↗️ pour lire ce billet d'actualité en français, cliquer sur le drapeau français
► Compliance Law and Competition: for building, is it necessary to legislate ? Example of quasi-public interest judicial agreement: the French Competition Authority's Statement of June 3, 2021 on Facebook
The French law so-called "Sapin 2" of 2016, organized the "convention judiciaire d’intérêt public - CJIP" (Public Interest Judicial Agreement) which allows the prosecutor to undertake not to prosecute a company in returns for this company's commitments for the future. Is this mechanism reserved for this law, which only concerns corruption and bribery? The answer is often positive.
Is it so obvious?
Since the entity having the power to prosecute therefore always has the power not to prosecute. As the company always has the freedom to make commitments for the future. And everything stops.
News in Competition Law illustrate this. On June 9, 2021, as part of a transaction, the Autorité de la concurrence (French Competition Authority) sanctions Google (➡️📝 Communiqué of the Autorité de la Concurrence , translated in English by the French Competition Authority) , which has not contested the facts, for abuse of dominant position for having privileged its services in the online advertising services. Similar facts were alleged against Facebook. But on June 3, 2021, the Autorité de la concurrence (French Competition Authority) published a "communiqué de presse" (➡️📝statement translated in English by the French Competition Authority) saying that Facebook has, during the investigation, proposed commitments regarding its future behavior. It is remarkable that this statement on Facebook is published as an “acte de régulation” (regulatory act).
Yes, it is indeed an regulatory act about the future and structuring the online advertising area, internalized in this company which engages itself in its future behavior. With its statement, the Competition Authority invites the “acteurs du secteur” (actors of this sector) to make observations, for the development of what will be a sort of compliance program.
In these negotiations which are akin to a game table, where everyone calculates without knowing if they enter into a negotiation or a confrontation, the first game assuming that one shows more cards than in the second, it is indeed towards a kind of Public Interest Judicial Agreement that they are going with a Competition Authority which is both Judge and Prosecutor, concludes the agreement and, through a later decision, gives it force. Under the various legal qualifications, it is indeed the same general mechanism of Compliance Law, well beyond the specific French law known as Sapin 2.
Managed in this way, Compliance Law being an Ex Ante corpus, transforms the Competition Authority, an Ex Post Authority, into an Ex Ante Authority, openly taking "acte de régulation" (Regulatory Act), and allows it to rely on the power of companies, thus “committed”, to structure markets, which are however not regulated. Like advertising or retailing areas (➡️📝see Frison-Roche, M.-A., From Competition Law to Compliance Law: Example of French Competition Authority's decision on central purchasing body in mass distribution, 2020).
Thus Compliance Law has achieved the autonomy of Regulatory Law with regards to the notion, which nevertheless seemed intimate to it, of "sector".