This collective work describes the contours of French, European, and International healthcare regulation, and explores past, present, and future evolutions and tendencies in this sector. Original French title: Annales de la régulation, 2009, volume 2, sous la direction de Thierry Revet et Laurent Vidal, collection Bibliothèque de l'Institut de Recherche Juridique de la Sorbonne (IRJS) – André Tunc. (LGDJ)
The implementation of a joint consumer information service on Insurance, Banking, and Insurance within the ‘Autorité de Contrôle prudential – ACP’ (French Prudential Control Authority), raises questions as to the way in which the service will be coordinated with the ACP’s other activities. The signature of the agreement creating the new joint service was the occasion for Christian Noyer, Governor of the Banque de France (Central Bank of France) and President of the ACP, to clarify that this joint service, whose principal goal is consumer protection, complements the ACP’s other missions.
The French regulator of telecommunications (The French regulatory authority of telecommunications and Posts - ARCEP) has developed a draft report to the Parliament and the French Government on the issue of Internet neutrality. By providing it to everyone on its site on May 16, 2012, the regulator opens a public consultation, which will be closed on June 22, 2012. The regulator said that the Internet is a "collective good of general interest" and that the increase in its use requires very significant investments. It is in this context that the question of the neutrality of the Internet must be discussed.
In the United States, the Communications Assistance for Law Enforcement Act (CALEA), on 1994 allows some services of the State which justify it, in particular the F.B.I, to carry out telephone tapping. But the technology also allows the transmission of voice by other means than the phone, especially via the Internet. However, wiretapping as a threat to individual liberties, only an Act may extend the powers of listening, on the phone on the modes of transmission of voice on the Internet. In this view, the F.B.I. is developing which is intended to become an extension of the Act of 1994.
The Morocco is overhaul its system of financial regulation. The Dahir related the Regulatory and Public Offering Authority was approved by the Council of the Government on April, 11 2012. The Conseil déontologique des valeurs mobilières (CDVM) - Council for the Code of Ethics in Securities is now called l’Autorité Marocaine du marché des Capitaux (AMMC) (the Moroccan Authority of capital markets). The Bill justifies the change of name and the use of the word "authority" by the wish expressed to ensure the independence of the Regulatory Authority and the reference to its monitoring power. This is takes the form of new powers for the Regulatory Authority which allows it to require information and sanction infringements. The Regulatory Authority establishes the standard form that any corporation interest in conducting a public offering must complete to receive the approval from the Regulatory Authority. The use of inside information is prohibited. The Bill organises the regular dissemination of information on the initiative of companies which conducted a public offering.
After suspending the freeze of gas prices for consumers, the "Conseil d’Etat" (French Council of State) in a judgment of 10 July 2012, cancels the freeze, as it constitutes an error of law, because it shows that the Government has not incorporated or offset procurement costs borne by the public service provider.
FRENCH
Après avoir suspendu le gel des tarifs gaiers pour les consommateurs, le Conseil d’Etat, dans un arrêt du 10 juillet 2012, a annulé l’arrêté qui avait imposé ce gel, en ce qu’il constitue un erreur de droit, parce qu’il montre que le Gouvernement n’avait pas incorporé ou offert de compenser les coûts supportés par le fournisseur de service public.
As part of a procedure initiated for anti-competitive behaviors, the European Commission has three times requested, between the 13th of March and the 11th of November 2019, from Facebook the communication of information, reitarated in a decision in May 2020.
Facebook contests it alleging that the requested documents would contain sensitive personal information that a transmission to the Commission would make accessible to a too broad number of observers, while "the documents requested under the contested decision were identified on the basis of wideranging search terms, (...) there is strong likelihood that many of those documents will not be necessary for the purposes of the Commission’s investigation".
The contestation therefore evokes the violation of the principles of necessity and proportionality but also of due process because these probatory elements are collected without any protection and used afterwards. Moreover, Facebook invokes what would be the violation of a right to the respect of personal data of its employees whose the emails are transferred.
The court reminds that the office of the judge is here constraint by the condition of emergency to adopt a temporary measure, acceptable by the way only if there is an imminent and irreversible damage. It underlines that public authorities benefit of a presumption of legality when they act and can obtain and use personal data since this is necessary to their function of public interest. Many allegations of Facebook are rejected as being hypothetical.
But the Court analyzes the integrality of the evoked principles with regards with the very concrete case. But, crossing these principles and rights in question, the Court estimates that the European Commission did not respect the principle of necessity and proportionality concerning employees' very sensitive data, these demands broadening the circle of information without necessity and in a disproportionate way, since the information is very sensitive (like employees' health, political opinions of third parties, etc.).
It is therefore appropriate to distinguish among the mass of required documents, for which the same guarantee must be given in a technique of communication than in a technic of inspection, those which are transferable without additional precaution and those which must be subject to an "alternative procedure" because of their nature of very sensitive personal data.
This "alternative procedure" will take the shape of an examination of documents considered by Facebook as very sensitive and that it will communicate on a separate electronic support, by European Commission's agents, that we cannot a priori suspect to hijack law. This examination will take place in a "virtual data room" with Facebook's attorneys. In case of disagreement between Facebook and the investigators, the dispute could be solved by the director of information, communication and medias of the Directorate-General for Competition of the European Commission.
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We can draw three lessons from this ordinance:
This decision shows that Procedural Law and Compliance Law are not opposed. Some often say that Compliance guarantees the efficacy and that Procedure guarantees fundamental rights, the protection of the one must result in the diminution of the guarantee of the other. It is false. As this decision shows it, through the key notion of sensitive personal data protection (heart of Compliance Law) and the care for procedure (equivalence between communication and inspection procedures; contradictory organization of the examination of sensitive personal data), we see once again that two branches of Law express the same care, have the same objective: protecting people.
The judge is able to immediately find an operational solution, proposing "an alternative procedure" axed around the principle of contradictory and conciliating Commision's and Facebook's interests has shown that it was able to bring alternative solutions to the one it suspends the execution, appropriate solution to the situation and which equilibrate the interest of both parties.
The best Ex Ante is the one which anticipate the Ex Post by the pre-constitution of evidence. Thus the firm must be able to prove later the concern that it had for human rights, here of employees, to not being exposed to sanctioning pubic authorities. This Ex Ante probatory culture is required not only from firms but also from public authorities which also have to give justification of their action.
I would suspect that most regulatory law practitioners—whether they represent government or private interests--feel as if the tidewaters of global regulation have slowly but surely risen within the past few years. Those involved in the fields of competition, environmental or financial law must feel as if the global regulatory waters have reached up to their knees.
FRANCAIS
Article: le G-20 et la régulation économique mondiale: un moyen d'alimenter le développement progressif du droit international?
Je soupçonnerai volontiers que la majorité des praticiens du droit de la régulation - qu'ils représentent les gouvernements ou des intérêts publics - ont le sentiment que les eaux de la régulation mondiale ont monté lentement mais sûrement au cours des dernières années. Ceux qui exercent dans les domaines légaux de la concurrence, de l'environnement ou de la finance doivent eux avoir l'impression qu'elles ont atteint leurs genoux.
GERMAN
Artikel; Die G-20 und die globale wirtschaftliche Regulierung: ein Beitrag zur Entwicklung des internationalen Privatenrechtes?
Ich vermute, dass die meisten Praktiker des Regulierungsrechtes - entweder für öffentlichen- oder privaten Institutionnen arbeitend - das Gefühl haben, dass die Gewässer der globalen Regulierung letztlich langsam aber sicher angestiegen sind. Und diejenigen, die im Bereich Wettbewerb, Umwelt oder Finanz arbeiten, haben sicher das Gefühl, dass die Gewässer schon kniehoch sind.
ITALIAN
Il G20 e la regolazione economica globale: verso l’alimentazione di uno sviluppo progressivo del diritto internazionale?
Direi che la gran parte degli operatori in materia di regolazione normativa – portatori di interessi pubblici o privati – hanno la sensazione che la marea della regolazione economica globale sia, seppur lentamente, sicuramente salita negli ultimi anni. Coloro che operano in materia di diritto della concorrenza, diritto dell’ambiente o diritto finanziario devono aver la sensazione che le acque della regolazione siano arrivate fino alle ginocchia.
El G-20 y la regulación económica global: ¿alimentando el desarrollo progresivo del derecho internacional?
Yo sospecharía que la mayoría de aquellos que practican la ley – ya sea que representen los intereses públicos o privados – se sienten como si las aguas de la regulación global han aumentado lentamente durante los últimos años. Aquellos que están involucrados en el campo de la competición o las leyes ambientales o financieras ya deben de sentirse como si las aguas de la regulación global les han llegado hasta las rodillas.
The book "Concurrence, santé publique, innovation et médicament" (Competition, public health, innovation, and medicine), published by French publisher L.G.D.J., provides an analysis of the pharmaceutical sector’s oscillation between competition and regulation. The first part of the study is consecrated to "Médicament dans la regulation des dépenses de santé" (The role of medicine in the regulation of healthcare costs), which exposes health-related questions in their most government-controlled aspect. The second part conceives health through its social function, with "Innovation et incitation à la recherche" (Innovation and incentive to perform research), while the last part explains "Les difficultés des prises en compte par le droit de la concurrence des spécificités du secteur pharmaceutique" (Competition Law’s difficult apprehension of the pharmaceutical sector’s specificities). The three parts of this study offer an exhaustive presentation of the stakes involved in healthcare law, economy, and policy, and clearly shows that the hybrid nature of this sector makes it more a matter for regulation rather than for competition law.
The media sector is organized on an equilibrium between the principle of competition and other concerns like information pluralism. Generally, competition Law by making market accessible to many competitors ensures information pluralism. But, this is not the case if an operator get an excessive market power, running risk not only for competition but also for information pluralism. It is the reason why the Italian legal system forbids the constitution of an operator gathering more than 40% of the total income generated by the media sector or more than 10% of the total income generated by the Italian communication sector.
In 2016, Vivendi, a French media group, got more than 28% of the Mediaset Group's actions and around 30% of its voting right. The Italian communication regulation authority sized by Mediaset demands in 2017 to Vivendi to ends its participations in the group Mediaset. Vivendi contested this decision before the regional administrative court which referred to the Court of Justice of the European Union in order to know if freedom of establishment can legitimately be discarded in favor of information pluralism in this concrete case. The Court of Justice answered, in a decision of 3rd of September 2020, that the restriction of the freedom of establishment can in principle be justified by a general interest objective such as information pluralism protection but that in this concrete case, this is not justified because the fact that a firm is committed in the transmission of contents does not necessarily give it the power to control the production of such contents.
We can learn three lessons form this case:
The Court precises that even if the principle is the freedom of establishment, it is possible to discard it to protect information pluralism protection under the condition that the concerned member State do not use this legitimate power to create a political monopoly, the burden of proof falling on the person attacking national legislation and not on the Member State.
The Court distinguishes transmission of contents and production of contents and explains that if the State rejects this decision, the burden falling to it to prove the concrete links between these two activities.
This case shows that the power to share the respective places of the "principle" and of the "exception" always comes back to the judges.
