April 14, 2017

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From Regulation Law to Compliance Law

by Marie-Anne Frison-Roche

This Working Paper must be cited as : Frison-Roche, M.A., From Regulation Law to Compliance Law, Working Paper, http://mafr.fr/en/article/du-droit-de-la-regulation-au-droit-de-la-complianc/

This working paper is the basis for an article written in French to be published in the French publication RÉGULATION, SUPERVISION, COMPLIANCEE, to be published in the RÉGULATIONS series at Éditions Dalloz.

This work uses the Compliance and Regulation Law bilingual Dictionnary.

____

This Working Paper aims to show the movement that starts from Regulation Law to Compliance Law, now in the process of being born.

In order to explain this movement, in order to anticipate the near future, in what it should not be and in what it should be, it is necessary to reconstruct how the Compliance Law was born of the Regulation Law, which has thus found the sources of the Public Services Law of which it had at first cut the roots (I).

Indeed Regulation Law has in a happy way renewed the Law but also narrowed its perspective. Today, the phenomenon of globalization and the need for public authority that States can not satisfy according to traditional legal methods implies the establishment of a sort of "global public service". This is done by the Law of Compliance which revolutionizes all legal systems, both Common Law and Civil Law (II).

Indeed, Compliance Law internalizes in some companies, the "crucial operators", the duty to make effective the "monumental goals" that the regulatory authorities have formulated and of which these companies must render globally effective. In this respect, the Law of Compliance is the extension of the Law of Regulation, which makes a new scope and in its aims and in its space. It is the whole of Law that is transformed.

The near future will tell if it is reflected in clashes, between companies and regulators, between Europe and the United States, or on the contrary by a pact of trust between the crucial operators and the Regulators. If this is achieved, the Law of Compliance, expressing the political dimension of the Law of Regulation, expressing the share of companies that ceases to be neutralized by the mechanics of the markets, will be an advancement of the Law. It is in this perspective that we must build the European Compliance Law.

 

 

 

I. THE ORIGIN : REGULATION LAW FINDING AND INCREASING ITS "MONUMENTAL GOALS"

The "Regulation Law" (or Regulatory Law) took time to build. It also did it in counterpoint to a Public Law, which, built on the public services, left it no room. It did so by curling up on the only technique (A). As a result of globalization and the need to give rules and a framework for them, the Regulation Law has regained its scope, in a breat what deserves to be designated as a global public service (B).

 

A. THE FIRST TIME OF THE REGULATION LAW LEGITIMATED BY ITS SHRINKAGE

Regulatory Law is sometimes defined as the effective management of technical, temporary or definitive failures of the markets!footnote-882. It is therefore inferior to the image which the legal system, especially in France, gives of Public Law in its classical construction, even though both relate to the same objects. Regulation Law has renewed and filled in the flaws or inadequacies of national legal systems, but this narrowness, which legitimizes the matter, has also weakened the Regulation Law (1). Indeed, if we conceive of the Law of Regulation as only a tool for the technical management of market failures, then such a branch of Law has a vocation to run out of steam (2).

 

1. Regulation Law, a renewed bu narrow version of Public Services Law

IIn the years 1980-2000, Europe had the repercussions of a confrontation between Law and  Economy. The national systems have continued to express the idea that the function of the Law is to give place to human beings and to maintain a balance between them for a decent common life, which Public Law organizes in Ex Ante by public services and Private law in a less systemic way by the law of persons and contract. In this respect, monopolies and subjective rights, linked concepts, because subjective rights are prerogatives of which the right to property and exclusive rights are only examples, are a priori legitimate.

Faced with this, EU Law by liberalizing the sectors in the name of Competition Law, whose source is more Economy, to which it gives shape, than Law, has posited that the freedom of persons and the advantages that can be expected are a priori hampered by such bastions as subjective rights and monopolies, which hamper the construction of a common space.

Both have their own logic and have confronted each other, in doctrines, before Parliaments and before the courts, on a case-by-case basis. By the power of economic theories and the hierarchy of norms that puts European Union Law at the very top, which is both an autonomous legal order and immediately integrated into the legal systems of the Member States!footnote-883, the second representation of the world has prevailed.

The Law of Regulation then took the only place that could remain to it.

In classical public law perspective, the Law of Regulation could express, on the one hand, a kind of administrative police exercised by the State over areas under surveillance and control or for which it intended to develop plans. The Law of the Regulation was then concentrated in the supervision exercised by the State on the major public operators, in banking or energy areas in particular. In this conception of Law, instrument in the service of a citizen-consumer, such unjustified imperialism exposes the State to sanctions. The Regulation Law of Regulation was thus constituted as the set of legal techniques by which observed market failures are palliated.

The principle is thus reversed. The principle is the market, whose natural functioning, namely the meeting of offers and demands, is good for everything and for everyone. If it is shown that this meeting does not take place, then by exception regulatory tools can be set up, either in Ex Ante (for example, granting exclusive rights or granting access rights), or in Ex Post (Eg, essential facility qualification).

The Law of Regulation is therefore and is only a legal form of an economic conception: the management of the technical failures of the markets. It is reserved for failing sectors, either temporarily because the transition to competition is progressive, or definitively (transport networks, asymmetry of information, etc.). The State becomes a manager of these failures. A manager like any other of these failures spotted by someone other than it.

Regulation Law can then be thought outside State because it has no political dimension. Moreover, it must not have any such dimension, because the people who govern are in a conflict of interest, the heart of the Law of the Regulation in the establishment of a Regulator who must be independent. This new branch of Law can be thought above Law itself because it must be conceived in the same outlines as the markets to which it relates: to the European market, it must correspond to a European Regulatory Sectorial Law  (telecommunications, energy, environment, Banking Union); to the global financial market, must correspond a Global Financial Regulatory Law.

Appears like an intimate and exemplary figure of the Law of the Regulation: a Regulator at the same time independent, impartial and expert, insofar as it technically knows the sector of which it takes care of the functioning, even the future. This appears just as "natural" and strong as the old design.

But twenty years later, this shrinkage shows all its limitations.

 

2. Le weakening of a Regulation Law, limited to the economic management of the technical markets failures

Law can not be closed on itself, but it can not be the simple way of execution of another normative system!footnote-884, be the neutral execution fo ideas on the functioning of nature (Biology), political will, or ideas on the functioning of the economy.

By qualifying Law as a "toolbox"!footnote-885, in which all norms would be interchangeable, Law being so "soft"!footnote-886 that the Constitution and a statement on television made by an unknown civil servant, whereas the effect of the words chosen by Regulators comes to depend in law on the position of those who listen !footnote-887, Economic Law has so much attacked the classical Authority of Law, notions of Public Order!footnote-888 or of the general will that the Law of Regulation thus presented has lost its breath.

If Law is only the means of rendering efficient the particular projects of rational agents, such as machines and other algorithms can establish them, figures no longer being the means of translating human projects but replacing them !footnote-889, then the Law of Regulation would effectively translate this weakening of the Law.

A weakening that results in a rise in repression, mark of the Regulatory Law, penal and administrative, because the more weak a system is and the more it tambourines.

But the principal writer of the French Civil Code, Portalis, wrote : Les lois sont faites pour les hommes et non point les hommes pour les lois ("Law  is made for men and not men for Law"). Technology seems like the new law, intimate of the market. It should be remembered that similarly Law is not made for the machines to work full. Law is made so that human beings manage to live together and develop alone or together projects in the future.

Human beings are not serving Market, are not serving machines, are not serving Law. Law of Regulation, reduced to mechanically compensate for the "failure" of an ideal market, thus put at the service of this market, that is to say the service of machines, can not satisfy human beings.

Resistances opposed by the Member States have not always been for good reasons, but the inhumanity of certains aspects of the European Regulatory Law, for example in its reduction of the "public service" to the "universal service", by refusing to conceive the one as other than access by competitors to essential infrastructure networks or by refusing to include in the "equitable price" anything other than economically listed costs, have weakened Regulation Law, even though, moreover, "universal access" were organized to common goods, such as medical care.

This shrinkage was probably justified because the classical conception of the public service had also justified national economic organizations producing injustified profits and connivances, or even corruptions, which the economic conception allowed, if not to put an end at least to make it a legal subject, particularly with regard to conflicts of interest.

The revelations of this Economic Regulatory Law explain that for many years the new conception of Regulation Law prevailed. And with good reason. But its drought has become unbearable due to globalization.

 

B. THE AFFIRMATION OF REGULATION OF GLOBALIZATION BY LAW, NEW FORM A A "GLOBAL PUBLIC SERVICE"

It has been written so much about the shock that Globalization, which should be distinguished from intensification of exchanges, causes on States, that it is sufficiant to be written here briefly. Two facts stand out: Globalization has weakened States, even if they are legal subjects of International Law (1), even though it has increased the need to protect more exposed human beings than before. (2) Despite or because this apparent aporia that is emerging, the human being begins to want, even to demand, a "world public service" (3).

 

1. Globalizatiion, a cause of weakening of States, legal subjectifs of International Law

Globalization is of two kinds. The first is an intensification of the supranational exchanges of people, goods and capital. Since this change is only of scale and not of nature, Law adapts its itself to this, as States intensify their methods of Public International Law, in particular the technique of multilateral treaties, while supranational institutions include jurisdictions whose effectiveness decisions is taken by the signatory States.

The second globalization, superimposed on the first, has pulverized space and time. The financial space and the digital space, both linked, allow people, capital and goods - above all information - to travel or to be transferred without cost, space (because they are in fact immobile), without time (because instant being not a duration). For the moment  and despite all the reflections on this subject, the States know very badly to intervene both in Ex Ante and in Ex Post, as soon as they do not place themselves in a position of pure force, As does China, for example.

And yet, it is where and when the States are the weakest, that where and when they are the most required.

 

2. Globalization, the cause of the need to consider human beings in the game of raw forces


Globalization has precipitated human beings out of them!footnote-890. Either by massive leaks outside borders. Either by their own consent by navigations through spaces, in particular digital ones, where they are exposed to be stripped of their personal data!footnote-891, that is to say of themselves, as persons.

Both the old and new spaces seem to be governed by very violent forces, which enter into a very violent game, a spectacle in which the population itself reacts very violently, the least being the extreme political positions and the election of extremist candidates!footnote-892, candidates who affirm their willingness to step up the judges, that is to say to annihilate Law.

What is left to protect the human beings exposed?

The Law of Regulation, having in a first step massacred the Law of the Public Services by reducing it to a technique of management of the negative externalities, can not do it, in thi simple form. Politics can not and mabe does want to do it.

How regrettable. It is at a time when human beings most need to be protected, to be educated, not to be left to their loneliness and fear, notably their fear of one another, There is no one. There is no adequate Law.

Now, if we define Law as the set of mechanisms in order to protect the weak - but we can also define it as a neutral technique that makes individual wishes effective, as Law & Economics often does -, Law disappears at the moment when we have the most need for it.

The current violence of the population is also explained because people perceives Law as a technique indifferent to its misfortunes, unconnected with the "sense of justice"!footnote-922.

 

3. The need for Law to invent the forms of a "Global Public Service"

If we do not admit this situation, which is also due to an evolution of Law itself, which is useful in certain aspects, catastrophic in its consequences, we must not restore the Service public à la française  "French public service", because the borders must not rebuilding, The world is open, more violet today than yesterday and the global world State does not exist, but we need however to establish a "global public service".

Since this new but necessary "global public service" does not exist, it must be invented.

This is what is happening through the Law of Compliance. It is necessary, however, to conceive of a "good use"!footnote-933.

That is why it is also, and above all, the business of States as well as that of private enterprises.

 

II. THE  CONSEQUENCE : A COMPLIANCE LAW,  INTERNALIZING IN "CRUCIAL OPERATORS" THE IMPLEMENTATION OF ITS MONUMENTAL GOALS AND INVERSION OF TIME

Compliance Law!footnote-893 carries the highest hopes because it solves the aporia between Law of Regulation, which appears in an unrestricted dimension only attached to State, and the incontestable phenomenon of Globalization, which stops the claim of states to impose yet a vision of the human being at the scale of the planet.

Indeed, Compliance Law, a new branch of Law, as has been Regulation Law !footnote-895,and as "strange"!footnote-896 as it, a  revolutionnary branch of Law, is the direct extension of Regulation Law (A). The result is a mediate upheaval in that Supervisory Law hitherto reserved for very specific sectors, namely banking, insurance and pharmacy, now extends beyond these to reach not only all sectors but all international enterprises, including those without regulated activities, creating a major shock to them (B). Faced with this upheaval, States and international companies have a major historical choice to make: either confront each other - and all will lose - or find the way to a Pact of Trust (C).

 

A. COMPLIANCE LAW, EXTENSION OF REGULATION LAW

Regulation Law and Compliance Law have not been much linked. This is undoubtedly one of the unfortunate effects of the distinction, to which too much importance is attached, between Public and Private Law: the fact that Regulatory Law is often still referred to Public Law, while that there is a tendency to bring the Compliance mechanism closer to Private Law!footnote-897 hinders this rapprochement.

However, Compliance Law would not exist without the first, while Regulation Law regains not only a new efficiency, but even more a new breath, by the second. Indeed, through the Compliance mechanisms, the regulatory authorities elaborate "monumental goals" (1). To this strong "pretention", the authorities associate a new obligation for companies to implement these goals, such as the annihilation of corruption, solely because of their position, for example, because these enterprises are at the heart of international financial flows, because they have international activities because they are digital: because they are "crucial" (2).

 

1. Compliance Law, elaboration of "monumental goals" by public Regulators

Regulation Law, by definition, puts its normativity in its goals. This is why it is both "pragmatic", in that rules, decisions, powers, etc., which  are merely instruments for satisfying purposes,as  methods (teleological reasoning, principle of proportionality, European notion of "useful effect", etc.) are conceived in consideration of purposes, and "dogmatic": goals are principles.

The principles of Regulation Law can be diverse. This may be the effective opening of an economy to Competition, in particular if it is a transitional Regulatory Law (as in telecommunications) or in a sector where the organization should be more competitive so even if Competition is not its principle (as in railways). This can be, and often is the case, risk management, whether it is preventing or managing risk. The entire European Banking Union is built on this principle of Regulation Law, governed by this goal, clearly and clearly laid down.

Public authorities are setting increasingly ambitious goals. The scope of this ambition is unfolding in two ways. In the first place, it is no longer a  sole question of economic ambitions, but of ethical ambition. For example, fight corruption, not only because it is damaging the economy, but because it is bad. Or fight against international terrorism, child labor, sale of human beings, or for the preservation of the planet, scientific discovery or education. Secondly, it is a matter of ambitions not only within the limits of the State borders,  not only within the scope of an international convention alone, but for the whole world.

If there is to be a Global Law, which is global in its very nature of its goals, it is the public regulatory authorities which, by concentric circles, from the aim of eradicating market abuse, corruption, Influence,to more altruist purposes,  are intended to establish it effectively.

For this reason and because of this, Regulation Law is in the process of being transformed into Compliance Law of the Compliance.

 

2. Compliance Law, internalization in the "Crucial Operators" of the effective implementation of the "monumental goals"  and inversion of Time

The Regulatory Authorities, and first and foremost the American Financial Regulators, have set the goal: the fight against corruption. This goal is not new. The little satisfaction in its achievement neither. The little of this success is due to two facts: the facts to be combated are hidden in a profound way ("law of silence", connivance, fear of victims) and diffuse (networks with multiple ramifications, phenomenon of "ants") as information asymmetry is stronger than for other organized crime. These facts go beyond the borders of the State, which makes the prosecution authorities less able, de jure and de facto.

Because of the importance of this aim, because the targeted behavior is serious and the ambition is strong, a decision of a political nature has been taken, which radically changes Law: the firm becomes the agent of legality. The company that holds the information, even if this company is outside the concern for the "monumental goal" aimed at by the Public Authority, will be modified by the compliance mechanism, Law internalising in its organization and functioning the structural obligations (Eg reporting) to achieve these public interest goals.

Thus, because companies are in a situation, they are in "position", because they hold information, because without them the financial flows would not be made, because they are "crucial operators", they become "Global public service operators".

The happy effect of this internalization of the aims of Regulation Law in Compliance Law is to reverse the time.

Indeed, it is legitimate to characterize Regulation Law by its anchoring in the Ex Ante!footnote-907, in particular in that it differs from Competition Law of the !footnote-908, anchored in the Ex Post, the sanctions as necessary tools of Regulation Law being only the mark of the primary concern of effectiveness of this branch of Law. But Compliance Law, in that it contains to punish in advance the operators who have not yet done anything, which strikes at first sight the principles of classical Criminal Law, reverses time and places the Ex Post of the repression In the Ex Ante. What can be described as a "regressive method"footnote-910, which can also be criticized !footnote-910 if it is not bound by the goals, already marks Regulation Law of Regulation which logically transmits it to Compliance Law, its extension.

At the same time that Compliance Law consists in internalizing Regulation Law in the companies in "position" to render globally effective this one, Compliance Law ensures this effectiveness by controling the implementation: it establishes at the same time the Supervision of these "crucial operators" by the regulatory authorities. Thus, a new revolutionary continuum has been set up between "Regulation-Supervision-Compliance.

Compliance Law then puts compagnies under surveillance in Ex Ante and sanctions them in Ex Post, if they turn out this new role of agent of the concretisation of this Regulation Law, if this role is not effective in such or such case.

There may, of course, be points of contact between Compliance obligations and the economic activity of the newly supervised firm, for example bank's compliance obligations are related to the fight against money laundering. But there are no longer any when it comes to fighting violence against children. Yet internalisation will be carried out similarly in the same way.

It is measured here Law has been transformed. Transformed by this continuum "Regulation - Supervision - Compliance".

By Compliance Law, businesses of international scope acquire a status and a role that regulated companies did not even have. This is particularly clear about Supervision.

 

B. LEGAL SUPERVISION TECHNIQUES, OUT OF THE HINGERS OF SUPERVISED AND REGULATED SECTORS

Indeed, supervisory techniques, which allow the Authorities to look transparently at operators, to enter the companies themselves, are so violent, spraying the distinction between internal and external, distinction between the company (as an autonomous group) and the sector (by nature external to the company operating on it) that these supervisory techniques were reserved for a few very specific sectors. But that was the "world of yesterday" (1). By Compliance Law, because this one sprays this summa divisio between the inside and the outside, which had already begun Banking and Financial Regulation Law, by "internalizing" all the device at the heart of the Enterprises, the general supervisory Mechanism is imported in the General Enterprises Law. However, companies becoming transparent and welcoming in their governance the Regulator, even more so by the "warning-launcher" mechanism, organizing bridges between their internal organization and this one, belong to unsupervised sectors, not even necessarily regulated. This is why the field of the "world of tomorrow" becomes immense (2).

 

1. The world of yesterday: Supervision, a narrower field than Regulation

Supervision Law of Supervision is classically distinguished from Regulation Law. Regulatory law is concerned with market structures and the behavior of operators which develop their activities on them, but the classic rule of Market Law that firms remain "black boxes" remains. Thus, because concentration can affect the structure of the markets, the technique of regulating concentration control is carried out, while governance techniques, in particular the management of conflicts of interest, are more a matter of Company Law , which are not traditionally included in the Regulation Law.

It is true that the Banking and Finacial Regulatory Law has attacked this frontier between the inside and the outside, bearing in mind the solidity of the actors, has connected Supervision Law, notably by prudential mechanisms,  with thelegal  Regulation of these sectors . Indeed, because these Regulatory sectorial Laws have, like the Banking Union, for the purpose of preventing systemic risks and managing systemic crises - notably through Resolution processes - there is a continuum between Regulation of sectors and Supervision of "Crucial operators", especially systemic banks.

Even if in these sectors the regulatory law (for the sector) and the supervisory law (for the operators) are articulated, justifying in particular mergers or "interregulation" between public institutions, because the decision-making procedures, the organization Internal, executive profiles, etc., have chain repercussions on the sectors themselves, these being underlying the general economy.  Until recently, Supervisory Law, even if connected with, or even connected to the Regulation Law, was exercised only in banking and financial matters.

There are of course similar provisions, e.g. with the presence of Public Authority within the company, in the functions or in direct supervision of the governance or the decisions Or in the capital or in a power of substitution for decisions or decision-makers, through the classical - and if so much criticized - mechanism of guardianship of public enterprises by the Government, set up in the traditional Law on major public operators, in nuclear sector for example.

This public power, once so criticized, will not only be taken up again in Ex Ante and Ex Post, the Banking Resolution being an example of this public power which, in the name of general interest and systemic public order, strikes the operator and disposes of this public order with all the violence of the Law, but will be generalized by Compliance Law, on which paves the "world of tomorrow".

 

2. The world of tomorrow:  Supervision, a wider field than Regulation, as the primary instrument of Compliance Law

Compliance  Law of Compliance is - like Regulation Law which it extends - teleological. It imposes on the "crucial operator" objectives, obliges it to structure itself in order to satisfy them, this obligation of structuring being an obligation of result, of global scope,  sanctioned by Criminal Law.

The crucial operator becomes the one who has to collect the relevant information, the one that the public authority needs to satisfy the monumental goal which the latter deems necessary. The operator will have to keep the information (procedure of the "reporting"), extract the information (method "know your client") and strike itself (mechanism of the "launch of alert").

The operator must denounce itself and punish itself: the protection of the alert launcher is not a modality of the status of the latter, it is his status itself.

The Regulator then becomes a spectator of the global efforts that the operator, in so far as he is the global holder of the relevant global information, must be able to do. The role of the Regulator evolves: it no longer does, it watches to do, it controls that it is done, it receives the proofs that it was done, that it is done permanently.

Why not.

It is a total revolution of Law, both in Common Law systems and in Civil Law systems. This would be to underestimate the revolution that constitutes the establishment of Compliance Law if we qualify it only as a simple victory of Common Law over Civil Law. It is much more: some companies are transformed, by their "crucial positions" into agents in first line and agents of a global legality.

The Common Law system, which rests on the freedom of operators which are accountable in Ex Post of the use they have made of their freedom of principle, does not correspond to this scheme. Nor does Civil Law's systems correspond. It rests on the submission of operators who submit in Ex Ante to an exogenous rule without firm's participation in its implementation, the system having the advantage of the distance between the norm and that which obeys to it.

Compliance Law  is therefore new. It is the expression and the foundation of a new Law that will be built. A new Law allowing Authorities, primarily Financial Authorities with powers of sanctions exercised extraterritorially in a preventive and structural repression, plunging into all companies having an international activity and having a contact with persons, territories, activities or objects crossing one of the aforementioned "monumental aims".

In other words, Compliance Law can be the new way of reigning over the world .... In this, it is not to be encouraged, because Law is not made to redouble forces. But it can also be a way for the world to be a little better than it is as a single field of force, as expressed by the notion of "global public service".

What is going to be depends on what the States and the Companies concerned will do.

 

C. THE ALTERNATIVE OF THE CONFRONTATION OR A "PACT OF TRUST"

Indeed, this overwhelming extension of Regulation Law  in this Compliance Law presents numerous risks of confrontations (1), which ccould justify defending against its establishment. But we can also take advantage of this Compliance Law under construction if we take it as a "Pact of Trust" between the Regulators and the "Crucial Operators". It is here and now that we must decide. In Europe (2).

 

1. The multiple risks of chashes between Compagnies and Regulators, between the United States and Europe

The first risk is in the confrontation between companies and regulators, the latter punishing very heavily the first, the first not understanding why, seeing there persecution or, at worst, an organized racket.

This misunderstanding between companies and public authorities is the major risk of the whistleblower mechanism, which is an essential element of the success of the new Compliance Law. The whistlewlower can be analyzed as an exploitation by an individual of a power to satisfy a revenge or to make money in a personal dispute or as a mechanism for the benefit of the company that takes advantage of information about an internal dysfunction that it did not know. In France, in 2016, the new law Sapin which implemented this mechanism of whistleblower has tried to favor it by the more precise definition of the "alert launcher", drawing the protection of this one, leading to the second acceptation, depriving of protection the individual who abuses this power.

Avoiding this risk is a major challenge for Compliance Law not only not to undermine confidence, the primary capital of the economy, but also to increase it.

The second risk is another sort of incomprehension. This risk is to not understand that the Compliance consists in seizing the enterprises only as agents of effectiveness of "monumental goals", whose pursuit depends concretely not only of the States, to grasp the companies only in this perspective. The major technical consequence of this perspective is that it restricts the circle of subjects of law to only "crucial operatorss": companies of international dimensions, of large size and structure, which can assume such a burden and responsibility.

However, to read certain statements and papers, notably in the preparatory work, in particular the French "Sapin 2" law, because the Compliance Law could refer in some definitions to the very general obligation of every subject of law to "comply with the law", all enterprises would be subject of it, including those with no international activity, including those of small size. It is true that in the letter of the French Sapin 2 Law, the distinction between large and small enterprises, between local companies and companies with international activity, is not done. But it would make no sense to impose on small businesses without international activity the burden which would have no object, whereas this implies a significant financial and organizational weight for the undertaking concerned. The error that has been made for accounting standards should not be repeated!footnote-898.

The third risk is that of a confrontation between Europe and the United States. The Compliance Law is of American origin and Europe has probably discovered it through painful condemnations, for example this sort of condemnation granted that was the settlement of 2014 inflicted to BNPP. The entrance to Compliance Law was with trumpets, drums but also muskets. The United Kingdom is developing the same almost paranoid impression of an unjustified process, allowing American public authorities to request financial sanctions for their own voluntary , which are directly beneficial to them. The impression is the same in Germany. There emerges an impression of a political confrontation, of which Law is only a mask.

Yet, like Regulation Law, Compliance Law can be quite different, because companies gain nothing to exhaust themselves against the Regulators, as Europe has no future to exhaust itself against United States.

 

2. The multiples profits of a "Trust pact", to be built

Indeed, businesses have everything to gain by knowing what is happening in their homes, and the bigger they are, the less they know. Experience shows that the alert firstly benefits the company itself.

Similarly, what are called "fiduciary professionals" have a key role to play in this regard, in particular the liberal professions or ministerial officials who also break away from an historical llink with State, to be connected to a professional architecture of Regulation and Compliance!footnote-906.

The more Companies help Regulators to achieve their goals, the more they earn. Firstly because many goals are common, including the fight against market abuses. Even if we goes to the very classic notions of public service and general interest, the French report made by the very classic president of the Conseil d'Etat (French Council of State) Renaud Denoix of Saint-Marc has shown that a private operator is able of carrying out public service missions and having a concern of it.

Moreover, companies can directly endorse concerns that exceed the short term, since "Corporate social responsibility" can not be accredited as an effective concern only from the outside.

This external view and credit is conferred to Companies by the Regulator, that is to say, the centerpiece of Regulation Law. In this way, Regulation Law also reinforces and extends Compliance Law.

A virtuous circle can then be set up on which a European Compliance Law can be built. It is essential to build this one. This will not be effective on such a "Trust Pact" between companies that are "crucial operators", regulators and European jurisdictions.

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1

On this vast issue of what is the "Regulation", in Law (and not only the collection of regulations), s. Frison-Roche, M.A., Le Droit de la Régulation ("Regulation Law" - article written in French), 2001 ; Définition du droit de la régulation économique ("Definition of Economic Regulatory Law" - article written in French), 2004., Ambition et efficacité de la régulation économique ("Ambition and Efficiency of the Economic Regulation" - article written in French), 2010.

2

Principle imposed in European Union Law by the judgment of the Court of Justice of 15 July 1964 Costa, which constitutes one of the foundations of European integration.

3

On the tendency of the Regulation Law to be no more than the way of execution of other rules, s. Frison-Roche, M.-A., The promethean nature of the future banking and financial regulatory law,  2014 ; s. more generally the reference book of Alain Supiot, La gouvernance par les nombres, 2015.

4

This is a common expression of Economic Law, especially in American Law, European Union Law and British Law, v. Tool box, etc.

5

The expression "Soft Law" being  (like the expression of "Toolbox", the two being associated in the same doctrines and in the same decisions) has also become very common and the most valued.  V. Frison-Roche, M.- A., forthcoming

6

About the affirmation of a such rule, see the very remarkable decision of the French Council of State (Conseil d'Etat du 13 juillet 2016, Engie): "les avis, recommandations, mises en garde et prises de position adoptés par les autorités de régulation dans l'exercice des missions dont elles sont investies, peuvent être déférés au juge de l'excès de pouvoir lorsqu'ils revêtent le caractère de dispositions générales et impératives ou lorsqu'ils énoncent des prescriptions individuelles dont ces autorités pourraient ultérieurement censurer la méconnaissance. Ces actes peuvent également faire l'objet d'un tel recours, introduit par un requérant justifiant d'un intérêt direct et certain à leur annulation, lorsqu'ils sont de nature à produire des effets notables, notamment de nature économique, ou ont pour objet d'influer de manière significative sur les comportements des personnes auxquelles ils s'adressent. Dans ce dernier cas, il appartient au juge, saisi de moyens en ce sens, d'examiner les vices susceptibles d'affecter la légalité de ces actes en tenant compte de leur nature et de leurs caractéristiques, ainsi que du pouvoir d'appréciation dont dispose l'autorité de régulation.".

" Sauf en matière de travaux publics, la juridiction ne peut être saisie que par voie de recours formé contre une décision, et ce, dans les deux mois à partir de la notification ou de la publication de la décision attaquée. " En l'absence de dispositions législatives ou réglementaires prévoyant un autre mode de publication, la mise en ligne d'un acte de la nature de celui que conteste la société GDF Suez sur le site internet de l'autorité de régulation qui l'édicte, dans l'espace consacré à la publication des actes de l'autorité, fait courir, à l'égard des professionnels du secteur dont elle assure la régulation, le délai de recours prévu par ces dispositions. Lorsque le justiciable n'a pas contesté cet acte dans ce délai, il lui reste loisible, s'il s'y croit fondé, de demander son abrogation à l'autorité qui l'a adopté et, le cas échéant, de contester devant le juge de l'excès de pouvoir le refus que l'autorité oppose à cette demande.".

.

7

V. par ex. Frison-Roche, M.-A., Les trois natures de l'ordre public économique ("The three Natures of Economic Public Order" - article written in French, summary in English), 2015.

8

Supiot, A., La gouvernance par les nombres, 2015.

9

For a demonstration in this sense, v. Frison-Roche, M.-A., Globalization from the point of view of Law, 2016.

10

On the immense, problematic and central issue of data, s. eg Frison-Roche, M.-A., Rethinking the world from the notion of "data", 2016 ;  Frison-Roche, M.-A. (Ed.),Internet, espace d'interrégulation ( "Internet, space of interregulation"), 2016.

11
About the link between this situation and these policital and physical violences, particularly in democratic countries, s. Frison-Roche, M.-A., Law and Economy : a human Test, 2015.
12

Dans the movie Inside Out, developed by cognitive science experts, feelings of justice and anger are one. For an analysis of this (in French), v. Frison-Roche, M.-A, Le droit expliqué aux enfants : Le lien entre Colère et Justice dans "Inside out" ("Vice-versa") de Disney, 2016.

13

Frison-Roche, M.-A., The good use of Compliance, 2017.

14

Frison-Roche, M.A., Compliance Law, 2016.

15

Frison-Roche, M.-A., Le Droit de la Régulation comme branche du Droit, 2004.

16

Frison-Roche, M.-A., Compliance Law, 2016.

17

This is very regrettable and damaging. Indeed, both this distribution is misleading. The connection of Regulation Law of with Public Law is not justified but it is due to the fact that it has developed in sectors (energy, telecommunications, transport) constructed on public companies, which referred to Public Law. On the other hand, Compliance Law, which is being born relies heavily on Financial Markets Law and Corporate Law, which is more often attached to Private Law. This hampers the rapprochement between Regulation Law and Compliance Law.

But at the same time, the distinction between Public Law and Private Law remains relevant. In this sense, v. Auby, J.-B., ....

18

Frison-Roche, M.-A., Regulation versus Competition, 2011..

19

Frison-Roche, M.A., Regulation versus Competition, 2011.

22

The new accounting standards, IFRS, are financial standards, internalized in companies. They make no sense except for companies that are open to investors, especially for listed companies. But by an inadequate logic, it has been proposed to generalize them to all enterprises, even to the State, as if they were good "in themselves", and not in relation to a goal. Then, in a second step and by a second error of reasoning, observing that the implementation of IFRS standards is too burdensome for small and medium-sized enterprises, it was proposed to "simplify" them for them, as proposed to "adapt" them to the State. This is a misconception because the purpose of public accounting and accounting for small and medium-sized enterprises is not to inform investors about the market value of the asset to buy and sell. Such an error may be renewed in relation to Compliance standards.

23

 This is particularly the case for notaries who have an important role to play in compliance, not only mechanically because financial flows pass into their hands, but also because they have a strong "guarantor" meaning. V. in this sense Frison-Roche, M.A., The Notariat, a profession reinforced by the so-called "Macron" law as an essentially fiduciary profession, 2016 (article in French)
C'est notamment le cas des notaires qui ont un rôle important à jouer en matière de compliance, non seulement mécaniquement puisque des flux financiers passent entre leurs mains, mais encore parce qu'ils sont à sens fort "garants". V. dans ce sens Frison-Roche, M.A., Le Notariat, profession confortée par la Loi dite "Macron" comme profession essentiellement fiduciaire , 2016.

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