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Read the judgment. (in French)

This conference is managed by Professor Julien Chaisse.

It is organized by the Centre for Financial Regulation and Economic Development, Faculty of Law – The Chinese University of Hong Kong.

Read the program.

This conference aims to better understand the legal mechanisms for international regulatory mechanisms of water, especially in view of climate change, to articulate the role of states and private investment contracts, to understand the legal nature of water as a "resource" but also as "human right" especially in view of the determination of its price, and to mesure the legal consequences of globalization on the matter.

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.

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.

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.

What does Regulating to operators? How do they feel? Do they internalize? Does it means to them, simply a cost or an impact on their strategy on the markets?

The question is all the more important that you adhere to the theory of incentives, whereas the adequate regulatory techniques are those that produce the desired behavior by regulated operators.

The issue is not whether the Regulating is included in spending. This is acquired. For example, in two years the banks move internal forces of certain services, such as credit, to the compliance department and regulation. The regulation may represent a very high share of costs: it lies in the fact that through compliance the regulatory system has internalized the costs of regulation in the firms.

But does it make to change the strategic choice of the operator on the market, not only increase the number internal processes?

To listen Lloyds Blankfein, chairman of Goldman Sachs in Davos, words immediately commented in the British press as considerations allayed regarding Regulation!footnote-22, we doubt it.

Mr. Blankfein Lloys who also sits on the board of the Harvard Law School, asked about the question of whether the bank doesn't suffer from the pressure of regulations and supervisors replied that must be considered especially in the very design of technical systems to meet compliance but that for him, Regulation isn't really an annoyance: it is a "background noise". He compares it to music: something that he listens a lot, but while he is doing its job. Something which remains outside.

This means that Regulation occupies its technical regulatory services but doesn't affect its own work of invest bank president.

We can rejoice, since it shows that Regulation doesn't impede free enterprise and the operator's choice. One might worry if Regulation should have an "educational" function wanting influence how the president himself decides. In this case, Regulation must cease to be a kind of expensive elevator music.

It is not sure that regulators and supervisors have the same understanding