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There is no point in counting one by one the powers of a Regulator and add them to try to measure its power. We must measure what consideration the others have of the exercise of its powers it.

So it is with its advice power. Sometimes, in fact, its opinion is  worth as much as if it adopted the text itself, as those who read its comments are impressed. Sometimes, the Regulator may have taken a rational opinion, motivated and relevant, those to whom it is addressed don't care.

The result is often that the Regulator takes note of this weakness against which strictly within the framework of this opinion mechanism the regulatory body can do nothing,  but in a continuation of powers between the Ex Ante and the Ex post, because the area is an enclosed space, the diverse attitudes will be remembered, especially when the Regulator will be exercising its powers to resolve disputes or its power of sanctions. And there ...

Take the example of railway activities. The French Regulatory Authority of Railway Activities (Autorité de Régulation des Activités Ferroviaires - ARAF )) is a new regulator, in front of powerful actors, where the State has interests. The fact that these interests are legitimate don't remove the weight that such integrated public operator is facing the regulator. On 27 November 2014, ARAF expressed negative opinions about the main draft decrees. January 6, 2015, the Autorité de la Concurrence  (French Competition Authority) has also made a critical opinion, including in its discontent and the law of "Railway Reform" and the draft decrees.

February 11, 2015, 7 decrees implementing the February 10, 2015 have been published. Adverse opinion on three of them by the regulator (ARAF) were swept away. We can admit quite, both regarding the Competition Authority opinion, since we are in terms of regulation and not in the simple competition system, and about ARAF opinion because its opinion is only a consultative and executive power remains in line with the will of Parliament. It's almost as if the Regulator had not said  a word.

Thus, under the hierarchy of norms, in the letter and in spirit, the decrees are in line with the law they enforce. No blame.

But it is not excluded that the regulator of rail activities can remember of having been so little after, when it must be considered as a kind of judge in civil functions (dispute resolution) and in punitive functions  (sanctions) that almost the same will appear before the regulatory body.

 

 

This Recommendation is an international instrument to address regulatory policy, management and governance as a whole-of-government activity that can and should be addressed by sectoral ministries, regulatory and competition agencies. A copy of the Recommendation can be obtained here.

Full reference : Frison-Roche, M.-A., The practical utility to have a firm definition of "Compliance", Newsletter MAFR - Law, Compliance, Regulation, 10th of August 2020.

Read by subscribing the other news in the Newsletter MAFR - Law, Compliance, Regulation

 

Summary of the news

Some says that defining Compliance is a theoretical and non useful exercice that should be left aside to tackle the study of concrete technical cases. However, to be able to use Compliance tools, it is first necessary to have a clear, firm and simple idea of what is Compliance. Moreover, the future of this new branch of law intensely depends on the definition we choose to use. 

Compliance Law gives to some crucial private firms new responsibilities such as the one to fight against global dangers or the one of saving the planet. In this, Compliance Law can be perceived as a kind of new deal between the private sector and public authorities, with the only difference that this time the consent of the private sector is not required.

Some would say that the concretization of such projects is the duty of the State and that private firms, if they must respect the rules, do not have to find a way to concretize a "monumental goal". However, the world face new and systemic dangers in the face of which the State alone is powerless, technically or geographically, and against which crucial companies can act.

It is not about, as some advocate to put human being aside of Compliance Law by letting machines decide. It is about placing the human being and its protection at the heart of Compliance Law. In this, Compliance Law can become a new humanism. 

 

To go further, read Marie-Anne Frison-Roche's working paper, The Dreamed Compliance Law 

Main information

An advertisement broadcast in Burkina Faso for an insecticide did not reveal its health risks. The national media regulator published a decision on September 6, 2011 ordering that it be taken off the air and “requested” that the media refrain from broadcasting advertisements dangerous for human health and dignity.

Main information

An advertisement broadcast in Burkina Faso for an insecticide did not reveal its health risks. The national media regulator published a decision on September 6, 2011 ordering that it be taken off the air and “requested” that the media refrain from broadcasting advertisements dangerous for human health and dignity.

Joëlle Toledano is a Doctor of Mathematics and a Doctor of Economics. She has been a member of the board of the ARCEP since her nomination in 2005. In 2011, she was appointed to be President of the European Regulators Group for Postal Services (ERGP). (...)

Etienne Wasmer is a Professor at Sciences Po Paris, where he directs doctoral studies in economics and co-directs a Laboratoire d’Excellence (Labex) on the Interdisciplinary Evaluation of Public Policy. (...)

Christine Thin holds a degree in Law from Université Panthéon-Assas (Paris 2) and is a graduate of the Ecole nationale de la magistrature (ENM). From 1973 to 1975, she served as a special judge for minors at the Tribunal de Grande Instance (TGI) de Douai. (...)

Read the European Regulation.

 

This Regulation is taken in application of the Council Regulation (EU) of the 15th October 2013 conferring specific tasks on the European Central Bank concerning policies relatif to the prudential supervision of credit institutions.

 

 

 

Translated summaries

 

ENGLISH

Nearly 40% of French consumers feel badly or inadequately protected. This scientific report written in French and made by three members of the Conseil d’Analyse Economique du Premier Ministre (French Prime Minister’s Economic Analysis Council) formulates six propositions to organize a better protection, because this consumers protection is a crucial social issue.

 

FRENCH

Près de 40% des consommateurs français se sentent mal ou insuffisamment protégés. Le présent rapport scientifique rédigé en français et réalisé par trois membres du Conseil d’Analyse Economique du Premier Ministre formule six propositions pour organiser une meilleure protection, car cette protection des consommateurs est une question sociale cruciale.