April 18, 2023

Newsletter MAFR - Law, Compliance, Regulation

📧Pour un consommateur "vigilant" : l'éduquer. Analyse juridique

by Marie-Anne Frison-Roche

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► Full Reference: M.-A. Frison-Roche, "Pour un consommateur "vigilant" : l'éduquer. Analyse juridique" ("For a "vigilant" consumer: educate him. Legal analysis"), Newsletter MAFR - Law, Compliance, Regulation, 18 April 2023.

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🔴For an efficient Compliance Law: an Ex Ante responsibility in alliance with consumer expectations 

A survey confirms that consumers integrate the monumental goals that generate compliance duties and obligations on the companies that sell them products. But this does not create a duty on them to prefer these products over others: they do not feel "responsible" for them. Compliance Law is based on ex ante responsibility and shared duty. So, faced with this attitude, what can the Law do?

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📧read the article ⤵️ 

An article from The Conversation on 18 April 2023 reports on a "baromètre" des comportements responsables des consommateurs ("barometer" of responsible consumer behaviour), the first results of which were made available a few months ago. The title of the article is: Le consommateur français est-il responsable ? (Is the French consumer responsible?)

The results are instructive in that they remind us of the decorrelation between the "vigilance" of consumers with regard to the "responsibility" they consider to be that of companies (I), which must be compared with the legal mechanisms of Compliance, Vigilance and Responsibility (II), in order to draw legal consequences (III).

 

I. THE RESULTS OF THE SURVEY ON "CONSUMER RESPONSIBILITY": THE LACK OF CONSISTENCY BETWEEN THE CONSUMER'S COMPLIANCE REQUIREMENTS AND "VIGILANCE" IN THIS AREA AND HIS PURCHASING ACTIONS

The aim of the survey was to measure the level of consumer demand on the part of those who offer them products for purchase, in terms of respect of environmental standards, concern for others, short circuits favouring local activity, and consumer purchasing behaviour, faced with higher prices for products that result from respect for these considerations.

The conclusion is therefore that for many of them, consumers are not "responsible", since they do not feel they have to take their share of this "duty", as the companies that do it have to bear the cost without benefiting from their customers.

This survey confirms similar results for consumers. They can be summarised as follows:

1. Consumers are aware of the need to preserve the environment, to be ethically minded, to favour short circuits.
2. They conclude that companies have some sort of obligation to take this into account: they disapprove those who do not. Implicitly referring to "corporate social responsibility", consumers make a negative judgment.
3. They claim to be "vigilant" about whether or not the companies offering the products behave "responsibly".
4. Many still do not change their purchasing behaviour.

 

II. ECHOES OF THIS SYSTEMIC SITUATION IN THE LEGAL SYSTEM

Consumers claim to be "vigilant" for companies to effectively take on their duty because of their location in territories, value chains and future projections.

Consumers thus echo Compliance Law, in that it implies that companies must use their position and power to achieve Monumental Goals that go beyond their immediate interest.

🔴M.-A. Frison-Roche, ðŸš§Compliance Law, 2016

 

The company is responsible for this not because it has behaved improperly in the past (Ex Post responsibility) but because it is in a position to act on the future: "Ex Ante responsibility".

🔴M.-A. Frison-Roche, ðŸ“La responsabilité Ex Ante, pilier du Droit de la Compliance, 2022

 

The duty of vigilance introduced by the so-called "Vigilance" law of 2017, the logic of which is taken up by the directive under discussion at EU level, requires powerful companies to ensure that they detect and prevent environmental and human rights abuses.

🔴M.-A. Frison-Roche, ðŸš§Thinking and using Vigilance through its Compliance Monumental Goals, 2023

 

For this 'duty of vigilance' to be effective, it must be shared. The legislator ensures that it is shared between companies and stakeholders, particularly in the way the "plan de vigilance" ("vigilance plan") is drawn up, while the civil judge, who is at the heart of the system, must ensure that the common interests are brought together. Compliance Law works through alliances.

🔴M.-A. Frison-Roche, ðŸš§Laws, Compliance, Contracts, and Judges: places and alliances, 2023

However, there is little consumer participation.

Because Compliance Law is a branch of Law built on its goals, legal consequences must be drawn from it.

 

III. TWO LEGAL CONSEQUENCES

The first legal consequence to be drawn is to make the consumer also "Ex Ante responsible", which is the most logical in a liberal system. The second consequence is to rely on other actors to activate the ex ante responsibility of companies, which increases the role played by "stakeholders".

 

A. EDUCATE THE CONSUMER OF GOODS TO INCREASE HIS "EX ANTE RESPONSIBILITY"

Consumers must be taught that they are "responsible", i.e. that they themselves are in a position to influence the future, that what can be described as their "purchasing policy" has a direct influence on it.

A possible solution is, also, in Compliance Law:

🔴M.-A. Frison-Roche, ðŸ“Training: content and container of Compliance Law, 2021

 

Because Compliance is based on the organisation of its "tools" on companies, it is up to them to set up this pedagogy.

The model can be taken from the digital world, a space in which digital companies must educate consumers to respect the rights of others, particularly intellectual property rights, and beyond the fight against hate, to learn to better respect others.

Retail companies, that have built physical or virtual spaces in which consumers make massive purchases, must increase this education and report on it to show the "culture of compliance" that drives them. It is very important to provide evidence of such an educational approach and its results.

🔴M.-A. Frison-Roche, ðŸ“The judge, the compliance obligation, and the company. The Compliance probationary system, 2023

 

By increasing the "Ex Ante responsibility" of consumers, companies fulfil more of their own, in the alliance mechanism that marks this new branch of Law.

 

B. EDUCATE THE CONSUMER OF FINANCIAL SERVICES TO INCREASE THEIR "EX ANTE RESPONSIBILITY"

It has always been said that companies exposed to the financial markets are socially responsible in order to preserve their reputation and the quality of their relationship with investors.

This is true for sophisticated investors, specialised funds and institutional investors. It is less true for the more ordinary consumer.

The Law is evolving, both in the information made available to ordinary investors and in their credibility. It is under the heading of Vigilance that the directive on Corporate Sustainability Due Diligence is being drawn up. Furthermore, the transposition of the Corporate Sustainability Reporting Directive, which obliges large companies to produce a "sustainability" report, including extra-financial information, already includes information on the company's action with regard to the Monumental Goals set out in the Compliance Law.

It is therefore on the investor, consumer of profitability, that the Legislator is currently relying most to assess the value of compliance with its duties.

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