Analyse de la libéralisation des industries de réseaux au travers de la jurisprudence du Conseil de la Concurrence Français

Abstract

THE FRENCH CONSEIL DE LA CONCURRENCE AND THE LIBERALISATION OF PUBLIC UTILITIES. A CASE-LAW ANALYSIS The purpose of this paper is to underline the role of independent agencies, such as the French Competition Council, in the liberalisation process of public utilities. In a sector like electricity, the shift in the legal framework is, in our view, less induced by the legislative acts than by the case-law produced by the Council decisions. In an institutionnalist approach, jurisprudence could be seen as one of the main source of law in regulation matters. The questions addressed by government, legislative bodies or constituted interests to the Council or the contentious actions initiated by economic actors play a significant role in the work of precision and enforcement of the public regulation. In our hypothesis, such actions, which use the law as a set of resources, in order to defend or to promote specific economic interests, could be one of the sources of an « automatic judicial regulation process ». We have built and analysed an exhaustive data base constituted by the decisions, opinions and interim measures of the French Competition Council, relative to electricity and public utilities, from 1996 to 2002. Descriptive data analyses enable us to appreciate the particularities of the liberalisation of electricity, comparing to the case of telecommunications. This analysis allows us to formulate the hypothesis of a relay race in the claims to the Council, from the State, to the regulation commission and finally to competitors, which could explain the dynamic of « automatic judicial regulation process ».