Feb. 18, 2015
February 17, 2015, as the previous "Contrat de Régulation Économique" (Economie Regulatory Contract), the firm Aéroport de Paris (ADP) has made available on its site to all "for consultation" the draft "Contrat de Régulation Economique ("Economic Regulatory Contract) for the period 2016 -2020.
Published in the wake of the meeting of the Board of ADP, the text is presented as a tool "for the Paris place", especially for air transport.
This shows that the document is primarily intended for investors and financial markets, the document being placed on the company website in the section for the "investors".
This illustrates the evolution from the traditional "contrats de plan" (plan contracts). But then, who are the parties to these types of contract?
Indeed, the very term "Regulatory contract" is new in public Law. It appears as a sort of modernization of "plan contract." The Conseil d'État (French State Council) finally admitted the contractual nature of these planning contracts. In these contracts, are parties were the State and the company in charge of a public service.
Because here the contract is an instrument of "economic regulation" the open public consultation draft rather expresses a global conception of ADP, the company which manages the Paris airports, for the future of the development of critical infrastructure that is the airport as the heart of global development of air transport.
The enterprise manager of the airport in the heart of the contract (rather than the State) in setting objectives for the coming four years is the letter and spirit of the French law of 20 April 2005 about Airports, which put the apparatus of this "Contrat de Régulation Economique" in place.
In this, the infrastructure manager is set by law as a "regulator of second degree", as can be a financial market enterprise. The company that manages and develops the Paris airports undoubtedly belongs to the category of " critical firms", as well it manages the future of the sector and helps to keep France a place in the world.
More, A.D.P. behaves like a Regulator, since it is carrying out the "public consultation", the consultation paper prepared by it, being placed on its site and developing its ambitions for the sector and for France. But A.D.P. also expressed as a financial and economic actor, emphasizing the competitive environment, demanding in passing more stability and clarity in the regulation in which it moves ...
That is why the consultation mechanism provided by the law must be more complex. Indeed, ADP can not be judge and jury. Therefore if the project raises observations, they must be formuled not to ADP but to the Ministries of Aviation and Economy, within a month. They shall communicate theiir content to ADP . Then the Commission consultative aéroportaire (French Airport Consultative Committee) will be consulted. At the end of this process, the "Contrat de Régulation Economique" will be signed.
Seing the end of the process, it remains in line with the plan contracts, since it remains the Economic Regulatory Contract is signed between the State and the essential infrastructure manager. But the consultation process shows firstly investors are the first recipients of the statements made by a privatized company presenting its draft primarily in terms of competitive context and international development and secondly the airlines that use daily services of the airports are also directly involved by theses questions of tarification.
Airlines protest against the increase in the money that will be asked. This will be imposed, since it is tarification and princing public policy. We are in unilateral rules. But it is indeed a "price" they feel to pay, they also heard a speech referring to competition in what the mechanism is presented as a "contract".
But then, does it take to admit that these "contracts for economic regulation" are not between two parties that are the state and the regulator of second degree that is the infrastructure manager but must be three, the State, the infrastructure manager and "stakeholders" that are mainly airlines?
This practical difficulty is much to the fact that the qualification of "contract" is difficult to justify in proceeding in which prevail unilateral mechanisms.
Feb. 17, 2015
Translated Summaries : 05. Energie
In regulatory law, municipalities are very important, as consumers but also as issuers standards. They can do this through contracts but also by unilateral standards such orders.
This power of municipalities is coming to a halt by the decision taken 17 February 2015 by the Supreme Court of the State of Ohio,, State of Ohio ex rel. Jack Morrison Jr., Law Director for City of Munroe Falls, Ohio v. Beck Energy Corp.
Indeed, a municipal law had made provisions for imposing rules on location, drilling and well operations and gas. These provisions were contrary to the law of the State of Ohio.
In its judgment of 17 February 2015, the state Supreme Court considers that this is enough to make the first non-compliant text of the Constitution because it is not possible for a local authority to exercise normative power by contradicting a state standard.
The stakes are certainly legal and lies in the implementation of the hierarchy of norms. But it is also political: in energy, due to the power of the operators, which is most likely not to be captured by the sector? The political power of the state or the political power of municipalities?
As suggested by one of the judges, must be taken into consideration which of the two powers depends most operators in the financing of campaigns.
Factual and determinant consideration, specific element of the US, an element which Kelsen couldn't think .....
Feb. 16, 2015
Bibliographic Reports : Books
Published by Oxford University Press (OUF), the collective book, Public Accountability, edited by Mark Bovens, Robert Goodin and Thomas Schillemann, consists of 43 contributions.
Few strictly focus on issues of regulatory matters. One can still quote the article by Colin Scott on Independent Regulators or those of Christie Hayne, Steven E. Salterio and Paul L. Posner and Shahan Asif on auditing (Accounting and Auditing; Audit Institutions).
The subject of most of the contributions is rather the necessary renewal of the management of the State, public governance incorporating this new way of "accountability," which explains the book title : itself: Public Accountability. But as we know that the line between public and private is more porous than ever, we can appreciate that the bookk extends its thoughts to the governance of private organizations or non-profit private sector by some contributions.
Indeed, the fact that Accountability is what is common to the Regulation and Governance. This is the first sentence of the book : "Accountability is the buzzword of modern governance".
Probably because of accountability has become a central concept, as shown in the introductory contribution, these are the articles that confront the most general elements such as "time" (Accountability and Time), "crisis" (Accountability for Crise) or "trust" (Accountability and trust), which are the most instructive for the future.
Thus, despite its collective character, the book is very consistent and often takes a critical tone about this invasion of public space by the will of accoutability, the authors emphasizing the "deficits", the failures and especially thet prohibitively expensive of this mechanism.
It would come to regret the simple mechanism of hierarchical rule to which a nostalgic contribution is devoted, which describes how operated the State before we apply to it the State the agency theory.
So it is a practical book, complete, critical and prospective, of great interest.
Feb. 15, 2015
In an article written in French, the press of Senegal reported a conference in which the First President of the Dakar Court of Appeal stated that the judicial court - in the present case the Dakar Court of Appeal - after being a bit "frightened "by the regulatory law, because of its technicality, and after its fear of being dispossessed of cases because of the power of that the regulatory authorities in place to exercise the dispute resolution, is able to play its role today.
He first asserts that judges learned the technic of regulatory matter(in this case, his speech was about the public markets).
He asserts, secondly, that when the parties are in conflict, they continue to go before the judicial court, regardless of the existence of the independant administrative bodies and their dispute resolution function.
Feb. 14, 2015
The repression is inseparable from how to repress. This is why the procedural difficulties are indicative of underlying fundamental problems. Currently, the basic issue updated by the battles around the procedures of financial sanctions is about the sanction bais.
For the regulator, the penalty is one tool among others to regulate financial markets. The penalty in a continuum with its legislative powers, are its teeth and claws through which financial markets are developing. The purpose of financial policy justifies an objective repression with a probationary system often based on presumptions leading to impute breaches players in some positions on or financial markets. The regulator must have this card in hand and use it according to this method.
Moreover, if it happens that people commit reprehensible misconducts, perceived as such by the social group, they should be punished, possibly up to the prison. Only the criminal justice is legitimate to do so legitimately weighed down by the burden of proving intentionality, etc.
We must distinguish these two types of criminality. It is from there that the two procedures and two probationary systems can take place at the same time but on different offenses.
For now this is not the case, as "financial misconduct" are only the carbon copy of "financial crimes" lightened loads of evidence that protected the defendant and who should answer for now twice.
Procedural problem? No, problem of criminalization, which won't be released by procedural solutions, the most hazardous being to create a new institution, the most calamitous being to weaken the system by removing one of the ways of prosecution. It is necessary to make distinctions in the offenses that are currently redundant.
Thus, repression as a regulatory tool used by the Regulator is in focus, but the real financial criminal law remains to be consolidated to achieve its own and classic goal: punish faults including through the prison.
Feb. 13, 2015
Read the conference presentation (this presentation is written in French).
Feb. 12, 2015
This conference is managed by Professor Julien Chaisse.
This conference aims to better understand the legal mechanisms for international regulatory mechanisms of water, especially in view of climate change, to articulate the role of states and private investment contracts, to understand the legal nature of water as a "resource" but also as "human right" especially in view of the determination of its price, and to mesure the legal consequences of globalization on the matter.
Feb. 12, 2015
In France, the decrees adopted February 10, 2015 for the implementation of the "rail reform" illustrates the willingness of the Government to decide alone, the advisory role of the regulator remaining marginal
There is no point in counting one by one the powers of a Regulator and add them to try to measure its power. We must measure what consideration the others have of the exercise of its powers it.
So it is with its advice power. Sometimes, in fact, its opinion is worth as much as if it adopted the text itself, as those who read its comments are impressed. Sometimes, the Regulator may have taken a rational opinion, motivated and relevant, those to whom it is addressed don't care.
The result is often that the Regulator takes note of this weakness against which strictly within the framework of this opinion mechanism the regulatory body can do nothing, but in a continuation of powers between the Ex Ante and the Ex post, because the area is an enclosed space, the diverse attitudes will be remembered, especially when the Regulator will be exercising its powers to resolve disputes or its power of sanctions. And there ...
Take the example of railway activities. The French Regulatory Authority of Railway Activities (Autorité de Régulation des Activités Ferroviaires - ARAF )) is a new regulator, in front of powerful actors, where the State has interests. The fact that these interests are legitimate don't remove the weight that such integrated public operator is facing the regulator. On 27 November 2014, ARAF expressed negative opinions about the main draft decrees. January 6, 2015, the Autorité de la Concurrence (French Competition Authority) has also made a critical opinion, including in its discontent and the law of "Railway Reform" and the draft decrees.
February 11, 2015, 7 decrees implementing the February 10, 2015 have been published. Adverse opinion on three of them by the regulator (ARAF) were swept away. We can admit quite, both regarding the Competition Authority opinion, since we are in terms of regulation and not in the simple competition system, and about ARAF opinion because its opinion is only a consultative and executive power remains in line with the will of Parliament. It's almost as if the Regulator had not said a word.
Thus, under the hierarchy of norms, in the letter and in spirit, the decrees are in line with the law they enforce. No blame.
But it is not excluded that the regulator of rail activities can remember of having been so little after, when it must be considered as a kind of judge in civil functions (dispute resolution) and in punitive functions (sanctions) that almost the same will appear before the regulatory body.