Compliance and Regulation Law Glossary

Access is a key concept in regulation since only a competitive market allows access for all to becom offerers and applicants. This is why regulations and regulators intervene ex ante to force access to natural monopolies, such as transport networks, for the benefit of other operators. Thus, Regulation compensates for market failures by imposing access. In addition to these access imposed for technical reasons, the Politics can still intervene to force for all access to common goods, such as culture, health, education, referring to the Social Contract. The foundation, political, is different.

Agency

The concept of 'agency', sometimes confused with the one of 'Regulator', designates a way of deconcentrating the State. Away from a Jacobin outlook, states have indeed gradually devolved their sovereign responsibilities to other institutions, which are often geographically distant from the state's political capital city. These agencies are a form of technical decentralization because they are in charge of operational tasks and specific expertise, e.g., as regards employment, environment or health issues. This model, which is very common in Scandinavian countries, is often associated with federal outlooks, like in the United States. It is still fairly remote to the French model that remains to this day built on the idea of a centralized state. So far, France has only developed a few agencies (e.g., France Trésor, tasked with managing France's government debt and cash positions, or the Regional Health Agencies).

In a different perspective, although the two notions are homonyms, the American financial theory developed the notion of 'agency' to describe the relationship between the corporate officer (the agent) and the shareholder (the principal), who empowers the first to act on his behalf to serve his interest. Information asymmetry and conflict of interest mark this relationship, which explains that this theory helped developing multiple safeguards, conveyed by the Financial Regulation.

Air

The airline industry was the first regulated sector in the 1920s This reflects the fact that air transport implies that people can travel from one state to another state, which justified an early multilateral system of international agreements between States , under public international law, each retaining its share of sovereignty and its national company (eg. British Airways).

But the principle of competition making the organization more complex through the mechanisms of open sky that allow an airline company to offer its services abroad, regulation must be more open to competition.

In addition, the regulation of air cares more risks by adopting global safety standards to be imposed on all operators in the conduct and maintenance procedures of the equipment.

Asymmetry: asymmetric regulation / asymmetry of information

Asymmetry is a key concept of regulation. Indeed, a competitive market works well when operators are in symmetrical relationships, ie there is no structural obstacle which prevents an agent from increasing his power solely on his merits (" competition by merits "). If there is an asymmetry, for example because a sector is monopolistic and the legislator has just declared it open to competition, there is a temporary asymmetry between the installed companies, the incumbent operators and the willing companies to enter this new market, the "new entrants". Historical operators, such as in the telecommunications or energy sector, when they were opened to competition by European directives, transposed by national laws (in french Law in 1996 for telecommunications and gas, in 2000 for electricity), benefit (sometimes referred to as grandfather clause), in particular because they have all the clients or all the know-how or all the patents, and that, in fact, the competitors can not enter the market. It is then necessary to establish a regulator also a priori temporary itself to establish to forceps the competition, by an asymmetrical regulation.

Asymmetric regulation, particularly applied in Great Britain at the time of the liberalization of the aforementioned sectors, means that the regulator will systematically favor new entrants, for example by dispossessing the incumbents for their benefit to make them on the market. Today, in the telecommunications sector, competition, notably on mobiles, is established, but the regulator does not intend to leave its place to disappear and today supports "symmetric regulation" .... Instead, it acts as a specialized competition authority.

Asymmetry may not be temporary but definitive, when inequality between operators, regardless of merit, does not come from a context of liberalization but from a structural failure of the market. For example, there are transport networks, transport of passengers or goods, railways or airstrip for airplanes, data or voice communication networks, pipes where gas or electricity circulate, etc., which belong to a single operator because they constitute economically natural monopolies. Under these conditions, the competitors of the monopoly must nevertheless have fair and effective access to this service and a regulator must necessarily be established for the effectiveness of that right (see Access).

Moreover, the Nobel Prize of Joseph Stiglitz (2001) was justified by his work on the asymmetry of information on certain markets, in particular the financial markets on which companies offer securities. Through the theory of the agency, it appears that the ordinary partners or ordinary investors have less information than the managers, even though the latter have the function of making decisions that bring the most to the former. But information asymmetry offers managers an "information rent" that allows them to offer many benefits and transfer risks to others. Regulators, in particular banking and financial regulators, are needed to combat information asymmetry. Transparency is one of the procedural means to combat this asymmetry. The financial and banking crisis of 2008 showed the extent of this asymmetry and, in fact, the inability of regulators to remedy it, for example, the British government estimated in 2010 that it was the financial regulator itself that was responsible for the crisis for not having sufficiently watched over conflicts of interest. In general, the global financial crisis was often later characterized as a crisis of regulators and regulation.

Autorité administrative indépendante

Autorité de Régulation des Activités Ferroviaires et de la Route (ARAFER)

Autorité de Régulation des Communications Electroniques et de la Roste (ARCEP)

Autorité des Marchés Financiers (AMF)

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