As soon as Regulation assumes independence of the operator who manages the essential infrastructure, ex ante conditions of such independence must be met.
Europe doesn't require legal autonomy of the essential infrastructure manager, probably because such autonomy, it would be both too ask the Policy, which may want more integrated organizations as soon as public transportation is a mix of public policies and that to public funds are used. But it would also be too little to ask the Policy because no matter the legal autonomy, the key is the real independence of the manager, that is under the control of the Regulator.
The Loi portant réforme ferroviaire (Railway Reform Act) of August 4, 2014 has made the integration of the company that manages the rail network, which the new name is SNCF Réseau (SNCF Network) in a public group, which also includes the SNCF, public transportation operator, in competition with new entrants in a newly opened sector to competition.
The Competition Authority in its opinion of 4 October 2013 had expressed reluctance towards the bill, to the influence that such corporate organization offers to the public operator, to the detriment of its competitors and the opening of the railway sector to competition.
The Competition Authority issues its opinion as a real essay on what should be the Regulation of the railway sector through the "governance" of the network manager. Indeed, the first part of the opinion relates to "the independent management of railway infrastructure" while the second focuses on the integration of railway network in the public group built par the law. The third part of this Opinion draws conclusions to measure whether we can consider that the Autorité de Régulation des Activités Ferroviaires (French Regulatory Authority of Railways Activities) shall have the capacity to ensure this independence by governance or not.
This review, in its construction itself, demonstrates the dialectic between Regulation and Governance (I), which is an observation and stresses the role of the regulator in the effectiveness of governance (II), which is more a question .
Summary of the news: Through its decision of 22nd of October 2020, the Autorité de la concurrence (French Competition Authority) accepted the commitments proposed by retail sector's firms Casino, Auchan, Metro and Schiever so that their agreement by which a common body centralizes purchases from numerous retailers, allowing each to offer these products under private label, is admissible with regard to competitive requirements.
In this particular case, the Authority had self-sized in July 2018, estimating that such a purchase center could harm competition, opening immediately a large consultation on the terms of the contract. In October 2018, the law Egalim permitted to the Authority to take temporary measures to suspend such a contract, what the Authority did from September.
The convention parties' firms committed on the one hand to update their contract limiting the power on suppliers, especially small and very small suppliers, excluding totally of the field of the contract some kind of products, especially food products and reducing the share of bought products volume dedicated to their transformation in distributor brand.
The Autorité de la concurrence accepts this proposal of commitments, congratulates itself of the protection of small suppliers operating like that and observe the similarity with the contract consisting in a purchase center between Carrefour and Tesco, which will be examined soon.
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We can draw three lessons of this innovating decision, which could be a model for after:
1. The technique of Compliance Law permits to the Autorité de la concurrence to find a reasonable solution for the future.
Indeed, rather than punishing much later by a simple fine or to annihilate the performing mechanism of the purchase center, the Authority obtains contract modifications.
The contract is structured and the obtained modifications are also structural.
The commitments are an Ex Ante technique, imposed to operators, for the future, in an equilibrium between competition, operators and consumers protection and the efficacy of the coordination between powerful operators.
The nomination of a monitor permits to build the future of the sector, thanks to the Ex Ante nature of Compliance Law.
2. The retail sector finally regulated by Compliance technics.
"Distribution law" always struggle to find its place, between Competition law and Contract Law, especially because we cannot consider it as a common "sector".
The Conseil constitutionnel (French constitutional court) refused a structural injunction power to the authority because it was contrary to business freedom and without any doubt ethics of business is not sufficient to the equilibrium of the sector.
Through commitments given against a stop of pursuits relying on structuring contracts, it is by Compliance law that a Regulation law free of the condition of existence of a sector could leave.
3. The political nature of Compliance law in the retail sector
As for digital space, which is not a sector, Compliance law can directly impose to actors imperatives that are strangers to them.
In the digital space, the care for fighting against Hate and for protecting private life; here the care for small and very small suppliers.
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.
As the previous cycles devoted to the general theme of Compliance and aiming to build a "Compliance Law", this cycle takes a particular aspect of this branch of the Law being built and developed, which was applied even before being conceived. Since pragmatism preceded or even prevailed, the theme chosen this year is: Les outils de la Compliance(Compliance Tools).
These conferences will be in French
These tools are very diverse, not only among themselves but according to the sectors in which they are deployed or according to the geographical areas in which they are applied. It is necessary to apprehend them by going beyond the description of the instrument literally shown, as the texts or the promoters show it, without immediately going up to too large generalities. For this reason, some conferences will focus on specific, well-identified mechanisms, such as risk mapping or alert. They may also consider how Compliance Law uses more general tools to achieve its goals, such as lawsuits, incentives or new technologies. This will make it possible to problematize more clearly perceptible difficulties in Compliance Law, such as the adequacy or inadequacy of the constraint in relation to the aims, the consideration or not of the legal and political geography, the articulation or not of the tools between them.
These various conferences will take place in several places, according to the part taken by the different university structures that this year contribute to the Journal of Regulation & Compliance (JoRC) for the realization of the cycle. The result will be two books, one in French: Les outils de la Compliance, the other in English: Compliance Tools.
This cycle of conferences about Compliance tools will begin in November 2019 and will last until June 2020.
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 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)
About electric Regulation, Senegal remained halfway. Indeed, it has instituted a regulator, the "Commission de Régulation du Secteur de l'Electricité - CRSE)" (Senegale Regulatory Commission of Electricity Sector), but it built the sector around a public operator, SENEGEL with which the State has concluded a concession contract . This operator has the legal monopoly on the transport and distribution. As for production, it has the right to purchase electricity produced by independent producers, as it can sell them electricity if necessary. The prices are regulated by the regulator, through a cap.
On 4 August 2012, the regulator has reported a plan of action. This is to make more transparent the relationship between the public operator and independent producers, the information being given to consumers. This is for encouraging them to act and obtain prices more favorable. This incentive is an alternative to net more liberalization of the sector.
In a report published on October 26th, 2010, the Autorité de Régulation de la République Islamique de Mauritanie (the Mauritanian Multi-sector Regulatory Authority) orders three mobile telephony operators to enhance quality of service provided in the country. Mauritel SA, Mattel SA and Chinguitel SA all have one month from October 26th, 2010, to comply with their obligations to provide less than 5% of dropped phone calls.
FRENCH
Fiche thématique (Télécommunications): L'Autorité de Régulation mauritanienne ordonne à trois opérateurs de téléphonie mobile d'augmenter leur qualité de service.
Dans un rapport publié le 26 octobre 2010, l'Autorité de Régulation de la République Islamique de Mauritanie ordonne à trois opérateurs d'augmenter la qualité des services délivrée dans le pays. Mauritel SA, Mattel SA et Chinguitel SA disposent d'un mois à partir du 26 octobre 2010 pour se conformer à leur obligation de fournir moins de 5% de perte d'appels téléphoniques.
GERMAN
Thematischer Bericht (Telekom): Die Regulierungsbehörde Mauretanien befehlt, dass drei Mobilfunkanbieter die Dienstqualität verbessern.
In einem Bericht, der am 26. Oktober 2010 veröffentlicht wurde, hat die Autorité de Régulation de la République Islamique de Mauritanie (die multi-sektorielle Regulierungsbehörde der Islamische Republik Mauretanien) befehlt, dass drei Mobilfunkanbieter die Dienstqualität verbessern. Mauritel SA, Mattel SA und Chinguitel SA verfügen über einen Monat ab dem 26. Oktober 2010, um weniger als 5% unterbrochener Anrufe anzubieten.
SPANISH
Informe Temático (Telecom): La Autoridad Regulatoria de Mauritania ordena a tres operadores de teléfonos móviles de incrementar su calidad de servicio.
En un informe publicado el 26 de octubre del 2010, la Autorité de Réglation de l République Islamique de Mauritanie (la Autoridad regulatoria multi-sector de Mauritania) ordena a tres operadoras de teléfonos móviles de realzar la calidad del servicio proveído en el país. Se les ha dado un mes comenzando el 26 de octubre del 2010 tanto a Mauritel SA, Mattel SA como Chinguitel SA para llenar los requisitos y cumplir con las obligaciones de proveer menos del 5% de llamadas cortadas.
CHINESE
主题性报告（电信）：毛里塔尼亚监管机构勒令三家移动电信运营商提高其服务质量。
在2010年10月26日所公布的报告当中，Autorité de Régulation de la République Islamique de Mauritanie（毛里塔尼亚伊斯兰共和国跨部门监管机构）勒令该国三家移动电信运营商改善其国内电信服务质量。自2010年10月26日起，Mauritel SA, Mattel SA and Chinguitel SA三家公司要在一个月期限之内将其通话掉线率控制在5%以内。
