| the Journal of Regulation

Dec. 2, 2015

Compliance and Regulation Law Glossary

The contract is the main natural and legal instrument of the competitive market. It seems foreign to the regulatory system which, close to the "regulation" (texts) seems more express itself in administrative unilateral acts.

But this division is fading because the contract is an effective tool because it makes gained acceptance recipient of the norm, becoming the preferred instrument of public policy. The Regulator will use it the more so as on the one hand by the contract operators bring him information and on the other hand, operators have the power to disobey him. That is why the contract is a major figure in the Regulatory system.

The self-regulation mechanism goes further, since the Regulatory system itself is built on contractual commitments, exempting exogenous rules and regulator.

Generalities

Jan. 10, 2015

Sectorial Analysis

January 6, 2015, the French Competition Authority expresses its concern about the effectiveness of the independence of the operator of the rail transport network, now integratednow integrated into the public group that also included public operator faced with competition

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.

In France, the regulatory body is the Autorité de Régulation des Activités Ferroviaires (French Regulatory Authority of Railways Activities).

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 .

Dec. 2, 2014

Breaking news

On November 26, 26, 2014, the UK regulator of advertising punishes Youtubers who presented a content as neutral when it was actually an advertisement. The penalty is justified by the necessity of trust

Internet requires regulation. It does not works solely because of the moral sense of the users or through vigilance of companies that develop on it.

The regulator of the virtual space can be imagined, or a regulator of the various possible activities that develop there, regulators then deploying their powers as when the activity takes place on the Internet. Thus, it is the case of advertising.

In the UK, the Advertising Standard Authority (ASA) monitors the advertising business, also on the Internet.

Its decision of 26 November 2014 is remarkable for several reasons. It punishes two non-professionals, namely two users Youtube tool. But in communication, non-market entrepreneurs sometimes have more weight than businesses. But on the Internet, users can sponsor their free activity, which is to monetize. In this case, the two had played on their Youtube channel short films that were advertisements.

The complaint made against them is that Youtube is not a support on which those who put content make it to commercial purposes. And other users could not understand they watched the advertisement and not a distraction film or information.

The Regulator imposes a sanction against Internet users not because they did a promotional contract with the company, in this case Cadbury wich wants to promote Oreo cookies. By this contract, the entreprisee via the famous Internet users can reach consumers, which is permissible. They are punished because they have deceived the confidence of the other Internet users who can't imagine being the target of an advertisement. The fact that it is people with many fans on youtube counted in the severity of the Regulator. Indeed, they have more than 2 million subscribers. More than 1.3 million have seen the offending video. Only 243 people have not loved it.

Thus, in a virtual world always close to self-regulation, the notion of trust made to the information transmitters is the central concept of the system served by the Regulator power to impose sanctions,The author of the message is a professional or not is irrelevant. What matters is the importance that others give the message he sends.