The principle of "open internet" enshrined in the European regulation of 30th of April 2016 guaranteeing a non discriminatory access to Internet contents and services. However, there is no European regulator to implement such a principle. Is it possible to guarantee the effectivity of this principle without a central regulator in charge of this principle?
On 11st of June 2020, the BEREC (Body of European Regulators for Electronic Communications) adopted guidelines concerning the application of the open internet principle. The BEREC is not a European regulator but a network of national regulators aiming to coordinate their actions. This body is only a consultative body but its recommendations are taken into account by national authorities which have deep legal power, as Osborne-Clarke said about the technical implementation of the European principle of open internet at the national level.
It is thus non necessary to have a central regulator to ensure the effectivity of a principle since the moment when there is a local regulators network able to coordinate their actions through soft law.
The activity of money laundering is detrimental not only in itself but also because it permits the development and the sustainability of other criminal activities such as drug trafficking, weapon trafficking or human beings selling. Fighting against money laundering could permit to indirectly fight against these underlying activities, by the way very difficult to fight. Thus, the fight against money laundering has become a "monumental goal", which justifies the adoption of tools sometimes much more powerful than those used by classical criminal Law. For the sake of efficiency, the legal obligation to prevent money laundering is given to every body able to do it, as banks, real estate agents or gaming society, under the penalty of sanction.
On 10th of August 2020, the Luxembourgish financial market supervisor convicts the International Bank of Luxembourg to pay a fine of 4,5 millions of euros because of weaknesses detected in its process of fight against money laundering. However, when the sanction has been pronounced, the bank had already remedied the weaknesses identified. It is important to observe that what is important for Compliance Law, it is not that a non compliant behavior is punished but rather that the crucial firm modifies its behavior in order to being more efficient in the realization of the "monumental goal", only concern of the public authority. Thus, an Ex Post sanction against the crucial operator is not an end in itself and can be justified only if it permits to incite the crucial operator to act or rather to desincite to do anything. Compliance Law is an Ex Ante legal system.
In 2009, a European Observatory of counterfeiting and piracy was established. In May 2012, the European Observatory on Infringements of Intellectual Property Rights took its place, by the effect of a European Union regulation on 19 April 2012. This Observatory has the purpose to improve the understanding of the value of the rights of intellectual property, to measure their effectiveness and to promote the approximation of the laws of the Member States in this area. To do this, it organises meetings between administrations and the private sector and collects information about the laws and applicable case-law. States have to inform him.
Complete reference : DRUMMOND, France, Répression des abus de marché v. non bis in idem. Perspectives d'évolution, in Mélanges en l'honneur du professeur Nicole Decoopman, coll. "CEPRISCA, PUF, Paris, 2014, p.185-196.
The Conseil d'État advises the Government on the preparation of bills, ordinances and certain decrees. It also answers the Government's queries on legal affairs and conducts studies upon the request of the Government or through its own initiative regarding administrative or public policy issues.
The Conseil d'État is the highest administrative jurisdiction - it is the final arbiter of cases relating to executive power, local authorities, independent public authorities, public administration agencies or any other agency invested with public authority.
In discharging the dual functions of judging as well as advising the Government, the Conseil d'État ensures that the French administration operates in compliance with the law. It is therefore one of the principal guarantees of the rule of law in the country.
The Conseil d'État is also responsible for the day-to-day management of the administrative tribunals and courts of appeal.
This regulation aims in particular to develop competition in an important domestic market. For the development of competition, should be encouraged not only increase in consumption, new uses, innovation, but also the competition between suppliers.
For this, the portability of telephone numbers is essential. We find this issue of portability in other sectors, such as financial or energy sectors, but it is in the area of the phone portability turned into right because it is through the number that the person is called, or classified, or recognized
This portability is imposed with difficulty by regulators. The situation in India demonstrates.
The principle of number portability in the mobile phone sector was made by a regulation in 2009 by the Telecommunication Mobile Number Portability Regulations of 23 September 2009, the eighth addressing this issue.
Almost every year, a regulation adds to the previous regulations on this point. Thus, February 25, 2015, the regulator adopted a regulation 4 pages carrying the 6th amendment of the original text.
After the new system adopted by the regulator at the request of the Government who sent a letter to this effect November 23, 2014, as apparatus shown to increase the effectiveness of portability, it is mandatory that from may 3, 2015, any subscriber can change operator while keeping his phone, regardless of his place of residence in the country.
The difficulty comes precisely from the geographical vastness of the country, divided into 22 telecom service areas (called "circles"), the customer physically moving from one to another still having difficulty keeping his number.
Beyond the difficulty of passing the enactment of a principle to the reality of its application, since 6 years apart from each other, here we measure the importance of geography in Regulation.
Regulation can't be thought of the same way in the countries of relatively small size and huge countries as India, China or Brazil.
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 ...
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.
In regulatory law, municipalities are very important, as consumers but also as issuers standards. They can do this through contracts but also by unilateral standards such orders.
Indeed, a municipal law had made provisions for imposing rules on location, drilling and well operations and gas. These provisions were contrary to the law of the State of Ohio.
In its judgment of 17 February 2015, the state Supreme Court considers that this is enough to make the first non-compliant text of the Constitution because it is not possible for a local authority to exercise normative power by contradicting a state standard.
The stakes are certainly legal and lies in the implementation of the hierarchy of norms. But it is also political: in energy, due to the power of the operators, which is most likely not to be captured by the sector? The political power of the state or the political power of municipalities?
As suggested by one of the judges, must be taken into consideration which of the two powers depends most operators in the financing of campaigns.
Factual and determinant consideration, specific element of the US, an element which Kelsen couldn't think .....
