Virtual currency is a perfect example of the difficulties of interregulation: indeed, the bitcoins are currencies created on the Internet, usually to play games, such as poker. Thus intersect banking regulation, banking supervision, regulation and control of the game, Internet regulation itself.
In the US, the situation is complicated in that banking regulation is exercised at the state level, while the Internet is subject to intervention by federal regulators, including the Federal Communication Commission.
But, and the Compliance Mechanism has often been brought closer to the contractual mechanism, this is only relevant if both parties are willing to do so. This is technically true, for example for the Deferred Prosecution, which requires explicit consent. This is true in a more general sense that the company wants to choose itself how to structure its organization to achieve the goals politically pursued by the State. Conversely, the compliance mechanisms work if the State is willing to admit the economic logic of the global private players and / or, if there are possible breaches, not to pursue its investigations and close the file it has opened, at a price more or less high.
But just say No.
As in contractual matters, the first freedom is negative and depends on the ability to say No.
The State can do it. But the company can do it too.
The company sets out in a warning to the market that it is the object of a requirement on the part of the German Motor Authority (Kraftfahrt-Bundesamt) of an allegation of fraud, by the installation of a software, aimed at misleading instruments for measuring emissions of greenhouse gases on cars using diesel.
It is therefore an environmental compliance mechanism that would have been intentionally countered.
On this allegation, the Regulator both warns the company of what it considers to be a fact, ie compliance fraud, and attaches it to an immediate measure, namely the removal of the circulation of 42,000 vehicles sold or proposed by Daimler with such a device.
And the firm answers : "No".
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Which is probably only beginning, since a No ends the dialogue of Ex Ante to project in the Ex Post sanction procedures, calls 6 observations:
1. No doubt Daimler, a German car manufacturing company, has it in mind in this allegation of fraud calculating pollution of its diesel cars what happened to his competitor Volkswagen: namely a multi-billion dollar fine, for lack of compliance in a similar hypothesis (so-called dieselgate). The strategic choice that is then made depends on education through the experience of the company, which benefits as such from a previous case that has had a very significant cost. Thus educated, the question is to measure the risk taken to refuse any cooperation, when the company can anticipate that it will still result in such an amount ....
2. In addition, we find the difficulty of the distinction of Ex Ante and Ex Post. Indeed, saying No will involve for the company a cost of confrontation with the Regulator, then the peripheral jurisdictions or review courts. But in Germany, the Government itself, concerning a bank threatened with compliance proceedings and almost summoned by the US regulator to pay "of its own free will" a transactional fine, felt that this was not normal, because it must be the judges who punish, after a contradictory procedure with due process and after established facts.
3. However, this is only an allegation, of probable assertions, of what legally allows to continue, but which does not allow to condemn. The confusion between the burden of proof, which presupposes the obligation to prove the facts before being able to sanction, and the burden of the allegation, which only supposes to articulate plausibility before being able to prosecute, is very damaging, particularly if we are committed to the principles of Repressive Law, such as the presumption of innocence and the due process. This distinction between these two probationary charges is at the heart of the probatory system in the Compliance Law. Because Compliance Law always looks for more efficiency, tends to go from the first to the second, to give the Regulator more power, since businesses are so powerful ....
4. But the first question then arises: what is the nature no so much of the future measure to be feared, namely a sanction that could be taken later, against Daimler, if the breach is proven, or which will not be applied to the firm if the breach is not established; but what is the nature of the measure immediately taken, namely the return of 42,000 vehicles?
This may seem like an Ex Ante measurement. Indeed, the Compliance assumes non-polluting cars. The Regulator may have indications that these cars are polluting and that the manufacturer has not made the necessary arrangements for them to be less polluting (Compliance) or even organized so that this failure is not detected ( Compliance fraud).
This allegation suggests that there is a risk that thiese cars will polluting. They must immediately be removed from circulation for the quality of the environment. Here and now. The question of sanctions will arise after that, having its procedural apparatus of guarantees for the company that will be pursued. But see the situation on the side of the company: having to withdraw 42,000 vehicles from the market is a great damage and what is often called in Repressive Law a "security measure" taken while the evidence is not yet met could deserve a requalification in sanction. Jurisprudence is both abundant and nuanced on this issue of qualification.
5. So to withdraw these cars, it is for the company to admit that it is guilty, to increase itself the punishment. And if at this game, taken from the "cost-benefit", as much for the company immediately assert to the market that this requirement of Regulation is unfounded in Law, that the alleged facts are not exacts, and that all this the judges will decide. It is sure at all whether these statements by the company are true or false, but before a Tribunal no one thinks they are true prima facie, they are only allegations.
And before a Court, a Regulator appears to have to bear a burden of proof in so far as he has to defend the order he has issued, to prove the breach which he asserts exists, which justifies the exercise he made of his powers. The fact that he exercises his power for the general interest and impartially does not diminish this burden of proof.
6. By saying "No", Daimler wants to recover this classic Law, often set aside by Compliance Law, classic Law based on burden of proof, means of proof, and prohibition of punitive measures - except imminent and future imminente and very serious damages - before 'behavior could be sanctioned following a sanction procedure.
Admittedly, one would be tempted to make an analogy with the current situation of Boeing whose aircraft are grounded by the Regulator in that he considers that they do not meet the conditions of safety, which the aircraft manufacturer denies , Ex Ante measurement that resembles the retraction measure of the market that constitutes the recall request of cars here operated.
But the analogy does not work on two points. Firstly, flight activity is a regulated activity that can only be exercised with the Ex Ante authorization of several Regulators, which is not the case for offering to sell cars or to drive with. This is where Regulatory Law and Compliance Law, which often come together, here stand out.Secundly, the very possibility that planes of which it is not excluded that they are not sure is enough, as a precaution, to prohibit their shift. Here (about the cars and the measure of the pollution by them), it is not the safety of the person that is at stake, and probably not even the overall goal of the environment, but the fraud with respect to the obligation to obey Compliance. Why force the withdrawal of 42,000 vehicles? If not to punish? In an exemplary way, to remind in advance and all that it costs not to obey the Compliance? And there, the company says: "I want a judge".
As part of a procedure initiated for anti-competitive behaviors, the European Commission has three times requested, between the 13th of March and the 11th of November 2019, from Facebook the communication of information, reitarated in a decision in May 2020.
Facebook contests it alleging that the requested documents would contain sensitive personal information that a transmission to the Commission would make accessible to a too broad number of observers, while "the documents requested under the contested decision were identified on the basis of wideranging search terms, (...) there is strong likelihood that many of those documents will not be necessary for the purposes of the Commission’s investigation".
The contestation therefore evokes the violation of the principles of necessity and proportionality but also of due process because these probatory elements are collected without any protection and used afterwards. Moreover, Facebook invokes what would be the violation of a right to the respect of personal data of its employees whose the emails are transferred.
The court reminds that the office of the judge is here constraint by the condition of emergency to adopt a temporary measure, acceptable by the way only if there is an imminent and irreversible damage. It underlines that public authorities benefit of a presumption of legality when they act and can obtain and use personal data since this is necessary to their function of public interest. Many allegations of Facebook are rejected as being hypothetical.
But the Court analyzes the integrality of the evoked principles with regards with the very concrete case. But, crossing these principles and rights in question, the Court estimates that the European Commission did not respect the principle of necessity and proportionality concerning employees' very sensitive data, these demands broadening the circle of information without necessity and in a disproportionate way, since the information is very sensitive (like employees' health, political opinions of third parties, etc.).
It is therefore appropriate to distinguish among the mass of required documents, for which the same guarantee must be given in a technique of communication than in a technic of inspection, those which are transferable without additional precaution and those which must be subject to an "alternative procedure" because of their nature of very sensitive personal data.
This "alternative procedure" will take the shape of an examination of documents considered by Facebook as very sensitive and that it will communicate on a separate electronic support, by European Commission's agents, that we cannot a priori suspect to hijack law. This examination will take place in a "virtual data room" with Facebook's attorneys. In case of disagreement between Facebook and the investigators, the dispute could be solved by the director of information, communication and medias of the Directorate-General for Competition of the European Commission.
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We can draw three lessons from this ordinance:
This decision shows that Procedural Law and Compliance Law are not opposed. Some often say that Compliance guarantees the efficacy and that Procedure guarantees fundamental rights, the protection of the one must result in the diminution of the guarantee of the other. It is false. As this decision shows it, through the key notion of sensitive personal data protection (heart of Compliance Law) and the care for procedure (equivalence between communication and inspection procedures; contradictory organization of the examination of sensitive personal data), we see once again that two branches of Law express the same care, have the same objective: protecting people.
The judge is able to immediately find an operational solution, proposing "an alternative procedure" axed around the principle of contradictory and conciliating Commision's and Facebook's interests has shown that it was able to bring alternative solutions to the one it suspends the execution, appropriate solution to the situation and which equilibrate the interest of both parties.
The best Ex Ante is the one which anticipate the Ex Post by the pre-constitution of evidence. Thus the firm must be able to prove later the concern that it had for human rights, here of employees, to not being exposed to sanctioning pubic authorities. This Ex Ante probatory culture is required not only from firms but also from public authorities which also have to give justification of their action.
In France, The "Autorité de la Concurrence" -ADLC (French Competition Authority) may deliver opinions. An association of importers of petroleum products asked it his opinion on statistics of sales made by each warehouse of petroleum products on each area of the national territory, published monthly. By notice on May 15, 2012, the Authority replied that such statistics on each operator are welcome because they generate transparency on the retail market, although it should be that statistics cover all of the territory and are published every six months or annually.
The new Autorité de Régulation des Activités ferroviaires (ARAF- Railway Activities Regulatory Authority) has been implemented.
GERMAN
Das Gesetz vom 8. Dezember 2009 führt die rechtlichen Rahmenvorschriften der Eisenbahnregulierung ein. Die neue „Autorité de Régulation des Activités Ferroviaires“ (ARAF – Einsenbahnregulierungsbehörde) ist eingesetzt worden.
SPANISH
La ley del 8 de diciembre del 2009 organiza la regulación del transporte ferroviario y establece la nueva Autoridad de regulación.
La nueva “Autorité de Régulation des Activités ferroviaires” (la Autoridad de regulación de las actividades ferroviarias) ha sido implementada.
This is currently the great battle and no one knows the outcome.
By its jugdment Grande Stevens of 4 March 2014, the European Court of Human Rights held that a state can't punish a person for a criminal penalty and administrative penalty for the same fact, criticized in market matters.
In the movement of the "dialogue of judges," the Conseil d'Etat (French State Council) asked 27 July 2014 the Conseil constitutionnel (French Constitutional Counci) l the question of compliance from this addition to the French Constitution for financial penalty in the use of public funds. By a decision of 24 October 2014, the Constitutional Council considered that this combination was consistent with the Constitution, mainly because the administrative sanction would be a "different kind" as punishment, because each pursues a different objective.
In turn, by a judgment of 17 December 2014, the Cour de cassation (French Judicial Supreme Court) decided to refer to the Constitutional Council two priority issues of constitutionality.
The presentation of the problem by the Cour de Cassation is the following. By its terms, it shows the hostility of the Court of Cassation to the doctrine hitherto developed by the State Council and the Constitutional Council.
First, the interpretation of French law provides penal proceedings against a person for facts on which it has been exonerated by the financial regulator by the Sanctions Committee thereof. This may contradict the constitutional principle of res judicata, as incurred administrative penalties are comparable to penal sanctions.
Second, this possibility could also contradict the constitutional principles of equality, necessity of criminal law and respect of non bis in idem mechanism.
Certainly, cleverly, the Supreme Court asks not accumulated penalties but of double jeopardy, which when one went out to "turn" the other.
Will the Constitutional Council get easier in accordance with European design without recant ? For example, it could estimate that the cumulative sentences is eligible as soon as proportionality is respected, but the extinction of a case before a judge removes the ability to exercise the other?
Or shouLawopen the wound? Finally decide to open rather multiple sides bear claw blows?
The Finance Committee of the Senate works to think in a more consistent way sanctioning powers of financial regulators need. Indeed, sanctions are tools that must be thought at first hand according to the goals that must be provided in the second part in relation to other tools the financial regulator has, in the third part in relation to the purposes and powers other authorities are responsible and have (supervisory authorities, European bodies, foreign and international judges, professional authorities).
It is in this overall vision that this storm that exceeds the glass of water must be replaced.
