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 .....
In the field of the competition law, due to the lack of ex-ante regulation device, the European Commission sued Microsoft for abuse of dominant position, in that the company refused to disclose to its competitors certain information on interoperability and to allow the use for the development of competing products.
The decision of sanction of the Commission of 24 March 2004 had established the abuse of dominant position by such behaviour and had chosen as a sanction the appointment of an independent trustee that can access the source code and ensure access to competitors.
The Commission, by decision of 12 July 2006, accompanied the operative part of the decision by a penalty payment. The Court of first instance of the European Union, seized by Microsoft for annulment, confirms the operative part of the decision, especially in view of the innovation criterion, but decreases the amount of the penalty payment.
The Financial Crimes Enforcement Network (FinCEN) is an organ, depending on the American Treasury, in charge of fighting against financial criminality and especially against money laundering and terrorism financing. For this, it has large control and sanction powers.
In August 2020, the FinCEN published a document untitled "Statement on Enforcement" which aimed to explicit its control and sanction methods. It reveals what firms risk in case of offense (from the simple warning letter to criminal pursuits passing through financial fines) and the different criteria on which FinCEN is based to use one sanction rather than another. Among these criteria, we find for examples the nature and the seriousness of committed violations or the firm's history but also the implementation of compliance program or the quality and the spread of the cooperation with FinCEN durning the investigation.
One of the objectives of the publication of such an information document is to obtain the cooperation of firms by creating a confidence relationship between the regulator and the regulated firm. However, it is very difficult to ask to the firms to cooperate and to furnish information if they can fear that this same information can be used later as proof against them by the FinCEN.
Another objective is to reinforce legal security and transparency. However, the FinCEN's declaration does not seem to commit it, because it is not presented as a chart but as a simple declaration. Indeed, the list of the possible sanctions and the criteria used by the FinCEN are far from being exhaustive and can be completed in concreto by the FinCEN without any justification.
In this report, the Committee mesures how national systems gradually implement the prudential reforms they have informally elaborated in common.
All the power derived from the Basel System stems indeed from the fact that it is concentrated; however, it still has to face a 'hard law' issue, as it is necessary to implement the reforms within the national systems in identical terms and in a constrained timeframe.
The Committee indicates in its reports that some countries still face a number of issues regarding this implementation, whether these issues arise from the rules themselves or from the transposition period that the countries are given to implement them. Those same countries tend to justify themselves by saying that banks are to blame for these issues, since they report having trouble adjusting their information system as to satisfy the new requirements.
The Committee underlines the fact that this delay occurs in some countries whereas others are already compliant creates a situation of unfair 'jurisdiction' competition between them, which is all the more concerning since these national systems host international banks: "Delayed implementation may have implications for the level playing field, and puts unnecessary pressure on jurisdictions that have implemented the standards based on the agreed timelines. A concurrent implementation of global standards is all the more important, as many jurisdictions serve as hosts to internationally active banks.".
In order to improve an effective implementation of the whole system, the Committee proposed to implement instead a calculus method that would be less complex: "These proposals would constrain banks’ use of internal models and would reduce the complexity of the regulatory framework.".
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A few general observations can be drawn from this very specific Basel III issue underlined in the aforementioned report:
soft law needs at some point to get concrete (which is closely monitored since the rules do need to be implemented), otherwise it is not law at all;
it is through implementation that the weight and the contours of common rules are actually being felt;
this situation is a good reminder of the fact that competing jurisdictions are an actual thing and a issue to deal with;
what is an argument based of complexity, or even impossibility, of the technical implementation of a requirement worth?
This last question is crucial. Those who impose the requirement may consider that the non-enforcement for technical reasons cannot be accepted!footnote-68. Here, however, maybe since it is not a formal requirement as this is all soft law, and since there is a good communication between the supervisor and the executing agent (who is, at the same time, the one that is subject to the requirement, the one who elaborated it and the one who proposes to review it as to make it less complex).
Cass. R. Sunstein's last book was entitled Simpler. French Conseil d’État (French administrative supreme court) conducts thorough work on the quality of laws and on their simplicity, both qualities that probably go hand in hand. The Basel Committee steps in the same directions...
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.
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.
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.
