REGULATORY LAW Global perspectives

Transcription

1 Professor Marie-Anne Frison-Roche REGULATORY LAW Global perspectives TITLE 1: FONDAMENTAL RULES OF REGULATORY LAW SECTION 1 DEFINITIONS AND NATURE OF REGULATORY LAW I) The broad definition of regulatory law. A) The broad definition by reference to domestic public goals 1) The confusion between the regulating activity (rule making) and the regulatory activity. The difficulty of translation: regulation, deregulation, regulatory The Regulatory Authority/Agency A flattened relation with the sector The ambiguity between the qualification of independent administrative agency and the qualification of regulator The examples of the French I.A.A. : CNIL, CRE, AMF (different situations, different functions) 2) The comparison between regulation and State intervention The confinement of regulation in public policies. The genuine intersection between regulation and public policy The genuine intersection between regulation and Competition policy. European Competition law and Competition policy The domestic Competition Authority as general regulator B) The board definitions based on the ambition to regulate uneven relations 1) The assimilation of regulation and corporate governance The use of regulation as common rules Regulation as a soften way to make rules The approbation of those rules 1

2 The critics towards these type of rule making 2) The ambiguity of the French law about the new regulations (2001) The situation of corporate law, between traditional conception, financial market protection and new powers functioning inside companies II) The Narrow definition of the general regulatory law A) The Narrow definition in reference to the regulator s activities at stake 1) The economically regulated sectors The flexible list of regulated sectors The critics of this definition 2) The pre-regulated or re-regulated sectors The air sector The rail sector The sector of postal services The pre-regulation of the relation between producers and mass distributors The issue of regulation and water The perspective of regulating the agricultural industry B) The narrow definition based on the equilibrium of the system put in the hands of the regulator. 1) The autonomy of regulatory law in the legal system Regulatory law as a specific and autonomous field of law Regulatory law as a method 2) The teleological definition of regulatory law The goals and the methods The difficulty of the plurality of goals The issue of the variation of the goals over time Section 2 NEW ARTICULATIONS BETWEEN NORMATIVES SYSTEMS AND THE CONFLICT OF LEGITIMACIES I) The reversal of the cooperation of Norms A) The traditional alliance between politics and economics 1) The choices and the planning 2

3 The long term policies The concentration of the State s action The planning contracts 2) The dislocation of the alliance between politics and economics The weakening of sovereignties The agency theory and the suspicion towards the State B) The alliance between the economics and the law 1) The liberalisation movement Privatisation and the submission to Competition rules The technocratic regulation 2) The legalisation of economics The general movement of legalisation of the economy The judicial review of the technocratic power 3) The consequence: the economic analysis of the law applied to the law of regulated sectors The existence, the method and the purpose of the economic analysis of the law The suitability of the economic analysis of the law to regulated industries. SECTION 3: DISCUSSION BETWEEN PUBLIC AND PRIVATE LAW IN REGARDS TO REGULATORY LAW I) The distinction between public and private law in the different legal systems A) Metaphysics and pragmatisms of the distinction between the public and the private law in front of the Regulatory Law 1) The allocation of the tasks in the anglo-american system The administrative power of action and the judicial power of decision 2) The metaphysic of the State in France The State and the general interest Republic and democracy B) The distinction of interests and their dialectical functioning 1) The general interest: a sum of interests or the overshadowing of interest The market as a non null addition towards the general interest 3

4 The State as being the beyond of the common good 2) The offensive of the utilities of general interest The evolution of European law The margin of sovereignty SECTION 4: FLUCTUATIONS BETWEEN THE DIFFERENT GEOGRAPHIC LEVELS OF THE REGULATORY ORGANIZATIONS I) Fluctuations between domestic regulatory organizations and European regulatory organizations. A) The normative articulation 1) The impact of the Europeans directives The directives of liberalisation The strategic use of European law example of the Corbeau case (CJCE) example of the Commune d Almelo case (CJCE) implementation law. 2) The dialectic of the reforms between derogatory law and national The margin of manoeuvre negotiated in the implementation The example of the directive of December 16 th 1996 on liberalization of the electricity sector and the French law of February 10 th 2000 on modernisation of public services on electricity. The tool of package directives The new domestic game through rules of implementation The Lamfallussy process as example B) Articulation as part of the tools of the regulatory function 1) The influence of the general framework of Competition law and of the modernisation regulation 2) The network of the authorities of regulation II) The fluctuation between localized regulations and global regulation A) The ambiguity of the globalization s regulation 1) The regulation of the international exchanges/trade The relationship between international law and regulation Private international law and regulatory law 4

5 Choice or mutation 2) The transformation of private international law B) The creation of global regulations 1) The specificity of financial regulations The Financial stability forum The common rules 2) The potential of the WTO law Freedom of trade, Competition and regulation The Agreement on telecommunications and the first disputes C) The importance of traditions, cultures and national laws 1) The differences in economic development The ripeness of the economic model The divergence of the different economic models 2) The differences caused by the reliability of the legal system The ripeness of the system The division between impartial systems and captured systems 3) The differences of legal traditions The interference of the distinction between Common law and Civil law. The relative influence of the Common law TITLE II THE COMMON RULES OF REGULATORY LAW SECTION 1 THE PLACE OF GENERAL REGULATORY LAW IN THE LEGAL HIERARCHIE OF NORMS AND POWERS I) The Hierarchy of norms and the legality control/ legal validity A) Self-regulation, co-regulation and exogenous regulation 1) The autopoiesis organisation of regulated industries The self regulation theory Deontology The organisational contracts 2) The shared regulation Sociology of regulation, between issuers and receivers The theory of co-regulation 5

6 B) The role of the legality control in regulatory systems 1) The submission of the regulator to the general demand of legality The regulator s a priori source of powers The a posteriori control of the regulator s power the external and internal legality control The different types of controlled powers: agreements, sanction, dispute settlements. 2) The normative power of the regulator The Constitutional law reasoning From a narrow principle to a broad application The regulator s different ways of using its normative power. 3) The scope of the control of the regulator s decisions The distinction based on the different types of jurisdictions The variation based on the different types of regulated industries and on the type of adjudicated power: the example of the power of dispute settlement. II) The regulator A) The autonomy of the regulator 1) The principle against the holding of several function concurrently (actor and regulation) The emergence of the European rule against multiple holding of functions and the backing off of State stoicism The transparency of the legal form of independence and the dominance of the de facto autonomy. 2) The guaranty of the regulator s autonomy in regards to the political power and the regulated industry at stake. Domestic tradition, charismatic regulator and technocratic authority of regulation. The principles of nomination the members of the Authority/agency The es qualités system of members, the system of representative members, the expertal system Who designated the members of the Regulation Agency? The status of the members during their term of office 3) The articulation between autonomy and impartiality The independence as a condition of impartiality and defined through the main purpose of impartiality 6

7 The example of stock exchange held by a member of the Agency: the anticipation to come. The example of the European Commissioner of Competition: the interference of the past The potential sufficiency of impartiality The dominance of the jurisdictional model B) Liability and accountability of the regulator 1) The responsibility of the State, the liability of the regulator, the personal liability. The mechanism of liability of the State due to its administrative regulators The difficulty of articulating proceedings for liability and proceedings for annulment The political character of choosing which type of tort will cause liability. The hypothesis of the regulator s sole liability. 2) Accountability Independence and impunity The weakness of political and legal answers Accountability and evaluation/assessment C) The appointment of the regulator 1) The appointment of the regulator based on its structure/nature Regulator and Independent Administrative Agency/Authority The irrelevance of the distinction between private and public regulator The new legal nature of such a public law corporate body 2) The appointment of the regulator based on its function/task The natural correspondence The ambiguity of the network administrator D) The good regulator 1) The good regulator in regards to its leverage over the industry at stake The accuracy of the industry in regards to the object of regulation. The teleological construction of the shape of the regulator The example of the moderate merger of the financial regulatory Agency. 7

8 The influence over the industries, between markets and channels. 2) The good regulator in regards to the geographical level The perspective of a European Regulatory Agency The Lamfalussy Model SECTION 2: THE STATUS OF GENERAL REGULATORY LAW WITH REGARDS TO THE OTHER FIELDS OF LAW I) The relationship between general regulatory law and public law A) Inserting general regulatory law in the general theory of the State 1) The State as a unified source of law The pluralist State Putting into contract public policies The ambiguity of planning contracts 2) The State, synonym of sovereignty Regulation as a choice made to respect the Competition policy Regulation as a choice based on economic policy B) The link between regulatory law and public utilities 1) The public utility entity and the public utility mission The prevalence of the functional definition of public utility 2) The renewal of the principles of equality, continuity and adaptability of public utilities. The traditional trilogy The shift, the shrinking and the deepening: from equality to access. 3) The public utilities, the political dimension of the regulatory system The public utility as an element of weighing and balancing The example of the right of access to electricity II) The link between general regulatory law and Competition law A) The technical interferences between the two 1) The theory of the essential facilities The essential facilities case law 8

9 The a posteriori regulation 2) The control of mergers The control of concentration, as a prevention mechanism of anticompetitive behavior The control of concentration, as a projection of the organization the industries and the industry policies. B) The evolution/maturation of regulatory law through competition law 1) The distinction between ex ante and ex post The distinction at its core The ambiguity of an prescriptive ex post 2) The temporary regulation and the come back to ordinary general law. The link between regulation and liberalisation of monopolistic industries. The example of the evolution of telecommunication law 4) The high stake of the correct organisation between the European Commision and national regulatory laws The Commission, the competition law inter-regulator of the national regulations. The perspective of an European Regulatory body The Commission as an inter-regulator III) Regulatory law and Contract law A) The potential capacity of contract to organize regulated markets 1) Putting into Control Regulatory law Contracts and self regulation The movement of putting into contract public policy 2) Ordinary contracts and extraordinary contracts in Regulated industries The ordinary contracts The planning Contracts The access to network contracts The absorption by the contracts of the imperative principles of regulation B) Specific control of access to infrastructure network IV) Regulatory law and tort law 9

10 A) The responsibility of the one to whom the rule applies 1) The drifting towards criminal law 2) The specificities of the systemic criminal law B) The liability of the one whom issues the rule 1) The liability of the State 2) The interference with the precautionary principle V) Regulatory law and rights (if enough time) VI) The relationship between regulatory law and the statutory legal system A) The regulatory system constructed as a judicial mechanism 1) The regulatory agency as a judge of the market behaviors Reminder of the definition of the judge, art 6 ECHR The notion of the judge of the markets Rightful jurisdiction and jurisdiction though performance 2) The transposition of the judge s figure through the quasi-judicial power of the regulatory agency The Regulator s power to apply sanction The Regulator s dispute settlement power 4) The transposition of the judge s figure through the procedural organization of the adjudication of its power The holding of several powers concurrently The institutional distinction of the powers The issue of self appointment of jurisdiction. B) The insertion of the general regulatory law in the judicial system 1) The right to appeal The Constitutional right to appeal The nature of the appeal 2) The taking into account by the judge of the specificity of the regulatory function The margin of manoeuvre left to the Regulatory Agency Heterogeneity or homogeneity of the power and the review of that power 10