Feb. 21, 2015

Breaking news

There was a time when the key was in the rule. Today is essentially in the effectiveness of the rule. What the English and Americans call: Enforcement.

When operators are very powerful and regulators have little information, when the rule is complex, when situations are always changing and diverse, most of the regulatory art focuses on enforcement.

It shows a little more the continuum between Ex ante and ex post, moreover the circularity between them. Not only sanction is necessary ex post to the regulatory body for the rules that it asked ex ante have an effectiveness, but conversely, if we want that breaches the rule that powerful operators are committed could be sanctioned, it is through the Ex ante they must be punished.

Thus, when a financial operator wants to raise funds in the US financial market, he must request authorization from the Regulator to do so or at least to declare beforehand. It is therefore an Ex Ante mechanism. But if the operator is trustworthy, then it can be a kind of privilege that allows him to raise funds without submitting to the heavy and lengthy procedure. It takes but just whether trusted opérator.

However, Reuters reported the next development by the SEC guidelines for applying its power to withdraw the exemption to operators which had broken the law, civil or criminal.

While this may be explained by the fact that these operators have shown they don't deserve the confidence that justified access to the status of "well-known seasoned issuer" (WKSI) offering this "privilege" exempting regulation.

This is especially a new crackdown. The withdrawal of that relief proceedings valuable to the operator who regularly raises funds on the market, making him reach the common lot of borrowers, making carrying a disadvantage compared to operators who respect the law and shall remain holders of "bureaucratic privilege".

In a regulation in which repression becomes the central arrow in the quiver, here is an acute .

It begs the question: claiming that it is within the Ex Ante, can the regulator be dispensed to apply the rights of the defense?

Feb. 14, 2015

Sectorial Analysis

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.

Oct. 24, 2014

Thesaurus : 01. French constitutional Council

May 5, 2013

Thesaurus : Doctrine

Complete reference : CHAINAIS, Cécile, FENOUILLET, Dominique (ed.), Les sanctions en droit contemporain, vol. 1, La sanction, entre technique et politique, coll. "L'esprit du droit", Dalloz, 2012, 634 p

Updated: Jan. 10, 2012 (Initial publication: Jan. 10, 2012)

Thesaurus : Doctrine

Quel avenir pour le pouvoir de sanction des autorités administratives indépendantes

Updated: Jan. 10, 2012 (Initial publication: Jan. 5, 2012)

Thesaurus : Doctrine

Autorités administratives indépendantes et pouvoir de sanction

Updated: Jan. 10, 2012 (Initial publication: Jan. 9, 2012)

Thesaurus : Doctrine

Réguler n'est pas juger. Réflexions sur la nature du pouvoir de sanction des autorités de régulation économique

Updated: Dec. 20, 2011 (Initial publication: Dec. 20, 2011)

Thesaurus : Doctrine

Un pouvoir de sanction, le maillage répressif

Feb. 5, 1999

Thesaurus : 02. French Court of Cassation