The term "breach" is new in Law. In the legal order, the term "fault" is that which is retained to designate the behavior of a person who deviates from a rule and must be sanctioned, because by this act he has manifested a fraudulent intention which may is reproached to him. But the legal notion of fault, which was central in the classic Law of civil liability and was essential in criminal liability Law has the major drawback of calling for proof: that of the intention to "do wrong". This seems all the less adequate when it comes to assessing the behavior of organizations, such as companies, whose behavior and power must be controlled more than the faulty behavior of their leaders sanctioned.

This is why both to lighten the burden of proof concerning natural persons, in particular those with the power and the function of deciding for others (managers, "senior executives") and to better correspond to the distribution of the power of The action, which is now held by organizations, in particular companies, are "failures" and no longer faults or negligence which constitute the triggering events triggering their liability or justifying repression.

It is more particularly an administrative repression, the end of which is not to sanction misconduct but to effectively protect the regulated sectors. The sanction for breaches is therefore both easier, because it is always necessary to prove the intention, and more violent, because the sanctions attached can relate to a share of the profits withdrawn, to a share of the turnover. business of the operator or can take the form of commitments by the operator for the future, a very restrictive and new form of sanction that the compliance technique has inserted into the law.

Thus the breach can be defined as a behavior, even an organization which is away from the behavior or the situation that the author of a text has posed as being that which he posits as adequate. This definition, which is at the same time broad, abstract, teleological and prescription, which makes it possible to apprehend not only behaviors but also structures, makes the sanction of breaches a daily tool of Regulatory Law.

The procedural guarantees from which the person benefits are mainly the right of action, the rights of defense and the benefit of the adversarial principle.

While the rights of the defense are subjective rights which are advantages given to the person at risk of having his situation affected by the decision that the body which is formally or functionally legally qualified as a "tribunal", may take, the adversarial principle is rather a principle of organization of the procedure, from which the person can benefit.

This principle, as the term indicates, is - as are the rights of the defense - of such a nature as to generate all the technical mechanisms which serve it, including in the silence of the texts, imply a broad interpretation of these.

The adversarial principle implies that the debate between all the arguments, in particular all the possible interpretations, is possible. It is exceptionally and justified, for example because of urgency or a justified requirement of secrecy (professional secrecy, secrecy of private life, industrial secrecy, defense secrecy, etc.) that the adversarial mechanism is ruled out. , sometimes only for a time (technique of deferred litigation by the admission of the procedure on request).

This participation in the debate must be fully possible for the debater, in particular access to the file, knowledge of the existence of the instance, the intelligibility of the terms of the debate, not only the facts, but also the language (translator, lawyer , intelligibility of the subject), but still discussion on the applicable legal rules). So when the court automatically comes under the rules of Law, it must submit them to adversarial debate before possibly applying them.

The application of the adversarial principle often crosses the rights of the defense, but in that it is linked to the notion of debate, it develops all the more as the procedure is of the adversarial type.

► Référence complète : M. M. Mohamed Salah, "Conclusions", in J. Andriantsimbazovina (dir.), Puissances privées et droits de l'Homme. Essai d'analyse juridique, Mare Martin, coll. "Horizons européens", 2024, pp. 297-314

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► Résumé de l'article :

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🦉Cet article est accessible en texte intégral pour les personnes inscrites aux enseignements de la Professeure Marie-Anne Frison-Roche

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Référence complète : Boursier, M.-E., L’irrésistible ascension du whistleblowing en droit financier s’étend aux abus de marché, Bulletin Joly Bourse, 1ier septembre 2016.

Les étudiants de Sciences po peuvent lire l'article en accédant au dossier "MAFR - Régulation"

Banks are regulated because they do not engage in an ordinary economic activity, as their are likely to create systemic risk. In the real economy indeed, banks play the role of providing credit to entrepreneurs who operate on the markets for goods and services. These credits are mainly financed through deposits made by depositors and, to a lesser extent, by shareholders (i.e., capitalists). That is how liberalism and capitalism are bound up. However, banks also have the power to create money by the book entries they make when they grant loans ('book money'). As such, the banks share with the State this extraordinary power to exercise monetary authority, which some describe as sovereign power. It is possible that the digital eventually calls this power into question, since the Regulation currently hesitates to seize control over new instruments that are called "virtual currency" and that are used as proper "currency" or as an ordinary instrument for cooperative relation.

Banks' prominent sovereign character justifies, first and foremost, that the State is granted the power to choose the institutions which benefit from the privilege of creating book money- in this regard, the banking industry has always been a monopoly. Hence, Banking Regulation is first an ex ante control to enter the profession, and also a careful monitor of the people and institutions that claim they are in.

In addition, banks and credit institutions lend more money than their own funds can allow: the whole banking system is necessarily based on the trust that each creditors place within the bank, including depositaries who leave their funds at the banks' disposal for it to use them. That is where Bank Regulation intervenes to establish what is called 'prudential ratios', i.e., ratios that ensure the soundness of the institution by determining the amount of money that banks can lend based on the equity and quasi-equity they actually have.

Moreover, banks are constantly monitored by their supervisory Regulator, the Central Bank (in France, the Banque de France) that ensures the safety of the whole system by setting the State as the lender of last resort. This can, however, incentivize a large financial institution to take excessive risks based on its reliance on the fact that the State will save it eventually- that is what the 'moral hazard' theory systematized. All monetary and financial systems are built on these central banks that are independent from governments, which are far too reliant on political strategies and which cannot generate the same trust that a Central Bank inspires. Since the missions of central banks have increased over the years, and since the notions of Regulation and Supervision have come together, we tend to consider that Central Banks are now fully fledged Regulators.

Besides, Banking Regulation has become all the more central since banking is no longer primarily about loaning but rather about financial intermediation.  Banking Regulation and Financial Regulation are mixing. In Europe , European Central Bank is in the center.

► Référence complète : D. Esty et M. Hautereau-Boutonnet, "Derrière les procès climatiques français et américains : des systèmes politique, juridique et judiciaire en opposition", D.2022, p.1606 et s.

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The Independent Administrative Authority (IAA) is the legal form that the legislator has most often chosen to build regulatory authorities. The IAA is only its legal form, but French law has attached great importance to it, following the often formalistic tradition of public law. They are thus independent administrative authorities, especially in the legal systems of continental law like France, Germany or Italy.

The essential element is in the last adjective: the "independent" character of the organism. This means that this organ, which is only administrative so has a vocation to be placed in the executive hierarchy, does not obey the Government. In this, regulators have often been presented as free electrons, which posed the problem of their legitimacy, since they could no longer draw upstream in the legitimacy of the Government. This independence also poses the difficulty of their responsibility, the responsibility of the State for their actions, and the accountability of their use of their powers. Moreover, the independence of regulators is sometimes questioned if it is the government that retains the power to appoint the leaders of the regulatory authority. Finally, the budgetary autonomy of the regulator is crucial to ensure its independence, although the authorities having the privilege of benefiting from a budget - which is not included in the LOLF - are very few in number. They are no longer referred to as "independent administrative authorities" but as "Independent Public Authorities", the legislator making a distinction between the two (French Law of 20 January 2017).

The second point concerns the second adjective: that it is an "administrative" body. This corresponds to the traditional idea that regulation is the mechanism by which the State intervenes in the economy, in the image of a kind of deconcentration of ministries, in the Scandinavian model of the agency. If we allow ourselves to be enclosed in this vocabulary, we conclude that this administrative body makes an administrative decision which is the subject of an appeal before a judge. Thus, in the first place, this would be a first instance appeal and not a judgment since the administrative authority is not a court. Secondly, the natural judge of the appeal should be the administrative judge since it is an administrative decision issued by an administrative authority. But in France the Ordinance of 1 December 1986 sur la concurrence et la libéralisation des prix (on competition and price liberalization), because it intended precisely to break the idea of ​​an administered economy in order to impose price freedom on the idea of ​​economic liberalism, required that attacks against the decisions of economic regulators taking the form of IAA are brought before the Court of Appeal of Paris, judicial jurisdiction. Some great authors were even able to conclude that the Paris Court of Appeal had become an administrative court. But today the procedural system has become extremely complex, because according to the IAA and according to the different kinds of decisions adopted, they are subject to an appeal either to the Court of Appeal of Paris or to the Conseil d'État (Council of State) . If one observes the successive laws that modify the system, one finds that after this great position of principle of 1986, the administrative judge gradually takes again its place in the system, in particular in the financial regulation. Is it logical to conclude that we are returning to a spirit of regulation defined as an administrative police and an economy administered by the State?

Finally, the third term is the name itself: "authority". It means in the first place an entity whose power holds before in its "authority". But it marks that it is not a jurisdiction, that it takes unilateral decisions. It was without counting the European Court of Human Rights (ECHR) and the judicial judge! Indeed, Article 6§1 of the European Convention on Human Rights states that everyone has the right to an impartial tribunal in civil and criminal matters. The notion of "criminal matter" does not coincide with the formal traditional concept of criminal law but refers to the broad and concrete factual concept of repression. Thus, by a reasoning which goes backwards, an organization, whatever the qualification that a State has formally conferred on it, which has an activity of repression, acts "in criminal matters". From this alone, in the European sense, it is a "tribunal". This automatically triggers a series of fundamental procedural guarantees for the benefit of the person who is likely to be the subject of a decision on his part. In France, a series of jurisprudence, both of the Cour de cassation (Court of Cassation), the Conseil d'État (Council of State) or the Conseil constitutionnel (Constitutional Council) has confirmed this juridictionnalization of the AAI.

► Full Reference : E. Netter, "Les technologies de conformité pour satisfaire les exigences du droit de la compliance. Exemple du numérique" (Conformity technologies to meet the requirements of Compliance Caw. Digital example), in M.-A. Frison-Roche (dir.), L'obligation de Compliance, Journal of Regulation & Compliance (JoRC) and Dalloz, coll. "Régulations & Compliance", 2024, forthcoming.

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📕read the general presentation of the book, L'obligation de Compliance, in which this contribution is published.

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► English summary of this contribution (done by the Journal of Regulation & Compliance) :The author distinguishes between Compliance, which refers to Monumental Goals, and conformity, which are the concrete means that the company uses to tend towards them, through processes, check-lists in the monitoring of which the operator is accountable (art. 5.2. GRPD). Technology enables the operator to meet this requirement, as the changing nature of technology fits in well with the very general nature of the goals pursued, which leave plenty of room for businesses and public authorities to produce soft law.

The contribution focuses firstly on existing technologies. Through Compliance, Law can prohibit a technology or restrict its use because it runs counter to the goal pursued, for example the technology of fully automated decisions producing legal effects on individuals. Because it is a perilous exercise to dictate by law what is good and what is bad in this area, the method is rather one of explicability, i.e. control through knowledge by others.

Regulators are nevertheless developing numerous requirements stemming from the Monumental Goals of Compliance. Operators must update their technology or abandon obsolete technology in the light of new risks or to enable effective competition that does not lock users into a closed system. But technological power must not become too intrusive, as the privacy and freedom of the individuals concerned must be respected, which leads to the principles of necessity and proportionality.

The author stresses that operators must comply with the regulations by using certain technologies if these technologies are available, or even to counteract them if they are contrary to the goals of the regulations, but this obligation of conformity is applied only if these technologies are available. The notion of "available technology" therefore becomes the criterion of the obligation, which means that its content varies with circumstances and time, particularly in the area of cybersecurity.

In the second part of this contribution, the author examines technologies that are only potential, those that Law, and in particular the courts, might require companies to invent in order to fulfill their conformity obligation. This is quite understandable when we are talking about technologies that are in the making, but which will come to fruition, for example in the area of personal data transfer to satisfy the right to portability (GRPD), or where companies must be encouraged to develop technologies that are of less immediate benefit to them, or in the area of secure payment to ensure strong authentication (SPD 2).

This is more difficult for technologies whose feasibility is not even certain, such as online age verification or the interoperability of secure messaging systems, two requirements which appear to be technologically contradictory in their terms, and which therefore still come under the heading of "imaginary technology". But Compliance is putting so much pressure on companies, particularly digital technology companies, that considerable investment is required to achieve it.

The author concludes that this is the very ambition of Compliance and that the future will show how successful it will be. 

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🦉This article is available in full texte for persons following Professor Marie-Anne Frison-Roche teaching.

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► Référence complète : A. Oumedjkane, "Le devoir de vigilance est-il soluble dans le droit des contrats publics ?", in M.-A. Frison-Roche (dir.), Compliance et contrat, Journal of Regulation & Compliance (JoRC) et Dalloz, coll. "Régulations & Compliance", à paraître

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► Résumé de l'article (fair par le Journal of Regulation & Compliance - JoRC) : Il analyse le devoir de vigilance, lequel constitue la pointe avancée du Droit de la Compliance dans la commande publique.

Cela est contrintuitif, puisque le devoir de vigilance est légal et que la loi donne compétence au juge judiciaire. Mais l'auteur souligne que les lois récentes, notamment les lois "résilience et climat" et "finance verte" visent expressément le devoir de vigilance pour constituer des causes d'exclusion de l'entreprise qui manque à son obligation de vigilance des commandes publiques.

L'auteur regrette que les textes à ce propos aient fait l'objet d'une rédaction approximative et variant de texte en texte, alors qu'il s'agit de régir la même situation : celle de l'exclusion d'une entreprise du champ de la commande publique parce qu'elle n'a pas rempli son obligation de vigilance; ce qui suppose des obligations pleinement réalisées, ou de n'avoir pas établi un plan de vigilance, ce qui n'est pas la même chose et manifeste moins d'exigence.

Il souligne également la question du contrôle qualitatif du plan de vigilance, contrôle approfondi ou au contraire obligation purement formelle. Là encore, il pense, comme la majorité de la doctrine, qu'il est raisonnable de se rapporter à une interprétation minimale, même si la loi sur le devoir de vigilance marque plus d'ambition.

Il estime que si le juge administratif était en effet confronté à un contrôle substantiel, en raison de la compétence, qu'il estime exclusive, du Tribunal judiciaire de Paris, il faudrait former des questions préjudicielles...

Dans ces conditions d'interprétation minimale, seule une absence de plan ou un plan formellement défaillant serait sanctionné dans le cadre de la commande publique... Mais cette interprétation est la moins adaptée à l’objectif de la législation elle-même, et que l'on pourrait en arriver que ce qu'une entreprise qui aurait été condamnée par le Tribunal judiciaire pourrait n'être pourtant pas exclue d'un marché public...

L'auteur estime enfin que cette nouvelle démarche incitative montre en réalité l'impuissance du Droit des contrats publics à produire par lui-même les effets recherchés sur les entreprises.

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Référence complète : Salah, M., La mondialisation vue de l'Islam, in Archives de Philosophie du Droit, La mondialisation entre illusion et utopie, tome 47, Dalloz, 2003, 27-54.

La mondialisation apparaît comme une occidentalisation des cultures et du droit. L'Islam qui prend forme juridique devrait se l'approprier sans se dénaturer. La réussite d'un tel processus difficile dépendra de la qualité de la régulation qui sera mise en place.

Lire une présentation générale de l'ouvrage dans lequel l'article a été publié.

Les étudiants de Sciences po peuvent via le drive lire l'article dans le dossier "MAFR - Régulation".

Une dissertation juridique suit les règles de construction et de rédaction généralement requises pour les dissertations d'une façon générale mais présente certaines spécificités.

Le présent document a pour objet de donner quelques indications. Elles ne valent pas "règles d'or", mais un étudiant qui les suit ne peut se le voir reprocher. La correction des copies tiendra compte non seulement du fait que les étudiants ne sont pas juristes, ne sont pas habitués à faire des "dissertations juridiques", mais encore prendra en considération le présent document.

► Full Reference: M. Torre-Schaub, "Environmental and Climate Compliance", in M.-A. Frison-Roche (ed.), Compliance Obligation, Journal of Regulation & Compliance (JoRC) and Bruylant, "Compliance & Regulation" Serie, to be published

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📘read a general presentation of the book, Compliance Obligation, in which this article is published

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► Summary of the article (done by the Journal of Regulation & Compliance - JoRC): 

The author starts from the fact that Compliance Law, in that it is not limited to conformity process, and Environmental Law are complementary, both based above all on the prevention of risks and harmful behaviour, environmental crises and the right to a healthy environment involving the strengthening of Environmental Vigilance. It is all the more important to do this because definitions remain imprecise, not least those of Environment and Climate, which are diffuse concepts.

Firstly, the contribution sets out the purpose of Environmental Compliance, which is to ensure that companies are vigilant with regard to all kinds of risks: they put in place and follow a series of processes to obtain "progress" in accordance with a standard of "reasonable vigilance". This requires them to go beyond mere conformity and encourages them to develop their own soft law tools within a framework of information and transparency, so that the climate system itself benefits in accordance with its own objectives.

Then the author stresses the preventive nature of Environmental Vigilance mechanisms, which go beyond providing Information to managing risks upstream, in particular through the vigilance plan, which may be unified or drawn up risk by risk, and which must be adapted to the company, particularly in the risk mapping drawn up, with assessment being carried out on a case-by-case basis.

Lastly, in the light of recent French case law, the author describes the implementation of the system, which may bring the parties before the Tribunal judiciaire de Paris (Paris Court of First Instance) and then the specialised chamber of the Paris Court of Appeal. The author believes that judges must clarify the obligation of Environmental Vigilance so that companies can adjust to it, and these 2 courts are in the process of doing so.

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🦉This article is available in full text to those registered for Professor Marie-Anne Frison-Roche's courses

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Legally, the State is a public law subject defined by territory, people and institutions. It acts in the international space and emits norms. Politically, it has the legitimacy required to express the will of the social body and to exercise the violence of which it deprives the other subjects of law. It is often recognizable by its power: its use of public force, its budgetary power, its jurisdictional power. These three powers, declining or being challenged by private, international and more satisfying mechanisms, some predicted the disappearance of the State, to deplore it or to dance on its corpse.

With such a background, in current theories of Regulation, primarily constructed by economic thought and at first sight one might say that the State is above all the enemy. And this for two main reasons. The first is theoretical and of a negative nature. The advocates of the theory of regulation deny the State the political qualities set out above. The State would not be a "person" but rather a group of individuals, civil servants, elected officials and other concrete human beings, expressing nothing but their particular interests, coming into conflict with other interests, and using their powers to serve the former rather than the latter as everyone else. The Regulation theory, adjoining the theory of the agency, is then aimed at controlling public agents and elected representatives in whom there is no reason to trust a priori.

The second reason is practical and positive. The State would not be a "person" but an organization. Here we find the same perspective as for the concept of enterprise, which classical lawyers conceive as a person or a group of people, while economists who conceive of the world through the market represent it as an organization. The state as an organization should be "efficient" or even "optimal". It is then the pragmatic function of the Regulation Law. When it is governed by traditional law, entangled by that it would be an almost religious illusions of the general interest, or even the social contract, it is suboptimal. The Regulation purpose is about making it more effective.

To this end, as an organization, the State is divided into independent regulatory agencies or independent administrative authorities that manage the subjects as close as possible, which is fortunate in reducing the asymmetry of information and in reviving trust in a direct link. The unitary, distant and arrogant State is abandoned for a flexible and pragmatic conception of a strategic state (without capital ...) that would finally have understood that it is an organization like any other ...

Competition law adopts this conception of the State, which it posed from the beginning that it was an economic operator like any other. This is how this conception which would be  more "neutral" of the world is often presented.

Successive crises, whether sanitary or financial, have produced a pendulum effect.

Now, the notions of general interest or common goods are credited of an autonomous value, and the necessity of surpassing immediate interests and of finding persons to bear superior interests or to take charge of the interests of others, even a non-immediate one, emerged.

Thus, the State or the public authority, reappears in the globalization. The Compliance Law or the Corporal Social Responsibility of the crucial companies are converging towards a consideration of the State, which can not be reduced to a pure and simple organization receptacle of externalities.

Sont ici répertoriés les sujets proposés chaque année, soit au titre du travail à faire en parallèle du cours, à remettre à la fin du semestre (le jour de l'examen étant la date limite de remise), soit les sujets à traiter sur table, sans documentation extérieure et sous surveillance le jour de l'examen final. 

A partir de 2019, en raison du règlement administratif de la scolarité, l'examen final ne peut plus se dérouler en dehors du cours.

Les étudiants cessent donc de bénéficier d'une durée de 4 heures pour réaliser l'examen.

Le contrôle final est donc nécessairement réalisé pendant la durée de 2 heures du dernier cours de l'enseignement, supprimé pour être remplacé par ce contrôle sur table. Les sujets sont désormais choisis en considération de ce format. 

Retourner sur la description générale du Cours de Droit commun de la Régulation, comprenant notamment des fiches méthodologiques. 

► Full Reference: O. Douvreleur,  "Compliance and Judge ruling only on points of Law", in M.-A. Frison-Roche (ed.), Compliance Jurisdictionalisation, series "Compliance & Regulation", Journal of Regulation & Compliance (JoRC) and Bruylant, to be published. 

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► Article Summary (done by the Journal of Regulation): Compliance maintains with the judge complex relations, and even more with the judge ruling only on points of Law  (in France, the Court de Cassation in the judicial order, the one who, in principle, does not know the facts that he leaves to the sovereign appreciation of the judges ruling on the substance of the disputes. At first glance, compliance is a technique internalised in companies and the place occupied by negotiated justice techniques leave little room for intervention by the judge ruling only on points of Law

However, his role is intended to develop, in particular with regard to the duty of vigilance or in the articulation between the different branches of Law when compliance meets Labor Law, or even in the adjustment between American Law and the other legal systems, especially French legal system. The way in which the principle of Proportionality will take place in Compliance Law is also a major issue for the judge ruling only on points of Law.

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📘 read the general presentation of the book, Compliance Jurisdictionalisation, in which this article is published

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►Full Reference: Delalieu, G., La loi sur le devoir de vigilance des sociétés multinationales : parcours d’une loi improbable, Droit et Société, 2020/3, n°106, p.649-665.

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►English Summary of the Article (done by the Author): (Corporate Duty of Vigilance in France: The Path of an Improbable Statute). This article offers an analysis of the resistance encountered by defenders (NGOs and trade unions) of the French Law on Corporate Duty of Vigilance. These actors sought to behave as institutional entrepreneurs deploying intense advocacy and lobbying efforts to successfully have this bill tabled, examined, and ultimately passed by the French government. Considering this case, the concept of “institutional entrepreneurship” is discussed and then relativized using Machiavelli’s notion of “Fortuna,” to describe the “improbable” adoption of this statute. The results tend to put into perspective the importance that individual actors, including collective ones, can have in the explanation of institutional change, in favor of a multilevel analysis of change (micro, meso, macro).

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► Full Reference: Marty, F., The Case for Compliance Programs in International Competitiveness: A Competition Law and Economics Perspective, in Frison-Roche, M.-A. (ed.),Compliance Monumental Goals, series "Compliance & Regulation", Journal of Regulation & Compliance (JoRC) and Bruylant, to be published.

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► Article Summaryésumé de l'article (done by the Journal of Regulation & Compliance): The author analyzes economically the question of whether the compliance programs set up to respect competition rules are for the sole purpose of avoiding sanctions or also contribute to the goal of increasing the international economic performance of companies. which submit to them.

The author explains that companies integrate by duplication external standards to minimize the risk of sanctions, developing a "culture of compliance", which produces their competitiveness increase and the effectiveness of the legal and economic system. In addition, it reduces the cost of investment, which increases the attractiveness of the company.

In this, this presentation based on the postulate of the rationality of companies and investors, compliance programs can fall under self-regulation. The duplication of the law that they operate takes place largely according to "procedural" type methods.

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📝 go to the general presentation of the book 📘Compliance Monumental Goals, in which this article is published

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► Full Reference: M.-A. Frison-Roche, "General Procedural Law, prototype of the Compliance Obligation", in M.-A. Frison-Roche (ed.), Compliance Obligation, Journal of Regulation & Compliance (JoRC) and Bruylant, "Compliance & Regulation" Serie, 2026, forthcoming.

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📝read the article

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🚧read the bilingual Working Paper on the basis this article has been written, with more developments, technical references and hyperlinks

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📘read a general presentation of the book, Compliance Obligation, in which this article is published

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► Summary of this article: At first glance, General Procedural Law seems to be the area the least concerned by the Compliance Obligation, because if the person is obliged by it, mainly large companies, it is precisely, thanks to this Ex Ante, in order to never to have to deal with proceedings, these path that leads to the Judge, that Ex Post figure that in return for the weight of the compliance obligation they have been promised they will never see: any prospect of proceedings would be seeming to signify the very failure of the Compliance Obligation (I).

But not only are the legal rules attached to the Procedure necessary because the Judge is involved, and increasingly so, in compliance mechanisms, but they are also rules of General Procedural Law and not a juxtaposition of civil procedure, criminal procedure, administrative procedure, etc., because the Compliance Obligation itself is not confined either to civil procedure or to criminal procedure, to administrative procedure, etc., which in practice gives primacy to what brings them all together: General Procedural Law (II).

In addition to what might be called the "negative" presence of General Procedural Law, there is also a positive reason, because General Procedural Law is the prototype for "Systemic Compliance Litigation", and in particular for the most advanced aspect of this, namely the duty of vigilance (III). In particular, it governs the actions that can be brought before the Courts (IV), and the principles around which proceedings are conducted, with an increased opposition between the adversarial principle, which marries the Compliance Obligation, since both reflect the principle of Information, and the rights of the defence, which do not necessarily serve them, a clash that will pose a procedural difficulty in principle (V).

Finally, and this "prototype" status is even more justified, because Compliance Law has given companies jurisdiction over the way in which they implement their legal Compliance Obligations, it is by respecting and relying on the principles of General Procedural Law that this must be done, in particular through not only sanctions but also internal investigations (VI).

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🌐Subscribe to the Newsletter MAFR Regulation, Compliance, Law

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► Full Reference: M.-A. Frison-Roche, "In Compliance Law, the legal consequences for Entreprises of their commitments and undertakingsn", in M.-A. Frison-Roche (ed.), Compliance Obligation, Journal of Regulation & Compliance (JoRC) and Bruylant, "Compliance & Regulation" Serie, 2026, forthcoming.

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📝read the article

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🚧read the bilingual Working Paper on the basis this article has been written, with more developments, technical references and hyperlinks

____

📘read a general presentation of the book, Compliance Obligation, in which this article is published

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

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

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

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

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

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► Full Reference: M.-A. Frison-Roche (ed.), Compliance Obligation, Journal of Regulation & Compliance (JoRC) and Bruylant, "Compliance & Regulation" Serie, 2026, to be published

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📕In parallel, a book in French L'Obligation de compliance, is published in the collection "Régulations & Compliance" co-published by the Journal of Regulation & Compliance (JoRC) and Lefebvre-Dalloz. 

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📚This book is inserted in this series created by Marie-Anne Frison-Roche for developing Compliance Law.

 read the presentations of the other books of this Compliance Series:

• further books:

🕴️M.A. Frison-Roche (ed.), 📘Compliance Evidential System, 2027

🕴️M.A. Frison-Roche (ed.), 📘Compliance and Contract, 2027

• previous books:

​🕴️M.A. Frison-Roche (ed), 📘Compliance Juridictionnalisation, 2023

🕴️M.A. Frison-Roche (ed), 📘Compliance Monumental Goals, 2022

🕴️M.-A. Frison-Roche (ed.), 📘Compliance Tools, 2021

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► go to the general presentation of this 📚Series ​Compliance & Regulation, conceived, founded et managed by Marie-Anne Frison-Roche, co-published par the Journal of Regulation & Compliance (JoRC) and Bruylant. 

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🧮the book follows the cycle of colloquia organised by the Journal of Regulation & Compliance (JoRC) and its Universities partners.

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► general presentation of the book: Compliance is sometimes presented as something that cannot be avoided, which is tantamount to seeing it as the legal obligation par excellence, Criminal Law being its most appropriate mode of expression. However, this is not so evident. Moreover, it is becoming difficult to find a unity to the set of compliance tools, encompassing what refers to a moral representation of the world, or even to the cultures specific to each company, Compliance Law only having to produce incentives or translate this ethical movement. The obligation of compliance is therefore difficult to define.

This difficulty to define affecting the obligation of compliance reflects the uncertainty that still affects Compliance Law in which this obligation develops. Indeed, if we were to limit this branch of law to the obligation to "be conform" with the applicable regulations, the obligation would then be located more in these "regulations", the classical branches of Law which are Contract Law and Tort Law organising "Obligations" paradoxically remaining distant from it. In practice, however, it is on the one hand Liability actions that give life to legal requirements, while companies make themselves responsible through commitments, often unilateral, while contracts multiply, the articulation between legal requirements and corporate and contractual organisations ultimately creating a new way of "governing" not only companies but also what is external to them, so that the Monumental Goals, that Compliance Law substantially aims at, are achieved. 

The various Compliance Tools illustrate this spectrum of the Compliance Obligation which varies in its intensity and takes many forms, either as an extension of the classic legal instruments, as in the field of information, or in a more novel way through specific instruments, such as whistleblowing or vigilance. The contract, in that it is by nature an Ex-Ante instrument and not very constrained by borders, can then appear as a natural instrument in the compliance system, as is the Judge who is the guarantor of the proper execution of Contract and Tort laws. The relationship between companies, stakeholders and political authorities is thus renewed.

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🏗️general construction of the book

The book opens with a substantial Introduction, putting the different sort of obligations of compliance in legal categories for showing that companies must build structures of compliance (obligation of result) and act to contribute with states and stakeholders to reach Monumental Goals (obligation of means). 

The first part is devoted to the definition of the Compliance Obligation. 

The second part presents the articulation of Compliance obligation with the other branchs of Law, because the specific obligation is built by Compliance Law, as new substantial branch of Law but also by many other branchs of Law.

The third part develops the pratical means established to obtained the Compliance Obligation to be effective, efficace and efficient.

The fourth part takes the Obligation  of Vigilance as an illustration of all these considerations and the discussion about the future of this sparehead fo the Compliance Obligation . 

The fifth part refers to the place and the role of the judges, natural characters for any obligation. 

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TABLE OF CONTENTS 

ANCHORING THE SO DIVERSE COMPLIANCE OBLIGATIONS IN THEIR NATURE, REGIMES AND FORCE TO BRING OUT THE VERY UNITY OF THE COMPLIANCE OBLIGATION, MAKING IT COMPREHENSIBLE AND PRACTICABLE 

🔹 Compliance Obligation: building a compliance structure that produces credible results withe regard to the Monumentals Goals targeted by the Legislator, by 🕴️Marie-Anne Frison-Roche

TITLE I.

IDENTIFYING THE COMPLIANCE OBLIGATION

CHAPTER I: NATURE OF THE COMPLIANCE OBLIGATION

Section 1 🔹 Will, Heart and Calculation, the three marks surrounding the Compliance Obligation, by 🕴️Marie-Anne Frison-Roche

Section 2 🔹 Debt, as the basis of the compliance obligation, by 🕴️Bruno Deffains

Section 3 🔹 Compliance Obligation and Human Rights, by 🕴️Jean-Baptiste Racine

Section 4 🔹 Compliance Obligation and changes in Sovereignty and Citizenship, by 🕴️René Sève

Section 5 🔹 The definition of the Compliance Obligation in Cybersecurity, by 🕴️Michel Séjean

CHAPTER II: SPACES OF THE COMPLIANCE OBLIGATION

Section 1 🔹 Industrial Entities and Compliance Obligation, by 🕴️Etienne Maclouf

Section 2 🔹 Compliance, Value Chains and Service Economy, by 🕴️Lucien Rapp

Section 3 🔹 Compliance and conflict of laws. International Law of Vigilance-Conformity, based on applications in Europe, by 🕴️Louis d'Avout 

TITLE II.

ARTICULATING THE COMPLIANCE OBLIGATION WITH OTHER BRANCHES OF LAW

Section 1 🔹 Tax Law and Compliance Obligation, by 🕴️Daniel Gutmann

Section 2 🔹 General Procedural Law, prototype of the Compliance Obligation, by 🕴️Marie-Anne Frison-Roche

Section 3 🔹 Corporate and Financial Markets Law facing the Compliance Obligation, by 🕴️Anne-Valérie Le Fur

Section 4 🔹 Transformation of Governance and Vigilance Obligation, by 🕴️Véronique Magnier

Section 5 🔹 The Relation between Tort Law and Compliance Obligation, by 🕴️Jean-Sébastien Borghetti

Section 6 🔹 Environmental and Climate Compliance, by 🕴️Marta Torre-Schaub

Section 7 🔹 Competition Law and Compliance Law, by 🕴️Jean-Christophe Roda

Section 8 🔹 The Compliance Obligation in Global Law, by 🕴️Benoît Frydman & 🕴️Alice Briegleb

Section 9 🔹 Environmental an Climatic Dimensions of the Compliance Obligation, by 🕴️Marta Torre-Schaub

Section 10 🔹 Judge of Insolvency Law and Compliance Obligations, by 🕴️Jean-Baptiste Barbièri

TITLE III.

COMPLIANCE: GIVE AND TAKE THE MEANS TO OBLIGE

CHAPTER I: COMPLIANCE OBLIGATION: THE CONVERGENCE OF SOURCES

Section 1 🔹 Compliance Obligation upon Obligation works, by 🕴️Marie-Anne Frison-Roche

Section 2 🔹 Conformity technologies to meet Compliance Law requirements. Some examples in Digital Law, by 🕴️Emmanuel Netter

Section 3 🔹 Legal Constraint and Company Strategies in Compliance matters, by 🕴️Jean-Philippe Denis & 🕴️Nathalie Fabbe-Coste

Section 4 🔹 Opposition and convergence of American and European legal systems in Compliance Rules and Systems, by 🕴️Raphaël Gauvain & 🕴️Blanche Balian

Section 5 🔹 In Compliance Law, the legal consequences for Entreprises of their Commitments and Undertakings, by 🕴️Marie-Anne Frison-Roche

CHAPTER II: INTERNATIONAL ARBITRATION IN SUPPORT OF THE COMPLIANCE OBLIGATION

Section 1 🔹 How International Arbitration can reinforce the Compliance Obligation, by  🕴️Laurent Aynès

Section 2 🔹 Arbitration consideration of Compliance Obligation for a Sustainable Arbitration Place, by 🕴️Marie-Anne Frison-Roche

Section 3 🔹 The Arbitral Tribunal's Award in Kind, in support of the Compliance Obligation, by 🕴️Eduardo Silva Romero

Section 4 🔹 The use of International Arbitration to reinforce the Compliance Obligation: the example of the construction sector, by 🕴️Christophe Lapp 

Section 5 🔹 The Arbitrator, Judge, Supervisor, Support, by 🕴️Jean-Baptiste Racine

TITLE IV.

VIGILANCE, SPEARHEAD OF THE COMPLIANCE OBLIGATION

Section 1 🔹 Vigilance Obligation, Spearheard and Total Share of the Compliance Obligation, by 🕴️Marie-Anne Frison-Roche

CHAPTER I: INTENSITIES OF THE VIGILANCE OBLIGATION, SPEARHEAD OF THE COMPLIANCE SYSTEM

Section 2 🔹 Intensity of the Vigilance Obligation by Sectors: the case of Financial Operators, by 🕴️Anne-Claire Rouaud

Section 3 🔹 Intensity of the Vigilance Obligation by Sectors: the case of Digital Operators, by 🕴️Grégoire Loiseau

Section 4 🔹 Intensity of the Vigilance Obligation by Sectors: the case of Energy Operators, by 🕴️Marie Lamoureux

CHAPTER II: GENERAL EVOLUTION OF THE VIGILANCE OBLIGATION

Section 1 🔹 Rethinking the Concept of Civil Liability in the light of the Duty of Vigilance, Spearhead of Compliance, by 🕴️Mustapha Mekki

Section 2 🔹 Contracts and clauses, implementation and modalities of the Vigilance Obligation, by 🕴️Gilles J. Martin

Section 3 🔹 Proof that Vigilance has been properly carried out with regard to the Compliance Evidence System, by 🕴️Jean-Christophe Roda

Section 4 🔹 Compliance, Vigilance and Civil Liability: put in order and keep the Reason, by 🕴️Marie-Anne Frison-Roche

Title V.

THE JUDGE AND THE COMPLIANCE OBLIGATION

Section 1 🔹 Present and Future Challenges of Articulating Principles of Civil and Commercial Procedure with the Logic of Compliance, by 🕴️Thibault Goujon-Bethan

Section 2 🔹 The Judge required for an Effective Compliance Obligation, by 🕴️Marie-Anne Frison-Roche

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CONCLUSION

THE COMPLIANCE OBLIGATION: A BURDEN BORNE BY SYSTEMIC COMPANIES GIVING LIFE TO COMPLIANCE LAW  

(conclusion and key points of the books, free access)

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► Full Reference: M.-A. Frison-Roche, Arbitration consideration of Compliance Obligation for a sustainable Arbitration Place", in M.-A. Frison-Roche (ed.), Compliance Obligation, Journal of Regulation & Compliance (JoRC) and Bruylant, "Compliance & Regulation" Serie, 2026, forthcoming.

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📝read the article

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📘read a general presentation of the book, Compliance Obligation, in which this article is published

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► Summary of this article: The first part of this study assesses the evolving relationship between Arbitration Law and Compliance Law, which depends on the very definition of the Compliance Obligation (I). Indeed, these relations have been negative for as long as Compliance has been seen solely in terms of "conformity", i.e. obeying the rules or being punished. These relationships are undergoing a metamorphosis, because the Compliance Obligation refers to a positive and dynamic definition, anchored in the Monumental Goals that companies anchor in the contracts that structure their value chains.

Based on this development, the second part of the study aims to establish the techniques of Arbitration and the office of the arbitrator to increase the systemic efficiency of the Compliance Obligation, thereby strengthening the attractiveness of the Place (II). First and foremost, it is a question of culture: the culture of Compliance must permeate the world of Arbitration, and vice versa. To achieve this, it is advisable to take advantage of the fact that in Compliance Law the distinction between Public and Private Law is less significant, while the concern for the long term of contractually forged structural relationships is essential.

To encourage such a movement to deploy the Compliance Obligation, promoting the strengthening of a Sustainable Arbitration Place (III), the first tool is the contract. Since contracts structure value chains and enable companies to fulfill their legal Compliance Obligation but also to add their own will to it, stipulations or offers relating to Arbitration should be included in them. In addition, the adoption of non-binding texts can set out a guiding principle to ensure that concern for the Monumental Goals is appropriate in order the Compliance Obligation to be taken into account by Arbitrators.

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► Full Reference: M.-A. Frison-Roche, "Conceiving the Compliance Obligation: Using its Position to take part in achieving the Compliance Monumental Goals", in M.-A. Frison-Roche (ed.), Compliance Obligation, Journal of Regulation & Compliance (JoRC) and Bruylant, "Compliance & Regulation" Serie, 2026, forthcoming.

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📝read the article

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🚧read the bilingual Working Paper on the basis this article has been written, with more developments, technical references and hyperlinks

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📘read a general presentation of the book, Compliance Obligation, in which this article is published

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► Summary of this article: This article explains what companies' Compliance Obligation" is. Delving into the mass of compliance obligations, it uses the method of classification of those that are subject to an obligation of result and those that are subject to an obligation of means. It justifies the choice of this essential criterion, which changes the objects and the burden of proof of companies that are subject to an obligation of result when it comes to setting up "compliance structures" and are subject to an obligation of means when it comes to the effects produced by these compliance structures.

Indeed, rather than getting bogged down in definitional disputes, given that Compliance Law is itself a nascent branch of Law, the idea of this contribution is to take as a starting point the different legal regimes of so many different compliance obligations to which laws and regulations subject large companies: sometimes they have to apply them to the letter and sometimes they are only sanctioned in the event of fault or negligence. This brings us back to the distinction between obligations of result and obligations of means.

Although it would be risky to transpose the expression and regime of contractual obligations to legal obligations put by legislation, starting from this observation in the evidentiary system of compliance of a plurality of obligations of means and of result, depending on whether it is a question of this or that technical compliance obligation, we must first classify them. It would then appear that this plurality will not constitute a definitive obstacle to the constitution of a single definition of the Compliance Obligation. On the contrary, it makes it possible to clarify the situation, to trace the paths through what is so often described as a legal jumble, an unmanageable "mass of regulations".

Indeed, insofar as the company obliged under Compliance Law participates in the achievement of the Monumental Goals on which this is normatively based, a legal obligation which may be relayed by contract or even by Ethics, it can only be an obligation of means, by virtue of this very teleological nature and the scale of the goals targeted, for example the happy outcome of the climate crisis which is beginning or the desired effective equality between human beings. This established principle leaves room for the fact that the behaviour required is marked out by processes put in place by structured tools, most often legally described, for example the establishment of a vigilance plan or regularly organised training courses (effectiveness), are obligations of result, while the positive effects produced by this plan or these training courses (effaciety) are obligations of means. This is even more the case when the Goal is to transform the system as a whole, i.e. to ensure that the system is solidly based, that there is a culture of equality, and that everyone respects everyone else, all of which come under the heading of efficiency.

The Compliance Obligation thus appears unified because, gradually, and whatever the various compliance obligations in question, their intensity or their sector, its structural process prerequisites are first and foremost structures to be established which the Law, through the Judge in particular, will require to be put in place but will not require anything more, whereas striving towards the achievement of the aforementioned Monumental Goals will be an obligation of means, which may seem lighter, but corresponds to an immeasurable ambition, commensurate with these Goals. In addition, because these structures (alert mechanisms, training, audits, contracts and clauses, etc.)  have real meaning if they are to produce effects and behaviours that lead to changes converging towards the Monumental Goals, it is the obligations of means that are most important and not the obligations of result. The judge must also take this into account.

Finally, the Compliance Obligation, which therefore consists of this interweaving of multiple compliance obligations of result and means of using the entreprise's position, ultimately Goals at system efficiency, in Europe at system civilisation, for which companies must show not so much that they have followed the processes correctly (result) but that this has produced effects that converge with the Goals sought by the legislator (effects produced according to a credible trajectory). This is how a crucial company, responsible Ex Ante, should organise itself and behave.

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► Référence complète : M.-A. Frison-Roche, "L'avenir de la compliance", cycle La compliance,  Centre Perelman, Bruxelles, 23 février 2026.

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🧮consulter le programme complet du cycle La compliance

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📶consulter les slides

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► Présentation de cette conférence : L'avenir de la Compliance, personne ne le connait. D'une part, parce qu'on ne connaît pas l'avenir (ce qui pose un problème lorsqu'au nom de la Compliance, on  veut rendre responsable les entreprises pour l'avenir, confondant responsability et liabiility,  ce que récusa en 2024 la Cour d'appel de La Haye dans l'affaire Shell) Pour deux raisons. D'une part, parce que la Compliance est un phénomène naissant, plus encore si on mesure qu'il s'agit d'une branche du Droit.

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⛏️Aller plus loin  :

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

🕴🏻M.-A. Frison-Roche, 📝Naissances d'une branche du droit : le Droit de la Compliance, 2024

🕴🏻M.-A. Frison-Roche, 📝L'aventure de la compliance, 2020 

🕴🏻M.-A. Frison-Roche, 📕Les Buts Monumentaux de la Compliance, 2022 

🕴🏻M.-A. Frison-Roche, 📕L'obligation de compliance, 2025

🕴🏻M.-A. Frison-Roche, 📝Droit de la compliance et contentieux systémique, 2025

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🌐Follow Marie-Anne Frison-Roche on LinkedIn

🌐Subscribe to the Newsletter MAFR Regulation, Compliance, Law

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🌐Subscribe to the Newsletter MaFR Law & Art

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► Full reference : M.-A. Frison-Roche, "Le Droit de la Compliance et la transition vers une égalité effective, efficace et efficiente entre les êtres humains (Compliance Law and the transition towards the effectiveness, efficacy and efficiency of the equality between human beings)", in Chair "Mutualist and cooperative banking at the service of the economy", ESCP, Les banques coopératives et les transitions​ (Cooperative Banks and Transitions), 29 January 2026.

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🧮view the general programme for the conference Cooperative banks and transitions (in French)

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📶see the slides (in French)

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► Presentation of this conference: The conference is not specifically aimed at lawyers, and even less so at specialists in Compliance Law. That is why it is divided into three parts, in order to show how Compliance Law is relevant in practice for creating effective, efficace and efficient equality between human beings.

The first part of the lecture sets out the ambition of equality between human beings. As this is a political principle and not a natural one. As it is an ambition, it justifies being placed first and after that this ambition must be concretised, in a sort of second place. This second place is built bay a tro : that of effectiveness (real application of the norm), efficacy (that the goal for which the norm was established is achieved) and efficiency (that the system is transformed so that, having become robust, it endures through sustainabily).

The second part of the conference will present the new branch of law known as Compliance Law. This should be distinguished from simple conformity, which consists of mechanically obeying a body of regulations that are constantly growing and becoming more complex. Compliance Law's Goal is to protect systems from risks that could cause them to disappear (all systems). "Sustainability" is the key principle, which is not limited to the climatic system (also digital system, banking system, and so on) and imposes the future as its object and the long term as its relevant time frame (unlike the market and Competition Law). "Transition" is also a key concept, as it involves moving from one state to another, from an expressed ambition to its realisation, through collaboration with others. These Goals are "Monumental" and are the normative legal basis of Compliance Law. In Europe, the Compliance Monumental Goal is to preserve systems for that the human beings who are involved in them, willingly or unwillingly, are not crushed by them, but rather benefit from them (for instance in banking sector). This is a "Monumental Negative Goal", to which is added a "Monumental Positive Goal", which a new conception of the "Ex Ante Responsability" (not liabily).

Dialectically, the third part of the conference explains how Compliance Law internalises the political ambition of equality between human beings, which develops in the three concentric circles of effectiveness, efficacy and efficiency, among the operators best placed to contribute to it.

Mutual banks belong to these circles more than the others. Firstly, because they are structured around the principle of taking human beings into consideration. Secondly, because they are rooted in their local areas. Thirdly, because they are driven by the long term, duration and sustainable. The transition est easer. The dificulty is the necessity to proof the effective and efficient will to do this transition.

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⛏️Go further  :

🕴🏻M.-A. Frison-Roche, 📝Drawing the circles of Compliance Law, 2017

🕴🏻M.-A. Frison-Roche, 📝Monumental goals, the beating heart of compliance law, 2021

🕴🏻C. Peicuti and 🕴🏻J. Beyssade, 📝The feminisation of management positions in companies as a compliance objective. The example of the banking sector, in 🕴🏻M. -A. Frison-Roche, 📘The Monumental Goals of Compliance, 2022 

🕴🏻M.-A. Frison-Roche, 📝Births of a New Branch of Law: Compliance Law, 2024

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