Contenu du sommaire : L'indépendance des autorités de régulation économique et financière : une approche comparée

— Independence of Economic Regulatory Authorities from Political Authorities — Economic regulation has been affected by profound changes in the foundation, terms and limits of the independence of regulatory authorities from political authorities. The very basis of this independence has traditionally been justified by the principle of separation of the operators' functions and those of regulators, yet a more general concern regarding the efficacy of sectoral regulation has gradually gained importance to the point of taking the place of this more traditional principle. There is a great deal of disparity in the practical terms of the economic regulator's independence given that there is no one‑size‑fits‑all cross‑sector or institutional model. There is however a trend in EU law toward stricter requirements that are in line with French domestic legislation which traditionally provides a high degree of protection to regulators' independence. The latter is offset by parliamentary oversight since regulatory authorities are part and parcel of an overall democratic framework. But the role played by Parliament is increasingly regulated by European institutions, at least in the sectors open to competition by EU law.

— Independence of Economic Regulatory Authorities from Regulated Operators — Do economic regulatory authorities enjoy independence from regulated operators? This question is central to the liberalisation process undergone by network industries and may be understood in terms of sectoral regulatory authorities' resilience to pressure from regulated operators challenging their independence. More specifically, in order to be fully free of the influence of historic operators, regulatory authorities must, on the one hand, limit the chances of regulatory capture and, on the other hand, correct for asymmetrical information. To do this, they must be endowed with considerable human and financial resources and be able to adopt a long term approach.

— Independence of Financial Regulatory Authorities from Political Authorities — The French Prudential Supervisory Authority (ACP‑Autorité de contrôle prudentiel) and the French Financial Markets Authority (AMF‑Autorité des marchés financiers) enjoy organic and operational independence from public authorities, principally the Government. This independence, while inherent in their status as independent administrative or public authorities, does nevertheless vary. Whereas the organic independence of banking and financial regulatory authorities stems from converging choices relating to the composition and situation of their members, their operational independence is based on diverging solutions. French lawmakers have thus endowed the AMF an independent public authority, with legal personality whereas the ACP is an independent administrative authority attached to the central bank.

— Independence of Financial Regulatory Authorities from Regulated Operators — It is commonly stated that the issue of independence is of the utmost importance for the law governing financial regulatory authorities, more precisely the French Financial Markets Authority (AMF‑Autorité des marchés financiers) and the French Prudential Supervisory Authority (APC‑Autorité de contrôle prudentiel). Independence from political authorities is of course necessary however independence from regulated operators, the topic dealt with here, is just as important. How do things stand today in 2012? How is this independence from regulated operators manifested? Could certain improvements be made in some specific cases? This article addresses all of these issues.

— Independence of European Supervisory Authorities — The European Supervisory Authorities were set up to enhance the supervision of financial activities in the European Union. They are the first European regulatory authorities having binding legal powers. Their European dimension, their powers and their place within the European System of Financial Supervision give, however, rise to a number of specific questions regarding the terms and the extent of their independence. While it is true that lawmakers provided the authorities in question with solid safeguards in order to deal with these issues, this article discusses the scope of some solutions and concerns connected to specific limitations.

— The Independence of Regulatory Authorities in Germany — German regulatory authorities, largely modelled after the Federal Cartel Office, have an autonomous status but are not fully independent. De jure independence, according to German constitutional principles, would be unacceptable: all administrative bodies must in principle be attached by means of a “chain of legitimisation” to elected authorities. This conception of autonomy is highly complex and derives from both the administrative organisation and the German federal structure. Nevertheless, in spite of this it appears that there is some room for independence within this autonomy. For some of these authorities, the particular structure of decision‑making chambers, the financing method, the fact that they are not required to follow instructions emanating from the ministry, can be – cautiously – seen as indications of true operational autonomy, very close indeed to veritable independence.

— The Independence of Economic and Financial Regulatory Authorities in Spain: Interest of Public Law Clarification — In Spain, the 2/2011 sustainable economy law aims, inter alia, to streamline the statutes of independent regulatory authorities across the board. The purpose of this legislative reform is not only to bring Spanish law into line with EU law but moreover to harmonise the statutes and the operation of “Independent Regulatory Authorities” through a system which much better protects their necessary independence. Although some aspects may be considered objectionable, the main criticisms levied against the lack of operational independence within the former legislative framework are no longer valid. Spanish legislation now therefore provides a framework which other EU member states' public authorities can view as a model.

— The Independence of Regulatory Authorities in Italy — The Italian regulatory authorities are relatively heterogeneous, mainly due to a sectoral approach. Nevertheless they do have a common feature in that they all fall under the general heading of independent administrative authorities. Both their institutional and their operational independence are guaranteed. All authorities enjoy these guarantees which are adapted according to the regulated sector.

— The Independence of Financial Market Authorities — The French Financial Market Authority (AMF‑Autorité des marchés financiers) considers the independence of its deliberative bodies and their members (Collège et Commission des sanctions) to be protected by a set of rules on preventing and dealing with conflicts of interest, inadmissible professional behaviour, declarations of interest, abstention or disqualifications. The AMF enjoys the additional benefit of its original status of “independent public authority” set in place by the law of 1 August 2003. The AMF's independence is consolidated by the fact that it enjoys a legal personality, a specific financing method based on contributions provided by law and levied on regulated players and activities and a high degree of management and operational flexibility.

— The Independence of the French Prudential Supervisory Authority — As a recently created institution, the Prudential Supervisory Authority (ACP‑Autorité de contrôle prudentiel) enjoys a legal status and sufficient means to guarantee its organic and operational independence vis‑à‑vis both the regulated sectors and the executive power. Therefore, although it does not have a legal personality, it does enjoy budgetary autonomy and some degree of flexibility in human resources management. Furthermore, whereas independence from the Government is one of the raison d'être of independent administrative authorities, the same cannot be said regarding Parliament, which can impose a ceiling for employment authorisations on the ACP. However, it cannot take the initiative of establishing prudential rules and must rely on complex soft law mechanisms such as recommendations.

— The Independence of the French Regulatory Commission on Energy — There are three main points to be considered regarding the independence of the Regulatory Commission on Energy (CRE‑Commission de régulation de l'énergie). The first of these reflects an overarching trend in law and concerns the legislative instability affecting regulatory authorities, which jeopardises the guarantee of such authorities' independence. The second, which is more specific to the energy sector, concerns the relative difficulty for French lawmakers to reconcile the existence of an independent regulator with the need for the executive and legislative powers to conduct public policy on energy. Finally, the third concerns the increasing attention given to the issue of national regulators' independence in relation to EU energy sector regulations that include provisions or recommendations not only of organisational but also of operational nature.

— The Independence of the French Regulatory Authority for the Rail Transport Sector — The Regulatory Authority for the Rail Transport Sector (ARAF – Autorité de régulation des activités ferroviaires) was set up by law n˚ 2009‑1503 of 8 December 2009 on organising and regulating the rail transport sector with a view to “enhancing the effective functioning of this public service and of the competitive activities of rail transport for the benefit of users and customers of rail transport services.” It has a legal personality and budgetary independence. The way in which members are appointed to its board, specific characteristics of their mandate and the conditions under which they discharge their duties ensure their impartiality. Its decisions are not subject to government approval. The conditions for ensuring its independence are therefore fully satisfied. That being said, the true basis of its credibility and independence lie in the efficacy of the ARAF and the relevance of its decisions.

— Independent From Whom? The Three Ages of the Independence of Telecommunications Regulators in Europe — Directives on the regulation of electronic communications developed in stages to strengthen the requirements of operational independence, first from regulated operators, then from the State when it holds shares in the regulated companies, and finally from political authority, in its unconditional definition. The three ages of regulators' independence are reflected in these three stages. This article aims therefore to analyse how and why regulatory authorities in the electronic communications sector were offered specific and explicit guarantees as regards their independence.

— Dependence or independence of regulatory agencies in Brazil ? A contribution to the legitimacy study of the regulatory agencies — The goal of this work is to discuss the content and dynamics behind the justification of the exercise of power of regulatory agencies in Brazil. We will demonstrate that regulatory agencies enjoy a double legitimacy, based on the political power of the government and on the own characteristics of the agencies. Following this, by analyzing concrete cases, we will claim that the decision‑making of regulatory agencies may imply confrontation and compatibility with the decisions taken by the political authorities. We point out that regulatory agencies may actually lack independence vis‑à‑vis the political power, given that in some cases the decisions of the government prevail over the decisions taken inside the agencies. Finally, we argue that the so called double legitimacy of the regulatory agencies provides them the opportunity, when both elements are present, to enjoy a “super legitimacy”.

— Stakes and Challenges for the Administration in 2012 — This article reviews recent public administration reforms, which have been both substantial and difficult in some cases. It points out the necessity of these reforms but at the same time, cautions against an overly managerial approach to reform. It recommends that reforms correspond to the greatest extent possible with the purposes of the State, the main one being the public interest.

— The Model State: Slogan or New Principle? — Over the past decade political discourse has referred increasingly to the Model State. High‑level State officials have taken the exemplary model on board as a duty to be upheld. By reviewing the origin, significance, scope and method of the Model State, this article demonstrates that we have before us a new principle of public action which aims to combine economic concerns and ethics, going far beyond declamation. Changes which have already been implemented as well as planned changes must give equal importance to ensuring that state administrations adapt to the requirements of sustainable development and that the status and behaviour of the State's political elite become more acceptable in the eyes of public.