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► Full reference: M.-A. Frison-Roche, "Adéquation et inadéquation de la sanction comme outil de régulation financière et sa transformation par la Compliance" (Adequacy and inadequacy of sanctions as a tool of Financial Regulation and its transformation through Compliance)", contribution to the round-table discussion on"Quel rôle pour la sanction dans la régulation ? (What role for sanctions in Regulatory System)", Annual conference of the Commission des sanctions (Enforcement Committee) of the Autorité des marchés financiers - AMF (French Financial Markets Authority), Paris, 14 October 2025.

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► see the general programme of this manifestation (in French)

The event comprises two round tables. The theme of the first round table is: La preuve des abus de marché entre l’AMF et le juge pénal : vers une convergence ? (Proof of market abuse between the AMF and the criminal courts: towards convergence?)

🪑🪑🪑AutresOther participants in this 2nd round table, moderated by Sophie Schiller, member of the Enforcement Committe on the topic: Quel rôle pour la sanction dans la régulation ? (What role for sanctions in Regulatory System?)

🕴🏻Sébastien Raspiller, Secretary General of the AMF

🕴🏻Martine Samuelian, Partner, Jeantet Law Firm

🕴🏻Vincent Villette, Secretary General of the CNIL (French Personal Data Regulatory Body)

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► Summary of this intervention : In the round-table discussion on the role of sanctions, a number of contributions will be made, depending on the nature of the discussion itself. They will be brief in nature and will be aimed at an audience with a good knowledge of financial regulation.

It is the occasion for me to insist on 2 things, the first naturely and probably for ever attached to the role of sanctions in all Regulatory Systems, the secund very new. The first is the indissociability between Criminal Law and Sanction, even if sanctions is defined as a regulatory tools. The secund is the conception and the use of sanctions through Compliance Law.

Therefore, in the first idea, my first intervention, aimed more at establishing the subject and describing the Intangible, is on the very idea that sanctions have a role to play in financial regulation. By its very nature. But this does not make it any less difficult. It is not obvious, because if penalties are seen as a 'regulatory tool', then it is the regulatory perspective that predominates and 'colours' the tool that is the penalty. Regulation, of which the texts on the basis which sanctions are issued are only one tool and which is not the set of applicable rules, Regulation which is an apparatus of institutions, rules and decisions aimed at establishing the equilibrium of a sector and maintaining this equilibrium, which is by nature unstable, over time, which the sector could not do by its own efforts alone (Regulatory Law, which is Ex Ante Law, thus distinguishing itself from Competition Law, which is Ex Post Law).

From the perspective of Financial Regulatory System, as in other sectoral regulatory systems, and in the general Regulatory Law, sanctions are a tool (and a tool like any other, simply more powerful than the others.

This is the pragmatic perspective adopted by the State and the Regulatory body itself, which will use it in conjunction with other tools, such as an Information, Education and Incentive mechanism. Moreover, it shall use sanction as informative tool, as educational tool, as incentive tool.

However, the principle of the autonomy of Criminal Law, and the European concept of "Criminal Matters" mean that the sanction can be seen in terms of the autonomous criteria of the seriousness of the act imputed and the sanction imposed on the legal person. In this respect, the penalty is inseparable from the way in which it is imposed (Criminal Law is constitutionally inseparable from Criminal Procedure).

In this respect, the sanction is not a tool coloured by the overall objective served by the Financial Markets Regulatory Body: the sustainability of the financial system. The Enforcement Committee is not the AMF's "armed wing"; it is a "court", as the Oury ruling reminded us.

Therefore, the question is and I would like to ask it directly to the Enforcement Committed: Can you be both?

As they say, could you be both carp and rabbit? Depending on whether you are viewed from one angle or another, you will be seen as the body that makes financial markets effective (a tool among the tools) or as the body that punishes misconduct (a court among the courts).

It is possible, and in practice it is often true.

But if we are honest, we will admit that regulation feeds on information and that the procedure before a criminal court is built on secrecy and the weapons of those who, innocent or guilty, are at risk because they are, or will be, prosecuted.

We've never got out of this difficulty. We always try to strike a balance between the fact that it is in itself a repressive sanction for a person who will suffer and the fact that it is also a systemic tool: there is a 'balance' between the search for systemic benefit (which reduces the protection of individuals for the benefit of the system) and the concern for the people involved (which reduces the present and future protection of the system). The balance goes more or less in one direction. It is often public opinion, the place, the legislator and, even above all, the civil appeal judge (vertical dialogue) and those in dialogue, between the regulator and the criminal judge (horizontal dialogue) which cause the scales of diverse technical solutions.

It is also the way in which the Enforcement Committee, in defining itself as the armed wing of the AMF (carp) or as a repressive court (rabbit), chooses in its procedural behaviour the role of sanctions in Financial Regulatory System, more or less instrumentalised (carp) or jurisdictionalised (rabbit).

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The second point, if there is to be one, concerns the development of the role of sanctions in Financial Regulatory System .

On the basis of these fundamentals, an evolution in the role of sanctions in financial regulatory system (an evolution that can be observed in all sectoral regulatory systems) consists of internalising sanctions (in their conception by the texts, their elaboration by the Sanctions Committees, their application) in the economic operators sanctioned, in the economic sectors concerned, in the opinion concerned (the figure of Peelmanian circles of the audiences applying).

This internalisation transforms Regulatory mission of the administrative body (which deals with market structures) into Rupervision (which deals directly with market operators) since the sanction penetrates the operator, the operator adopting commitments. This concept corresponds to the new branch of Law known as Compliance Law.

Compliance Law uses sanctions as an "incentive like any other", and (we must be careful on this point), because it is systemic in nature, the concern for the system being internalised in the operator, it is relatively insensitive to procedural rights. With the emphasis on information, it is the principle of adversarial debate (which provides information) rather than the rights of the defence that is valued. The cooperation of the person being prosecuted is highly valued, and non-cooperation becomes incomprehensible.

The internalisation of sanctions by operators has led to two major changes. Firstly, these economic operators themselves must sanction, detect and prevent market abuse. The number of special obligations of vigilance is increasing. The obligation of vigilance of operators themselves is becoming a pillar of Regulation, transformed in Supervision.

The other development is the liberalisation of regulatory system in relation to territory, thank to Compliance Law. As operators are less dependent on borders than are regulators and authors of legal texts (but soft law is spreading, including repression), market abuses can be apprehended in several jurisdictions at the same time, notably through global compliance programmes.

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Oct. 5, 2025

Newsletter MAFR - Law, Compliance, Regulation

📝"juge modeste" ou "check and balance" : alternative aux Etats-Unis, alternative en France ("modest judge" or "check and balance": alternative in the United States, alternative in France)

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📝La volonté, le cœur et le calcul, les trois traits cernant l'Obligation de Compliance (Will, Heart and Calculation, the three marks surrounding the Compliance Obligation), in 🕴️M.-A. Frison-Roche (ed.), 📕L'Obligation de Compliance

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► Full Reference: M.-A. Frison-Roche, ""Juge modeste" ou "check and balance" :alternative aux Etats-Unis, alternative en France" ("modest judge" or "check and balance": alternative in the United States, alternative in France), Newsletter MAFR Law, Compliance, Regulation, 6 October 2025..

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📧Read by free subscription other news from the MAFR Newsletter - Law, Compliance, Regulation

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► Summary of this article: Recent, if not forthcoming, decisions by the US Supreme Court show that the American political system that was based on the unwritten principle of Check and Balance, requiring the Justices to constitute one Power facing the other two could be replaced by a political system based on the principle of a "modest Justice" enforcing decisions made by the Federal Executive. They would then have a new Constitution.

In Western Europe and especially in France, it is possible that the letter of the Constitution, which states that judges are not an autonomous power vis-à-vis the other two powers, will be abandoned and that, in the name of an unwritten principle, the Rule of Law, its transformation into an autonomous Power facing the executive in its own right will be adopted. The path would be exactly the opposite. We would then have changed the Constitution.

That's conceivable, and there are many arguments in favour of it.

We have to say so. And draw all the consequences.

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📧read below the article published the 6 October dans the Newsletter MAFR - Law, Compliance, Regulation ⤵️

Oct. 2, 2025

Publications

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🚧read the bilingual Working Paper on the basis this contribution has been built, with more developments, technical references and hyperlinks.

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► Full Reference: M.-A. Frison-Roche, "La volonté, le cœur et le calcul, les trois traits cernant l'Obligation de Compliance" ("Will, Heart and Calculation, the three marks surrounding the Compliance Obligation"), in M.-A. Frison-Roche (ed.), L'Obligation de Compliance, Journal of Regulation & Compliance (JoRC) and Dalloz, coll. "Régulations & Compliance" 2025, pp.49-65.

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📝read the article (in French)

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📕read the general presentation of the book, L'Obligation de Compliance, in which this article is published

📚see the general presentation of the series "Régulations & Compliance" in which this book is published

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► English summary of this contribution : There is often a dispute over the pertinent definition of Compliance Law, but the scale and force of the resulting obligation for the companies subject to it is clear. It remains difficult to define. First, we must not to be overwhelmed by the many obligations through which the Compliance Obligation takes shape, such as the obligation to map, to investigate, to be vigilant, to sanction, to educate, to collaborate, and so on. Not only this obligations list is very long, it is also open-ended, with companies themselves and judges adding to it as and when companies, sectors and cases require.

Nor should we be led astray by the distance that can be drawn between the contours of this Compliance Obligation, which can be as much a matter of will, a generous feeling for a close or distant other in space or time, or the result of a calculation. This plurality does not pose a problem if we do not concentrate all our efforts on distinguishing these secondary obligations from one another but on measuring what they are the implementation of, this Compliance Obligation which ensures that entities, companies, stakeholders and public authorities, contribute to achieving the Goals targeted by Compliance Law, Monumental Goals which give unity to the Compliance Obligation. Thus unified by the same spirit, the implementation of all these secondary obligations, which seem at once disparate, innumerable and often mechanical, find unity in their regime and the way in which Regulators and Judges must control, sanction and extend them, since the Compliance Obligation breathes a common spirit into them.

In the same way that the multiplicity of compliance techniques must not mask the uniqueness of the Compliance Obligation, the multiplicity of sources must not produce a similar screen. Indeed, the Legislator has often issued a prescription, an order with which companies must comply, Compliance then often being perceived as required obedience. But the company itself expresses a will that is autonomous from that of the Legislator, the vocabulary of self-regulation and/or ethics being used in this perspective, because it affirms that it devotes forces to taking into consideration the situation of others when it would not be compelled to do so, but that it does so nonetheless because it cares about them. However, the management of reputational risks and the value of bonds of trust, or a suspicious reading of managerial choices, lead us to say that all this is merely a calculation.

Thus, the contribution sets out to identify the Compliance Obligation by recognising the role of all these different sources. It emphasises that, in monitoring the proper performance of technical compliance obligations by Managers, Regulators and Judges, insofar as they implement the Compliance Obligation, it is pointless to limit oneself to a single source or to rank them abruptly in order of importance. The Compliance Obligation is part of the very definition of Compliance Law, built on the political ambition to achieve these Monumental Goals of preserving systems - banking, financial, energy, digital, etc. - in the future, so that human beings who cannot but depend on them are not crushed by them, or even benefit from them. This is the teleological yardstick by which the Compliance Obligation is measured, and with it all the secondary obligations that give it concrete form, whatever their source and whatever the reason why the initial standard was adopted.

In order to define Compliance's Obligation, the study endeavours to recognise the contribution of all these three sources: Will, Heart and Calculation.

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Oct. 2, 2025

Publications

📝À quoi engagent les engagements (In Compliance Law, the legal consequences for Entreprises of their commitments and undertakings), in 🕴️M.-A. Frison-Roche (dir.), 📕L'Obligation de Compliance

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🚧read the bilingual Working Paper on which this article is based, with additional developments, technical references and hyperlinks

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► Full Reference: M.-A. Frison-Roche, "À quoi engagent les engagements" (In Compliance Law, the legal consequences for Entreprises of their commitments and undertakings), in M.-A. Frison-Roche (dir.), L'Obligation de Compliance, Journal of Regulation & Compliance (JoRC) and Lefebvre-Dalloz, coll. "Régulations & Compliance", 2025, pp.419-447.

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📝read the article (in French)

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📕read the general presentation of the book, L'Obligation de Compliance, in which this article is published

📚see the general presentation of the series "Régulations & Compliance" in which this book is published

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► English summary of this article: The innocents might believe, taking the Law and its words literally, that "commitments" are binding on those who make them. Shouldn't they be afraid of falling into the trap of the 'false friend', which is what the Law wants to protect them from (as stated in the prolegomena)?

Indeed, the innocent persons think that those who make commitments ask what they must do and say what they will do. Yet, strangely enough, the 'commitments' that are so frequent and common in compliance behaviours are often considered by those who adopt them to have no binding value! Doubtless because they come under disciplines other than Law, such as the art of Management or Ethics. It is both very important and sometimes difficult to distinguish between these different Orders - Management, Moral Norms and Law - because they are intertwined, but because their respective standards do not have the same scope, it is important to untangle this tangle. This potentially creates a great deal of insecurity for companies (I).

The legal certainty comes back when commitments take the form of contracts (II), which is becoming more common as companies contractualise their legal Compliance Obligations, thereby changing the nature of the resulting liability, with the contract retaining the imprint of the legal order or not having the same scope if this prerequisite is not present.

But the contours and distinctions are not so uncontested. In fact, the qualification of unilateral undertaking of will is proposed to apprehend the various documents issued by the companies, with the consequences which are attached to that, in particular the transformation of the company into a 'debtor', which would change the position of the stakeholders with regard to it (III).

It remains that the undertakings expressed by companies on so many important subjects cannot be ignored: they are facts (IV). It is as such that they must be legally considered. In this case, Civil Liability will have to deal with them if the company, in implementing what it says, what it writes and in the way it behaves, commits a fault or negligence that causes damage, not only the sole existence of an undertaking.

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Oct. 2, 2025

Conferences

🎥La culture et technique de compliance, une stratégie gagnante pour les entreprises européennes, in 🧮Régulation des activités économiques en 2025 : quel équilibre pour la compétitivité des entreprises ?

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► Référence complète : M.-A. Frison-Roche, "La culture et technique de compliance, une stratégie gagnante pour les entreprises européennes", intervention dans la table-ronde sur "La conformité : un frein pour la compétiitivé européenne ?", in Tribunal des Activités économiques (TAE) de Paris, Régulation des activités économiques en 2025 : quel équilibre pour la compétitivité des entreprises ?, Nuit du Droit, Paris, 2 octobre 2025.

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►voir pour mémoire la présentation de l'intervention dans La nuit du droit 2023 à la Cour de cassation 🎥L'avenir du Droit de la compliance

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► consulter le programme général de la manifestation

🪑🪑🪑Les autres participants à la table-ronde , dont la modératrice est 🕴🏻Constance Hion

🕴🏻Thomas Amico, avocat associé Veil Jourde

🕴🏻François de Bérard, avocat associé Lacourte Raquin Tatar

🕴🏻 Carmen Bricero, directrice juridique et compliance Raja

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► Résumé de l'intervention : Dans cette discussion informelle, ma première intervention, pour ouvrir la discussion, a consisté en premier lieu à indiquer les différents corpus réglementaires directement insérés dans la nouvelle branche du Droit de la Compliance et, au-delà de ces différents corpus, la définition simple et unifiée que celle-ci reçoit. Au fil des questions posées, une seconde intervention a porté sur l'office du juge en matière de Droit de la compliance, office du juge à la fois accru du fait de la juridictionnalisation de cette matière et du fait du renouvellement de cet office, notamment du fait de la pointe avancée du Droit de la compliance que constitue l'obligation de vigilance.

Dans le débat qui a suivi la perspective internationale a prévalu, notamment dans l'articulation entre l'Europe, les Etats-Unis et la Chine.

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📚Pour aller plus loin :

🕴️M.-A. Frison-Roche, 📝Le droit de la compliance, 2016

🕴️M.-A. Frison-Roche (dir.), 📕La juridictionnalisation de la compliance, 2023

🕴️M.-A. Frison-Roche, 📝Le juge requis pour une obligation de compliance effective, in 🕴️M.-A. Frison-Roche (dir.), 📕L'obligation de compliance, 2025

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en savoir +

Oct. 2, 2025

Publications

📝Obligation de Compliance : construire une structure de compliance produisant des effets crédibles au regard des Buts Monumentaux visés par le Législateur (Compliance Obligation: build a compliance structure producing credible effects in the perspective of the Monumental Goals targeted by the Legislator), in 🕴️M.-A. Frison-Roche (dir.), 📕L'obligation de Compliance

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