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A decision of the Social Chamber of the French Cour de Cassation (Court of Cassation) handed down on December 8th, 2009, (n° 08-17.191) reduced the scope of the unique authorisation granted to companies concerning their internal whistle blowing proceedures.

Olivier Fréget is a partner at Allen & Overy Paris heading the Paris EU & Competition team. He hold a post graduate degree in Private International Law and in International Business Transactions (University of Paris I) and a degree in Economics and International Relations (ILERI). Olivier has specialised in EU and competition law since the very beginning of his career in 1990

Michel Prada is a graduate of the Institut d’Etudes Politiques de Bordeaux (Sciences Po Bordeaux) and the Ecole Nationale d’Administration (ENA). From 1966 to 1970, he was an Inspecteur des Finances. (...°

Full reference: Frison-Roche, M.-A., For regulating or supervising, technical competence is required: example of the French creation of the "Pôle d'expertise de la régulation numérique"​, Newsletter MAFR - Law, Regulation, Compliance, 2nd of September 2020

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Summary of the news

Through a decree of 31st of August 2020, the government created a national service, the "Pôle d'expertise de la régulation numérique" (digital regulation expertise pole). It has to furnish to State services a technical expertise in computer science, data science and algorithm processes in order to assist them in their role of control, investigation and study. The aim is to favor information sharing between researchers and State services in charge of regulating digital space. 

As its acronym indicates, this pole of expertise aims to represents constance in a changing world. Moreover, more than being a national service, this organism must adopt a transversal dimension, its creation decree being signed by the Prime Minister, Minister of Economy, Minister of Culture and Minister of Digital Transition. The creation of such a pole shows the awareness of the government of the importance of technical competency in the regulation of digital space and of the necessity to centralize these expertises in one organ. 

However, as the decree indicates, this pole of expertise could be consulted only by "State services", that excludes regulators which are independent from the State and which could put the pole in conflict of interest, and courts even if they are supposed to play a central role in the regulation of digital space and even if they are allowed to ask the advice of the regulator about some cases. But if regulators cannot size the pole, to whom does it benefit except the legislator and a few officials? 

It would therefore have been better for this pole of expertise to be placed under the direction of regulatory and supervisory bodies, which would have enabled it to be able to be consulted both by regulators and by judges, both of whom are key players in digital regulation.

Institutions de régulation économique et démocratie politique

This article will be printed soon in a book ouvrage of collection "Droit et Economie" de LGDJ (Lextenso édition), CONCURRENCE, SANTE PUBLIQUE, INNOVATION ET MEDICAMENT