The Council of State organized Monday, November 20 in Paris a conference on the topic of the regulation within the framework of its Talks. Find the closing speech of the president of the CSA, Olivier Schrameck.
Regulation and of the judge
Mister the Vice-president of the Council of State,
Ladies and gentlemen Presidents,
Ladies and gentlemen Professors,
Ladies and gentlemen,
For the closing session that you made me the honor entrust, I will be inspired naturally by my experiment at the CSA.
But at the end of this day, in comparison in particular with the jurisprudence of the Council of State, I will widen obviously my comment with other regulatory authorities, more especially as in addition a process of reflection and exchange between us is started right now.
I will underline initially it with what the regulation cannot be reduced.
The regulation could not be limited to the sanction. Our regulatory authorities – and unfortunately – are still commonly qualified “gendarmes”: gendarme of audio-visual, gendarme of competition, the financial markets, telecommunications, of rail transports etc However, it are only after insistent warnings and, in determined cases, which can be taken a punitive measurement.
The regulation could not be either the translation of a managed economy, a power of supervision which simply would replace that the State exerted before by means of the regulation or of the property of public enterprises.
The regulation indeed, it is to balance, direct, correct, in echo with the formula of an important meeting of the Council of State in 2013, in tribute to our colleague Marie-Dominique Hagelsteen, outstanding president of the Council, become Authority of Competition.
The regulatory authorities economic have jointly this triptych, ô how much delicate to articulate but necessary to the warranty of our freedoms as for the benefit of services essential at the company.
The warranty of the freedom of audio-visual communication, paramount mission of the CSA, presents nevertheless singularities.
The first specificity lies in the multiplicity of the “media incidents” which it returns to the regulator to apprehend. Well-sure, the regulators all are subjected to the media echoes their interventions. The situation is very similar besides for the judge, like showed it many recent business. It is even more the case per hour when the digital one makes it possible to offer to the communications a resonance as permanent as total. The difference however, for the CSA, is that its interlocutors, controlled companies, which is those give the tempo of the media.
Other observations inspired of the CSA appear to me from the start duty being underlined.
Initially, the time of the regulation cannot be copied over media time.
We must reconcile waiting of prompt response on behalf of a vigilant public, the paramount requirement of dialogue with the editor and the necessary distance with the emotion caused by a program.
Therefore as of my arrival at the CSA, at the beginning of 2013, we prescribed that any dossier letting suppose the existence of a failure is submitted to the contradictory one. Thus, simple warning statement, which were then not likely of recourse, until the formal notice, decision making objection but which is not a sanction, each qualification of a failure are marked at the conclusion of a complete deliberation, lit by a preliminary dialogue.
We in addition looked further into the progressive approach developped at the point very early by the CSA allowing him to act, to take again terms of Bernard Stirn, according to a “ graduated normalcy ”: observations, farms developed, warning statements, matched or not press release… all that corresponds to a typical teaching approach of the modes of intervention of the regulatory authorities.
But it is also cases where the action of the regulator must be more energetic and more reactive, under the control of the judge.
In this respect, I had and I preserve the impression which the CSA is sometimes too much corseté in his action. Admittedly, the requirement of a formal notice preliminary to the commitment of a procedure of sanction is common to many regulatory authorities like the CNIL or the ARCEP.
In the audio-visual field however, where the failures relating to the contents are not continuous failures, this requirement often amounts being able to sanction only in the event of repetition of the editor. Moreover, a trend design in a rather strict way the perimeter of the formal notices, while at the same time the obligations of the editors are multiple, makes sometimes difficult the characterization of this “repetition”.
The CSA admittedly has the way of direct action which is the audio-visual summary procedure, carried in front of the President of the section of the dispute of the Council of State, so that it orders any measurement suitable to put an end to a failure or to put an end to a disorder.
But in practice, the audio-visual summary procedure is booked with the most serious challenges like putting an end to a use of the hertzian public domain threatening operation of platform DVB main road (THIS ord. March 27th, 2003 CSA C. TF1), or to stop the diffusion of an extracommunity chain to the programs carrying discriminatory hatreds (v. THIS ord. December 13th, 2004 CSA C. Eutelsat).
To mention this recourse allows me from the start to show, that unlike other regulators, the Authority of competition, but also the ARCEP, the CSA cannot pronounce academies measurements, nor of injunction like the CNIL, and that it does not have on a purely general basis of powers of investigation and investigation.
I thus believe that certain types of failures should be able to be immediately sanctioned, of course under the control of the judge, in particular of the summary procedures.
I think in particular of the objective failures, like the ignorance of the obligations of financing of cinematographic or audio-visual creation. In these cases, it is difficult to say in what the preliminary formal notice constitutes a warranty of the respect of the principle of legality of the offences and sorrows, since the ignored obligations are very precisely defined, in particular in quantified form, in the texts directly applicable to the operator (laws, statutory texts or conventions).
If our control is difficult to exert, it is that it supposes to suppress the flood of sasines effectively.
Since a individual asks the CSA to act, on the basis of supposed failure, it is about a request for administrative, likely decision-making of recourse in the event of abstention. It is what the Council of State devoted from now on, as regards all the requests formulated in the capacity as user of the public service of audio-visual (THIS February 7th, 2017, Mr. B.).
However, sasines of the CSA reached these last years of the important volumes. In 2015, 7,000 sasines; in 2016, 38,000.
As regards these figures, it should however be stressed that sasines by the public, whatever of it is the number, determine neither our action, nor our instruction. It is the bottom of the posed problem and not its media glare which justifies that the CSA examines a program.
The volume and the tone of the descriptions, in particular received via the social networks, are for the CSA a kind of barometer or of indicator enabling him to determine the difficulties, specific or recurring, often specific to certain emissions.
They concern in that a form “participative” regulation: in view of many programs now diffused, it is obviously neither possible, nor desirable that the regulator establishes a form of constant monitoring, apart from very specific periods (for example, election attacks or day before) which can even require preliminary alarms.
The complaints are thus, for the regulator, a method of essential information. It is same logic besides that recently the ARCEP retained, which set up a service making it possible to the users to announce the quality of their mobile network: it is the public which comes to provide to the regulator information that it would have much evil to obtain by itself, in particular because of material constraints.
The publicity given to the number of sasines is sometimes reproached to us. Our British counterpart, the OFCOM, is however devoted for a long time to this exercise of transparency which has, by itself, two regulating virtues.
Initially, the identification of the points of media tension contributes to nourish the collective debate on the audio-visual communication and the values which it must respect.
Then, whereas the interventions of the CSA on the programs appear already, as such, in the total report emanating several great audio-visual media, the communication relating to the descriptions gives to the editors a reference mark complementary as for the requirements of the public, worried with right title by the protection of the youth and the defense of the equal rights.
The communication on our sasines by the public thus constitutes an end cell and an indicator for the approachs of conformity, whose vice-president pointed out that they were often described as compliance.
Another essential characteristic of the CSA is the versatility with two slopes of its regulation: sociocultural, but also, in a paramount, economic way.
However, as of the origin, I acquired the conviction that if the economic regulation were essential, the CSA was insufficiently armed to answer it, while recognizing that it yet fully did not seize means at his disposal.
I think in particular of articles 3-1 and 17 of the law of 1986 which charge the CSA with sending recommendations for a better application of the principles of the law and, more specifically to formulate some with the Government on the development of competition in the activities of radio and television.
This observed, I would like to subject a set of general reflections to you on what requires, in my eyes, a complete, relevant, and strictly respectful regulation of the Rule of law.
You will find, seen regulator quite naturally, the analysis which the vice-president developed by opening this day.
The regulation supposes initially the possibility of intervening by all the possible levers on a total sphere of activities which is characterized by its complexity and its interdependences
It is the question of the relevant space of the regulation.
As regards CSA, his perimeter of intervention is limited too much and sometimes dubious.
Too much limited, because our current regulation relates mainly to the editors of audio-visual mediums and, partially on their distributors. It often treats by preterition, within the ecosystem of audio-visual, most links of its chain of values and its creative leavens. They is in particular the relative questions to the relations between editors and producers, with the economy of the copyright, the market of the sporting rights, the chronology of the media, publicity, the sources and the distribution of the financings…
However, it is precisely on these questions that the sector is petitioning of a total regulation, naturally articulated with the intervention of other authorities, governmental, professional and, of course, the other regulatory authorities.
The field of application of the audio-visual regulation is also, just like of others, dubious, in particular in comparison with the delicate question of territoriality of the right with which are confronted, at the digital hour, States but also European Union.
The criterion of the regulation rests on the existence of a “service of media audio-visual”, without regard to its mode of diffusion, hertzian terrestrial, cable networks, ADSL, satellite or Internet. However, the contents conveyed by the new digital actors, the platforms of division of vidéos, the services of streaming musical, the networks social, fit with difficulty in modes thought in comparison with television and hertzian radio, where the access to the market east subordinate to the preliminary authorization of the CSA, at the conclusion of a public procedure of selection and conventionnement.
Overall, the concept even of media raises many interrogations at the era when the plurimédia is essential in its substance and its virtualities. Doesn't one more and more often refer to the emergence of total media?
In the digital environment, the duality of mode between the audio-visual one and the press, so deeply anchored in our historical and legal tradition, can lead to Byzantine distinctions within the same title online, which comprises texts and videos. It is what in particular revealed the jurisprudence of the CJUE New Online Media of October 21st, 2015.
The example of the chains YouTube or Dailymotion illustrates also the new services likely to concern the qualification of service of audio-visual mediums. Often, when one of them takes the measurement of its legal statute, in particular because the CSA announces to him, its reflex is to be established in a less demanding Member State. In fact the case of Netflix settled in Holland after having a time made mine be established in France, but also of the young French studio “Bagel Studio” which, contrary to Brexit, was established On the other side of the channel, thus escaping the application from the law Evin.
The new directive on the Services of audio-visual mediums will be adopted soon. We hope that it will make it possible to clarify, by a widening, contours of these services.
The forum shopping is completely unsatisfactory. The CSA is confronted there like the other authorities of regulation. Wasn't the official statement of the MFA in the Fairvesta business precisely intended to inform the public on the risks of a product emitted by a company established in another Convention country and not raising of the French regulation?
Remain that at the digital hour, a regulator cannot seize with him only the whole of its missions.
It will be my second report, which thus determines a second wish.
Any regulation supposes a co-operation between the regulatory authorities
The co-operation between authorities homologous on the level with the European Union was considerably reinforced these last years, even if she did not reach in each sector the same level of development: the BEREC for telecommunications, G29 for the data, ACER for energy is firmly established. For the audio-visual one, the movement is more recent. The ERGA, was created in 2014 under the impulse of the French CSA, in the absence of provisions in the current directive. Its revision should cause its full institutional recognition.
Other fields of exchange and action are also to support, in particular the Francophonie or the Mediterranean basin, entity human, environmental and economic strategic. We celebrated last week in Marseilles 20th birthday of our Mediterranean network, the RIRM, whose presidency, after that of the ERGA, was entrusted to me.
At the national level also, it remains much to make for better working together.
The articulation exists naturally between the regulations sectoral, those of transport, telecommunications, energy, the media or the online games and those, transverse, of the free competition on the markets or the personal data data protection. But this one functions primarily, step by step, by cross opinions.
We must develop it more still.
The regulation of the data in particular, new oil of economic development but threat for the individual rights, relates to all the regulatory authorities, those of audio-visual and the electronic communications like those of energy, transport, the financial markets or health.
Because the common subjects are growing, the emergence of a common college is recommended thus being able to meet constantly in the event of business supposing for their resolution a mixed intervention.
Thus of the possibility of college single CNIL-CADA envisaged by the law of October 7th, 2016 for a digital Republic, which knew its first translation last month, for the development of a pack of conformity devoted to the “open public data”.
More generally, rather than to think of heavy and complex integrating fusions, it is necessary to be directed towards a better coordination between regulatory authorities.
The law of January 20th, 2017, in a reflection still centered on the questions of “budgetary regulation”, asks the organizations having the statute of AAI or API to draw up a diagram of mutualisation with other similar organizations.
This orientation gave the opportunity of a first meeting between authorities of regulation which proceeded last month at the CSA.
It is come out from it that the requirement of co-operation extends naturally from the organisational aspects to the methods of united actions.
We could in this respect us inspire by the experiment of the United Kingdom. Through the U.K. Regulators Network created in 2014, the regulatory authorities economic are gathered in a structured forum where the good practices are exchanged, where struggle the common subjects and where the collective actions of communication are organized.
Another concern, the regulation must fully find its niche, original and singular, in the hierarchy of the standards
It is necessary of course, initially, that it respects it.
It was with the departure one of the main issues caused by the creation of authorities often having a lawful power having to respect the competence of principle of the executive, but as equipped with a power of sanction as it was necessary to make in conformity with the European and constitutional requirements of warranty of the rights, in particular the impartiality.
It matters that the action of the regulatory authorities rests on a clear, coherent and relevant legislation, on the basis of a European right presenting the same warranties of precision and effectiveness. It is to contribute to it that I asked and obtained for the presidency of the working group intended for the follow-up of the new directive within the ERGA.
To remain about it with the national framework, the typical example is the law of September 30th, 1986 relating to the freedom of communication which was modified 87 times, 14 times during the previous legislature. The Data-processing law and Freedoms of January 6th, 1978 are not in rest with more than 30 modifications, in waiting of its revision, following the adoption of the general Regulation on the data protection. I add that it is not sure that the synoptic consultation of two legislative sources that necessary the law of January 20th, 2017 made to know the mode of operation of the AAI and API that is to say the appropriate response with this problem of quality of the legislation.
You will thus understand easily why the CSA wishes the recasting of the audio-visual legislation, by the adoption of a new law at the time of the revision of the European directive and, in the long term, its coding.
For the application of this new legislation, it matters that the regulation does not choke the regulation. It is not thus a question certainly of claiming, for the regulatory authorities, more lawful power, the more so as the limits posed by constitutional jurisprudence are essential. It acts contrary to reducing the regulation, often too complex and too quickly exceeded and that it is often more difficult to make evolve than the law.
I will take here the example of the decrees of 2010 which organize the contribution of the television services to the audiovisual production and cinematographic. These texts solidified in the marble of the professional agreements concluded in a context which does not have any more large-thing of commun run with the current economy of the sector. They however continue to be drawn up like almost impregnable fortresses. It is of brave fight, and at the cost of an addition of complexity, that a modest easing their was brought to in 2015 ensure a better division of value between producers and diffusers.
This excess of regulation, too abstract, too rigid, must be attached as much as possible, by an approach based on the specificity of the situations, those of the protagonists of the regulatory authority and the quick change of our interlocutors. It is necessary to substitute for a vertical and unilateral approach, an interactive dialogued approach. It is necessary to pass from the legal preparing of clothes industry to a practice of the custom-tailored one. From this point of view, the convention passed with the regulatory authority is a way to be developed. It is already very present out of audio-visual matter, in particular like mode of market access.
Indeed, it is by the means of conventionnement with the CSA that the services of television, even those which do not use the frequencies of the public domain, can propose their programs in France. This very flexible system makes it possible to identify the leading proposal clearly, to draw the conclusions as for the obligations from the service and to fix from them the conditions under which these obligations will have to be respected. Its natural vocation would be to be applied to the whole of the digital audio-visual services, within a reformed legislative framework clearly affirming the requirements essential to enforce by the regulator and the conditions of the evaluation of the respect of these requirements.
This is why the regulation must fully use of the flexible right
It is initially advisable to delimit its field of application.
For that, one should not necessarily trust under the law, which can lend to ambiguity. Thus provisions giving the responsibility the regulatory authority “to take care of…” which do not have the same meaning according to the fields. In the audio-visual field, this “day before” implies a dimension of hard right that the Council of State recognized for pluralism in election time, whereas it invites only to the édiction of incentives and indicators as regards diversity in the programs.
It is then advisable to enrich and diversify the flexible right.
In particular to enrich the field by the alternative modes of resolution of the litigations. I think thus of the conciliation seldom planned for the regulators – to my knowledge only the CSA has this faculty, recently and only envisaged in the event of dissensions between producers and diffusers. I also think of the development of the mediation under the aegis of the regulatory authority, to counterbalance the jurisdictional and contentious tropism of the procedure of regulation of disagreements.
Indeed, such a procedure, which is framed by very precise rules, does not make it possible to seek upstream a friendly solution with the litigation, under the aegis of regulator.
To also diversify the right, by associating the broadest community of actors with his definition.
At the CSA, we defend a design of the regulator like “common house” of the sector: our essential interlocutors are the editors, but the beneficiaries, screenwriters, producers, editors, advertisers, have open door, in particular during the clothes industry of the necessary impact studies in the event of repurchases of media or other profound changes in the operation of an authorized service.
A good regulation, I am convinced by it, must fight against the bulk-heading and the head-on oppositions.
It is they which the prurit results from the contentious action which, like the infliction of a sanction, can mark a form of failure of the regulation.
For as much, this concern of avoiding the lawsuit does not make of the judge, in particular of the administrative judge, quite to the contrary, the adversary of the regulation.
The regulation is actually the fruit of a constant dialogue of the regulator and the judge.
Indeed, the regulatory authority needs the judge and in particular the administrative judge
It is what I proved believe, all the jurisprudential current which, in particular of the decision Guichard Casino of October 2012 to those of Parliament Fairvesta and Numéricable, devoted the regulatory authority like transmitting “legal provisions flexible” being the object of a specific jurisdictional control.
How not to think either of the contribution of the Section of the Report and the Studies, which proposed and prepared for the Council of State the report on the flexible right of 2013, largely relativizing the criticism of a “vague right”, however illustrated by great authors?
This new recourse “ Fairvesta ” makes it possible to the judge to apprehend what makes the identity even mission of regulation: this famous triptych “to direct, balance, correct” that I recalled presently.
The Fairvesta recourse indeed ensures the control of the authority of regulation in its function of watchtower, which it is the opinions on initiative of the Authority of competition, pointing out anomalces and making recommendations without carrying effect of right, official statements of the MFA recommending the prudence of the investors with regard to certain financial products at the risk or of the indications of the CSA on the manner of promoting solidarity, whatever the extreme sensitivity of the subject, in particular of the handicap, as pointed out it the Vice-president this morning.
Actually, which can better control the regulators by the virtue of jurisprudence than the judge, fortunately qualified this morning of “méta-regulator”?
It is the jurisprudence indeed which makes it possible to reconcile the flexibility of the procedures with the essential respect of the contradictory one, to affirm and strengthen the autonomy of the regulating action all while pointing out the responsibility to him who its statute of reference in public space calls. The legitimacy of the regulator often put in question in the balance of power is some reinforced, on the initiative of the interested thirds, authors of the recourse.
For his part, the CSA multiplies the initiatives to make sure of the straightness of his interventions by causing the sasine of your advisory formations, but can make it until now only with the approval of the secretariat-general of the government, even if its competence and its attention undoubtedly deserve to be greeted.
To conclude, it is important to underline it, the regulator cannot be unaware of that its action encounters constant interrogations and objections.
These questionings hold today less with the attachment with the traditional framework of jurisdictional control, that with the persistent reflection on its democratic legitimacy, discusses whose relevance could not be been unaware of.
An adapted answer consists of very a parliamentary Net intensifying of the control not only fully accepted but highly desired by the authority that I chair.
The deepening of jurisdictional control, in particular by the Council of State, constitutes another concrete and strong warranty of this requirement of redevability, expressive neologism used and underlined by the Vice-president.
With the interpellations which remain, the regulatory authorities must indeed answer by an availability and a constants attention: at any moment to give an account, with the legislator initially and the public authorities in general, to observe the exercise of jurisdictional control strictly.
The regulation is a power of influence and reference.
Its effectiveness will always suppose scrupulous subordination to the higher authorities of our Rule of law.