Three terms almost unknown to legal systems. Or at least considered as peculiar to Anglo-American legal systems: Regulation, Supervision, Compliance. So many expressions that would constitute Trojan horses by which the Common Law and american mechanisms would seize the other legal traditions to better bend European companies, especially banks, appropriating institutions, imposing strange methods.
Three words by which the invasion is carried out. Through the violence of repression and penalties of compliance, by the mildness of codes of conduct and corporate social responsibility. By laws as new as strange such as in France the law known as "Sapin 2" or the law instituting a "duty of vigilance" to companies whose failure would be to have successfully deployed internationally their activities.
One can have this defensive conception of Compliance, generating a "Compliance Law", produced by internalization in global economic operators of the Regulation Law, which are then subject to Supervision by Regulators, even though these firms are not regulated, as the Compliance does extend beyond supervised sectors (banks and insurance companies).
We can (and maybe must) have a more welcoming, and therefore more offensive, concept of Compliance. This can be the crucible of a relationship of supra-national Trust between these operators and regulators, the former being able to contribute as the latter to serving goals that all exceed them and whose fight against corruption and money laundering are only examples.
In this way, the issue is the construction of the European Compliance Law.
France Stratégie is the French public body that advises the French Government on economic and social policies.
In January 2015, one of its researchers, Medhi Nemri, published an analytical note: "Demain, l'Internet des objets (Tomorrow, the Internet of Things)".
The release sees the Internet as a "essential facility" whose development capabilities will allow interaction between objects: the "Internet of Things". This world of "connected devices" would be a "tipping".
Indeed, the objects are connected in the industrial system (smart manufacturing) and the municipal utilities are beginning to organize themselves in the same way. The note stresses the importance of fostering an open platform for all public services. Private space is organized in the same way, for example health, but individuals often see these connected objects as gadgets. Yet by the technology platforms, interconnection allows a general improvement of services. The more traditional companies may depend on Internet companies developing these platforms.
The issue of power of this economy are standardization and standard naming of objects. In this ecosystem, data are the creation of economic value.
The author of the paper proposes the idea of a "right to experiment" way to foster innovation. This would in mobility, health management, insurance. The note doesn't specify the consequences of such a "right to experiment": Does this mean a decline in sectoral regulations?
In any case, the note stresses the need to reaffirm the rights of persons and to protect privacy.
Indeed, President Koen Lenaerts has taken up the question of the influence of the adoption of a "compliance program" by a company when subsequently anticompetitive behavior is imputed to it.
Competition or regulatory authorities, as well as courts, have three possibilities: either to consider that the company had done what it could to prevent this behavior, to educate the persons in its charge, that this prevention not enough but must be taken into account in its "discharge" to lighten its sanction; on the contrary, to consider that the adoption of such a compliance program by the enterprise by which it expresses its express and pro-active desire to bear the efficiency of the standard itself while at the same time it disregards it constitutes an aggravating circumstance of its responsibility; consider that the fact must remain neutral in the judge's assessment of the behavior.
The Court of Justice stands by the third solution.
But everyone agrees that this is an essential question for which the arguments are well-founded, the European Commission, on the other hand, leaning towards the qualification of an aggravating fact.
During the discussion, it was emphasized in the opposite direction that in the perspective of Compliance as an incentive mechanism, not taking into account on the part of companies the adoption of such expensive programs is very discouraging for them. Moreover, this contradicts the definition of compliance as a "Trust pact" between the company and the public authority.
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QWhat can be done to remain from this discussion of a very great interest?
So it's a question that is still open, because the arguments are strong and we could say that "everyone is right", and companies that want to take note of their behavior, and authorities who can not be abused by what would be only a screen of behavior violating Law.
The question is maybe whether the choice of "neutrality" of the Court of Justice is a solution of waiting or a decision of non-choice, because one could never know if a company is "sincere" or not when it has adopted a Compliance Program.
It is probably here that a solution could be found: in probative mechanisms. Because in these matters, it is by technical processes by which the subject of law (that is to say the company) reveals that it has done everything to achieve the Compliance purpose (obligation of means strengthened). ).
It is probably by formulating probative requirements of this kind that the Court of Justice could move out of its position of neutrality. While it is true that the judge must be "impartial" in relation to the facts, the attitude of giving no "relevance" to a fact as important as the compliance programs is inherently annoying. It seems difficult to associate a substantive rule, nor is it desirable to practice casuistry. But, because Economic Law lends itself to it, a probationary system that the Court would make clear would perhaps be a good solution.
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Dans l'ouvrage qui paraîtra à la fin du cycle de conférences, un article sera inséré dans l'ouvrage sur cette question plus particulière de la portée des programmes de conformité sur l'appréciation du comportement de l'opérateur au regard des faits qui lui sont reprochés, question sur laquelle les différents régulateurs des différents systèmes juridiques divergent.
In the book that will be published at the end of the conference cycle, an article will be inserted in it on this particular question of the effects of compliance programs on the appreciation of the behavior of the enterprises with regard to the facts that are reproached, an issue on which the different regulators of the different legal systems diverge. For the moment.
Rating agencies are private companies that assess the risk of defaulting payment by debtors. As such, the rating of a borrower affects the value of the debt security it issued and that is to circulate in the markets. That is why the activity of credit rating agencies is critical to the security of financial instruments and the functioning of financial markets, but also to the whole global credit system. For instance, an AAA rating guarantees security to investors. Rating agencies helps building trust in financial markets and in the banking system. Henceforth, since everyone relies on them as they save people's time from seeking on their own information on securities or on those who issue them on the marks, international rating agencies have become crucial operators.
'Rating' has also become a business, which is now concentrated within the hands of three undertakings (two American and one French). It has often been said that these three are conflicted. Some have indeed brought up the fact as they have provided the markets with unreliable information (especially about subprime and securitization) prevented them to self-discipline, which eventually participated in the global spread of risks and defaults.
The difficult history between the rating agencies, whether they are considered as mere businesses, crucial operators or as companies undertaking a public service, which eventually led to implement a specific Regulation in the immediate aftermath of the financial crisis, shows how the information is a public common. This justifies the intervention of the Financial Regulator, namely to better protect the consumer. Should we go further on? Some have mentioned the idea of nationalizing the business and hand it over to Government institutions (or at least public ones). This is, however, no longer on the agenda, as many conflicts of interests may arise since rating agencies keep on rating the paradoxical debtors that States are.
Impartiality of the regulator is one of the most important principles of Regulation and Compliance Law. However, this impartiality can be difficult to implement when the regulation object has a strong moral dimension.
In August 2020, various religious associations sized the Conseil National de Régulation de l'Audiovisuel sénégalais (Senegalese audiovisual regulatory authority) to ask the interdiction of broadcasting on television of the film "Les infidèles" telling the story of a married woman with multiple lovers.
First, the regulator distinguishes the sequences likely to be detrimental to cultural and religious identities and shocking sequences or likely to attack the dignity of the person. Then, it asks the deletion of indecent and obscene scenes and of scenes likely to be detrimental to cultural and religious identities, bans the broadcasting of the film in the television before 10.30 pm, asks an update of the trailer and requires the introduction of a pictogram "forbidden to children under 16" during the broadcasting. The CNRA judges itself able to regulate the content of telefilms in order to protect cultural identities with regards to the law of 4th of January setting its mission.
In 2012, a similar controversy surrounded, in France, the broadcasting of a different film with the same name. However, the purpose and the context were very different because the film was broadcasted at cinema, because it presented adultery men, because it was comic, because the competent regulator was not an administrative body but a professional body and because the broadcasting country was not the same. Here, only the poster was modified.
Thus, an impartial regulation must however taking into consideration "local cultural identities".
The Autorité de la Concurrence (French Competition Authority) issued a recommendation (n° 11-A-05) on March 8, 2011 in which it recommends that the Autorité de régulation des communications électroniques et des postes (ARCEP — French Telecommunications and Postal Regulatory Authority) proceed with studies envisaging the possible breakup of France Telecom into two separate functional entities, one managing monopoly activities (the network), and the other managing competitive activities (services).
SPANISH
Informe temático (Telecomunicaciones): La Autoridad francesa de la competencia recomienda que el Regulador francés de telecomunicaciones considere una separación funcional de las actividades de France Telecom.
La Autorité de la Concurrence (la Autoridad francesa de la competencia) publicó una recomendación (n°11-A-05) el 8 de marzo del 2011 en la que recomienda que la Autorité de régulation des communications électroniques et des postes (ARCEP – la Autoridad regulatoria francesa de telecomunicaciones y servicios postales) proceda con sus estudios concibiendo la posible división del France Telecom en dos entidades funcionales separadas, uno que manejaría las actividades monopolísticos (la red), y el otro manejando las actividades competitivas (los servicios).
The European Directive of September 16th 2009 introduces a clear definition of electronic money and establishes a new prudential supervisory regime of the business of electronic money institutions.
