📧Ne pas confondre process de conformité et Droit de la Compliance: les conséquences pratiques (Don't confuse compliance processes with compliance law: practical consequences)

If it hadn't been for the echo of Jean-Philippe Denis's post, I wouldn't have thought of reading this book by Norbert Alter, Pour en finir avec le Machin. Les désarrois d'un conseil en management (To put an end to the thingy. The disarray of a management consultant), on the possible perversities of “management”.

It's not a “pamphlet”, as the cover suggests: it's a description of the way companies are advised to organize the way in which everyone should work, so that the company functions well and its activity corresponds to what is expected of it.

The author observes two movements that are destroying each other (as he has chosen to use the verb loosely, we could say that they are massacring each other): firstly, a movement that consists in draining everything spontaneous, by putting in place processes and controls; then, a movement that consists in inventing or reinjecting common sense, ethics and other benevolence, in other words, everything that the first movement destroyed.

The author observes that it's usually the same consultants who conceive of both movements and apply them to companies, which then never stop bridling and unbridling those who work for them.

In this astonishing book, he shows that reducing a company's operations to processes is a disaster. And that “teaching ethics, benevolence and a sense of the common good” has little success. But that it becomes necessary as soon as processes have destroyed their expression.

________

That's a good point. But, on the other hand, companies don't organize themselves, and the book's highly illustrative examples of spontaneous and effective organization are usually on the scale of a small part of the company. This is no substitute for the company's overall strategy (a term the book certainly rejects).

No doubt it is also a question of how companies apply the external rules that govern them. After all, regulations are not entirely at the employees' disposal, and the room for manoeuvre left to them also depends on the room for manoeuvre left by the law to the managers themselves.

This takes us into the realm of law, which is not the subject of this book, but which deserves to be considered in the same light.

________

Indeed, the observation on which this book is based is instructive if we note what is happening with regard to Compliance Law, which involves the relationship between the company, what is decided about what it is going to do for the future (for even if the future is unknown, there are decisions taken about it, in Ex Ante therefore) and the laws which, by their very nature, are aimed at that same future (what in companies is most often referred to as “regulation”).

Quite often, compliance is presented to companies as the obligation to “comply with all regulations applicable to them”. This is the same type of error described in the above-mentioned management book, and the practical consequences are similar.

To find out more ➡️🧱M.-A. Frison-Roche, 🚧Compliance and conformity : distinguishing them to articulate them, 2024

Indeed, many people confuse this new branch of the law with what would be compliance, i.e. obedience, control and generalized processes so that obedience to all applicable regulations is obtained by everyone, at all times and in all places (which is impossible), unless the company's responsibility is engaged (which is therefore inevitable): the company is thus in permanent “compliance risk”. It will always spend to reduce this risk, while cursing the “regulators”.

Then, the same authors add that to this “compliance” must be added ethics, so that there is “meaning”, consideration for “future generations”, and that moral values permeate everyone.

This two-pronged approach, which many companies have adopted in practice, sometimes at the request of the authorities, works poorly in practice. And it costs a lot of money, sometimes with few results.

To find out more ➡️🧱Ch.Lapp, 📝Compliance in the company: the statues of processes, 2023

Indeed, Compliance Law is distinct from conformity, which is only one of its tools. The definition of Compliance Law is to set Goals, which are very high ambitions: to preserve the solidity of systems (banking, financial, digital, climate, energy, etc.) and make them sustainable. The legal normativity of Compliance Law is in line with these monumental goals.

Vigilance is its leading edge.

To find out more ➡️🧱M.-A. Frison-Roche, 🚧Thinking and using Vigilance through its Compliance Monumental Goals, 2023

What we are asking of the company is not to control everything, to know everything, to anticipate everything, to reduce the people for whom it is responsible to mechanical agents who, if they don't tick all the boxes, would engage the company's responsibility (a prospect which would be inevitable, and could be fatal...; Compliance Law ceasing to unfold in a liberal economic law).

The company must strive to achieve these Monumental Goals, having been chosen as the subject of Compliance Law because it is “in a position” to realize these goals.

To this end, it chooses the means it considers most appropriate (obligation of means) and reports on the results (obligation of proof).

To find out more ➡️🧱M.-A. Frison-Roche, 🚧The judge, the obligation of compliance and the company. The probationary compliance system, 2022

The practical consequences of the distinction between Compliance Law and conformity processes are therefore essential. They echo the demonstration in this management book.

If it were simply a matter of complying with all regulations in every respect, it would be a matter for algorithms (which may be able to tick all the boxes): if it's a matter of Compliance, then legal and management skills need to come together.