State, one moves rather towards institutions of public international law, of which the IMF or the WTO can be models, or the networking of all the regulatory authorities that are more technocratic and static, to be a reflection of this globalization: it is then a question of trying to "regulate" it, that is to say not to let occupy this global space, often virtual, by what Alain Supiot calls the "total market", but puts it in balance with other principles, such as public service, risk prevention or fundamental rights. It is especially the issue of "regulation of the digital" .

The Autorité des Marchés Financiers (AMF) is the French regulator of financial markets. It is in charge of ensuring the proper functioning of these, their transparency and the protection of investors. It controls the regulated and organized markets, and since the Community reform of the markets in financial instruments, even over-the-counter markets, built on contracts alone, can be controlled by it, because of their systemic risk. Independent administrative authority (IAA), endowed with legal personality and benefiting from an autonomous budget, outside the general budgetary control of the State and built on a tax from operations, this financial regulator has a residual regulatory power, a power of sanction and a power of administrative composition. In order to respect the principle of impartiality of the European Convention on Human Rights (ECHR) with regard to which the regulator is assimilated to a court, the power of sanction is exercised within the authority by a sanction commission. This is independent of the college of the Authority, governed by the president. To be accountable, the regulator submits an annual report to the Government and Parliament. The AMF participates in European and international regulation and belongs to the competence center of the Prudential Control and Resolution Authority (ACPR).

Systemic risk is defined as what threatens a sector when the behavior and more particularly the failure of a single economic agent leads to chain behaviors (domino effect), which can cause the entire sector to collapse. Banking and financial systems are by their very nature and definitely subject to systemic risk since a financial institution bankruptcy causes depositors to panic and withdraw funds, a behavior that is generalized and causes the market to collapse. The self-fulfilling and inescapable effect of the process makes the prevention of systemic risk imperative, both by the financial regulator and by the central bank. This is why this is the strongest hypothesis where the principle of competition, however very strong between banks, is weighed against the radically necessary prevention of systemic risk. The means to prevent a systemic risk in order to manage a systemic crisis of a realized risk or to get out of the crisis are today a primary concern, leaving the concern for competition far behind. This is why all countries are now seeking to rebuild banking and financial regulation which could not play its role since the financial crisis occurred in 2008. The Banking Union is built in this spirit. The less advanced Capital Markets Union, too.

Capture is a term usually used in economic theories and refers to the situation in which an institution, in particular the Regulatory Authority, loses its independence by the influence exerted by a third party on it. The extreme case of capture is corruption, whereby an operator appropriates the decision-making power of the public Autority. But capture by corruption is paradoxically not the most dangerous situation, although under Criminal Law, for it is the most visible and – if the whole economic system is not corrupt – this corruption can be combated, for example by the change of those who govern the regulatory authority. Capture is more problematic when it is insidious. Thus, the sector can capture the Regulator by compromise when the people who are in the companies are the friends of the people who are in the regulatory authorities, for example when they have at the time of their studies attended the same schools, or when they later frequented the same clubs, practiced the same sports, or else when they were in their careers went from regulatory institutions to business and vice versa by the way, through consulting or lawyers firms. In addition, capture can be done not by maneuvering on men but on things. Indeed, to capture the Regulator , it is necessary but it is enough not to give him the information that he needs, or to give the bad information to him. The asymmetry of information increases the risk of the regulator's capture, which explains why the financial Regulator is particularly exposed. Thus, the more technical the sector is, the more likely it is that the Regulator will be caught (for example in nuclear matters, where defense secrecy is opposed to the very idea of information, without the idea of morality of humain beings ou the idea of corruption necessarily interfere). However, if the Regulator is captured by the sector, the regulatory system itself collapses. The function of the Regulator is to control the sector on an ongoing basis, in order to take ex ante the appropriate norms  or issue an opinion in this respect and to punish in ex post the breaches that the regulatory body has been able to establish, but its capture prevents this office from being fulfilled. This is why the capture of the Regulator is the obstacle that annihilates the entire Regulatory system.