🧱Co-organisation of the Symposium 🧮Compliance et contrats publics (Compliance and public contracts)

Compliance

et contrats publics

(Compliance 

and public contracts)

under the scientific direction of

Marie-Anne Frison-Roche, Caroline Gilles and Antoine Oumedjkane

Friday January 12, 2024, Montpellier

 Faculté de droit et de science politique de Montpellier (Montpellier Faculty of Law and Political Science)

Amphitheatre C Paul Valéry, 39 rue de l’Université

9h-9h30. Ouverture (Opening), by Philippe Augé, President of the Montpellier University and Guylain Clamour, Dean of the Montpellier Faculty of Law and Political Science

9h30-9h50. Propos introductifs (Introductory remarks), by Lucien Rapp, Full Professor at the Montpellier University, CREAM

• Lucien Rapp shed light on the subject with a preliminary demonstration showing the profound change in our Law, which Compliance Law reflects and accompanies.
• He emphasised that we have moved from a traditional Continental Law, which prescribes and orders legal subjects under the threat of sanctions, to a system which above all issues standards of behaviour, of which the concept of due diligence, which is at the heart of Compliance, is exemplary.
• The subject of Law is then free to choose the best means of complying and achieving the desired objectives in a more incentive-based system, where information is central. The contract then takes centre stage, while the judge's control is expressed through the principle of proportionality.
• Public contracts fit into this new system by being built more around projects and using new criteria, such as Need, which are now found in Public Procurement Law, to better ensure the effectiveness of the contractual instrument.
• These behavioural norms link Compliance and public contracts.
• He shows that recent French laws, such as the "Climate and Resilience" law (2021) and the "Green Finance" law (2023), reflect this logic, particularly in the new exceptions made in Public Procurement Law.

🌐consult the report of this speech made by Marie-Anne Frison-Roche on LinkedIn, which links to a general presentation of the event, which in turn links to the reports of each speech (in French)

(Matinée - APPRÉHENDER LES DIVERSES FORMES DE L'OBLIGATION DE COMPLIANCE DANS LES CONTRATS PUBLICS)

Morning - UNDERSTANDING THE VARIOUS FORMS OF THE COMPLIANCE OBLIGATION IN PUBLIC CONTRACTS

Presidency : Pascale Idoux, Professor at the Montpellier University, CREAM

🌐consult the report of her presidence made by Marie-Anne Frison-Roche on LinkedIn, which links to reports of each speech of this part of the symposium and to a general presentation of the event (in French)

I. Façonner l'obligation de Compliance dans les contrats publics (I. Shaping the Compliance Obligation in public contracts)

9h50-10h10. Les instruments contractuels facilitant l’insertion de l’obligation de Compliance (Contractual instruments facilitating the inclusion of the Compliance Obligation), by Marion Ubaud-Bergeron, Full Professor at the Montpellier University, CREAM

• Marion Ubaud-Bergeron emphasises that Compliance is both very present and, more often than not, unnamed in administrative contracts. They internalise general interest objectives in the operators, in an ex ante logic, with the aim of preventing conflicts of interest and taking account of the environmental and social considerations of the project.
• This is clearly apparent in public procurement, which acts as a "laboratory" for Compliance Obligations in administrative contracts, particularly via the "horizontal objectives" targeted by the 2014 European Directive.
• Law then provides a framework for the contracting authority's contractual power, for "sustainable public purchasing", or imposing a planning rationale. Ethical charters are proliferating.
• The Compliance Obligation is integrated into the contract, which remains based on freedom and built by the will of the parties, while the clauses are impregnated with social and environmental criteria. The neutrality of public procurement is receding and the grounds for exclusion are multiplying, pushing back the prevailing competitive logic and imposing a new conception of public action, for example in terms of information and Vigilance. It is not certain that this is fully effective in practice.
• The concern for the efficacy of these instruments is limited by the risk of instrumentalisation (e.g. the so-called "Molière" clauses). From a systemic perspective, she wondered whether Public Procurement Law is the most effective weapon for establishing sustainable development, for which public authorities have more direct means, such as taxes, while the means of control are fairly weak, both on the part of the contracting authority and on the part of the judge.
• Nevertheless, she concludes that these Compliance techniques should be encouraged, because the efficacy of the rules also depends on their symbolic dimension, on the exemplary dimension of public behaviour, with public procurement having to become more transparent and incorporate obligations which are external to competition.
• The change is gradually taking place.

🌐consult the report of this speech made by Marie-Anne Frison-Roche on LinkedIn, which links to a general presentation of the event, which in turn links to the reports of each speech (in French)

10h10-10h30. La mise en œuvre des politiques d’achats publics compliantes : l’exemple des enjeux environnementaux (Implementing compliant public procurement policies: the example of environmental issues), by Clémence Ballay-Petizon, PhD student at the Montpellier University, CREAM 

• The speaker was unable to attend the event and is excused 

10h30-10h50. Débat (Debate)

10h50-11h. Pause (Brake)

II. Gérer le risque contentieux lié à l’obligation de Compliance dans les contrats publics (II. Managing the litigation risk associated with the Compliance Obligation in public contracts)

11h-11h20. L’évaluation des tiers dans les contrats de la commande publique (Evaluation of third parties in public procurement contracts), by Valentin Lamy, Senior Lecturer at the Lorraine University, IRENEE

• Valentin Lamy highlights the lack of effectiveness of the assessment of third parties and parties to the contract on the part of the public contractor. Compliance, of which the assessment of third parties is an essential tool, can help to improve the effectiveness of public contracts, particularly in public procurement.
• The speaker defined this assessment as "l’ensemble des procédés mis en œuvre afin de vérifier si un cocontractant ou un tiers avec lequel il est envisagé d’entrer en relation contractuelle ne présente pas de risque au regard de finalités préalablement établies, extérieures aux bénéfices particuliers attendus de la conclusion du contrat et pour la recherche desquelles l’entité évaluatrice s’est pourvue d’un programme de "conformité interne"" (free translation : "all the procedures implemented to verify whether a co-contractor or a third party with whom it is envisaged to enter into a contractual relationship does not present a risk with regard to previously established objectives, outside the particular benefits expected from the conclusion of the contract and for the pursuit of which the assessing entity has provided itself with an 'internal compliance' programme".
• Faced with this solid definition, he notes first of all that the obligations in question are "diffuses" ("diffuse"), referring in particular to the lesser control exercised by the Agence française anticorruption - AFA (French Anti-Corruption Agency) over public players.
• He points out, however, that if third-party assessments are linked to the grounds for exclusion from public contracts, effectiveness may be increased, but the organisational burden of such monitoring is heavy and few public bodies have the resources.

🌐consult the report of this speech made by Marie-Anne Frison-Roche on LinkedIn, which links to a general presentation of the event, which in turn links to the reports of each speech (in French)

11h20-11h40. L’exemplarité dans les contrats de la commande publique (Setting an example in public procurement contracts), by Ugo Assouad, PhD student at the Montpellier University, CREAM and Léon Boijout, PhD student at the Montpellier University, CREAM

• Ugo Assouad took the floor to report on a speech he had prepared with his colleague Léon Boijout, showing that the exemplarity that contractors show and must show when dealing with a public entity, in particular the administration, expresses a Compliance dimension in public contracts.
• He showed that the Compliance Obligation is reflected in the requirement of exemplarity that must guide public contracts. The result is, firstly, that exemplarity is permanently safeguarded in public contracts, with Compliance converging with Exemplarity in the aims pursued and in the instruments used, in particular transparency, which can sometimes run counter to the efficiency expected of a contract.
• Contractual litigation reflects these new balances, particularly when the interests of third parties are at stake and when the performance of contracts needs to be assessed.
• For the moment, the result is what the speaker described as a "perfectionnement inachevé de la sauvegarde de l’exemplarité dans les contrats publics" ("unfinished improvement in safeguarding exemplarity in public contracts"), for example in the sanctioning of conflicts of interest.
• It does not appear that case-law has gone further in promoting and monitoring the exemplary nature of contractors.

🌐consult the report of this speech made by Marie-Anne Frison-Roche on LinkedIn, which links to a general presentation of the event, which in turn links to the reports of each speech (in French)

11h40-12h. Débat (Debate)

12h. Arrêt des travaux de la matinée et déjeuner libre (End of the morning's work and free lunch)

Après-midi – UNIFIER L’OBLIGATION DE COMPLIANCE DANS LES CONTRATS PUBLICS

Afternoon - UNIFYING THE COMPLIANCE OBLIGATION IN PUBLIC CONTRACTS

Presidency : Julien Bonnet, Professor at the Montpellier University, CERCOP

🌐consult the report of his presidence made by Marie-Anne Frison-Roche on LinkedIn, which links to reports of each speech of this part of the symposium and to a general presentation of the event (in French)

I. L’encadrement de nouveaux phénomènes contractuels par la Compliance (I. Compliance as a framework for new contractual phenomena)

14h-14h20. Le contrôle de l’utilisation des pouvoirs exorbitants délégués aux personnes privées (Controlling the use of exorbitant powers delegated to private individuals), by Nedjma Kontoukas, PhD student at the Montpellier University, CREAM

• Nedjma Kontoukas argues that control over the use of exorbitant powers delegated to private individuals is necessary to ensure that the objectives of public interest are maintained, it being noted that "non-contractual" matters (police, justice, taxation, etc.) cannot be delegated.
• This control must be strengthened in view of the interests involved, to ensure that the general interest is served effectively and that the exercise of exorbitant prerogatives remains admissible.
• The speaker explained that the methods of control during the performance of an administrative contract can take the form of compliance techniques, which are a method of administrative management that allows for more in-depth control, with the delegating authority thus having a power of control and direction over its private co-contractor, thanks to obligations to pass on information. This makes it possible to ensure proper performance and detect any malfunctions, which is necessary if the contract is to be properly executed. In this respect, it is essential that the contract is carefully drafted to produce this control effect.
• The resulting mechanism fully constitutes Compliance, since the private party will have to render accounts, which refers to the notion of accountability.

🌐consult the report of this speech made by Marie-Anne Frison-Roche on LinkedIn, which links to a general presentation of the event, which in turn links to the reports of each speech (in French)

14h20-14h40. Délégation des contrôles du programme de mise en conformité à des personnes privées : le contrat public outil de la compliance ? (Delegation of compliance programme controls to private parties: public contracts as a Compliance tool?), par Yannisse Benrahou, PhD student at Paris-Nanterre University, CRDP

• Yanisse Benrahou sceptically took as an example of a public contract as a Compliance tool the contracts under which the control of compliance programmes is entrusted by public bodies to private parties.
• This refers more generally to the management of the State through outsourcing, which leads the speaker to explain the use of law and consultancy firms at the very heart of the State, and the potential reproachability of such a way of doing things.
• Then, on the subject of compliance programmes in particular, he examined the way in which the Agence française anticorruption - AFA (French Anti-Corruption Agency) sometimes outsources its control function, which can be a guarantee of efficiency but also could lead to capture.

🌐consult the report of this speech made by Marie-Anne Frison-Roche on LinkedIn, which links to a general presentation of the event, which in turn links to the reports of each speech (in French)

14h40-15h. Débat (Debate)

15h-15h30. Pause (Brake)

II. Rechercher les fondements de l’obligation de Compliance dans les contrats publics (II. Searching the basis for the Compliance Obligation in public contracts)

15h30-15h50. Le devoir de vigilance est-il soluble dans le droit des contrats administratifs ? (Can the duty of vigilance be incorporated into Administrative Contracts Law?), by Antoine Oumedjkane, Senior Lecturer at Lille University, ERDP

• Antoine Oumedjkane analyses the duty of vigilance, which is the advanced point of Compliance Law in public procurement.
• This is counterintuitive, since the duty of vigilance is legal and the law gives jurisdiction to the judicial judge. However, he pointed out that recent French laws, in particular the "resilience and climate" and "green finance" laws, expressly refer to the duty of vigilance as grounds for excluding companies that fail to comply with their duty of vigilance from public procurements.
• The speaker regretted that the texts on this subject had been loosely drafted and varied from text to text, even though they covered the same situation: the exclusion of a company from the field of public procurement because it had not fulfilled its duty of vigilance, which presupposes that obligations have been fully met, or because it has not drawn up a vigilance plan, which is not the same thing and is less demanding.
• He also highlights the issue of qualitative control of the vigilance plan: in-depth control or, on the contrary, a purely formal obligation. Here again, he believes, as do the majority of legal scholars, that it is reasonable to refer to a minimal interpretation, even if the law on the duty of vigilance is more ambitious.
• He considers that if the administrative judge were faced with a substantial review, because of the jurisdiction, which he believes to be exclusive, of the Tribunal judiciaire de Paris (Paris First Instance Civil Court), preliminary questions should have to be asked...
• Under these conditions of minimal interpretation, only the absence of a plan or a formally defective plan would be sanctioned in the context of public procurement... But this interpretation is the least suited to the objective of the legislation itself, and we could end up with a company that has been condemned by the Tribunal judiciaire (First Instance Civil Court) nevertheless not being excluded from a public contract...
• Lastly, the speaker felt that this new incentive approach in fact shows the powerlessness of Public Contract Law to produce the desired effects on enterprises  on its own.

🌐consult the report of this speech made by Marie-Anne Frison-Roche on LinkedIn, which links to a general presentation of the event, which in turn links to the reports of each speech (in French)

15h50-16h10. La liberté contractuelle contre l’obligation de Compliance ? (Contractual freedom versus the Compliance Obligation?), by Pierre-Yves Gadhoun, Professor at the Montpellier University, CERCOP

• Pierre-Yves Gahdoun contrasts freedom of contract with the Compliance Obligation.
• He challenged the opposition that is often drawn between the two, especially as the Compliance Obligation takes several forms while contractual freedom itself has several roots.
• The speaker emphasised that contractual freedom refers to normative power, to the capacity given to individuals to create Law outside the norms created by the State, that it is thus linked to the autonomy of the will, and that it refers to the legal rules which organise the expression of this will. Moreover, particularly through Constitutional Law, it forms part of fundamental rights and freedoms, fully protected as such.
• He challenges the idea that the more obligations there are, particularly Compliance Obligations internalised in economic operators, the less contractual freedom there is. In fact, he stresses that an increase in some obligations does not imply a reduction in others. Rather, it leads to a rebalancing of contractual relations, most often to the benefit of the weaker party, for whom his freedom is restored in concrete terms, or even the concrete freedom of third parties.
• This may be precisely the aim of the Compliance Obligation.

🌐consult the report of this speech made by Marie-Anne Frison-Roche on LinkedIn, which links to a general presentation of the event, which in turn links to the reports of each speech (in French)

16h10-16h30. Débat (Debate)

16h30-17h. Conclusion. Compliance et contrats publics : une alliance naturelle (Conclusion. Compliance and public contracts: a natural alliance), by Marie-Anne Frison-Roche, Professor of Regulatory and Compliance Law, Director of the Journal of Regulation & Compliance (JoRC)

• Firstly, it appears that, as with all the contracts studied in the area of Compliance, public contracts are, for the public administration or public companies, an instrument through which they implement the Compliance Obligation imposed on them by the laws and regulations. Public bodies involved in public contracts are particularly concerned because of the points of contact, even intimacy, between Compliance Law and the general interest. But the contract, whether public or private, remains in its classic conception what results from the expression of two wills which exchanging their consents📎!footnote-3230.
• Secondly, in terms of free will, public contracts can be the means by which public bodies and their co-contractors express their conception of what needs to be done to preserve the future, for example in environmental and social matters. On the contrary, the seemingly technical issue of exclusions from public contracts, whether they be automatic exclusions or optional exclusions, expresses the extent to which economically powerful players (public authorities, municipalities, public companies) take care of each other. In this respect, Compliance Law counter Competition Law📎!footnote-3231 and is profoundly changing Public Procurement Law.
• But thirdly, the public contract, in that it expresses the general interest by its very nature, its ex ante nature reinforces regulatory action and the nature of Compliance as an extension of Regulation📎!footnote-3232. It appears to be the most appropriate instrument for this new branch of Law, without needing to be transformed. This underlines the extent to which Compliance Law must draw on classical Law, in this case Administrative Law.
• Moreover, fourthly, the public contract appears to be the model for the compliance contract. The public contract is a model firstly because of the central place of the general interest. Yet, the "Monumental Goals" on which the substantive definition of Compliance Law is based📎!footnote-3233 are a development of this. Of course, this concern for the general interest drives the public entity, but the "raison d'être" of companies more generally also incorporates it through "governance", which has been profoundly renewed by Compliance.
• The public contract is also a model because the contract is handled by a powerful party, in this case the public entity. The subject of Compliance Law is the powerful company, and only that company, chosen because it is powerful and because it uses that power to achieve the Monumental Goals. In this respect, the "exorbitant powers" which characterise the public contractor are reconstituted either by Compliance laws or by stipulations, which confer on all companies, whether obliged or voluntary - by virtue of CSR, which has many points of contact with Compliance Law as long as it is not confused with the fact of obeying the applicable regulations (which is what "conformity" is)📎!footnote-3234 - a power over the co-contractor, or even over third parties, equivalent to that of the public entity📎!footnote-3236. 
• The judge is the one who, through contractual litigation, whether public or private, will bring to life these Monumental Goals desired by the State, supported by powerful entities (administration, companies), guarantee of the Rule of Law.📎!footnote-3237.
• These include contractual mechanisms for information, audit, disclosure, control, collaboration, supervision, etc., through which the company, whether private or public, takes charge of the structure it has created, for example the value chain it controls📎!footnote-3238.
• It can therefore be concluded that this logic of a public contract as an instrument of administrative action to achieve goals of general interest, now fully taken up in Compliance Law, must be acculturated into the Ordinary Contract Law and must be preserved in Public Contracts Law, which presupposes a new balance with Competition Law, which for a long time carried within Public Law a contract model without concern for sustainability or the collective interest. To achieve this, dialogue between judges is essential. The Conseil d'État (French Council of State) and the Cour de cassation (French Court of cassation) provide an example of this📎!footnote-3229.

🌐consult on LinkedIn the report of this speech made by Marie-Anne Frison-Roche and published in the Newsletter MAFR. Law, Compliance, Regulation, which links to a general presentation of the event, which in turn links to the reports of each speech (in French)

17h. Fin des travaux (End of the works)

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