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 concept of 'agency', sometimes confused with the one of 'Regulator', designates a way of deconcentrating the State. Away from a Jacobin outlook, states have indeed gradually devolved their sovereign responsibilities to other institutions, which are often geographically distant from the state's political capital city. These agencies are a form of technical decentralization because they are in charge of operational tasks and specific expertise, e.g., as regards employment, environment or health issues. This model, which is very common in Scandinavian countries, is often associated with federal outlooks, like in the United States. It is still fairly remote to the French model that remains to this day built on the idea of a centralized state. So far, France has only developed a few agencies (e.g., France Trésor, tasked with managing France's government debt and cash positions, or the Regional Health Agencies).
In a different perspective, although the two notions are homonyms, the American financial theory developed the notion of 'agency' to describe the relationship between the corporate officer (the agent) and the shareholder (the principal), who empowers the first to act on his behalf to serve his interest. Information asymmetry and conflict of interest mark this relationship, which explains that this theory helped developing multiple safeguards, conveyed by the Financial Regulation.
Complete reference : Joseph E. Harrington, Joseph E., and Katsoulacos, Yannis (eds), Recent Advances in the Analysis of Competition Policy and Regulation, Elgar Publishing, United Kingdom, 2012, 400 p.
The Journal of Regulation (JoR) was created in 2009 Marie-Anne Frison-Roche to study Regulation as a developing phenomenon.
Regulation can be defined as a set of mechanisms, rules, institutions, decisions and principles that allow certain sectors of the economy to grow and maintain equilibriums that they could not establish solely via their own economic strength.
Over the past years, 'common rules' to all the sectors impacted by Regulation (e.g., transports, energy, telecommunications, banking, finance, insurance, etc.) have appeared beyond the sectorial regulations that have been issued for the past decades, whose specificity were once justified by the great variety of sectorial technicalities that used to impregnate in return the sets of rules designed to regulate those sectors.
Neither economics nor political science - namely throughout the declining figure of the State - are sufficient to capture this common organisation and projection into the future that Regulation is, which we must understand to anticipate its evolution and act in accordingly.
The newly developed "Regulation Law" restores what is common to all of those sectors using a triangulated approach between Law, Economics and Politics. This is all the more important since Regulation already tends to dissociate itself from its founding notion of "sector", not only to be increasingly associated with the more inclusive one of "branch", but also to get more and more autonomous- that is, for instance, the case of the digital issues that cannot be reduced to a "sector" anymore, but that still needs to be regulated.
In order to follow, process, analyze and think about these issues, the Journal of Regulation (JoR),a mainly online-based bilingual publication (English-French), issues news reports, articles and thematic files.
The Journal of Regulation (JoR) issues a weekly newsletter to more than 10.000 people interested in Regulation throughout the world.
The Journal of Regulationregularly organizes public events. The last one, which is upcoming, is entitled 'Regulation, Supervision, Compliance'.
The Journal of Regulationissues its work in the RégulationsSeries, which are directed by Marie-Anne Frison-Roche and published by the Éditions Dalloz.
The Journal of Regulationoperates basing on different committees, particularly a Partners Committee including the main organisations, companies and law firms acting within the field of regulated sectors, and a Global Committee composed of the main Regulatory Authorities.
On 22nd of September 2017, Transport of London (TFL), London Transport Regulator, refused to renew the licence, granted on 31st of May 2012 for 5 years, authorizing Uber to transport people because of criminal offenses committed by Uber's drivers. On 26th of June 2018, The Westminster Court prolonged Uber's licence for 15 months under the condition that the platform prevent the reproachable behaviors of its drivers. After these 15 months, the TFL refused once again to prolonge Uber's licence because of the persistence of aggressions against passengers. Uber, once again, contest this decision before the Westminster Court.
In a decision of 28th of September 2020, the Court observes that during the 15 months, the platform implemented many measures to prevent aggressions, that the level of maturity of these measures has improved over time and that the number of offenses was reduced over the period (passing from 55 in 2018 to 4 in 2020). The Court estimated the the implementation of this actions is sufficient to grant a new licence to Uber.
We can learn three lessons from this decision:
The Compliance obligation is not a result obligation but a mean obligation, which means that it is not reasonable to expect from a crucial operator (Uber, for instance) that it prevent every cases of agression but that it is salient to judge it on the effort it deploys to try to be closer to this ideal situation. Moreover, the crucial operator must be proactive, that is going away from the figure of passive subject of Law who apply measures enacted by the regulator in terms of fighting against aggressions to be an actor of the research of the best way to fight abusive behaviors, internalizing this "monumental goal.
The judge appreciates the violation committed by those whose the firm is responsible "in context", that is evaluates the concrete situation in a reasonable way.
It is the judge who decides in last resort and like the crucial operator, it must be reasonable.
Professor Hervé Causse released a book of over 800 pages: Droit bancaire et financier (Banking and Financial Law).
Typically, there are "Banking Law" on one side and "Financial Law" on the other, each giving rise to separate books, Banking Law having long since detached from the Commercial Law and do having never really left Civil Law, Financial Law being more subject recently of books.
Typically, there are the "Banking Law" on one side and the "Financial Law" on the other, each giving rise to separate books, banking, having long since detached from the Commercial Law and do having never really left the Civil Law, financial law being more subject recently of books.
In the books of "Banking Law", we find the contracts, transactions (credit), mechanisms (like money), institutions (such as the National Central Bank) and sometimes specific repressive rules.
In the books of "financial law", first of all, we meet financial market, financial transactions (like all securities transactions or takeovers bids), the economy is much more present, the US Law being at home because of extraterritoriality as either model, repressive rules slipping everywhere, to the heart of what appears to be today a branch of law.
The important work of Hervé Causse goes further and corresponds to reality: it merges the Banking and Financial Law.
He does it because his work is based on the life of the sector, that is to say the professionals. In fact, professionals work in banks. Then he describes those who admit and control their activities, that is to say the authorities of supervision and regulation. He goes on to describe to the reader the instruments, financial prowess that the bankers invent.
Thus sucked by financial reality, what is left of the civil commitment of Banking Law? To take just one example, when the author discusses the concept of "banking service" from that of "financial service", he finds the uncertainty of this notions. The Banking Law is thus trying to forget the Civil Code, the “deposition” techniques being one example.
Thanks to the book of Hervé Causse, the reader understands that the rules now being written by those designing financial regulation, these rules must find their bones in the financial regulatory system.
This article is a continuation of the Regulatory Law Review’s first public symposium, entitled "The Role of Supreme Courts in Economic Cases", which was held on January 25, 2010.
FRENCH
Article : Régulation et les Cours Suprêmes, les perspectives transatlantiques
Cet article fait suite au premier symposium public organisé par la Regulatory Law Review intitulé "Le rôle des cours suprêmes en matière économique" qui a eu lieu le 25 janvier 2010.
GERMAN
Dieser Artikel folgt die erste Fachkonferenz der Regulatory Law Review zum Thema "Die Rolle der Oberster Gerichtshofen im wirtschaftlichen Fällen", die am 25. Januar 2010 stattfand.
SPANISH
Artículo: Regulación y cortes supremas: perspectivas transatlánticas.
Este artículo es la continuación del primer simposio público organizado por la Regulatory Law Review, titulado “El rol de las cortes supremas en casos de materia económica," que tuvo lugar el 25 de enero del 2010.
