Sectors

Compliance and Regulation Law Glossary

Oct. 5, 2016

Events : JR

Sept. 3, 2016

Breaking news

The Basel Committee on banking supervision issues regularly a monitoring report on the implementation of Basel III regulatory reforms.

In August 2016, the seventh issue was published by the Committee as to be taken into account for the upcoming G20 meeting: Implementation of Basel standards. A report to G20 Leaders on implementation of the Basel III regulatory reforms.

In this report, the Committee mesures how national systems gradually implement the prudential reforms they have informally elaborated in common. 

All the power derived from the Basel System stems indeed from the fact that it is concentrated; however, it still has to face a 'hard law' issue, as it is necessary to implement the reforms within the national systems in identical terms and in a constrained timeframe. 

The Committee indicates in its reports that some countries still face a number of issues regarding this implementation, whether these issues arise from the rules themselves or from the transposition period that the countries are given to implement them. Those same countries tend to justify themselves by saying that banks are to blame for these issues, since they report having trouble adjusting their information system as to satisfy the new requirements.

The Committee underlines the fact that this delay occurs in some countries whereas others are already compliant creates a situation of unfair 'jurisdiction' competition between them, which is all the more concerning since these national systems host international banks: "Delayed implementation may have implications for the level playing field, and puts unnecessary pressure on jurisdictions that have implemented the standards based on the agreed timelines. A concurrent implementation of global standards is all the more important, as many jurisdictions serve as hosts to internationally active banks.".

In order to improve an effective implementation of the whole system, the Committee proposed to implement instead a calculus method that would be less complex: "These proposals would constrain banks’ use of internal models and would reduce the complexity of the regulatory framework.".

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A few general observations can be drawn from this very specific Basel III issue underlined in the aforementioned report:

  • soft law needs at some point to get concrete (which is closely monitored since the rules do need to be implemented), otherwise it is not law at all;   
  • it is through implementation that the weight and the contours of common rules are actually being felt;
  • this situation is a good reminder of the fact that competing jurisdictions are an actual thing and a issue to deal with;
  • what is an argument based of complexity, or even impossibility, of the technical implementation of a requirement worth? 

This last question is crucial. Those who impose the requirement may consider that the non-enforcement for technical reasons cannot be accepted!footnote-68. Here, however, maybe since it is not a formal requirement as this is all soft law, and since there is a good communication between the supervisor and the executing agent (who is, at the same time, the one that is subject to the requirement, the one who elaborated it and the one who proposes to review it as to make it less complex).

Cass. R. Sunstein's last book was entitled Simpler. French Conseil d’État  (French administrative supreme court) conducts thorough work on the quality of laws and on their simplicity, both qualities that probably go hand in hand. The Basel Committee steps in the same directions...

Jan. 16, 2016

Compliance and Regulation Law Glossary

Jan. 15, 2016

Compliance and Regulation Law Glossary

Jan. 13, 2016

Compliance and Regulation Law Glossary

Jan. 13, 2016

Compliance and Regulation Law Glossary

Jan. 4, 2016

Compliance and Regulation Law Glossary

Jan. 4, 2016

Compliance and Regulation Law Glossary

Dec. 10, 2015

Compliance and Regulation Law Glossary

Dec. 2, 2015

Compliance and Regulation Law Glossary

Sept. 2, 2015

Sectorial Analysis

Passenger transport markets in Europe have been, and continue to be, liberalised across jurisdictions and sectors.

Since July 2015, passenger coach operators in France have been allowed to operate without regulation on longer routes (over 100km). For shorter routes, ARAFER, the French regulator for rail and roads, will test whether the coach service is likely to threaten the viability of the public rail service offered by SNCF on the same route. What changes could this reform bring, and how might the economic test be applied?

Jan. 20, 2015

Sectorial Analysis

The original spirit of the Common Agricultural Policy (CAP) was to think of agriculture as a sector unfolding in time, subject to natural hazards, including actors, both farmers and the population that is fed, having interests on which national states shall ensure.

The spirit of the new Common Agricultural Policy is different, even opposite, which explains the length of its gestation. Indeed, competition becomes the principle guarantor of innovation, fair prices for consumers and competitiveness of the European agricultural industry facing global competition, which leads to assist agricultural enterprises, to worry about products quality, away from the subtraction of these products of the principle of competition.

The political agreement was reached in 2013, the basic technical texts were completed in 2013 for the new apparatus be applicable to January 1, 2014, including a Regulation of 17 December 2013 establishing a common organisation of the markets in argricultural products (CMO).

It points out that the agricultural sector is subject to competition law only if the Community legislature didn't stipulate differently!footnote-16. The Regulation almost affirms the opposite principle: "It should be provided that the rules on competition relating to the agreements, decisions and practices referred to in Article 101 TFEU and to abuse of a dominant position apply to the production of, and the trade in, agricultural products, provided that their application does not jeopardise the attainment of the objectives of the CAP.". The Regulation  details: A special approach should be allowed in the case of farmers' or producer organisations or their associations, the objective of which is the joint production or marketing of agricultural products or the use of joint facilities, unless such joint action excludes competition or jeopardises the attainment of the objectives of Article 39 TFEU.

On 15 January 2015 the European Commission launches a consultation on the "joint salling of olive oil, beef and veal livestock and arable crops, cases covered by the Regulation.

How the new balance will be between competition and regulation?!footnote-20

It is likely that future guidelines will be the place of expression of this balance.

Jan. 10, 2015

Sectorial Analysis

As soon as Regulation assumes independence of the operator who manages the essential infrastructure, ex ante conditions of such independence must be met.
 
Europe doesn't require legal autonomy of the essential infrastructure manager, probably because such autonomy, it would be both too ask the Policy, which may want more integrated organizations as soon as public transportation is a mix of public policies and that to public funds are used. But it would also be too little to ask the Policy because no matter the legal autonomy, the key is the real independence of the manager, that is under the control of the Regulator.
 
The Loi portant réforme ferroviaire (Railway Reform Act) of August 4, 2014 has made the integration of the company that manages the rail network, which the new name is SNCF Réseau (SNCF Network) in a public group, which also includes the SNCF, public transportation operator, in competition with new entrants in a newly opened sector to competition.
The Competition Authority in its opinion of 4 October 2013 had expressed reluctance towards the bill, to the influence that such corporate organization offers to the public operator, to the detriment of its competitors and the opening of the railway sector to competition.
The critical tone increases with the Opinion of 6 January 2015 relatif à des projets de décrets pris pour l'application de la loi portant réforme ferroviaire (on draft orders made for the purposes of Railwayl Reform Law).
The Competition Authority issues its opinion as a real essay on what should be the Regulation of the railway sector through the "governance" of the network manager. Indeed, the first part of the opinion relates to "the independent management of railway infrastructure" while the second focuses on the integration of railway network in the public group built par the law. The third part of this Opinion draws conclusions to measure whether we can consider that the Autorité de Régulation des Activités Ferroviaires (French Regulatory Authority of Railways Activities) shall have the capacity to ensure this independence by governance or not.
 
This review, in its construction itself, demonstrates the dialectic between Regulation and Governance (I), which is an observation and stresses the role of the regulator in the effectiveness of governance (II), which is more a question .

Jan. 6, 2015

Thesaurus : Soft Law

Full title : Avis n°15-A-01 du 6 janvier 2015 relatif à des projets de décrets pris pour l'application de la loi portant réforme ferroviaire (Opinion No. 15-A-01 of 6 January 2015 on draft orders made for the purposes of the law on rail reform)

Read the Opinion (in French)

 

Updated: Feb. 6, 2012 (Initial publication: Feb. 6, 2012)

Thesaurus : Doctrine

Leçon sur la responsabilité civile du fait d'une pratique anticoncurrentielle

Updated: Feb. 2, 2012 (Initial publication: Jan. 9, 2012)

Thesaurus : Doctrine

Régulation, besoins collectifs et concurrence

Updated: Jan. 18, 2012 (Initial publication: Jan. 18, 2012)

Thesaurus : Doctrine

Régulation versus concurrence

Updated: Jan. 11, 2012 (Initial publication: Jan. 11, 2012)

Thesaurus : Doctrine

Economics of regulation and antitrust

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

Thesaurus : Doctrine

Concurrence ou complémentarité ? A propos de la délégation des pouvoirs

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

Thesaurus : Doctrine

L'ouverture des services publics à la concurrence : le retour de Colbert ?

Updated: Jan. 9, 2012 (Initial publication: Dec. 6, 2011)

Thesaurus : Doctrine

De l'inutilité du droit contractuel pour assurer le respect des règles de marché

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

Thesaurus : Doctrine

Governments, Competition and Utility Regulation

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

Thesaurus : Doctrine

La culture européenne de concurrence

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

Thesaurus : Doctrine

Les frontières entre régulation sectorielle et politique de concurrence