BOOKS: ECKERT Gabriel et KOVAR Jean-Philippe (dir.), L’Harmattan, collection Logiques juridiques, 2015, 243 p.

L’interrégulation, Gabriel ECKERT et Jean-Philippe KOVAR (dir.)

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of Concurrences. Publishers, authors and editors are welcome to send books to for review in this section.

*This article is an automatic translation of the original article in French, provided here for your convenience. Read the original article.

This book is the result of a conference held at the École nationale d’administration in Strasbourg on 31 January and 1 February 2013, as part of the fifth European Regulatory Days, bringing together academics and regulatory practitioners.

Inter-regulation is one of the key contemporary issues in regulation that emerged when the regulated sectors began to open up as a result of technological and financial developments, the diversification of operators and the Europeanisation and even internationalisation of markets. The sectors of banking, finance and insurance, electronic communications and audiovisual or gas and electricity are the areas of preference. The book, edited by Gabriel Eckert and Jean-Philippe Kovar, who wrote the preface, aims, through eleven contributions, to present the diversity of the mechanisms put in place to avoid overlapping jurisdictions or the risks of divergent interpretations between authorities on similar or similar situations.

The aim is to provide a systematic vision of interregulation, studying it "in its transdisciplinary, transectoral and transnational dimensions". The book is organized in three parts preceded by an introductory contribution on the concept of inter-regulation which aims to define it from a legal point of view by answering three questions: why, how and at what level to implement inter-regulation?

Note the interesting classification of inter-regulation techniques proposed by Hubert Delzangles in this introduction (pp. 13-36), which distinguishes between "exogenous inter-regulation", which favours the rapprochement of regulatory authorities by means of formalised procedures, "mixed inter-regulation", which leads to the creation of informal or institutional liaison bodies or groups, and "endogenous inter-regulation" when it is integrated within bisectoral or multisectoral regulatory authorities. All of these mechanisms shall be put in place to bring regulatory authorities closer together or to ensure cooperation between them with a view to enhancing the effectiveness of regulation.

In the first part of the book, interregulation is first studied through the prism of the relationship between competition law - as a general and transversal regulation of markets - and sectoral laws. While this topic is undoubtedly the best known, the contribution of this presentation is to analyse the relations between sectoral regulatory authorities and competition authorities in three different legal systems (United States, United Kingdom, Germany) and to show that there are varied landscapes related to the legal traditions of the States concerned. Thus, in the American model, Thomas Perroud demonstrates (p. 38 et seq.) that the sanctioning of anti-competitive practices is in the hands of two agencies (the Competition Law Division of the Department of Justice and the Federal Trade Commission), whereas there are sectoral regulatory authorities at both the federal and state levels. Inter-regulation is more or less institutionalized and, in matters of concentration, the competition and regulatory authorities usually have concurrent jurisdiction (p. 54). In the United Kingdom, by contrast, the distinction between competition and regulation is blurred, as the sectoral authorities can apply competition law in the same way as the Competition and Market Authority. Their relations are marked by what Aurélien Antoine calls "a functional transversality" which results from the interdependence between regulators (p. 83), in particular because of the pursuit of their common objective, competition. As for Germany, the regulatory landscape there is also very complex and the choice was made to set up a multisectoral federal network regulator (Bundesnetzagentur) alongside a powerful federal competition authority (Bundeskartellamt) which are "in competition" on some of their competences. Julien Walther highlights the "normative patchwork" aimed at regulating the relations between sectoral regulators and the competition authority (p. 99), which ranges from the sharing of competences between the two (and the implementation of appropriate solutions in the event of conflicts: application of the principle of speciality or cumulation of standards) to various rules of cooperation (reciprocal consultations, agreements, exchanges of information).

The second part of the book is then devoted to sectoral interregulation, i.e. the different mechanisms or "institutional configurations" of interregulation that exist (p. 120). This part begins with a general presentation of these mechanisms, written by Etienne Muller, who aims to systematize them (pp. 117-133). It distinguishes between the occasional collaboration of autonomous authorities, which involves the exchange of information or a game of consultations, the establishment of a single authority (bisectoral or multisectoral) and the bringing together of authorities when each retains its own decision-making power but there is cooperation organized in a formal way by the public authorities. The example of the cooperation arrangements between the AMF and the CRE organised by the legislator for the regulation of energy and greenhouse gas emission quotas is very instructive in this respect (pp. 126-127). Jean Cattan then examines the more conventional approach (pp. 135 to 154), in the French context, the relations between the CSA and ARCEP with the recurring question of the rapprochement between these two authorities, as well as the interregulation in banking and financial matters with the original setting up of an "Insurance, banking, savings" division common to ACPR and the AMF, which Jérôme Lasserre Capdeville considers, rightly, that it could be a model for other regulations with similar areas of competence (pp. 155 to 163).

Finally, the last part of the book deals with "territorial interregulation", which refers to the mechanisms of coordination and cooperation between regulatory authorities at different geographical levels, particularly in a vertical relationship. In some areas, interregulation is not only necessary at the national level but also at the European or even international level. Régis Bismuth’s contribution on financial regulation, which highlights the need for the institutionalization of transnational regulation at both the European and international levels, is a particularly fertile laboratory (p. 167) for the phenomena of interregulation, according to the author. It considers the tensions between the various processes at play at both national and international level. At the international level, for example (pp. 171 et seq.), the tensions in the very structure of this interregulation are highlighted, due to the interrelation of national regulations carried out within a vague legal framework (such as the Basel Committee, which functioned informally from 1974 to 2013). Dissonances or "tensions on other regulatory processes" may therefore arise, as illustrated by financial standards with indirect effects on other sectors.

The book also includes a contribution by Francesco Martucci on another successful example of interregulation at the European level with the establishment of Union Bancaire (pp. 195-222). While nothing predestined the ECB to become "a banking supervisor in the Union" (p. 197), it has become a key player in financial stability for the most important banking institutions. This development therefore places the ECB in a double "interregulation", "inter-sectoral and territorial interregulation" and introduces, as Francesco Martucci points out, a responsibility of the ECB before the European Parliament. As we can see, the questions relating to interregulation in financial matters are far from over and the solutions are far from being definitively fixed.

Finally, the electronic communications sector is the subject of a contribution by Jean Cattan (pp. 181-194), who presents interregulation at European level, using the example of the procedure under Article 7 of the Framework Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services, as amended by Directive 2009/140/EC on the designation by an NRA of an undertaking with significant market power. In such cases, NRAs in other Member States, as well as BEREC and the Commission, should be informed. This is the blueprint for the organisation of NRAs into a network, "a European institutional concert" (p. 194), overseen by the European Commission, with a right of veto.

Finally, the interesting summary of this colloquium by Gérard Marcou (pp. 223-238) distinguishes the functional approach of interregulation from the institutional approach, and shows above all that these questions, beyond the pragmatic aspects, raise important fundamental questions, particularly on the links between interregulation and justice or with public authorities.

Reading the proceedings of this colloquium is obviously essential for anyone wishing to understand the theoretical and practical issues of interregulation and should satisfy both practitioners and academics with the diversity of points of view expressed.

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Aurore Laget-Annamayer, L’interrégulation, Gabriel ECKERT et Jean-Philippe KOVAR (dir.), May 2016, Concurrences N° 2-2016, Art. N° 78957, pp. 267-268

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