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Full reference : Frison-Roche, M.-A., Incitation et Compliance, un couple à propulser, in Frison-Roche, M.-A. (dir.), Les outils de la Compliance, serie "Régulations & Compliance", Journal of Regulation & Compliance and Dalloz, 2020, forthcoming.
Summary of the article: The theory of incentives targets the mechanisms which do not use directly constraint (except to present sanctions themselves as incentives) but which leads nevertheless to expected behaviors. To appreciate the links which must or must not be done between incentives and Compliance, we should proceed in two times.
First, the association appears natural between incentive mechanisms and "Compliance Law" since the later is defined in a dynamic way. Indeed, if it is defined placing its legal normativity in its "monumental goals", as the end of corruption, the detection of money laundering in order to underlying criminality disappears, or as the effective protection of environment or the concrete care of human beings, then what matters is not the means in themselves but the effective tension towards these "monumental goals". In this perspective, what was related to public policies led by States, because they are definitively not able to do it, the charge is internalized in the firms which are able to tend towards this goals: "crucial operators" because they have the geographical, technological, informational and financial means.
In this perspective, the internalization of public willingness provoking a split with the concept of State linked to a territory which deprives Politics of its constraint power, incentive mechanisms appear as the most efficient mean to reach these monumental goals. They appear as this "natural" mean both negatively and positively defined. Negatively in which they do not need in Ex Ante institutional localizable sources and sanction power in Ex Post: it is enough to substitute the interest to obligation. Positively, incentives relay through operators' strategies what was the so critical and joked form of public action: the "plan". The duration is thus injected thanks to Compliance mechanisms, as we can see it through the development of it in the care for environment ("plan climat") or through the educational mechanism, which could be conceived only in duration.
However, the opposition seems radical between Compliance Law and Incentives. And this because of three convictions often developed and that we have to overcome. First, the idea that in a general way, there would be a Law only if there is a mechanism of immediate constraint which is associated to the norm. As long as the incentive is not based on obligation, then it will be nothing... Secondly, and as if that were a kind of consolation ..., Compliance would not be really Law either ... We so often say that it is only about a methodology, a range of processes without sense, procedures to follow without trying to understand, process that algorithms integrate in a mechanic without end and without sense or that on the contrary, Compliance would be full of sense by Ethics and Morality, which are far from Law. While incentives talk to the human spirit which calculate, Compliance would be so a process through which machines will be connected to other machines, so an extra soul, where calculation has no place... Thirdly, solutions would be to be find in Competition Law because it can do without States, submit them and approach what is a-sectorial, especially finance and digital, the world being financialized and digitalized. The violence of Competition Law which comes in Ex Ante thanks to "Compliance sanctions" applying for example to essential infrastructures Law, by continuing to deny the salience of the duration and taking care of the "market power" would be also not compatible with a marriage with incentive mechanisms which rely on duration and power of those to which it is applied, converging towards goals, which are set by what Competition Law ignores: the project. This project which pretends to build the future is the one of politics and of companies, which use their deployed power in time to concretize it. It is without any doubt there that the future of Europe is.
To overcome this triple difficulty, it is thus necessary, in a second time, to modify our conception of Law, especially thanks to Compliance Law, in which this new branch is autonomous from Competition Law, and even sometimes opposed to it, in order to the insertion of incentive mechanisms permit to unknown or against Competition Law organizations to reach "monumental goals" which are imperative to take into consideration. For example, the taking into consideration of climate challenges or the building of a sovereign identity of the data. This is expressly set by European Commission which supervises such initiatives, supervision being what is articulated with Compliance, in a couple that go beyond Regulation, and replaces in Ex Ante Competition Law, salient branch for Ex Post. All the texts which are in the process of expressing it are based on this reformed couple: Compliance and Incentive.
This couple supposes that we recognize as such the existence of companies as project carriers, project which is the creation of marketed wealth circulating on a market, which could be an industrial project specific to a geographical zone both economical and political. Regulation is deployed to go away from the notion of sector and to transform itself in supervision of crucial firms in the correspondance between the project and the action, what refers to the notion of "plan". In this, banking supervision is just the advanced bastion of all thematic, energetic, climatic and health plans, or more broadly industrial and technological that could by incentive be implemented, this conception of Compliance permitting to build zones which are not reduced to immediate market exchange. The incentive corresponds to the fact that Compliance Law relies on the power of the firm to reach its own political goals, for example fighting against disinformation in the digital space or obtaining a healthy environnement. This supposes that Compliance stops to be only conceived as a model of rules effectivity, for example of Competition Law, to be recognized as a substantial branch of Law. A branch which expresses political goals. A branch which is anchored in crucial firms whose it recognizes the autonomy with regards to markets. This makes it possible, in particular through the coupling with incentive mechanisms leading to long-term collaborative operations supervised by public authorities, not to be governed by simple Competition Law, inapt to bring projects to fruition.