March 27, 2015
The cost issue of regulation is a recurring issue.
One can complain specifically, when companies are protesting about the "cost of regulation" or when the topic is taken as an object of study, through the cost / benefit calculation.
A practical question of importance is whether there is a "legal question" or not.
The "juridicity" of a question is defined by the fact that discussing about this question has an effect on the outcome of a case before a judge. This concrete definition, leaving the judge's power, binding nature of the rule (here the balance between cost and benefit) the effectiveness of its decision before the judge, its consideration by him in the decision he makes, has been proposed in France by Carbonnier. It is opposed to a definition of Law by the source, the author of the rule, which identifies law for example through Parliament Acts, because the text is adopted by the legislator, listed source of law.
The first definition, more sociological, more flexible, giving the spotlight on judge better corresponds to a legal system which gives more room for ex post and for the judge. It is logical that we find more demonstrations of this conception in the common law systems.
However, the issue of cost / benefit is being debated before the Supreme Court of the United States, about the latest environmental regulations, adopted by the Environment Protection Agency (EPA). It is a question of law. It is under the empire of the judge.
For it is in this light that President Barack Obama in November 2014 asked a very costly regulation, and it was under his leadership that the Environmental Protection Agency has developed texts. Indeed, pollution of certain plants are the cause of asthma and laid in public health imperative to fight a regulation that results in a direct cost on firms. Indeed, some plants pollution is the cause of asthma and President Obama has asked public health imperative to combat by a regulation that results in a direct cost on the industry. The regulations adopted in 2012 they cost a $ 9 million, some claiming that future ones could result in billions of costs directly related to business The President emphasized by stating that the health of children was priceless.
By challenging those of 2012 before the Supreme Court, in the case Michigan v. EPA, this is the other texts that conservative states and companies have in mind because it is the principle that is posed: : does A regulator have the right to take regulations very "expensive" when the advantage, however legitimate it is, is small-scale in terms of costs? The Supreme Court, having chosen to handle the case, listened to March 25, 2015, the arguments of each other and discussed the case.
The question is the integration or not into the constitutional notion of "necessity of the law" of the "cost / benefit" calculation. This is a crucial point because the concept of "necessity of the law" is a common notion to the constitutions of many countries.
However, not only the so-called judges "conservatives" as Justice Antonio Scalia, took position felt it was crazy not "consider" the cost of new regulations from the expected health benefits, but also Justice Stephen Breyer called "progressive," said "irrational" the environmental regulator has not taken in consideration such an imbalance between cost and benefit.
It is true that Justice Breyer was formerly professor of competition law at Harvard.
Judgment will be given in June.
March 25, 2015
Read the Seminar program (14h - 19h30).
Its issue is the concept of "conflict of interest" by confronting the financial techniques of risk assessment and legal responses developed about it on the rating agencies, especially in 2009.
Speakers are Thomas Aam, Thierry Bonneau, Björn Fasterking, Markus Krall, Frédéric Lobez and Jean-Claude Werrebrouck.
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March 12, 2015
The regulation of electronic communications is carried in India by an independent regulator, the Telecom Regulatory Authority of India - Trai..
This regulation aims in particular to develop competition in an important domestic market. For the development of competition, should be encouraged not only increase in consumption, new uses, innovation, but also the competition between suppliers.
For this, the portability of telephone numbers is essential. We find this issue of portability in other sectors, such as financial or energy sectors, but it is in the area of the phone portability turned into right because it is through the number that the person is called, or classified, or recognized
This portability is imposed with difficulty by regulators. The situation in India demonstrates.
The principle of number portability in the mobile phone sector was made by a regulation in 2009 by the Telecommunication Mobile Number Portability Regulations of 23 September 2009, the eighth addressing this issue.
Almost every year, a regulation adds to the previous regulations on this point. Thus, February 25, 2015, the regulator adopted a regulation 4 pages carrying the 6th amendment of the original text.
After the new system adopted by the regulator at the request of the Government who sent a letter to this effect November 23, 2014, as apparatus shown to increase the effectiveness of portability, it is mandatory that from may 3, 2015, any subscriber can change operator while keeping his phone, regardless of his place of residence in the country.
The difficulty comes precisely from the geographical vastness of the country, divided into 22 telecom service areas (called "circles"), the customer physically moving from one to another still having difficulty keeping his number.
Beyond the difficulty of passing the enactment of a principle to the reality of its application, since 6 years apart from each other, here we measure the importance of geography in Regulation.
March 7, 2015
Bibliographic Reports : Books
It is often argued that energy because it is a matter of sovereignty and because it is rooted in the territory, returns to the State. But it is resolutely towards Europe that Michel Derdevet pulls the whole system.
Probably by conviction, by will of a strong Europe and because there has economic power only when propped on energy. However, an energy system that is up by networks as in energy, we never doubted the convergence between the container and the content, meaning that the energy source is irrelevant whitout being carried, whitout being 'provided to users.
This construction of the networks is political and it is in terms of "mesh" that the report Michel Derdevet just submitted to the President of the Republic, François Hollande, presents a European project. In a way, it is not "revolutionary", as it is to finally fulfill the will of those who conceived Europe in 1945 through the coal, steel and energy, to a common Europe from which built the industry, not only for the reconstruction of Europe but for its economic dynamism and its common security policy.
In this, the European network of the transportation of electricity is essential. Yet it is to be done because the legislation of the European Union rather liberalized energy markets whitout building Europe of energy, leaving remaining national specificities. The result is what Michel Derdevet rightly called "inertia".
He therefore proposes the establishment of an "European industrial project." In this context, Michel Derdevet requires better definition of "model of norms and regulation", aiming in particular the structure of tariffs that include or not the R & D according to the Member States, claiming the alignment of the tasks of network operators and a price guarantee for users, which would facilitate investment. He stressed that national regulatory differences hinder the development of smart grids (and therefore the European market). Without a convergence of regulations, interoperability is not optimal, as it would allow Europe to be a major global player in energy.
Michel Derdevet therefore advocates regulation that goes to both a stronger European articulation, but at the same time which must be more "decentralized", for users to make better use of new uses of energy through the action of regulators they are close.
It is true that we are very far off ...
This is why the author asks what one favors "regulatory convergence". This is not only to harmonize rules but also to redirect them to detach the competitive prism to direct them to the long-term financing.
It is true that Europe's energy, without which a single industrial space can hardly be, can not actually do if the regulation does not resolutely takes over the principle of competition, competition remaining in the moment of exchange, while the Regulation is in the long term and what to take to designate as "industrial policy" which is nothing but a form of expression of the Political.
So what Michel Derdevet request, what ever that finally the arrival of a political Europe, the need for it finds its place in the global competition.
Feb. 23, 2015
The theme of the relationship between regulation and innovation finds every day new illustrations. The example of the drone is particularly noteworthy.
Indeed, the drone is a technical object that moves in the air without being driven in an immediate way by the hand of man.
The legal mechanism of qualification brought the drone in the category of "aircraft" and submit it to the regulatory power of the civil aviation regulator.
The regulation of civil aviation is primarily a safety regulation, not a regulation of the sector's economic deployment.
This is why regulators have taken restrictive positions on drones used for commercial purposes, to the extent that the presence of human beings, most the pilots, are the condition for the safety of people. The fact that the drones fly with "no one" led to consider as a danger a prior, which led regulators to take restrictive measures on flying drones for commercial purposes, restricton consistent with the regulator's intervention criteria, without taking into account external rules, such as the protection of privacy.
But whatever the sector, regulators see themselves increasingly as economic regulators. If we adopt this perspective, a restrictive approach appears to be nonsense.
In the interests of balance in both approaches, the safety of people and the economic development through innovation, the US civil aviation regulator, the Federal Aviation Administration is developing new rules.
February 11, 2015, Federal Aviation Administration raised the need for a legal framework for commercial drones. The reason for this is economic. As it writes: "It is anticipated that this activity will result in significant economic benefits". Indeed, Article 333 of the 2012 ACT of modernization and reform imposes registration procedure for every commercial unmanned flying object in the sky!footnote-28. But this hinders business development, and therefore the incentive to technical innovation drone.
It was necessary to find a balance between security of persons and lifting of barriers to economic development. This is why the FAA will distinguish between "small" and other drones. The former are particularly useful in agriculture. To the extent that the former do not constitute danger to persons, an exemption from this procedure (Article 333 exemption) may be given concerning them.
One can analyze this evolution of air Regulation in two ways. First, it is for air regulator to take into account fundamental innovation of flying machines with "no one": innovation will be the base of a huge market for which strict regulatory rules could have been the troublemaker. The consideration of the safety of people remains since only drones "small" are allowed. In addition, they will have to remain at low level and away from airports and housing.
Second, the Regulator reacts by pragmatism. The ban on commercial flight drones hasn't prevented investment in this area. So far, the regulator had instead chosen not to react to the open violations of the standards, from the moment that the safety of the people wasn't in danger. The idea of the new conception is to promote this new market by putting the rules protecting the physical safety of people.
Feb. 21, 2015
The SEC could remove those operators who disregarded the law their "privilege" allowing them to raise funds without prior authorization: the announcement by the regulator 21 February 2015 shows its inventiveness in enforcement
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. 20, 2015
Internet needs to be regulated, but by whom and from what criteria?
The high speed building of very different cases shows the urgency of reflections on the principles.
Consider the case in which just entered the British Regulatory Authority Advertising Standards Authority (ASA). Thiss Authority isn't specific to the Internet but the fact the behavior takes place on the Internet doesn't stop the Regulator, the ASA applying its control on "all media".
An Irish betting company organized bets about a future event: conviction or acquittal of Oscar Pistorus for the death of his fiancée. The latter doesn't deny being the author of the fatal blow but claims that he isn't responsible legally.
The website reproduces the accused of a very recognizable way in the form of an Oscar statuette. This is due to the homonymous first name and the statue of the reward. But this is also a triple ambiguity created by the company.
Secondly the statue can't walk as the athlete si one takes off his prosthetic that made him win races.
Thirdly and more than that, if convicted, he remains in prison, Oscar Pistorum would continue to be deprived of his freedom to come and go, and therefore still unable to "walk" freely, the betting firm indicating that it will reimburses money if the accused will "walk" (out of prison - as a sort of miracle ...).
Watching that, more than 5,000 people protested. But before whom? In this excess of regulators, people turn to perhaps the most dynamic: in the UK it is probably the Advertising Standards Authority (ASA) .
But what to blame?
One could have said that it is illegal to bet on the outcome of a trial.
One could argue that you can't bet about a terrible history, whose center is the death of a young woman.
But it's rather toward the disability side and "minority rights" that the case is taking shape. Indeed, associations see it as primarily a mockery of people who can't walk.
Without further developed if the ASA takes a position on this advertising that the company has since removed, it will take a strong position in the regulation of the Internet and could for example clarify and prioritize the interests that must be respect in the virtual world.
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.