The cycle of conferences Les outils de la Compliance(The Compliance tools) began in November 2019 and runs until June 2020. It is organized by The Journal of Regulation & Compliance (JoRC) and all of its partner universities. It includes a conference more particularly devoted to the theme of "Les expertises requises dans l'Ex Ante de la Compliance" ("The expertises required in the Ex Ante of Compliance").
in the amphitheater of the Paris Chamber of Commerce and Industry
Friedland Avenue, 27, 75008 Paris
General Presentation
After examining various specific tools, such as Risk mapping or Incentives, these showing that the tools only have their efficiency through their use designed and carried out by human beings, endowed themselves with the required expertise. But it is often because it is very difficult to identify and define these "skills" that operators subject to the Ex Ante Compliance obligations end up entrusting this observance to machines, via Compliance by Design ...
The mass of what should actually be observed leads to favoring massification expertise, as the "Regtech" handle it. But the rules being a living thing, Company Law adjoins Governance and one must know both. In the same way as the mastery of Ex Ante supposes that one always thinks of Ex Post (sanction for failure in the Ex Ante), so that this Ex Post does not appear, under its unwelcome face of Repressive Law which therefore must be anticipated and therefore present in Ex Ante.
In the same way, Tax Compliance presupposes that the State must be present in the good technical conception of Compliance. Compliance being the means by which States internalize their "monumental goals", or even confront each other under the mask of companies, it is then international policies in question, and this political expertise is required in Ex Ante.
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under the scientific direction of Marie-Anne Frison-Roche, professor fo Regulatory Law Compliance Law at Sciences Po.
The press release is short. Here is what it says: "Le Conseil supérieur de l'audiovisuel exprime sa vive inquiétude à la suite de la décision du Conseil suprême de la radio et de la télévision (RTÜK), le régulateur des médias en Turquie, de retirer leurs droits d'émission à de nombreuses radios et télévisions. Le Conseil appelle son partenaire de longue date au sein de la Plateforme européenne des instances de régulation (EPRA) et du Réseau des institutions de régulation méditerranéennes (RIRM) à ne pas mettre en cause la liberté de communication et le pluralisme des médias, garanties fondamentales d'une société démocratique." (courtesy translation: "The Conseil supérieur de l'audiovisual expresses its deep concerns following the decision of the Supreme Council for Radio and Television (RTÜK), the Turkish Media Regulator, to withdraw the broadcasting rights of numerous radios and televisions. The Conseil calls upon its long-time partner within the European Platform of Regulatory Authorities (EPRA) and the Mediterranean Regulation Authorities Network (RIRM) not to jeopardize the freedom of communication and media pluralism, which are fundamental guarantees in a democratic society").
The press release is entitled "Le CSA s'inquiète du retrait par le régulateur turc des droits d'émission de radios et de télévision" (courtesy translation: "The CSA worries about the decision of the Turkish Regulator to withdraw broadcasting rights to radios and televisions").
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Isn't this surprising?
One would understand that the members of a Regulatory Authority, just as many people, would worry about what has been happening lately in Turkey. One can also share the view that these events might cause them to fear for the sake of public liberties and democracy in the country.
Should a Regulatory Authority express its "worry" though?
Shouldn't it be the Government's role instead, within the framework of its 'diplomatic relations' with the state and with the use of an appropriate vocabulary, to express any 'worry'?
First of all, this is a salient example of the ambiguity of the Audiovisual Regulator. Indeed, while it itself insists on the fact that it acts as an economic regulator of a sector whose development and innovation falls under its watch and monitoring (which namely justifies the fact that he reviews candidacies to the presidency of public televisions channels), the Conseil Supérieur de l'Audiovisuel had initially been created to preserve public liberties.
As such, people who still embrace the distinction that was previously assumed between public liberties regulation and economic regulation still consider the CSA - along with the CNIL - as the prototype of the former type of regulatory body.
Here the CSA expresses its "deep concern" and sends a request not to "jeopardize liberties", which is the polite version of an injunction, to a foreign regulatory authority upon which it has no authority whatsoever.
One can understand that the Regulator develops soft law about operators on which he has actual authority. But what about here? Shouldn't the adage Nemo plus juris apply?
How is the Regulator competent to issue 'releases' in which he formulates desiderata towards a foreign body whose behavior is unappealing to him? Shouldn't the Quai d'Orsay (French Ministry for Foreign Affairs) be in charge?
The Regulator took a political stance here, while it is known that a Regulatory Authority can only be legitimate when it stands as a technical authority; emphasizing on the political features of its job actually jeopardizes this legitimacy, all the more when international politics are involved (which is the case here).
However, the Regulator does preempt criticism in its press release:
It starts indeed by stating that it only expresses this sort of 'feeling' because of the old ties that exists between the French and the Turkish Regulators: it essentially considers that friends can be true to one another, express a few criticism and expect changes. Friendship in the digital media and in politics would allow for many things.
Besides, the CSA recalls the solidarity that prevails between the two regulators. Because they are "long-time partner within the European Platform of Regulatory Authorities (EPRA) and the Mediterranean Regulation Authorities Network (RIRM)", the French Regulator is enabled to express the Turkish Regulators its view on how it is jeopardizing democracy and how it should consequently stop.
Maybe the many ties that exists between the Regulators now enable them to give more or less stringent advice to one another, whereas diplomatic embassies now play an increasing economic role: how blur do the lines get!
The Italian upper administrative court (“Consiglio di Stato”) ruled that the Autorità per le garanzie nelle comunicazioni (“AgCom” – the Italian Regulatory Authority for electronic communications) is not bound to provide a rigorous justification when issuing decisions not compliant with European Commission’s comments.
This judgment is of general interest since, on the basis of a formalistic reasoning, it does not pay adequate attention to the role played by the European Commission in electronic communications’ regulatory proceedings at national level.
Under the European regulatory framework (and the multilevel governance system established therein), comments from the European Commission are the main pillar of the horizontal coordination system between the European level and the national level, aimed at creating a competitive common market for electronic communications.
PeruRail, the operator of Peru’s famous railway line, providing service between Cuzco and Machu Picchu, was sanctioned USD$800,000 on May 10, 2010 by the {‘Instituto Nacional de Defensa de la Competencia y de la Protección de la Propiedad Intelectual’} (INDECOPI- Peru’s national institute for the defense of competition and protection of intellectual property) for having restricted competitors’ market entry. An appeal is underway.
Reading the press, for example Les Echos January 16, 2015, we learn that Standard & Poor's will sign an agreement of $ 1 billion with the US administration to avoid a trial.
One can only be amazed or even upset.
First, the agreement is not yet concluded. It would be in a month or two. How is it that we already know? Secondly, contracts, because the transaction is a contract listed by the Civil Code, are not intended to be public. How is it that we already know everything? The person who gave the information "was keen to remain anonymous." It would have suspected ......
Third, it is true that the regulation of rating agencies is a big issue. Special texts have been taken but academics think the right tools stay missing and that is probably the liability, general legal instrument, which is the most appropriate.
But the responsibility of commitment requires a trial, evidence, respect for the rights of defense, due processs, legality of offenses and penalties.. Here, $ 1 billion is paid by the company only to avoid that opens a lawsuit against it. The allegation is the rating agency would have underestimated the subprime risk.
But on one hand everyone says that the rating agency has actually done the facts allegued since payroll so that the file doesn't open. On the other hand, and from the perspective of regulating the information that would be out of the trial, a trial being a form of crisis, will not come out.
So this sort of industry fof "Deals of Justice", apart from the fact that some describe the phenomenon as a "racket", isn't a "decriminalization" of regulation for a "civilized regulation" through the transaction contract. On the contrary, this movement that is spreading constitutes an increased repression whic diminishes rights of defense for the operator and information for the sector.
Jean-Patrice de La Laurencie is a graduate of the Institut d’Etudes Politiques de Paris (Sciences Po Paris) and the Ecole Nationale d’Administration (ENA). He is currently a Lawyer at the Paris Bar (...)
René Sève is a graduate of the Ecole Normale Supérieure, holds an agrégation in philosophy, and a doctorate degree in Law. He also has advanced postgraduate degrees in Philosophy, Social Psychology, and Law. (...)
The implementation of a joint service on Insurance, Banking, and Insurance within the ‘Autorité de Contrôle prudential – ACP’ (French Prudential Control Authority), raises questions as to the way in which the service will be coordinated with the ‘Autorité des marchés financiers – AMF’ (French financial markets authority’s) other activities. The signature of the agreement creating the new joint service was the occasion for Jean-Pierre Jouyet, President of the AMF, to clarify that this joint service’s principal goal is consumer protection. The coordination between the AMF and the ACP is intended to improve efficiency and credibility to further this goal.
India is transforming its energy policy, because it depends too much of coal and plans to expand its nuclear industry. Its agency, the Atomic Energy Regulatory Board (AERB) is in charge of overseeing nuclear security. But the Indian Court of Auditors issued a report on 16 August 2012, claimed that such a nuclear deployment could not take place only if the agency is structurally modified. Indeed, it is currently dependent on the federal Government, while independence is required for any regulator. In addition, it has no real powers of control and intervention. It is therefore not a true regulator, and in these conditions, expand nuclear energy would constitute a great risk.
