📧 Risk mapping and Competition: the place and future of Compliance Law

From all these contributions and discussions, made in an European and global perspective, in a legal point of view but also in a business and management one, four general perspectives have emerged, each showing what has been achieved, what may still emerge in interaction with all the other Compliance Law mechanisms that incorporate risk mapping (the anti-corruption mechanisms, such as the French 2016 "Sapin 2" law ; the "Vigilance" or due diligences mechanisms, such as the French 2017 "Vigilance" law, the 2024 European Corporate Sustainability Due Diligences Directive (CS3D), etc.) and the other mechanisms that are correlated with risk mapping (audits, internal investigations, evidence likely to be raised before a judge by the firm and/or by a stakeholder, and what remains uncertain in this 2024 French Competition Authority's framework.

 

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The first perspective is the legal basis for these guidelines, recommendations, incentives, methods, etc. Competition is often explicitly or implicitly the basis of many compliance measures, for example in the vigilance / corporate sustainability due diligence 2024 European directive.

 

The second perspective corresponds to the resources developed by the firm to establish and maintain these compliance programmes. Alongside risk mapping or for its efficiency, the enterprise organizes internal audits and investigations: these interviews conducted to establish the mapping, which humanise it, have many points of contact with audits and internal investigations and thus open up common difficulties, such as confidentiality.

 

The third perspective is the scope of this framework document, on which the scope of the compliance programmes adopted by the enterprises themselves also largely depends, whether voluntarily in the case of Competition rles, or forcefully in the case of anti-money laundering, anti-corruption or vigilance/due diligences duty. This mix of voluntary and mandatory adoption makes it difficult to measure the scope of the programme when the firm's programme is global, as the Competition Authority framework document recommends.

 

The fourth perspective concerns the legal subjects required to, or beneficiaries of the adoption of such Compliance programmes. This is certainly the enterprise concerned, solicited, or compelled by the Authority to act in order to fulfil its own mission to safeguard the competitive system for the future, "sustainability" being an essential concept in Compliance Law, which shifts the regimes of the rules from Ex Post to Ex Ante, including in Competition Law. This evolution from Ex Post to Ex Ante is truly a revolution.

The subjects of the law are also the 'stakeholders', a category that remains rather mysterious, since company law has itself been transformed by what is known as 'governance'. But technically, this gives rise to rights to information and rights of recourse, notably before courts. These technical issues, with their essential procedural implications, are currently before the courts. As a result, even when the legal discussion comes to the risk mapping process, no-one really seems to be a "third party" any more ....

This raises the question of the secrets and recipients of risk mapping: can risk maps, designed as a tool for managers, designed as a means of preserving systems by the Authority, be also designed for the people concerned as a means of action in a more general accountability perspective, since it indicates risks? The courts are also beginning to be questioned about that.

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During this conclusion, which was based on the very pertinent contributions and comments of each speaker, I continued my reflections in each of these 4 directions.

This subject is at a crossroads: on the one hand, it deals with risk mapping, a major tool in Compliance Law, and on the other, it brings Competition Law and Compliance Law closer together.

These cross-fertilisations will increase, but they will also cause clashes because, to take just one example, Vigilance legal obligation, often translated in contracts, requires collaborative structures which must be coordinated with the prohibition of cartels, while the contractualisation of Compliance, a major phenomenon, may constitute an abuse of a dominant position.

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