The regulatory authorities have to ensure equality of opportunity for the various operators, or to promote free access to the exercise of activities, or to ensure the transparency of market transactions and the protection of savers. They regulate a specific activity, the development of standards supplementing existing rules, by either the exercise of a power of sanction illegal behaviour or resolution of disputes arising between businesses indirectly directly. For example, the telecommunications regulatory authority decides the disputes relating to access to the transport network, which contributes to the opening to competition. These modes of action are not exclusive of each other, some authorities with the power to enact legislation and to sanction the violation.
The regulatory authorities were clearly intended to substitute, at least partially, the regulatory power of the State and, above all, to the jurisdictional powers of the courts. This interference in the exercise of adjudicative is undeniable when authority penalizes prohibited behaviour, but it is even more important for those of the authorities, resolving disputes, involved in the contractual relations between the parties, to fix the price for the benefit of operators and define the obligations of competing operators, as do the telecommunications regulatory authority or the Commission for energy regulation.
The balance of institutions entails that any holder of a parcel of the public authority is subject to judicial review. This control is necessary more particularly when the body concerned is not only invested a consultative mission and proposal but has the power to adopt measures of constraint against the companies under its jurisdiction. The Constitutional Council noted in a decision of 28 July 1989, about the power of assent granted by Parliament to the financial controller, at the time the stock exchange operations Commission.
The Council considered that the allocation of power to assent to a regulator is contrary to constitutional principle, to condition such that the exercise of this power is subject to judicial review of "full litigation", that is exercised by a judge who can review the decision on the merits. When it comes to the power to resolve the dispute, the decision of the regulator may be contested before the Court of appeal of Paris.
Of course, this control judge has no vocation substitute economists or market technicians. It provides not less substantial powers which enable it to exceed the simple verification of the formal regularity of the impugned decisions to address the substance of the issues decided in the first place by the regulatory authority. Control of legality of decisions between the traditional missions of the judge, who must always ensure that the parties involved, before a court or a quasi-judicial adjudicative authority, have benefited from the guarantees of a fair trial respecting the rights of the defence and the principle of contradiction.
The substantive examination of disputes is more original judge since it applies here on decisions of regulators who are not single purpose application of rules of law. The judge must so pronounce itself on the impugned practices, including appreciation in turn if access to the network has been fairly provided to the competitor, and he has the power to substitute its assessment for that of the authority. Examples include the judgment of the Court of appeal of Paris of February 26, 2002, in a case between two operators of telecommunications on the price benefits provided by a network operator, decided that the judge may monitor the fairness of the price fixed by the authority of regulation of telecommunications for these benefits and decide himself, if necessary, on this award.
This mode of exercise and control of the regulation creates a paradoxical situation. By imposing the regulatory authorities of the rules of form and function similar to those in force in the courts, judge participates in the "resolved" of regulators. But, in turn, requires, for the efficiency even control procedures, that the judge to acquire the minimum of required technical knowledge and away somewhat from the traditional contours of his legal training. Even with the assistance of experts, the limits of the exercise are obvious.
First of all, the usual duration of the procedures of expertise is incompatible with the effectiveness that operators need to settle their disputes. In addition, the applicable texts sometimes suggest authority power to equity for the application of standards in a very general manner the rules to be implemented, so that the office of the judge is necessarily restricted to only search for a possible manifest error of assessment.
The difficulties identified should not lead to the abandonment of a mode of external control on the dispute settlement decisions taken by regulatory authorities. On the other hand, they show the need for special training of the judges to deal with this type of litigation.
Finally, it would be desirable to seriously consider an institutional system which, going beyond the divisions of the professions, would bring together the skills of all the actors of the sectors concerned for the establishment of a real economic and financial jurisdiction.