June 14, 2021

Compliance: at the moment

📧 In China, Compliance Law deploys without, and even against, democracy, China considering Compliance only as a "procedure of efficiency" ; in Europe, it deploys with and even for democracy

by Marie-Anne Frison-Roche

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â–ş Do Compliance and Democracy have a relationship? China replies: no. Europe responds and must respond: they are intimate. The definition of Compliance Law is therefore essential.

In an interview of great clarity  given in French to the Newspaper Les Echos on June 2, 2021, about Brexit, China and Russia (➡️📝 "Brexit, Chine, Russie : les confidences de la diplomate Sylvie Bermann"), Sylvie Bermann reminds the evolution of China. She sums up the situation as follows: Â« La Chine ne veut pas dominer le monde, elle veut ĂŞtre la première et surtout qu'on ne puisse pas lui imposer un système, la dĂ©mocratie Â» ("China does not want to dominate the world, it wants to be the first and above all that no one can impose on it a system, Democracy,").

This is reflected in China's conception of Compliance Law. If one defines Compliance Law only as a "method" for the effectiveness of rules, consisting of a kind of "Ex Ante enforcement process" leading to 100% effectiveness of regulations by subjects who must show to everyone the respect they have for these regulations and who are rewarded by this proof thus given, then China, in its current use of Law, illustrates exactly this definition: subjects, individuals and companies, prove their "obedience" to rules - whatever the rules" substantial content -, which is evaluated ("rating") and rewarded, in a mechanical reign of the Ex Ante, served by technologies. Democratic mechanisms are not required; they are even disturbed, because they interfere with the efficiency of the system. The technological and purely technocratic conception of Compliance ("Regulation by data", for example) uses the same definition of Compliance Law, which leads to choose algorithms’ efficiency.

Europe must keep going to make another choice: European Compliance was born out of the Court of Justice of the European Union’s case law, in the 2014 judgment, Google Spain (➡️📝CJEU, Google Spain, May 13, 2021), to protect the person by inventing a subjective right: the right to be forgotten, in a digital space with infinite memory. Based on the Rule of Law, Compliance Law is then defined by its Monumental Goals, which are the protection of people and puts the judge at the center. It is the reverse of Chinese mechanics.

Therefore, they are definitions that lead the world: about the definition of Compliance Law by "Monumental Goals", see âžˇď¸Źđź“… the 2021 cycle of colloquia co-organized by the Journal of Regulation & Compliance (JoRC) and its university partners on Monumental Goals; on the technical influence of this definition on "Compliance tools" âžˇď¸Źđź“•see Frison-Roche, M.-A., Legal Approach to Compliance Tools: Building by Law the unity of Compliance Tools from the definition of Compliance Law by its "Monumental Goals", 2021.

 

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