On 31st of July 2020, the Commission de Régulation de l'Energie (CRE and French energy regulator) has examined the investment plan of the French electric network manager (RTE) as it does every year. This investment plan is an economic document but it also contains societal purposes, especially the adaptation of the electric network in order to integrate renewable energies.
The control by the CRE is not a financial control. The crucial operator (RTE) is free to decide the way it wants to manage its budget. The CRE just advices on the financial side by recommending for exemple to be more flexible in its financial strategies. The true CRE's control is about the investment plan's general orientations, the methodology of needs analysis and crucial operator's investment choices which must be aligned with those of the regulator.
Such a control leads to the emergence of an "investment doctrine" from the side of the crucial operator, mixing its own choices and the regulator's guidelines. Beyond this, the elaboration of the investment plan is the result of a true co-writing between the regulator and the firm which discuss together, exchanges points of view and methods. Such a method, expressing a kind of coregulation, could be used in other sectors.
Regulation of the digital world, we agree on its necessity, we talk about it a lot but it is difficult to do it.
The stakes are multiple: management of innovation, protection of people, treatment of different sorts of powers, future of the human being, the Politics and the Judge being like a bullet that ricochets between these 4 subjects.
It then rediscovers that the first "regulators" are the Governments and that the first modality of the Regulation Law is the taxation.
Notably in the digital field and even more so in the face of GAFA.
Indeed, the 4 American companies, Google, Apple, Facebook and Amazon, admit the need for rules but propose self-regulation or co-regulation. These would include not only their own behavior, but also those of others, including the fight against terrorism. Maybe, when one is stronger than the States, he should substitute himself for their core business....
Undoubtedly being dispossessed of the regalian, Europe today demands "accounts" to the GAFA in the literal sense of the term. Indeed, the French and German governments will table in September a tax proposal specific to the GAFA, the fruit of which will come back to the countries where they earn their income.
Concerned companies replied that in the tax system everyone has the right to be skilled and to organize at the best, so long as one does not fall into the abuse. In accordance with this legal conception, the French administrative high Court (Conseil d’État) has just recalled it in an important decision to their benefit.
In August 2017, the French Minister of Economy and Finance, Bruno Lemaire, justified the reiteration of his will to tax them, raising this issue at European level in the name of "distributive justice", the Law being defined as what gives everyone his share. This is a strong but dangerous argument, for while it is true that in the very function of taxation, correlated with public finances, the redistributive function is essential, tax optimization becomes staggering.
In a more convincing and regulatory way, this measure of equity is presented as correlated to the construction of the European digital market. It is an economic conception. To the extent that European taxation is still embryonic, its link with such a construction would make it possible to see in vivo the strength of the tax tool in Regulation Law, more than ever distant from Competition Law.
It is in this context, and because the European Digital Market must be built at forceps, since the GAFA will benefit from it, but also must participate in its construction, that such an investment sharing is justified.
The European Court of Justice handed down a judgement on September 9th 2010 in which it ruled that two criteria of the Austrian Glücksspielgesetz (the Federal Law on Games of Chance) violated articles 43 and 49 EC, that is to say the freedom of establishment and the freedom to provide services.
For example, if one says what a bitcoin is, then one assigns to it the regime which corresponds to this "nature" that one has thus said;
One could say that the "token" that it constitutes corresponds to nothing of what it existed before. In this case, their creation, storage, management, sale, loan, purchase does not correspond to any particular category that pre-existed. They therefore come under what is called "the category unnamed".
It is then in a liberal system the vacuum of liberty that applies to it. In a system of liberty, it is contractual freedom, freedom which attaches to the property right, the articulation between the contract and the property being sufficient. Technology can establish such a qualification, because the risk inherent in a system of freedom is also borne by the blockchain mechanism. Indeed, by the spread of risk on the one hand, and the safety of machines on the other, there would be no need to worry, and the principle of freedom could give credence to the idea that the "token" would be a sui generis category.
But central banks and financial regulators are probably not convinced and prefer to qualify by bringing the "token" to a pre-existing category, which automatically triggers the legal regime. It is well known that the art of qualification consists in choosing from among the attainable qualifications the one which will allow the application of the regime which is the most adequate to satisfy the aim which one wishes to attain. In terms of regulation, governed entirely by goals, qualification is therefore primarily a matter of strategy.
Now, to affirm that the bitcoin is a sui generis object amounts to not regulating its emission, usages and intermediations, not to control those who make use of it. It amounts to taking away the merits of self-regulation.
This was excluded.
First of all by the Central Banks. Bitcoins and other tokens, based on the mechanical security of the blockchain, can be described as "money" when it is a matter of their acquisition to allow people to access other goods. The central bankers retained the qualification of "currency", which does not prohibit their issuance but which justifies the application of banking Regulation.
Then by the Financial Regulators. Indeed, the same tokens of securities and financial instruments can be described when they are issued by persons who issue them to raise funds, buyers bringing money not to acquire other things but in consideration of the future value of the undertaking which issued them. On July 25, 2017, the SEC therefore classified them as securities and applied all of the financial law in order to protect these investments and the capital markets.
Once again, we measure that the norm of the Regulation resides in these aims and that on the other hand its main tool is in the qualification of the various activities which are "new" only if the Regulator wants it
The European Commission published on April 11, 2012, a follow-up and summary report of on the application of the third directive "Anti-Money Laundering " which gives a community value to on international standards adopted by the Financial Action Task Force (FATF). This is to protect the financial system against the money laundering. The report assesses the effectiveness of the application of the directive and points out the need for change. The Commission requests that the standards for the detection of risk of money laundering are better targeted and oriented in the gambling sector. It also suggests that tax offences be regarded as offences of money laundering. As individuals, the report requires to banks and other professionals to increase their due diligences requirements. It also covers the "persons politically exposed", that is - to say those may be corrupt. The report finally requests a special assessment on the application of the Directive to independent legal professionals, including lawyers, subject to the legal obligation to report .
It is believed that the lexical distinction between two words necessarily involves the allusion to two different things. In this view, economic regulation differs from financial regulation. Based on what financial regulation is, which is not reduced to an addition of rules and regulations but is a set of mechanisms, institutions, decisions, principles and rules revolving around risk, competition law could be used as a means for financial regulation, although it is usually solely applied to ordinary markets of goods and services. But a new ambiguity has surfaced between financial regulation and economic regulation. Therefore, a wall between economic regulation and financial regulation cannot be built on the single difference between the “economic sector” such as the market of goods and services, and the “financial sector”. A more sophisticated partition could take into account the notion of « individual risk ».
GERMAN
Der Unterschied zwischen wirtschaftliche und finanzielle Regulierung.
Normalerweise weist ein lexikalischer Unterschied zwischen zwei Wörter darauf hin, dass man von zwei verschiedene Sachen spricht. Also sind die wirtschaftliche und die finanzielle Regulierung unterschiedlich. Die finanzielle Regulierung ist nicht eine ledigliche Addition von Gesetzen und Anordnungen, sondern eine Zusammenstellung von Mechanismen, Institutionen, Entscheidungen, Prinzipien und regeln, die sich mit dem Thema Risiko beschäftigen. Anhand dieser Tatsache könnte das Wettbewerbsrecht, das normalerweise erst für gewöhnlichen Waren- und Dienstleistungenmärkte gebraucht ist, auch im finanziellen Bereich Anwendung finden. Jetzt aber hat sich eine neue Zweideutigkeit zwischen wirtschaftlicher und finanzieller Regulierung entwickelt. Infolgedessen kann eine Begrenzung zwischen beide Regulierungen nicht nur aufgrund den Unterschied zwischen dem wirtschaftlichen (wie z.B. der Güter- und Dienstleistungensmarkt) und dem finanziellen Sektor. Eine anspruchsvollere Unterscheidung könnte den Begriff "individuellen Risiko" integrieren.
SPANISH
La distinción entre la Regulación económica y la Regulación financiera.
Se cree que la distinción léxica entre dos palabras necesariamente involucra la alusión a dos cosas. Teniendo esto en cuenta, la regulación económica difiere de la regulación financiera. Basándonos en lo que es la regulación financiera, lo cual no se reduce a una simple adición de reglas y regulaciones pero por lo contrario está compuesta por una serie de mecanismos, instituciones, decisiones, principios y reglas que dependen del riesgo, se podría decir que la ley de la competencia puede ser utilizado para la regulación financiera, aunque normalmente solo se aplica a mercados ordinario de bienes y servicios. Pero una nueva ambigüedad se ha dado entre la regulación financiera y la regulación económica. Por lo tanto, es imposible construir una pared entre la regulación económica y la regulación financiera basado simplemente en la diferencia entre el ‘sector financiero’ como lo es el mercado de bienes y servicios y el sector financiero. Una partición más sofisticada podría tomar en cuenta la noción del “riesgo individual.”
Contacts:
The Securities and Exchange Commission has 12 offices across the country (Washington, Atlanta, Boston, Chicago, Denver, Fort worth, Los Angeles, Miami, New York, Philadelphia, Salt Lake City & San Francisco): see official website
In France, the Minister of Ecology has issued an Order to facilitate the
purchase of electricity generated by wind. The text is being challenged
before the "Conseil d’Etat" (State Council) for illegality, in that it
constitutes state aid. The State Council considers the matter serious
enough to suspend the proceeding and seized the Court of Justice of the
European Union of a preliminary question on 15 May 2012.
FRENCH
En France, le ministre de l’Ecologie a émis une ordonnance afin de faciliter l’achat de l’électricité produite par le vent. Le texte est actuellement contestée devant le «Conseil d’Etat" (Conseil d’Etat) pour cause d’illégalité, en ce qu’elle constitue une aide d’Etat. Le Conseil d’Etat considère que l’affaire suffisamment grave pour suspendre la procédure et saisi la Cour de justice de l’Union européenne d’une question préjudicielle le 15 mai 2012.
Like every year since the adoption of the Dodd-Frank Act, the Securities and Exchanges Commission (SEC) and especially its Office of the Whistleblowers (OWB) handed to the Congress of the United-States a report about the success of its program concerning whistleblowers, especially estimated with the amount of financial rewards granted to them during the year. This report especially presents the amount granted to whistleblowers, the quality of the collected information and the efficacy of SEC's whistleblowers' protection process.
If Americans condition the effectiveness of whistleblowing to the remuneration of whistleblowers, Europeans oppose the "ethical whistleblower" who shares information for the love of Law to the "bounty hunter" uniquely motivated by financial reward and favor the former to the later, as it is proven in the French Law Sapin II of 2016 (which do not propose financial reward to whistleblowers) or the British Public Interest Disclosure of 1998 (which just propose a financial compensation of the whistleblower's losses linked to whistleblowing).
However, American and European conceptions are not so far from each other. As United-States, Europe has a real care for legal effectivity, even if, because of their different legal traditions, Americans favor effectivity of rights while European favor effectivity of Law. If it places effectivity at the center of its preoccupations, Europe should conceive with less aversion the possibility to financially incite whistleblowers. Moreover, United-States and Europe share the same common willingness to protect whistleblowers and if rewarding would enable a better protection, then Europe should not reject it, as shows the recent declarations of the French Defenders of Rights. It is not excluded that both systems converges in a close future.
On April 27, 2010, the European Parliament’s Committee for Health voted to introduce an amendment to the European Commission’s ‘Pharmacovigilance and Prescription Medicine Package’, which would introduce a strict regime for online prescription medicine sellers.
