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Oct. 22, 2013
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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.
Updated: June 11, 2012 (Initial publication: June 7, 2012)
Breaking news
March 3, 2018
JoRC
On 2 March 2018, Koen Lenaerts came to an amphitheater at the University Panthéon-Assas (Paris 2) to inaugurate the series of conferences organized by the Journal of Regulation & Compliance (JoRC), a cycle that has the general title: Pour une Europe de la Compliance (For the Europe of Compliance). The School of Public Affairs of Sciences Po, the Department of Economics of Sciences Po, the Ecole doctorale de droit privé (Doctoral School of Private Law) at the Université Panthéon-Assas- Paris 2 (Panthéon-Assas University - Paris 2) and the School of Law of the University Panthéon-Sorbonne (Paris I), are associated with this cycle. Many personalities will take the floor. They will give contributions for the book that will be published in the Régulations & Compliance Series edited by Marie-Anne Frison-Roche at Éditions Dalloz.
After an admirable lecture offered by Koen Lenaerts, Antoine Garaponfootnote-94, secrétaire générale de l'Institut des Hautes Études pour la Justice (Secretary General of the Institute of Higher Studies for Justice), reacted perfectly in "premier discutant", stressing as everyone his great interest in listening to the demonstration made by the President of the Court of Justice.
He felt that it was hardly possible to speak of "Compliance Law"!footnote-91, because it is above all a Law that ceases to be "prescriptive" to become "relational" ", companies organizing themselves to put goals that are reached in relation with the public authorities. Companies thus develop a "systemic Law" that develops on its own, with alert mechanisms put in place directly by companies that care before the continuity of their economic activities. The notion of third parties disappears, a sort of "direct government" takes the place of the "indirect government" represented by the "third party", the companies having integrated this third party into their own organization, which upsets their relation to time and puts in place a "metajuridic" system.
Antoine Garapon then asks the question of how such a "conversion" could take place, that is to say, this transition of control systeme from the Ex Post mode to the Ex Ante, resulting in companies internalize the task of effective rules!footnote-92. He believes that on the one hand, the system that advocates it has the "market power to impose it and, on the other hand, those who demand it in this system make a" vision of the world "explicit. Antoine Garapon adds the need for a "moral ambition".
However, Antoine Garapon pointed out the United States have met these three conditions.
In his discussion, Antoine Garapon, on the other hand, felt that Europe did not bring them together and that Europe "starts with a handicap", because it does not consider worlwide, because it has no vision of the world, because it has not operated on moral integration.
He insisted that the Court of Justice can carry these three conditions, especially with regard to personal data. Because this is about the digital that Europe has a market power. It is about personal data that the Court of Justice is the place where Europe is both a market and values!footnote-93.
This is why the Court of Justice of the European Union does have a central role for this construction.
______
These very constructed, very instructive remarks of Antoine Garapon, thanks to him, perfectly showed, in mirror of the conference of the President of the Court of Justice, the stake: the future.
Beyond the disputatio around the definitions, it is indeed the question of whether or not Europe will build its own compliance mechanisms.
By finding a vocabulary of its own. Not only in French, because the Law is made of words, but also with new words, which leave us "translated-glued" and which will carry European ambitions, as it was the case for the "right to be forgotten" ", very often quoted in the discussion.
Of course, this presupposes "power". But we must already pretend. And the Law has always claimed to pretend. It is in this that it is an Order. This is probably why President Koen Lenaerts insisted on the "juridicization" of compliance, as does the hand of Law that arises on an object.
March 3, 2018
JoRC
Among all the things that were important to remember, one of the things that struck me most in the extraordinary conference of the President of the Court of Justice of the European Union Koen Lenaerts on "Europe of the Compliance "held on March 2, 2018 was his ability to make" live Europe ". Not only to make it understand but also to make it "live". Here is the challenge: that compliance is not an accumulation of processes without reason and without flesh, but a living whole taking its meaning into consideration of the human being, a person whose judge is concerned.
On 2 March 2018, Koen Lenaerts therefore came to an amphitheater at the University Panthéon-Assas (Paris 2) to inaugurate the series of conferences organized by the Journal of Regulation & Compliance (JoRC), a cycle that has the general title: Pour une Europe de la Compliance (For the Europe of Compliance). The School of Public Affairs of Sciences Po, the Department of Economics of Sciences Po, the Ecole doctorale de droit privé (Doctoral School of Private Law) at the Université Panthéon-Assas- Paris 2 (Panthéon-Assas University - Paris 2) and the School of Law of the University Panthéon-Sorbonne (Paris I), are associated with this cycle. Many personalities will take the floor.
Presented by Professor Thierry Bonneau, the conference made by President Koen Lenaerts was extremely rich and solid, perfectly constructed. Everyone had known the quality of the conference to be delivered by the President of the CJEU. The content of his demonstration will be found in the article he will give for the book that will be published in the Régulations & Compliance Series edited by Marie-Anne Frison-Roche at Éditions Dalloz. And the reader will find all the strength of this demonstration. This is necessary to venture into this area of "Compliance" : Koen Lenaerts recalled that we were still looking for the definition and a French term that would do justice to a satisfactory definition!footnote-90. This question was echoed by Antoine Garapon in his discussion.
Embodying the firmness that must be shown when words are uncertain, President Koen Lenaerts emphasized that the European Union is based on "Rule of Law". This means that the behaviors must respect Law. For that, - and that is why it is necessary to take in the literal sense the English expression "to comply with", the enterprise must not be passive but to make sure that its behavior is actually respectful of legal prescriptions. In this, there is a general paradigm shift, which inverses the relation betwenn the operator and the rules, from the Ex Post to the Ex Ante!footnote-89 as the entreprise has to be itself active to secure the effectiveness of the rule of Law. This internalization of the rule by the company develops both a procedural culture and a behavioral culture, in which companies can express an ethical dimension and build a "Trust Pact" !footnote-88 with states and public authorities. This change has been brought about by globalization, since states no longer have the means to impose ethical norms of behavior on businesses through the Ex Post intervention of their jurisdiction, but States like companies are gaining the benefit of this internalisation of rules in compagnies because the Compliance is inseparable from the accountability by which the company is compelled to justify that it actually tends to achieve the overall goals assigned by the public authority.
Thus, after exposing the general movement by which Europe opened up to this upheaval, President Koen Lenaerts took on three technical dimensions crossed by this new conception. The first is the Financial Markets Law. The second is Competition Law, about which the President has notably developed the Court's reflections on whether the adoption of a compliance program by an enterprise found to have violated Competition Law, in particular by "negligence" is neutral, or constitutes a mitigating circumstance or constitutes an aggravating circumstance. This question was taken up after the presentation in the discussion with the room. The third is that of personal data. Taking again as in a waltz with three times his remarks, the president of the Court of Justice found that the compliance, whereas it consists in transforming the Ex Post into Ex Ante becomes juridicalised and in this the Court of justice holds its not only in Europe but also in relation to the world, without however ever forgetting that it is the States that are drawing up the rules that are the foundation of Europe.
We will find in the article that will be published all these precious elements and no doubt that the elegance of the pen will be equal to that of speech.
But, written exercise requires, the reader will not find what we had the chance to attend: the story of two cases by the one I would prefer to name the "Professor Koen Lenaerts".
Two famous cases, which we teachers, comment and remind in our courses, that students learn and recite, quote in their copies. But never that way.
The first case is the Schrerms case, where the court said that Facebook could not transfer this person's personal data to the United States since he was opposed to it. To make it clear, the President revived it through the litigant, who was a student and for this reason he spoke directly to the students present in the amphitheater. He pointed out that the plaintiff at the origin of the case was a law student, like them. He detailed his situation in Austria, making some quotes in perfect German, pointing out that this student was now at the doctoral stage, inviting students to be brave, as he was. At each episode of the story, the speaker told the students, making some detours on his own student life because finally we were all in family ... Alma Mater. But his hands were telling the story even more: they were thrown themselves into the story, they brewed the space, it seemed as if they themselves were no more grandiloquent than the speaker but found their place exactly , in a magisterial position. Yes, here is a president in front of which companies have a hard time hiding the truth, a president with such firm hands and whose torso does not move but turns to the left and right to talk to everyone.
The second story was even more beautiful. The Google Spain case, I know it. I even know it by heart. I read it, commented on it, cited it a lot of times ... But all of a sudden that's what happened to a small Spanish merchant: President Koen Lenaerts told us his story, and I rediscovered the case. A small Spanish shopkeeper, whose name the speaker uttered in perfect Spanish, obtained from the Court of Justice that his "right to be forgotten" was recognized. President underlined the apparent paradox of his insistence for the appearance of his surname in the judgment by which this person had thus obtained the erasing of his surname! Yes, I did not notice ... Why did he ask for the mention of his name in the right to have his name deleted? Because it's a matter of honor. This is what the speaker insisted: do not joke with honor. And if you do, even Google will lose.
The merchant had been subject to a forced property sale procedure because of financial difficulty, which spanish newspapers had echoed. His honor was been trampled. Then, by a happy return of fortune, he had recovered his property, his prosperity, his reputation. But from that, the press had not talked about it. Some lines in a newspaper of legal announcements, but that it is nothing for the human soul. That's why he wanted these mechanical digital links to disappear, which always and for all end up with articles presenting him as a wretch without ever ending up with articles presenting him as a prosperous merchant (because of the non-existence of these second articles).
The speaker emphasized this dimension very much. And we know that the General Regulations that will come into force in May 2018 on personal data, which intrigues so much the Americans, draws in the judgment Google Spain its main solution in the matter: this "right to be forgotten" , subjective right so strange.
He emphasized this dimension very much. And we know that the General Regulations that will come into force in May 2018 on personal data, which intrigues so much the Americans, draws in the judgment Google Spain its main solution in the matter: this "right to be forgotten" , subjective right so strange.
Listening to President Koen Lenaerts, how not to think of Carbonnier? to his articles of it, especially on sociological rule : "small causes, great effects"?
From this conference, it will remain a great article, but as in the theater, where the ephemeral is part of the beauty of this art, what were these two stories, told by the one who knew how to listen when it was necessary to decide the two cases, stories told with the two firm hands that danced inviting students to enter this round, even as the President of the Court of Justice had to leave immediately to Luxembourg to hold such heavy obligations, yes it was simply beautiful .
Updated: Sept. 25, 2012 (Initial publication: June 12, 2011)
Sectorial Analysis
ENGLISH
On May 12, 2011, both Neelie Kroes, the European Commissioner for the digital agenda within the European Commission, and Larry Strickling, Assistant Commissioner for Communications and Information within the United States Department of Commerce, sent a notification to the ICANN, a private association that manages Internet domain names. First of all, they agreed with the principle of self-regulation of Internet domain names by the ICANN. But, they requested a reform of its “governance” to improve its transparency and better take into account public authorities’ recommendations.
Association - Conflict resolution - Domain name - European commission - Internet - Internet Corporation for Assigned Names & Numbers (ICANN) - Memorandum - Power - Private regulator - Regulatory Authority - Self regulation - Soft law - Transparency - United Nations (UN) *
* In The Journal of Regulation, these keywords are done by the Editor and not by the Author.
PORTUGUESE
Informe bibliográfico (Internet): Autoridades europeias e norte-americanas notificaram a ICANN, uma associação privada encarregada da auto-regulação de nomes de domínio na Internet, que ela deve adotar uma governança mais transparente e também adotar as recomendações de estruturas públicas.
Em 12 de maio de 2011, tanto Neelie Kroes, o Comissário Europeu para a agenda digital dentro da Comissão Europeia, quanto Larry Strickling, Comissário Assistente para Comunicações e Informação dentro do Departamento de Comércio dos Estados Unidos da América, enviaram uma notificação para a ICANN, uma associação privada que gerencia nomes de domínio na internet. Em primeiro lugar, eles concordaram com o princípio da auto-regulação dos nomes de domínio na Internet pela ICANN. No entanto, eles solicitaram uma reforma em sua governança para melhorar sua transparência e melhor levar em consideração as recomendações de autoridades públicas.
Associação – Resolução de conflitos – Nome de domínio – Comissão Europeia – Internet - Internet Corporation for Assigned Names & Numbers (ICANN) – Memorandum – Poder – Regulação privada – Autoridade de regulação – Auto-regulação – Soft law – Transparência – Nações Unidas (ONU)*
* No Journal of Regulation, as palavras-chave são fornecidas pelo Diretor, e não pelo Autor.
ITALIAN
Relazione bibliografica (Internet): Le autorità europee e nord americane hanno indicato che l’ICANN, una società privata che ha lo scopo di auto-regolare i nomi a dominio di internet, dovrà aumentare la trasparenza della gestione ed adottare le raccomandazioni delle strutture pubbliche
Il 12 maggio 2011, Neelie Kroes, Commissario europeo per l’agenda digitale della Commissione europea, e Larry Strickling, Commissario assistente per le comunicazioni e l’informazione del Dipartimento del Commercio degli Stati Uniti, hanno entrambi dichiarato che l’ICANN, una società privata che gestisce i nomi a dominio di Internet, deve riformare il proprio sistema di gestione migliorando la sua trasparenza e deve prendere in debita considerazione le raccomandazioni provenienti dalle autorità pubbliche.
Associazione - Autorità di regolazione - Autorità privata di regolazione - Auto-regolazione - Commissione Europea - Internet - Internet Corporation for Assigned Names & Numbers (ICANN) - Memorandum - Nazioni Unite (ONU) - Nomi di dominio - Potere - Risoluzione di controversie - Soft law - Transparenza *
* In The Journal of Regulation, le parole chiave sono responsabilità dell’Editore e non dall’Autore.
Other translations fortcoming.
Updated: June 8, 2010 (Initial publication: May 19, 2010)
Sectorial Analysis
Main information
The national register of trusts has finally become a reality thanks to a decree published on March 2, 2010. It only use will be to inform various government administrations, in order to reinforce the tools available for fighting tax evasion, money laundering, and terrorism financing.
Aug. 24, 2020
Newsletter MAFR - Law, Compliance, Regulation
Full reference: Frison-Roche, M.-A., The control by regulator of the essential infrastructure manager's investment plan: example of electric network and the notion of "doctrine", Newsletter MAFR - Law, Compliance, Regulation, 24th of August 2020
Read by freely subscribing other news of the Newsletter MAFR - Law, Compliance, Regulation
Summary of the news
On 31st of July 2020, the Commission de Régulation de l'Energie (CRE and French energy regulator) has examined the investment plan of the French electric network manager (RTE) as it does every year. This investment plan is an economic document but it also contains societal purposes, especially the adaptation of the electric network in order to integrate renewable energies.
The control by the CRE is not a financial control. The crucial operator (RTE) is free to decide the way it wants to manage its budget. The CRE just advices on the financial side by recommending for exemple to be more flexible in its financial strategies. The true CRE's control is about the investment plan's general orientations, the methodology of needs analysis and crucial operator's investment choices which must be aligned with those of the regulator.
Such a control leads to the emergence of an "investment doctrine" from the side of the crucial operator, mixing its own choices and the regulator's guidelines. Beyond this, the elaboration of the investment plan is the result of a true co-writing between the regulator and the firm which discuss together, exchanges points of view and methods. Such a method, expressing a kind of coregulation, could be used in other sectors.
Updated: Sept. 10, 2012 (Initial publication: June 8, 2012)
Sectorial Analysis
Aug. 25, 2020
Newsletter MAFR - Law, Compliance, Regulation
Full reference: Frison-Roche, M.-A., The always in expansion "Right to be Forgotten": a legitimate Oxymore in Compliance Law built on Information. Example of Cancer Survivors Protection, Newsletter MAFR - Law, Compliance, Regulation, 25th of August 2020
Read by freely subscribing other news of the Newsletter MAFR - Law, Compliance, Regulation
Summary of the news
The "right to be forgotten" is an invention of the Court of Justice of the European Union during the case Google Spain in 2014. It implies that digital firms block the access to personal data of someone who asks it. This "right to be forgotten", which permits to impose secret to third parties has largely been generalized by GDPR in 2016. This new fundamental subjective right is a very political and European right. United-States which, on the contrary of Europe, did not experience nazism, links the "right to be forgotten" to the protection of consumer, conception which especially leads California Consumer Privacy Act adopted in 2018 to link this right to a situation of absence of necessity of this data for the firm which obtained it.
In Europe, this willingness to protect directly the person increases the scope of such a subjective right. Thus, in France and in Luxembourg, since 2020, a cancer survivor can thus ask that such an information is not accessible among his or her health data, especially for insurance companies which use them in their risk calculus to set premium amount. Netherlands will do the same in 2021 to fight against discrimination between banks' and insurances' clients.
The "monumental goal" is therefore not so much here the protection of individual freedoms as the protection of the vulnerable person, which is bye the way the keystone of a Compliance Law, concealing sometimes prohibition to circulate information (as here) and sometimes obligation to circulate information (in other cases, where the alert must be given) depending on whether vulnerable people are protected either by one or by the other.