Complete reference : Barban, P., Les entreprises de marché. Contribution à l'étude d'un modèle d'infrastructure de marché, préface de France Drummond, Avant-propos de Jean-Jacques Daigre, LGDJ, nov. 2015.
Complete reference : Ossege, Ch. (dir.), European Regulatory Agencies in EU Decision-Making.Between Expertise and Influence , Palgrave MacMillan, 2016, 216 p.
The Journal of Regulation (JoR) was created in 2009 Marie-Anne Frison-Roche to study Regulation as a developing phenomenon.
Regulation can be defined as a set of mechanisms, rules, institutions, decisions and principles that allow certain sectors of the economy to grow and maintain equilibriums that they could not establish solely via their own economic strength.
Over the past years, 'common rules' to all the sectors impacted by Regulation (e.g., transports, energy, telecommunications, banking, finance, insurance, etc.) have appeared beyond the sectorial regulations that have been issued for the past decades, whose specificity were once justified by the great variety of sectorial technicalities that used to impregnate in return the sets of rules designed to regulate those sectors.
Neither economics nor political science - namely throughout the declining figure of the State - are sufficient to capture this common organisation and projection into the future that Regulation is, which we must understand to anticipate its evolution and act in accordingly.
The newly developed "Regulation Law" restores what is common to all of those sectors using a triangulated approach between Law, Economics and Politics. This is all the more important since Regulation already tends to dissociate itself from its founding notion of "sector", not only to be increasingly associated with the more inclusive one of "branch", but also to get more and more autonomous- that is, for instance, the case of the digital issues that cannot be reduced to a "sector" anymore, but that still needs to be regulated.
In order to follow, process, analyze and think about these issues, the Journal of Regulation (JoR),a mainly online-based bilingual publication (English-French), issues news reports, articles and thematic files.
The Journal of Regulation (JoR) issues a weekly newsletter to more than 10.000 people interested in Regulation throughout the world.
The Journal of Regulationregularly organizes public events. The last one, which is upcoming, is entitled 'Regulation, Supervision, Compliance'.
The Journal of Regulationissues its work in the RégulationsSeries, which are directed by Marie-Anne Frison-Roche and published by the Éditions Dalloz.
The Journal of Regulationoperates basing on different committees, particularly a Partners Committee including the main organisations, companies and law firms acting within the field of regulated sectors, and a Global Committee composed of the main Regulatory Authorities.
In Senegal, the Autorité de régulation des télécommunications et des postes (ARTP ; English translation: Telecommunications and Posts Regulatory Authority) has, just like all regulators, inherent powers to impose sanctions. In general, the important thing is not only to exercise this sanctioning power but to exercise it in a way that reinforces the authority of the Regulator. In this perspective, the new Sonatel sanction decision is important.
As a sanctions always carry a heavier weight when people are made aware of it, the Director General of the Artp issued a press release, that has been flagged as particularly important, and held a press conference (in French) on a particularly serious sanction imposed following what the Regulator considers as the non-fulfilment of obligations stemming from formal notices (which, by the way, the telecom operator challenges on the merits).
On 21 November 2014 indeed, the Sonatel was given a formal notice from the Artp to respect consumer rights. As the code of telecommunications provides since its modification in 2014, operators shall "prendre les mesures appropriées de dimensionnement de leurs réseaux de nature à garantir à leurs clients un accès ininterrompu à leur service client commercial ou technique en respectant un taux d’efficacité minimal" (translation: "take appropriate measures to size their networks in a way that provides their consumers with an uninterrupted access to their customer service (sales service and technical support) which would respect a minimum efficiency rate") set by the Regulator itself- as to, namely, ensure that the right of consumers to be informed is satisfied (as regards billing mechanisms) and that their calls to consumer services remain free of charge. As the Regulator estimated that the Sonatel was not complying with such regulations, it conducted a formal investigation and notified a statement of objections to the operator, before sending on 28 January 2015 a second formal notice for the same reasons.
On 14 July 2016, the Regulator imposed a sanction on Sonatel since the it still estimated that the operator's behavior still was not leading to a compliant situation as regards the consumer right to be informed. The sanction, as stated in the Sonatel decision, is 13 billion 959 million FCfa (c. €20m), i.e., 15% of Sonatel's 2015 turnover. The sanction decision also provides that if the operator does not enforce it, an additional penalty of 10m FCfa (c. €15,000) per day will be charged.
The operator, however, challenges this sanction insofar as it estimates that its behavior is not to be blamed. To support its claim, Sonatel avails itself from the fact that upon reception of the first formal notice, it undertook a 'progressive compliance' with the requirements process as regards its network, then let the Regulator know about it, etc. It is henceforth to lodge an appeal.
The issue at stake, therefore, is to know whether the obligations on operators are obligations regarding the means used (that is to say, means obligations), or, conversely, if they are obligations to produce results (performance obligations). If they are means obligations, then the operator is right. However, considering the efficiency and effectivity principes that are closely linked with the teleological nature of Regulation, it is more likely that such obligations are performance obligations.
For instance, in France, the Commission Informatiques et Libertés (French Data Protection Authority- CNIL) considered on 1 March 2016!footnote-42 that the obligations on operators to have accurate and complete data are performance obligations and not mere means obligations.
Thus, there is probably more to follow with this Sonatel decision. The day the press release was issued, the operator stated it intended to lodge a hierarchical appeal before the Minister.
The next day, the Director General of the Artp stated in the press (in French) that under the Senegal law, the appeal could only be lodged before a jurisdiction, or before... the Regulatory Authority itself (request for reconsideration - in French : "recours gracieux").
This situation is thus a great reminder that new illustrations of the interplays between Regulation and Politics can always be found.
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...
It is sometimes argued that the competitive freedom will destroy the "old regulated world", platforms being the perfect example of this fresh wind, the invention of the adjective "disruptive" which could express a "novelty" before which it is only suitable to bow.
In 2014, the French Constitutional Council justified its decision by referring to "the public order of parking", which the municipality is mistress... The justification given here is to protect the occupant.
Indeed all rideshare drivers will be obliged provide proof that they are subject to health checks, especially on drugs and provide criminel check also.
This is justified because Regulation of an activity implies control of those who exercise it and equal competitors can justify that for the same activity some are removed, especialy in view of the protection of the person transported.
The third new requirement is of a different nature: the driver must prove that it is not in debt to the municipality. Why not, since the infrastructure of the city allows them to exercise the economic activity in question. This is another underlying objective, which lies rather in the idea of an exchange between the city and the one who transports people, the beneficiary of infrastructure should not be otherwise debtor that it enjoys public infrastructure.
The latter provision shows that the "contract" is increasingly not between the carrier and transported - via the virtual platform - but between the very concrete public space and one that circulates and do not live there.
