📝Compliance, proportionnalité et évaluation, in 🕴️M.-A. Frison-Roche (ed.), 📕Les Buts Monumentaux de la Compliance

► Full Reference: A. Mendoza-Caminade, "Compliance, proportionnalité et évaluation" ("Compliance, proportionality and evaluation"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, p. 209-224.

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📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published

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► Summary of the article (done by the Journal of Regulation & Compliance): The article addresses the general question of the relationship between Compliance Law, Proportionality and Evaluation through the particular issue of intellectual property. Indeed, intellectual property is a Compliance Tool in that States also aim to encourage businesses to achieve the common interest goal of innovation. The restrictions that this produces on the public domain, competition, access rights and freedom of expression in particular must be proportionate to the public good and the fundamental rights that are otherwise involved. Companies bear the burden of proving the proportionality of the infringement of the fundamental freedoms that the monopoly constitutes and it is the judge who, in this way, balances the interests involved. Thus, the proportionality assessment carried out by the judge reinforces the freedoms that are being infringed.

To support this conviction with regard to Intellectual Property Law, the Author successively explains proportionality and its evaluation, as a normative requirement of the legislator, in particular with regard to the Ex Ante obligations of the platforms, then its handling by the courts, before examining the way in which proportionality can constitute a criterion of appreciation of the behaviours, within the framework of the prosecutions and the sanctions.

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