Jan. 6, 2021

Publications

đź““Environnemental Compliance Law, as an Ex Ante Responsability

by Marie-Anne Frison-Roche

RĂ©fĂ©rence complète : Frison-Roche, M.-A., Environnemental Compliance Law, as an Ex Ante Responsability, for an annexe in a French Report on the liability for the environmental Damages, for the European Commission, janvier 2021. 

Il semble que ce travail n'ait jamais Ă©tĂ© publiĂ© ni transmis Ă  la Commission europĂ©enne en tant que tel, ce qui n'est pas grave. 

Environnement calls for solutions in Ex Ante. Liability, in that it is an Ex Post mechanism, is therefore always out of phase. There should therefore be a “Liability in Ex Ante” or, more precisely an “Ex Ante Responsibility” which, rather than sanctioning encourages prevention[1], rather than coercing encourages good behavior in an alliance between Public Authorities and enterprises, rather than articulating rules that go beyond borders since Environmental Object does not know them. However, this is what "Environmental Compliance Law" does.

“Environmental Compliance Law” is a new legal concept, particularly developed in France. It is a particular form of “Compliance Law” which itself has a particular form and force in France.

In France, the specific definition of "Compliance Law", not giving up all Political Ambition due to Globalization, but on the contrary maintaining "Pretensions" of General Interest has been proposed in 2016[2]. Moreover, Compliance Law has been proposed to be defined by the increase in these "Pretensions": Compliance Law must be defined by "Monumental Goals"[3], which constitute it as a new branch of Law.

“Monumental Goals” can be negative, such as combating pollution or preventing destruction of crucial forests, or positive, such as establishing new ecological balances. These “Monumental Goals” are of a political nature. As such, they are expressed by the Public Authorities, by rules, decisions and supervision. For instance, this is how the AutoritĂ© des marchĂ©s financiers – AMF (French Financial Markets Regulatory Authority) organizes and controls the environmental information given to investors by listed companies. But these Monumental Goals can also be expressed by enterprises through their "raison d'ĂŞtre"[4]: this notion has been inserted in the French legal system by the PACTE law  of May 22, 2019[5].

This is why Environmental Compliance can be not only a constraint, which has found its limits in Ex Post sanctions, but an Ex Ante alliance of a political nature between Public Authorities and enterprises. The Supervisory Authorities ensure the effectiveness of this alliance. As there is currently no Environmental Regulatory or Supervision Authority in France, Supervision is carried out indirectly by the banking and Financial Regulatory bodies, through environmental standards merging with banking prudential standards and benefiting from the same Compliance enforcement. More generally, it is the jurisdictional authorities (courts and prosecutors)[6] that operate this supervision[7], for example by making  enterprises’ environmental commitments binding.

These Monumental Goals, particularly environmental ones, set in Ex Ante, by public institutions and by the enterprises themselves, are embodied in Ex Ante by “Compliance Tools[8]”. For example, "vigilance plans", charters of commitments by which enterprises train their employees in environmental protection or systematic information of consumers about items’ environmental condition of production.

In this, “Environmental Compliance” is a decisive change compared to classical French Tort Law, which still places liability and responsibility in Ex Post. Environmental Compliance translates the whole system into Ex Ante not only for a new efficiency but also for an alliance between Public bodies and Private entities. Even more, while the liability in Ex Post has a scope that does not coincide well with the object (the natural phenomenon being global, while Global Law rarely exists), Environmental Compliance is internalized in global enterprises and has the same scope: therefore the Environmental Compliance has the same outline as its object: global.

These simple and strong new principles were carried by French Law. This is notably the subject of the law of March 27, 2017 on the "duty of vigilance"[9]. Out of step with Company Law, this law is the first in the world to impose to enterprise  to be “vigilant” in Ex Ante, i.e. to prevent risks, notably "environmental risk" upstream of the production chain. This law is revolutionary.

In fact, it is a kind of "liability in Ex Ante", which poses an obligation for the enterprise to be active for the environmental safety, not only to be punish. This action in particular through risks mapping drawn up by the company to identify environmental risks and ensure that they shall not materialize. It is no longer a question of sanctioning an enterprise for a damage done, but on the contrary of asking it to increase its power, by educating[10], by alerting, by renouncing certain profits or certain actions, for satisfying directly the Monumental Goal of the environmental  general interest.

This law of 2017 creating this duty of action, which is a sort of constraint, is now perfectly completed by the law PACTE of 2019 creating the raison d’être: the enterprise may move in this sense by its own will, in the same direction of the Public Authorities.  The powerful legal and cultural convergence has created Environmental Compliance Law.

In that, French Law develops Environmental Compliance, itself exemplary of general Compliance Law, when it is defined as its Monumental Goal of protecting human beings[11], is opening the way towards new effective rights[12]: for instance “the right for a pure environment”, rights being the primary and natural tool of Compliance, effectively protected by Courts.

 

 

 

 

 

[1] On the articulation on Sanctions and Compliance, s. Frison-Roche, M.A., Resolve the contradiction between “sanction” and “incentive” under the fire of Compliance Law, 2020 ; on the notion of “Incentive Compliance” which in very applicable about Environment, s. Frison-Roche, M.A., Compliance and Incentive: a couple to propel by the notion of “Incentive Compliance”, 2020.

[2] Frison-Roche, M.A., Compliance Law, 2016 ;

[3] On this definition of the “Monumental Goals”, S. Frison-Roche, M.A., Compliance Law, 20216 ; Building the unity of Compliance Tools by the definition of Compliance Law by its Monumental Tools  ,2020 ;  Compliance Monumental Goals, 2021.

[4] This very new articulation between Public bodies and private organizations has been the basis of what must be named “The adventure of Compliance Law”: Frison-Roche, M.A., The adventure of Compliance Law, 2020.

[7] By this way, it is possible to organize a public supervision without specific supervisory bodies, and to exercise it on enterprises which are not specifically regulated (for instance, industrial firms): see Frison-Roche, M.-A. (ed.), Regulation, Supervision, Compliance, 2017.

[8] Frison-Roche, M.A. (ed.), Compliance Tools, 2021.

[10] The public bodies, such as Regulatory and Supervisory Authorities have become “teachers” to obtain adequate behaviors for the environment protection, for instance through sustainable finance and responsible behaviors (see Frison-Roche, M.-A., Training, content and container of Compliance, 2020.

[11] Frison-Roche, M.-A. (ed.), Pour une Europe de la Compliance, 2019.

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