🎤Conclusion. Compliance et contrats publics : une alliance naturelle (Conclusion. Compliance and Public Contracts: a natural alliance), in 🧮Compliance et contrats publics

🌐follow Marie-Anne Frison-Roche on LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

____

► Full Reference : M.-A. Frison-Roche, "Conclusion. Compliance et contrats publics : une alliance naturelle" ("Conclusion. Compliance and Public Contracts: a natural alliance"), in M.-A. Frison-Roche, C. Gilles & A. Oumedjkane (dir.), Compliance et contrats publics (Compliance and public contracts), Journal of Regulation & Compliance (JoRC), Centre de recherches et d’études administratives de Montpellier (CREAM) and Centre d’Études et de Recherches Comparatives Constitutionnelles et Politiques (CERCOP) of the Montpellier University, Faculté de droit et de science politique de Montpellier, 39 rue de l’Université, Amphiteatre C Paul Valéry, January 12, 2024

____

🧮see the full programme of this event

____

✏️read the notes taken on the spot to draw up the symposium conclusion

____

🌐consult on LinkedIn a general presentation of this event, which links to a presentation of each speech (in French)

____

🧱consult the co-organisation sheet of this event, giving an account of the various speakers

____

► English Summary of the conference: Firstly, it would appear that, as with all the contracts studied in the area of Compliance, public contracts are, for the public authorities 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 exchange their consents📎!footnote-3221.

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 runs counter to Competition Law📎!footnote-3222 and profoundly affects 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-3223. It appears to be the most appropriate instrument for this new branch of Law, without the need for it 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 first of all because of the central place of the general interest. The "Monumental Goals" in which the substantive definition of  Compliance Law is anchored📎!footnote-3224 are a development of this. Admittedly, this concern for the general interest drives the public entity, but the "raison d'être" of companies more generally also incorporates it through "governance", 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" that characterise the public contractor are reconstituted either by Compliance laws or by stipulations, which confer on all obliged or voluntary companies - by virtue of CSR, which has many points of contact with Compliance Law as long as it is not confused with obeying the applicable regulations (which is what "conformity" is)📎!footnote-3225 - a power over the co-contractor, or even over third parties, equivalent to that of the public entity📎!footnote-3235. 

The judge is the one who, through contractual litigation, both public and private, will bring to life these Monumental Goals desired by the State, carried by powerful entities (administration, companies), pledge of the Rule of Law📎!footnote-3228.

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 masters📎!footnote-3226.

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 Contract 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) set the example📎!footnote-3227.

____

📝This conference will be followed by an article, "The public contract, model of the Compliance Contract", which will be published in the book 📘Compliance and contract.

________