The word "regulation" is fashionable, and so is what it is supposed to refer to; but the notion actually refers to many different situations, which can be a source of confusion. Of course, regulation is all about improving market functioning; but we also have to admit that the measures that regulation must take to accomplish this are not the same in situations where competition malfunctions, as opposed to situations where there is no competition at all.
But, there must be a preliminary agreement on the goals that regulation must pursue. Specifically, is competition an end in itself, or simply a way to best cause economic actors to unwittingly pursue the public good?
I venture to suggest that we cannot usefully speak about regulation without defining what it is intended to accomplish...
FRENCH
Article: deux régulation?
Le mot « régulation » est à la mode, comme ce qu’il est censé désigner ; mais la notion couvre, en fait, des situations très différentes, ce qui est source de confusion. Il s’agit, certes, de mieux faire fonctionner le marché ; mais on conçoit que les mesures à prendre ne soient pas les mêmes dans les cas où la concurrence fonctionne mal, par opposition à ceux où il n’y a pas de concurrence du tout. Encore faut-il au préalable s’entendre sur les objectifs poursuivis. Plus précisément, la concurrence est-elle une fin en soi, ou seulement un moyen de voir les acteurs économiques, sans le savoir, oeuvrer au mieux pour le bien public? J’oserai avancer qu’on ne peut traiter utilement de la régulation sans en connaître l’objet ...
GERMAN
Artikel: Zwei Regulierungen?
Das Wort "Regulierung" ist heutzutage modisch, sowie ist, was angeblich hinter dem Begriff steckt; Jetzt aber bezieht sich der Begriff auf viele verschiedenen Situationen, was zu gewisser Verwirrung fürhen kann. Zwar strebt Regulierung danach, das Funktionieren den Märkten zu verbessern. Aber wir müssen annehmen, dass die notwendigen Massnahmen nicht diesselbe sind, wenn der Wettbewerb nicht vollständig läuft, und wenn der Wettbewerb überhaupt nicht existiert. Ausserdem müssen wir uns über die Zielsetzung einigen. Und zwar, ist Wettbewerb ein Ziel an sich oder ist trägt er nur dazu bei, die Wirtschaftsakteure ungewiss dazu zu veranlassen, zum öffentlichen Allgemeingut beizutragen? Ich behaupte, dass man nicht nützlich über die Regulierung sprechen kann, ohne ihren Gegenstand zu kennen...
SPANISH
¿Dos regulaciones?
La palabra ‘regulación’ está de moda, tal como lo es a lo que se supone que se refiere; pero, de hecho, esta noción se refiere a varias situaciones, lo cual puede dar lugar a cierta confusión. Claro, la regulación se trata de mejorar el funcionamiento del mercado; pero también debemos admitir que las medidas que debe tomar la regulación para cumplir con esto no son las mismas en situaciones donde la competición sufre de un fallo, en contraste con situaciones en donde la competición ni existe.
De todas maneras, debe haber un acuerdo preliminar sobre los objetivos que la regulación debe de seguir. Específicamente, ¿es la competición un fin en sí mismo, o es simplemente una manera de causar que los actores económicos persigan inconcientemente la bien público?
Me atrevo a sugerir que no podemos hablar efectivamente sobre la regulación sin definir qué se supone que debe de lograr.
ITALIAN
Articolo : Due regolazioni ?
La parola « regolazione » é alla moda così come il suo contenuto. Tuttavia questa nozione si riferisce a molteplici situazioni e ciò può costituire fonte di confusione. Certo, la regolazione consiste nel migliorare il funzionamento del mercato, ma dobbiamo ammettere che i provvedimenti che la regolazione deve attuare al fine di raggiungere questo scopo, non sono gli stessi quando si è in presenza di distorsioni della libera concorrenza oppure quando, in altri contesti, la libera concorrenza non c'è. Pertanto, è necessario che vi sia un accordo unanime sugli obiettivi della regolazione. In particolare, la concorrenza è lo scopo, o semplicemente il mezzo per far in modo che gli operatori economici agiscano involontariamente a fini di bene pubblico? Direi che non possiamo parlare della regolazione senza definire i suoi obiettivi…
In Cameroon, the electricity sector is organized around a public operator, the Aes-Sonel, which the State conceded the transmission and distribution of electricity. The “Agence de Régulation du Secteur de l’Energie – ARSEL ( Cameroons Regulatory Agency Electricity Sector ) is responsible for ensuring the proper functioning of the system, quality of service and consumer protection. As in other African countries for the moment the country suffers from a lack of electrification planning and a lack of access to electricity, a significant portion of the population.
However, the regulator has commissioned a survey from June 4 to August 16, 2012. He was released on September 5 which he says the study shows that the operator doesn’t provide public service obligations correctly towards consumers. The operator responds by saying that on the one hand the study is not conclusive and that other conditions, external to him, do not bring electricity to everyone but it’s not its fault.
This shows that the document is primarily intended for investors and financial markets, the document being placed on the company website in the section for the "investors".
This illustrates the evolution from the traditional "contrats de plan" (plan contracts). But then, who are the parties to these types of contract?
Indeed, the very term "Regulatory contract" is new in public Law. It appears as a sort of modernization of "plan contract." The Conseil d'État (French State Council) finally admitted the contractual nature of these planning contracts. In these contracts, are parties were the State and the company in charge of a public service.
Because here the contract is an instrument of "economic regulation" the open public consultation draft rather expresses a global conception of ADP, the company which manages the Paris airports, for the future of the development of critical infrastructure that is the airport as the heart of global development of air transport.
The enterprise manager of the airport in the heart of the contract (rather than the State) in setting objectives for the coming four years is the letter and spirit of the French law of 20 April 2005 about Airports, which put the apparatus of this "Contrat de Régulation Economique" in place.
In this, the infrastructure manager is set by law as a "regulator of second degree", as can be a financial market enterprise. The company that manages and develops the Paris airports undoubtedly belongs to the category of " critical firms", as well it manages the future of the sector and helps to keep France a place in the world.
More, A.D.P. behaves like a Regulator, since it is carrying out the "public consultation", the consultation paper prepared by it, being placed on its site and developing its ambitions for the sector and for France. But A.D.P. also expressed as a financial and economic actor, emphasizing the competitive environment, demanding in passing more stability and clarity in the regulation in which it moves ...
That is why the consultation mechanism provided by the law must be more complex. Indeed, ADP can not be judge and jury. Therefore if the project raises observations, they must be formuled not to ADP but to the Ministries of Aviation and Economy, within a month. They shall communicate theiir content to ADP . Then the Commission consultative aéroportaire (French Airport Consultative Committee) will be consulted. At the end of this process, the "Contrat de Régulation Economique" will be signed.
Seing the end of the process, it remains in line with the plan contracts, since it remains the Economic Regulatory Contract is signed between the State and the essential infrastructure manager. But the consultation process shows firstly investors are the first recipients of the statements made by a privatized company presenting its draft primarily in terms of competitive context and international development and secondly the airlines that use daily services of the airports are also directly involved by theses questions of tarification.
Airlines protest against the increase in the money that will be asked. This will be imposed, since it is tarification and princing public policy. We are in unilateral rules. But it is indeed a "price" they feel to pay, they also heard a speech referring to competition in what the mechanism is presented as a "contract".
But then, does it take to admit that these "contracts for economic regulation" are not between two parties that are the state and the regulator of second degree that is the infrastructure manager but must be three, the State, the infrastructure manager and "stakeholders" that are mainly airlines?
This practical difficulty is much to the fact that the qualification of "contract" is difficult to justify in proceeding in which prevail unilateral mechanisms.
This scientific event is placed under the scientific responsibility of Marie-Anne Frison-Roche and Arnaud van Waeyenberge. It is organized by the Journal of Regulation & Compliance (JoRC) and by the Centre Perelman of Brussels University.
The different interventions will be then transformed into contributions in the books La juridictionnalisation de la Compliance and Compliance Juridictionnalization which will be published in the Regulation & Compliance serie, jointly published by the JoRC and Dalloz for the book in French and by JoRC and Bruylant for the book in English.
This colloquium will take place in Brussels in October 2021.
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
Marie-Anne Frison-Roche, agrégée des facultés de droit and Docteur d'Etat, has held the position of Tenured Professor at the Institut d'Etudes Politiques de Paris (Sciences Po). (...)
"Phishing" is a kind of cyber criminality aiming to obtain, by sending fraudulent emails which look like to those sent by legitimate organisms, recipient's personal information in order to impersonate or steal him or her. As it is difficult to find the authors of "phishing" and to prove their intentionality in order to punish them directly, on mean to fight against "phishing" could be to entitle banks to secure their information network and, to accompany this obligation with a strong incentive, to convict them to reimburse the victims in case of robbery of their personal data.
In 2015, a client victime of this kind of fraud asked to his bank, the Crédit Mutuel, to reimburse him the amount stole, what the bank refused to do on the grounds that the client committed a fault, transferring its confidential information without checking the email, however grossly counterfeit. The Court of first instance gave reason to the client because although he committed this fault, he was in good faith. This judgment was broken by the Chambre commerciale de la Cour de cassation (French Judicial Supreme Court) by a decision of 1st of July 2020 which states that this serious negligence, exclusive of any consideration of good faith, justifies the absence of reimbursement by the bank.
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From this particular case, we can draw three lessons:
The Cour de Cassation states that good faith is not a salient criterion and that, as the bank must react when a banking account is objectively abnormal, the client must react face to an obviously abnormal email.
The Cour de Cassation describes the repartition of proof burden. Proof obligations are alternatively distributed between the bank and its client. First, the bank must secure its information network but, secondly, the client must take every reasonable measure to preserve its safety. It results from this that, if the email seems normal, phishing damages must be supported by the bank, and more generally of by the firm, while if the email is obviously abnormal, they must be supported by the client, but the burden to prove the abnormality of the email must be supported by the firm and not by the client.
Such a proof system shows that Compliance Law includes a pedagogic mission by educating each client in order to he or she would be able to distinguish among his or her emails, those which are normal and those which are obviously suspect. This pedagogic dimension, with the legal consequences associated to it, will not stop to spread.
forthcoming in the series Regulations & Compliance, co-published by the Journal of Regulation & Compliance (JoRC) with Dalloz.
