🚧The role of the Judge in the deployment of Regulatory Law through Compliance Law

1. a profound transformation in cours⚖️ It is remarkable to note the unity of conception and practice between professionals who work in administrative jurisdictions and professionals who work in judicial jurisdictions: they all note, in similar terms, an essential movement: what Regulatory Law is, how it has been transformed into Compliance Law, and how in one and even more so in the other the Judge is at the centre of it. Judges, as well as regulators and European officials, explain this and use different examples to illustrate the profound transformation this has brought about for the law and for the companies responsible for increasing the systemic effectiveness of the rules through the practice and dissemination of a culture of compliance. The role of the judge participating in this Ex Ante transformation is renewed, whether he is a public law judge or a private law judge, in a greater unity of the legal system.

2. The judge at the centre of Compliance Law⚖️ The very fact that this conference is being held is the clearest proof of this: the Conseil d'Etat and the Cour de cassation are working together on a theme that is so dear to me: Compliance Law. We have seen the birth of this branch of Law as an extension of Regulatory Law, and we are watching it grow together.

3. Compliance, distinguished from conformity, defined by its Monumental Goals ⚖️French legal norms and French lawyers use the term "Compliance". "Compliance" is certainly a term of English origin, a fact that is often recalled as a grievance, notably in French, grievance which would imply elaborating a "French" word, by suggesting to refer to "conformity". The same was done twenty years ago for the Droit de la Régulation, which was then being rectified in favour of the more French term of "réglementation", thought to be more correct. Similarly, in a few years' time, we will no longer confuse "conformity", which consists of a company showing that it obeys all the regulations applicable to it (an impossible task), with "Compliance", which can also be pronounced in the French style as proposed by Alain Seban: compliance requires companies, stakeholders and each and every one of us to participate in the achievement of Monumental Goals[, which define this branch of Law, as Didier-Roland Tabuteau and Christophe Soulard have pointed out.

4. Moving away from a "war of systems" to promote a common ambition to protect the individual ⚖️ This dispute between French and English is often referred to as a "war of systems". But those who practice British and American Law know the extent to which the English Law use Latin legal concepts. In Business Law, too, we know what we owe to classical law, and Compliance Law remains rooted in it. Compliance Law does not erase our legal system: on the contrary, it deploys it with new force since it enhances what is the ratio decidendi of Western Law: preserving, even promoting, the individual at the heart of systems, whether natural, technological, economic or social. The European GDPR (2016) and the French so-called "Sapin 2" (2016) and "Vigilance" (2017) laws illustrate this. Compliance is not blind obedience to regulations, which is what conformity is all about: it is the substance of this ambition for a future in which the individual remains the beneficiary of the systems, avoiding in advance the risk of becoming their slave. The construction of the future is already the object of Regulatory Law, Ex-Ante Law, a nature that Compliance Law extends and multiplies.

5. Compliance Law, capable of expressing the ambition to protect present and future individuals in present and future systems ⚖️ It is by remaining rooted in this heritage of Western Law, far from mechanical conformity, that lawyers, whether in companies, advising them or in the courts, will be able to express the novelty that is Compliance Law. By overcoming the initial reticence and concern about such a change, as Christophe Soulard and François Molinié invite us to do. The newness of Compliance must be welcomed with enthusiasm, because it is implied by the newness of the world itself. This new branch of Law is emerging in the face of this new world, with the courts playing a central role.

6. . The expression of new ambitions ⚖️ It is often argued, however, that the traditional branches of Law have been shattered by the new world, full of systemic risks and terrifying technologies. But this unfamiliar environment is also giving rise to new kinds of collective ambitions, such as concern for animals and the desire for effective equality between humans. The legal branches are invigorated by this, and their strengths are amplified by Compliance Law, which deploys a regulatory logic that is no longer constrained by the prerequisite of sectors.

7. The realisation of new ambitions through an architecture of new European texts ⚖️ Roch-Olivier Maistre tells us that he has lived through ten regulatory laws in five years and is delighted that digital regulation has become possible through Compliance. In particular, he cites the Digital Services Act (DSA), which requires companies and ourselves to adopt new behaviours and a new culture, above all respect for others and the truth. The unity of this great movement has been demonstrated by Daniel Calleja Y Crespo, showing the coherence between the DSA, the Corporate Sustainability Reporting Directive (CSRD) and the  Corporate Sustainability Due Diligences Directive (CS3D). The Regulator then becomes the Ex-Ante Supervisor of the crucial enterprises that structure and hold the space, for example digital or value chains.

8. The emergence of new legal tools Ex-Ante ⚖️ Jean-François Bohnert traces this same movement from Ex-Post to Ex-Ante in Criminal Law, which is now permeated by Compliance. While Astrid Mignon-Colombet notes that the criminal judge is giving way to the prosecutor, new tools are being developed, such as the DPA (in France the Convention judiciaire d'intérêt public - CJIP), through which the State is making its sovereign mark, incorporating negotiated mechanisms only to better serve the general interest.

9. The primary concern is the safety of systems ⚖️ It is remarkable that each contributor has based his/her argument not on "regulations" but on factual realities, in particular risks, against which the ambition not to fail (a negative ambition) and the ambition to progress (a positive ambition) are directly set, an ambition served by the power of companies. Jean-Yves Ollier shows that this logic was already fully embodied in Regulatory Law, in particular to ensure the safety of systems such as healthcare or transport.

10. Compliance Law, an extension of Regulatory Law without reference to any sector ⚖️ In fact, a new branch of Law only emerges from what is already partly written, because the Law knows no blank sheet: beyond the regulated sectors, it is the logic of Regulatory Law that is spreading today.

11. The natural a-territoriality of Compliance Law ⚖️ Because Regulatory logic is rooted in the company, which operates beyond, or even regardless of, borders, the term "extraterritoriality", which was previously adopted, should be replaced by "a-territoriality", with the company having to answer directly to the judge, as Paul Nihoul points out.

12. A generational effect? ⚖️ Such transformations can give rise to criticism and dismay, in particular an impression of confusion and the taking of power by companies which see compliance as nothing more than self-regulation without democratic control, as expressed by Joëlle Toledano, who is seeking above all an administrative regulator.

Let's also look at those who have barely finished their studies and have decided, for example, to become a judge, a prosecutor or lawyer; what do they think?

13. A desire to discover and practice Compliance Law ⚖️ In law firms, I am told that a large number of students at job interviews say that they want to practice Compliance Law. However, they have not generally studied it and would probably not be able to talk about it technically.

The people they talk to, no doubt referring to mechanical conformity, tell them that they have far too many qualifications to simply "tick regulatory conformity boxes", which algorithms will soon be able to do better than they can, and that they need to master what would be the "real law".

The younger generation's response is that Compliance is not only the "Real Law", but also the "truly human" Law, the kind "by which the world can become a better place". This is also the perception of candidates for the entrance exam to the École nationale de la magistrature - ENM (French School for the Judicial Magistrates) and the entrance exam to the Institut national du service public -INSP (French School for the High administrative fonctions, notably the administrative justice).

14. Business choices inspired by the Monumental Goals of Compliance Law ⚖️ In choosing their profession, they are not thinking in terms of "conformity" with regulations, but in terms of this new sector which aims to create a new balance in the climatic, economic and social system, a balance which they want to be able to work towards.

15. A positive definition of Compliance which encourages people to want to become judges or lawyers ⚖️ Listening to these new or future judges and lawyers, if they want to practice Compliance Law, it is to get a better grasp of the future, negatively so that it is not catastrophic, thus referring to risk management, but also positively, so that the culture of respect for others spreads within the company and beyond. These future professionals don't yet know the techniques, but they have the spirit - isn't that what's important? It's a pioneering spirit.

16. The correlation with the culture of mediation ⚖️ For example, they will be all the more receptive to the technique of mediation between companies and stakeholders, these two potential litigants. At the same time as they are perfecting their skills in public, international, financial, procedural, labour relations and Environmental Law, they are themselves asking for the addition of Compliance Law, a teleological Law built around this political goal of a future world. In so doing, they are expressing the "Monumental Goals" that François Ancel shows guide judges as a result of these "Monumental Goals" that are the normative heart of Compliance Law.

17. Through the use of Regulatory and Compliance Tools, a project shared by the company, the lawyer and the Judge ⚖️ Their intuition thus places ambition as the standard at the centre, with compliance techniques (mapping, plans, etc.) being merely the means. Daniel Calleja Y Crespo also used the term "ambition" to point out that compliance has enabled the European Union to build a "project" for itself, a project that François Molins has illustrated once again in the European Public Prosecutor's Office[ (EPPO). A project for the future, which Lucien Rapp prefers to call a "challenge", met by the technique of taxonomy. This is why the company is designated as the legal subject of compliance: its power is approved in principle, particularly in value chains, and the incentives to increase it are designed by the Law. On the other hand, companies are supervised, even though they do not belong to a regulated sector. Thus, through Compliance Law, regulatory logic has freed itself from the precondition of the sector.  Whether or not an administrative authority on Vigilance Duty is established in French Law will reflect a major political choice.

18. Making crucial companies "responsible" ⚖️ In order to give concrete expression to this ambition to build the future, Compliance Law designates the entities in a position to act, i.e. the companies that maintain the structures. The Law develops Compliance Obligations with the aim not of punishing past acts (the traditional concept of liability) but of putting powerful companies in charge of the future: a new concept of responsability.

19. "Accountability lawsuits" ⚖️ Thus, the logic of Regulatory Law through Compliance Law leading to responsability of companies, even if their economic activities are not regulated, even if they are private companies, permeates lawsuits. As Professor Nicolas Cayrol has shown in  General Procedural Law, "Compliance Lawsuits" are Accountability lawsuits.

20. Compliance Law, the transfiguration of Regulatory Law⚖️ Compliance Law is thus essentially based on the actions of companies, internalising their regulatory ambitions. It should be noted that there has been a transition from Regulatory Law, often referred to as Public Administrative Law, to Corporate Law, often referred to as Private Law. But Compliance Law, more than any other, marks the corrosion of this distinction. In fact, it is the public authorities who set the Monumental Goals on the basis of which compliance tools are organised and then, particularly in litigation, are legally interpreted, whereas companies are free to construct and use these tools, particularly through contracts. This is clearly demonstrated by the Vigilance mechanism. So there is self-regulation in the development of the means and political decisions in the design of the ends.

21. The transformation of Regulatory Authorities into Supervisory Authorities ⚖️ In order to bring everything together, Regulatory Law is being transformed into the supervision of economic players]. In this respect, the banking sector, which was the exception when the competitive ideal was the only principle, is becoming the organisational model, as Marie-Anne Barbat-Layani has shown. Competition and Compliance are now the two pillars of a liberal and humanist Europe.

22. Compliance, extracting Regulatory Law from the condition of the "sector": the example of Vigilance, the cutting edge of Compliance Law in which the Judge is at centre⚖️ Compliance cannot be reduced to self-regulation, since companies cannot freely set the Monumental Goals against which they develop the various compliance tools they put in place. They can only adhere to them or enhance them, through their 'raison d'être' or  Corporate Social Responsability - CSR, but not replace them. They must endure supervision by the administrative authorities and debate with stakeholders, including before the regulator and the courts.

23. The new power of all judges, including arbitrators⚖️ Through compliance, a company's power - particularly its technological and informational power, but also its educational power - is directed, by force or by choice, towards goals that were traditionally considered to be in the general interest, outside a particular sector and beyond the territory and the legal system of any specific country. Compliance Law is thus the first Global Law, with the contract as its natural instrument. This means that International Arbitration will soon take its place. Even though, because of these structuring objectives, the State company has become the paragon of the company in the new world we want to enter, a sustainable world where human beings are respected as a matter of principle.

24. The company, the place where the regulatory and compliance culture takes effect ⚖️ Thus guided by the Legislator and the Supervisory Authorities, and even by the Judge, companies will do much more than simply be conform with the regulations, since they will make their "best efforts" to ensure that the people for whom they are responsible behave actively themselves so that the Monumental Goals are achieved.

25. Importing the jurisdictional culture into the company: the evidentiary obligation, the heart of the compliance obligation ⚖️ Consequently, if we want to designate a primary Compliance Obligation weighing on the company, it is above all an evidentiary obligation: whatever its place in the proceedings, the company must demonstrate that it has made its best efforts to achieve the Goals set, this standard of "best efforts" referring to an obligation of means recalled in particular by Roch-Olivier Maistre.

26. Conclusion ⚖️ Even if this evidential obligation refers to the obligation to render accounts ("accountability"), which the powerful company must gradually do vis-à-vis its stakeholders, civil society and public opinion, which has become universal, particularly through social networks, this evidential weight, the ransom of legitimate power, refers to the prospect of litigation. It is true that the 'litigious society', once presented as an 'American spectre', could loom large. But it is more like a supporting judge, integrated into the logic of effective compliance, putting company in the center.

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