🚧The Hypothesis of the category of Systemic Cases brought before the Judge

Article 5 of the Code civil (French Civil Code) : "Il est défendu aux juges de prononcer par voie de disposition générale et réglementaire sur les causes qui leur sont soumises" (free translation : "Judges are prohibited from making general and statutory rulings on cases submitted to them"). 

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1. When we have the benefit of so many reflections on the office of the judge, ever more erudite and ever more subtle, how can we begin to reflect on it📎!footnote-2547 ? Perhaps by sending a kind of meteorite onto one of the most accomplished constructions of legal orders, whether Common Law or Civil Law : by proposing to put the office of the judge to the test with a slightly new hypothesis. Not only is the expression "systemic case" unusual, but the term "cause" ("case") seems so old that it is more usual in procedure to use the term "dispute"📎!footnote-2567. Associating a term that may be outdated, or at least now unusual (cause) with an adjective that comes from other disciplines (systemic) is therefore unusual. Using this expression would allow us not to have to take sides for one theory or another📎!footnote-2541, for one narrative or another, a little panicked as we might be by the disruptive element of a proposed notion, annoyed but also liberated from so much knowledge, in a hurry to find practical solutions.

2. Indeed, it is for this benefit of what might be described as "conceptual brutality" that, having begun my university work with procedure, by writing a thesis on Le principe du contradictoire (The adversarial principle)📎!footnote-2542, a principle that remains dear to my heart, I am now studying Economic Law instead. Not even Business Law, but Economic Law, which could be described as a Law of uncertain contours, difficult to fit into the architecture of the legal system, particularly in what would be the summa divisio that we know in France between Public Law and Private Law, thereby giving rise to new solutions.

3. One of the reasons for this is that Economic Law is so often made by people who do not have much legal knowledge, and who sometimes even believe that they do not need to have any, since Economic Law is said to start with Economics and work its way towards Law, and not without a few rough edges📎!footnote-2545. Admittedly, for the legal scholars that we are, this is a little off-putting. But in practice, we suspect, for example, that Competition Law is often created, even designed, by economists📎!footnote-2543, a branch of Law that has been stricken with "economism", or that Financial Law is above all designed by financiers, this outside perspective perhaps giving these branches of Law their unity📎!footnote-2544. Law would certainly have lost its capital letters and is most often referred to in a jumble as ‘regulations’. This conception of Economic Law is excessive and has rightly been denounced, notably by Alain Supiot📎!footnote-2566.

4. But it is not a question here of examining as such the relationship between disciplines, for example Economics and Law, Finance and Law, Biology and Law, Climatology and Law, a relationship on which a multitude of works are available, having given rise to their own disciplines (Law & Economics, Law and & Finance, etc.) which are constantly being subdivided..., nor to test the relevance of the economic analysis of Law as such📎!footnote-2546, but to articulate a hypothesis: in the great diversity of cases submitted to judges, a particular category exists, that of "systemic cases". If we succeed in formulating what characterises these "systemic cases", what ensures their specificity beyond the branches of the Law, the variety of cases and the variety of judges📎!footnote-2548, then a procedural and jurisdictional adjustment of the office of the judge is justified in order to integrate this systemic dimension.

5. The purpose of this study is therefore to propose the concept of "systemic case", the first essential step in this working hypothesis (I), leaving for a later article or for others the elaboration of all the practical consequences that should be drawn from it. On the basis of this hypothesis, a case brought before a court may be systemic by nature, by reflex or by will (II). When the case is systemic, the system itself may not only constitute one of the objective elements of the situation submitted but, involved in the subject of the claim, it may appear as a sort of party (III).

Finally, it is worth examining two particular hypotheses, which complicate the hypothesis and which depend neither on the branch of Law activated nor on the position of the court in the legal order: that of the systemic case in which several systems are involved (IV) and that of the systemic case in which the system exceeds the case (V).

I. PROPOSAL OF THE NOTION OF SYSTEMIC CASE

6. It is worth recalling briefly and for the record the principle that a case brought before a court is a special case that calls for special procedural and jurisdictional treatment (A). However, it appears that in certain cases, particularly in Economic Law and undoubtedly today in environmental matters, the involvement of a system in the case brought before the judge intuitively justifies specific treatment (B). It then becomes clear what justifies a "systemic method" and what constitutes a systemic cause per se, the two not being confused because the first (systemic method) must only be the consequence of the second (systemic nature) (C). Beyond intuition, we have a few clues (D).

A. To special case, special jurisdictional treatment

7. When, by exercising his subjective procedural right of action📎!footnote-2549, a person brings a case before a judge, setting out a factual situation about which an allegation is made, he asks the judge to give it concrete effect in application of legal rules.

This is how a "case" can be defined, whatever the instance in question. Technically, in principle, a judge cannot be seised if there is no case, if no one is asking him to apply Law to give legal effect to a factual situation presented to him📎!footnote-2554. It is in particular in consideration of this particular cause that the mechanism of res judicata crystallises, preventing this person from presenting the same situation to another judge by making the same allegation and formulating the same claim📎!footnote-2553.

8. The judge is obliged to respond to this particular case, because that is his/her office, as article 4 of the Code civil (French Civil Code) has formulated it since 1804. Article 4 is linked to article 5 of the same Code, which prohibits the judge from responding to this particular request by means of a general and statutory provision: he/she therefore responds by means of specific provisions, if necessary by interpreting Law in a general or even new way.

There are a great many analyses available, most of which have been undertaken from the perspective of the sources of Law, providing nuances, exceptions or criticisms, but this simple, solid presentation remains relevant.

9. This study is not based on the treatment, or even the strategy, used by the judge, but on the case submitted to him. Intuitively, it has long been the case, particularly in Economic Law, that a system is present in certain cases brought to the attention of the judge, who responds by considering the presence of a system in the case. It can be seen that judges have always taken into consideration the presence of a system in the case brought before them.

B. Specific treatment intuitively applied to cases in which a system is involved

10. Particularly in general economic mechanisms, or when climatic equilibrium is at stake, the situation submitted to the judge may itself involve an entire system. In this case, the analysis that each person can make is not about having a finer or more perceptive perception of a particular situation, for example a psychological perspective when the judge examines a situation of conflict between a few people, but rather a hypothesis in which a system itself, for example a sector, is involved📎!footnote-2550.

Examples of systemic cases come to mind: when the case concerns the system by which banks organise themselves to honour each other's cheques (cheque-image system); by which the cost of connecting to infrastructure networks is allocated between the operator and the person accessing the network; by which information is shared between the lawyer and the prosecuting authority managing a systemic risk; by which an innovation is shared between operators, and so on.

11. It has been observed that courts have spontaneously adjusted their procedures, by admitting more experts or even by themselves decided to appoint them, by taking more time, and by asking questions to other institutions (courts or administrative authorities). But isn't it time to take a more abstract approach to this category, whose existence is intuitively clear?

To achieve this, distinctions must be made immediately, and not between branches of Law or between the Administrative and the Judicial Order, as each will soon claim to be different.

C. Distinction and correlation between the systemic case and the systemic approach to a case

12. More often than not, the notion of "systemism" is associated with a method rather than a situation. In this case, it is a "systemic approach", a way of analysing a situation that is seen as a whole that correlates the various elements that make it up. In this respect, Law itself is a whole, the expression "legal system" is one of the most common, and the legal order is defined by this general correlation. The presentation made by Luhmann is particularly systemic📎!footnote-2555.

The systemic approach can then be applied to almost any case, since it consists of correlating the different elements of a situation, taking into account the fact that they interact by themselves according to their own law. This holistic application, derived from systems theory, can be applied to the family, to the firm and to society as a whole, with a view to self-organisation. Everything to do with the market lends itself to this approach, because market concepts present it as self-regulating📎!footnote-2556. 

13. But the systemic approach is not sufficient in itself. When a system is involved in a case submitted to the judge, then the holistic conception should play a greater role in the procedural treatment applied to it. For example, when a sector is affected by the situation presented to the court, it will be logical that, particularly if a Regulatory Authority has been established for this sector, such an institution should be able to express its point of view in order to enlighten the court in the debate taking place before it.

But for the notion of systemic case to retain its relevance, it must remain narrow: the case must be systemic per se, independently of a systemic approach, the latter being only a consequence of this nature and not what constitutes it.

A particular case can therefore be considered to be systemic when a system is involved in it.

14. This is facilitated when the system takes the form of a sector. A sector is itself more easily identified when it includes a Regulatory or Supervision Authority.

Indeed, in the same way that the existence of an Administrative Regulatory Authority is an almost irrefragable indicator of the existence of a Sectoral Regulatory Law, the presence of an entire sector in a particular case is more easily detected when it concerns a subject that is otherwise subject to the office of a Regulatory or Supervisory Authority. For example, a particular case that has an impact on access charges or charges for a regulated good or service would appear to be a systemic case.

But this is already going into the realm of hints.

D. Hints of systemic cases: sectors concerned, objectively detectable impacts

15. First of all, specific cases relating to regulated sectors, when they affect, in the situation submitted to the judge, what justified the sector's exemption from Ordinary Competition Law, for example the essential infrastructure and its specific features or the existence of crucial economic operators📎!footnote-2551, which the Banking and Financial Regulatory Law refers to as "systemic operators", exempted in one way or another from the Ordinary Law governing firms, appear to be systemic cases.

16. The fact that the legal system has given the Regulator the power to settle disputes and/or impose sanctions in order to better regulate the sector📎!footnote-2552 is another indication that when a particular case concerns a constituent element of the system, for example the quality of information in Banking and Financial Regulatory Law, it deserves specific treatment in the procedural and decision-making approach to litigation.

17. But first of all, not all cases that emerge in a sector call into question the systemic functioning of that sector: only those that have repercussions on the system as a whole deserve to be classified as systemic cases.

It is therefore necessary to subtract cases from all cases brought before the courts in regulated systems so that only systemic cases remain, i.e. cases which have an impact on the operation of the system itself in the situation described and/or the subject of the claim.

18. Secondly, because there can be a system without an established Authority, we need to add the sectors that operate on a systemic basis without an administrative Authority responsible for regulating them Ex Ante, such as the agricultural sector.

What's more, there may be a system that does not coincide with the existence of a sector. There are two in particular, and of prime importance: the digital space, born of the computer system and invented by the crucial digital operators, on the one hand, and the climate system on the other.

19. The following hypothesis could be put forward: when there is an Authority set up to regulate and/or supervise a sector, the judge's recognition of the possibly systemic nature of a case relating to the sector is welcome in order to avoid contradictions and/or silence between what this authority says and what the judge will say; when there is no Authority in what is nonetheless constituted as a system, for example the global economic system, the global climate system, the global digital system, the judge's recognition of the possibly systemic nature of a case relating to these entities is welcome because no institution is set up and available to do this.

Intuitively, one might think that the second hypothesis is even more pressing than the first.

20. In the same way that the quantitative and qualitative are linked, a case, while always unique, concerns issues of varying significance in terms of their material scope. Thus the financial volume involved in a case is an indication. But, as Carbonnier pointed out, "à petite cause grands effets" ("small cases, big effects"), and every lawyer knows what French Law owes to the misfortunes of two little girls: Rose Jand'heur and Agnès Blanco. But any expert in systemic risks knows that the difficulty lies in the fact that the quantitative is only a hint, just as the letter is only an access to the spirit of Law but does not enclose it.

II. IDENTIFYING A SYSTEMIC DIMENSION IN A CASE BROUGHT TO THE JUDGE'S ATTENTION

21. The systemic case being a category, it is by an exercise of qualification that the judge will detect this nature, to make the case which is submitted to him fit into this category and to subject it by imputation to a procedural, even jurisdictional, regime which is specific to it (which will be the subject of another study).

This leads to three perspectives in what could be called the "identification" of the systemic dimension of a case brought to the attention of the judge: what would be naturally systemic cases (A), what would be systemic cases by reflex effect (B) and what would possibly be systemic cases on the proposal of the parties or raised by the judge (C).

A. Systemic cases by effect of nature

22. By effect of nature, i.e. we can consider that the basic elements of a system are in question, that a case is impregnated. For example, when the insurance process, which structures the insurance sector and assumes that the insurer's obligation to pay is triggered, is called into question by the phenomenon of data theft for ransom. In this case, it is the Ex Ante sharing of the risk and the burden of managing it, i.e. the system itself, that is at stake.

23. A similar effect of nature is found in the fiduciary relationship that binds the corporate officer and the shareholder, if the case submitted to the judge concerns the very contours of this trust, trust being what structures the financial market itself, beyond the corporate organisation. Relationships between disciplines are also emerging📎!footnote-2558, with corporate governance intersecting with Company Law. But it is indeed the capital investment system that is present in the case.

24. We can also mention the cases involving the costs of access to infrastructure networks in regulated sectors, which are an essential dimension that justified the industrial and economic mechanism being subject to Regulation and not left to contractual mechanisms whose prices are set by the sole agreement of wills, have a systemic dimension by nature.

B. Systemic cases by reflex effect

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C. Systemic cases by will

26. But it must always be borne in mind that it is not the judges who manufacture the cases: because, by definition, the case is presented by the parties who construct the case by working out the facts; it is the parties, even if in criminal litigation the public prosecutor is a party to the proceedings rather than to the dispute. Although the judge is often the master of the proceedings, he is not the master of the case and, particularly not in Common Law systems, where he is often presented as so powerful, he merely responds to a case whose contours are drawn by the parties.

27. We must therefore consider that a case is only systemic because at least one party wants it to be and includes this dimension in what is brought before the Judge.

Active, even activist, parties are therefore needed to construct a dispute in a way that is sufficiently objective, i.e. that goes beyond the dispute between two people, for the judge to be able to go beyond that dimension, or even to be forced to do so.

28. This is why systemic cases have appeared more easily in Competition Law and Regulatory Law: because the Administrative Authorities in charge of a system, whether economic, financial, health, audiovisual, transport, telecommunications, etc., themselves bearing a system, naturally shape the case by incorporating what might be termed their "systemic concern".

Their desire to take care of the system, which is what these authorities were set up to do, naturally extends to the configuration of the cases in which they intervene before the courts, either as plaintiff or defendant or for an opinion.

29. Does this will for a systemic characterisation has to meet with the will of the judge? Precisely not, because as the judge is not authorised to rule beyond the elements of the case, he must recognise this systemic dimension in the facts presented to him.

Thus, if the judgement that he/she is likely to adopt in fine can adopt general formulations that mirror the general functioning of a system (for example price fixing, investor information, etc.), this will be because it reflects in the judgement the case itself, to which it is obliged to respond, and not because it would have added something general to a case: it is precisely because we always imagine a ‘dispute’ between two particular people that we perceive the general dimension of a judgement as being an act of ‘government’, whereas it may, conversely, be the reflection, which we might say ‘docile’, of a systemic dimension of a case that the parties themselves have brought to the judges.

III. THE PROCEDURAL QUALIFICATION OF THE SYSTEM IN A SYSTEMIC CASE

30. If we are willing to consider that the system is not simply an element of context, nor a methodological consideration by which we apprehend a case in order to better understand and master it📎!footnote-2557, we can ask ourselves whether the system, for example the competitive economic system, or the health system, or the audiovisual system, or the transport system, or the data system, is present in the case, irradiating it to the extent that it becomes systemic, not only as an objective element, but as a subjective element.

31. The idea is by no means new: it is indeed this idea that justifies the presence of the public prosecutor, the public rapporteur and the approved associations in group actions, which thus enables a system to be present ‘by prosecutor’ and to plead its perspective before the judge. By their very nature, criminal and administrative proceedings deal with systemic cases, which organise disputes in which the social system is involved, represented in the proceedings by the public prosecutor and the public rapporteur. In Law of Economic Systems, the same idea justifies the presence of the Competition or Regulatory Authority in the proceedings that take place before the Court of Appeal in the attack that is made against the decisions adopted by a commission that inside it is functionally independent of it.

32. The system then appears as an impartial party supporting its perspective before the judge. It is all the more in the judge's interest to include it in the debate that he organises, by calling on those who are familiar with the system, be they administrative authorities, other courts or experts, private or from the court. The other parties have an even greater interest in being given procedural rights against the system's point of view because, as the system is thus a party to the proceedings and not to the dispute, it is likely to have more influence on the judge.

If the texts do not provide for this, it is undoubtedly up to the judge himself to find such prosecutors for the system.

33. This can only lead to the objectification of disputes, a more complex and much broader debate, but also one that is more orderly and more in the hands of the judge, with the criterion of expertise prevailing, since the person best able to speak for the system is undoubtedly the person with the best knowledge of it.

34. This is undoubtedly why administrative litigation, as well as litigation relating to economic and financial repression, is in fact more in phase with this systemic case configuration, due to the procedures already adopted, in which the inquisitorial and adversarial aspects are increasing at the same time📎!footnote-2560. 

IV. THE HYPOTHESIS OF A SYSTEMIC CASE IN WHICH SEVERAL SYSTEMS ARE INVOLVED

35. The hypothesis of a systemic case can be constituted by the involvement of a single system, for example the health system, or the education system, or the transport system, etc. But it may happen that from the moment the systemic case is established, several systems are involved, each governed by its own purpose (A). This will certainly have a major impact on the office of the judge. The question is whether, as soon as the systemic case is constituted, there is already an articulation between these different systems (B).

A. Multiple systems involved in a systemic case

36. This is a very frequent occurrence. The institutional practice of mixed chambers at the Cour de cassation (French Court of cassation) or combined sub-sections, or even plenary assemblies on first appeal in cassation, may correspond to this. Their creation is presented as a precaution in the face of a possible divergence of solutions to a question that falls within the jurisdiction of several divisions of the court. But this can be transposed to the case of systems.

37. This is all the more true because, by their very nature, the systems do not operate in the same way and there is therefore a kind of natural potential divergence between them. Indeed, if we take the system of the competitive market, as expressed in the very letter of the texts of Competition Law, its ‘law’ is ‘free competition’ between offers and the free meeting of offers and demands📎!footnote-2561. But if we take the energy system, what similarly constitutes its ‘law’ is security, autonomy and access for all to this common good. There is no denying that the energy sector is made up of different markets, criss-crossed by different value chains, and that as such these markets are governed by the first system.

In the example taken, it may happen that a systemic case is brought before the judge which affects both the ‘market system’ dimension, which as such justifies the adjustment of supply and demand being the first to appear, and the ‘sustainable system’ dimension, which as such justifies the price resulting from other mechanisms. Without prejudging what the parties and the judge will do, at the very least here two systems are involved, systems that are not constructed in the same way because they do not have the same purpose.

Can they be articulated as soon as the submission to the judge is constructed?

B. Is there a method for articulating systems at the case-building stage?

38. This brings us back to the link between a case that is systemic in nature and the systemic method of apprehending it. Indeed, the first tendency of a judge, when faced with the sort of block that a system constitutes, with all the technical knowledge, often impressive, that characterises it, is undoubtedly to limit himself to a procedural apprehension of the case. It is remarkable that judicial review of merger control has long been of this kind.

39. When judicial review becomes more substantial, the different systems, because they are not built in the same way and do not operate for the same purposes, can directly confront each other in the adversarial debate that the systemic case will itself by method justify, carried by these kinds of prosecutors that are the Public Authorities but also the ‘stakeholders’ and experts. In a Justice that becomes transparent to the systems themselves, hearings benefit from being broadcast, as the Conseil constitutionnel (French Constitutional Council) and the European Court of Human rights do, for example.

40. It seems difficult to go further, for example by establishing a sort of hierarchy between the systems. For example, it has been argued by some authors, and above all by the competition authorities, that the general system of competitive markets for goods and services, insofar as it is maintained by an ‘Horizontal Regulation’, is of a higher level, whereas the sectoral systems, for example the financial, telecommunications, postal or transport systems, are only ‘vertical’, with the first system therefore taking precedence over the second. Without going into the debate on the definitions of Competition Law and Regulatory Law, it is clear that it is difficult to accept that this is an effect of nature and that it must at the very least be debated so that a specific solution can be found that is as compatible as possible, or even favourable, to the different systems involved.

In any case, we can see that what we might call intersystemic cases refer to a method of inter-regulation📎!footnote-2562, proposed in 2005, which has been of great benefit, which takes notably the form of opinions procedures📎!footnote-2563. 

V. THE HYPOTHESIS OF A SYSTEMIC CASE IN WHICH THE SYSTEM EXCEEDS THE CLAIM

41. Through this last example of a merger control that takes place in the banking system, provided that this concentration also takes the technical form of a public offer on a stock market, shows that systems are often not confined to one territory.

Moreover, a case is all the more systemic when the system involved exceeds the borders that more or less correspond to the legal order in which the judge intervenes and to the people in whose name he rules, for example the borders of France to resolve a case in application of the French Law that is applicable to it.

42. Let's take three perspectives that illustrate systemic cases where the system involved exceeds the allegation articulated by the party.

That of the financial system, which is global in scope. It was in this context that the first de facto extraterritorial application of the repression of market abuse was made. What is more, it is in financial matters that Compliance Law, which finds its way into global firms, can incorporate this dimension, clearly distinguishing itself from Criminal Law, which continues to express values specific to a People📎!footnote-2565.

The second example is the digital system. Digital space is a complete system with firms that invented, built, structured and partly govern it. The issue here is not to see what changes need to be made to such a global system, changes that are now being undertaken by legislators and courts alike, but to recognise that in some cases it is the digital system that is at the heart of the situation, the allegations and the demands being made. To take only those cases involving algorithms, the reality of consent, the monitoring of consent, etc., understanding the system, for example compliance by design, is essential from the outset, and the Office of the Judge must undoubtedly make room for it.

The third example is the climate system. It is by its very nature global, and has nothing to do with immateriality. The question that the climate system poses by its very nature is a claim for the future, which strongly leads us to consider it as present, justifying this technically inaccurate but understandable tendency to treat nature as a person with rights, particularly procedural rights.

43. By nature, in these three essential examples, the system exceeds the traditional contours of a case. This leads us to consider that there is more than one dispute ; that the cause becomes colossal, by an effect of nature and not the will of the judge ; that the judge will only see this systemic dimension of the case submitted to him, without adding anything to it, which makes illegitimate a complaint of government of the judges by its translation in the office of the judge📎!footnote-2564. 

CONCLUSION

44. We do not have a global legislator, as international treaties are not global laws, but we do have global systems and global firms which may, in the course of litigation, call into question the systems themselves, both as plaintiff and defendant.

45. Judges, because the case gives them jurisdiction to respond to the demand that is thus made on an exposed situation about which allegations are made, are confronted with systemic issues: they are therefore sometimes the best people to respond.

46. It remains for them to more explicitly recognise this category of systemic cases and then adjust their office to it.

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