The colloquium will take place, a priori, on site in Toulouse, on October 14, 2021.
It will be broadcasted in live online.
🎥 Videos will be extracted.
► Presentation of the topic :
Compliance Law tends towards "Monumental Goals". This puts the concern, the calculation and the control of proportionality at the center. Proportionality is one of the most common references for compliance practices and strategies, but paradoxically, one of the least well defined. Perhaps even one of the most elusive.
For the German Federal Constitutional Court in Karlsruhe, the principle of proportionality allows the quantitative easing policies of the European Central Bank (ECB) to be monitored. This principle is linked to nothing less than the principle of democracy and is the basis of the control of ultra vires. In French law, proportionality refers to the provisions of Article 8 of the Déclaration des droits (Bill of Rights) of 1789, according to which the law should only establish penalties that are strictly and obviously necessary. In many areas of civil or business life, the compliance of behavior and the consequences of non-compliance are assessed on the basis of a graded assessment by the censor (competitor, regulator or judge).
Proportionality calls for action, which opens up a margin of appreciation to take into account the facts or circumstances. It also allows for the exercise of control over abuse of rights or excess of power. It goes beyond the office of the judge or the censor to forge one of its tools: the control of proportionality, which is obviously not the proportionality of the control.
How to integrate proportionality into compliance practices and strategies?
Does it introduce a certain tolerance in the assessment of situations and is it thus a factor of rediscovered freedom in the development of risk matrices?
Conversely, is it not synonymous with increased vigilance on the part of compliance officers, by leaving open the possibility of a reinforced control of their acts or decisions, by the evaluation of their advisability and not of their conformity alone?
► Working method:
🚧 The colloquium is built around 4 topics, which would be prepared in 4 working papers.
🚧 The writing of each working paper will have been entrusted by experts.
Secondly, these working papers will be available to be criticized by two practionners of Compliance technics.
For each topic, there will be these three sequences:
Presentation of the topic by the author of the working paper ;
Discussion by the two discussants, who will have read the working paper previously ;
Discussion with the public onsite and online.
The four topics chosen are:
1️⃣ Proportionality and Conformity
2️⃣ Proportionality and Evaluation
3️⃣ Proportionality and Normativity
4️⃣ Proportionality and Sanction
► registrations and information :
attendance to the manifestation is free, onsite or online
every registration for an attendance onsite will be supported by Toulouse-I-Capitole University
information will be available on a website opened by Toulouse-I-Capitole University
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►Will speak, notably :
🎤 Marie-Anne Frison-Roche, professor of Regulation and Compliance Law, director of the Journal of Regulation & Compliance
🎤 Alexandra Mendoza-Carminade, professor at Toulouse-I-Capitole University
🎤Lucien Rapp, professor at Toulouse-I-Capitole University
🎤 Marc Segonds, professor at Toulouse-I-Capitole University
What is called the "Libor" is a contraction of "London InterBank Exchange Rate". Each morning, the banks reported Libor rates and all of the exchanges are backed with these statements. It is therefore the confidence that we make to them that holds the system. In a declarative system, it was easy for the Barclays Bank to report an inaccurate Libor, upward or downward, according to trade that it wanted to do. This is legally of course a price manipulation, which was sanctioned by the "Financial Securities Authority - FSA" on June 27, 2012, inflicting Bank fined nearly £ 60 million. But it is especially throughout the system of credibility of this Bank, and banks, which is undermined, since everything is based on the statements. We understand that therefore all managers are laid off, etc. Will that be enough to keep a system purely declarative?
In the United States, if the State courts took different positions on whether the game of poker is a game of chance or a game of strategy, this is the first time that a federal jurisdiction decides the issue by this judgment of August 21, 2012 ruled by Judge Jack Weinstein. The question is crucial for the Regulation of online gambling because gambling is regulated or even prohibited by State, but not strategy games. Qualification depends on the definition that is given in the game according to the judge, who relied on recent scientific studies, the gain in poker does not depend poker mostly luck but skill. Therefore, it escapes the regulations that surround gambling.
Procedure is that by which a body of law finds its unity: the right to an impartial tribunal, as stated in Article 6 of the European Convention on Human Rights, created a new unit in Regulation Law, as it also requires from Regulatory Authorities to "show" their impartiality whenever they act as courts.
Nevertheless, little by little, the national courts and the ECHR itself indicated the contours of this right, which cannot, admittedly, end up nullifying the effectiveness of the mission of Regulators.
It is assumed that whenever a Regulatory Authority intervenes whether in "civil matters", i.e., when it affects the civil rights or the property rights of a person, or in "criminal matters", i.e., when it sanctions a significantly serious behavior, the individuals that are exposed to the power of the Regulator are protected against it by the right to impartiality. Since the regulator has the power to judge, it also has to respond to the condition of impartiality.
As such, not only those within the Regulatory Authority involved should not be in conflict of interest or have already experienced the event (personal, subjective and/or objective impartiality), but the Authority in its organization and processes itself shall give to see its impartiality to the person who is threatened by its power- and, beyond, to the entire society. This objective structural impartiality is called after English law "apparent impartiality."
In The Journal of Regulation the summaries’ translation are done by the Editors and not by the authors
ENGLISH
Bibliographic Report (Book): The regulation of industrial networks, what evolutions and perspectives in France and in Europe? by Fondation Nationale Entreprise et Performance
Full citation: Fondation nationale Entreprise et Performance, La régulation des réseaux industriels. Quelles évolutions et perspectives en France et en Europe?, Preface Hagelsteen, Marie-Dominique, 105 p., La documentation Française, 2011.
Report by Marie-Anne Frison-RocheManaging Editor and Director
This report ambits to improve the regulation of industrial networks in France and in Europe. Therefore, the Fondation nationale Entreprise et Performance (FNEP) concentrates its study on industrial networks, a category in which it includes telecommunications, energy, rail transportation, and postal services, in France and in Europe. The report proposes new rules or adaptations to old ones in order to increase regulators’ independence, efficacy, and oversight. It then suggests rules be modified to allow for the implementation of regulation at the European level, whenever the relevant market is European in scale.
FRENCH
Compte-rendu bibliographique (Livre): La régulation des réseaux industriels. Quelles évolutions et perspectives en France et en Europe ? par Fondation Nationale Entreprise et Performance.
Compte-rendu faite par Marie-Anne Frison-Roche
Ce rapportambitieux vise à améliorer larégulation des réseauxindustriels en France eten Europe.Par conséquent, laFondation nationaleEntreprise etPerformance(FNEP)concentreson étude sur lesréseaux industriels,une catégorie dans laquellele rapport inclutles télécommunications, l’énergie,le transport ferroviaire,et les services postaux,en France eten Europe.Le rapportpropose de nouvelles règlesou des adaptationsde précédentes, afin d’accroîtrel’indépendance des régulateurs, d’augmenter l’efficacité et la surveillance.Il propose ensuite que des règlessoientmodifiées pour permettrela mise en œuvrede la régulation auniveau européen, chaque fois quele marché pertinent estde dimension européenne.
ITALIAN
Relazione bibliografica (Libri): III-1.9: La regolazione delle reti industriali. Quali sono le evoluzioni e le prospettive in Francia e in Europa? A cura della Fondation Nationale Entreprise et Performance
Questa relazione punta a migliorare la regolazione delle reti industriali in Francia e in Europa. Tuttavia la “Fondation Nationale Entreprise et Performance” (FNEP) focalizza la sua attenzione sulle reti industriali, una categoria che include le telecomunicazioni, l’energia, il trasporto ferroviario ed i servizi postali, in Francia ed in Europa. La relazione propone delle nuove regole o una modifica delle regole esistenti per aumentare l’indipendenza, l’efficacia e la vigilanza delle autorità di regolazione. Inoltre, propone di modificare alcune norme per permettere l’applicazione della regolazione al livello europeo, ogni volta che il mercato rilevante è quello europeo.
Jean-Patrice de La Laurencie is a graduate of the Institut d’Etudes Politiques de Paris (Sciences Po Paris) and the Ecole Nationale d’Administration (ENA). He is currently a Lawyer at the Paris Bar (...)
India is transforming its energy policy, because it depends too much of coal and plans to expand its nuclear industry. Its agency, the Atomic Energy Regulatory Board (AERB) is in charge of overseeing nuclear security. But the Indian Court of Auditors issued a report on 16 August 2012, claimed that such a nuclear deployment could not take place only if the agency is structurally modified. Indeed, it is currently dependent on the federal Government, while independence is required for any regulator. In addition, it has no real powers of control and intervention. It is therefore not a true regulator, and in these conditions, expand nuclear energy would constitute a great risk.
After the publication of the 21 January 2010 Ordinance implementing the Autorité de contrôle prudentiel (ACP - Prudential Control Authority), two decrees published on 3 March 2010 complete this legislation and define the institutional and budgetary workings of the new Authority.
forthcoming in the series Regulations & Compliance, co-published by the Journal of Regulation & Compliance (JoRC) with Dalloz.
