Oct. 14, 2021

Publications

📝 Définition de la Proportionnalité et Définition de la Compliance ("Definition of Proportionality and Definition of Compliance"), in Frison-Roche, M.-A. (ed.), 📕Les buts monumentaux de la Compliance" ("Compliance Monumental Goals")

by Marie-Anne Frison-Roche

pour lire cette présentation en français ↗️ cliquer sur le drapeau français

â–ş Full reference: Frison-Roche, M.-A., ProportionnalitĂ© et ConformitĂ© (" Proportionality and Compliance"), in Frison-Roche, M.-A. (ed.), Les buts monumentaux de la Compliance, series "RĂ©gulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, to be published.

â–ş This article is based on the Working Paper: Proportionality and Compliance

â–ş It has followed the conference done in the colloquium Compliance et ProportionnalitĂ©. Du contrĂ´le de proportionnalitĂ© Ă  la proportionnalitĂ© du contrĂ´le ("Compliance and Proportionality. From the Controle of Proportionality to the Proportionality of the controle 

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â–ş Article English Summary:

The use of Proportionality always limiting powers is only justified when it is about sanctions, but sanctions are only one tool among others in Compliance Law, intended moreover to have little place in this Ex Ante branch of Law. And returning to the very nature of Compliance Law, which relies on operators, private or public, because they are powerful, then using proportionality to limite powers is detrimental to Compliance Law. 

However, nothing requires that. Compliance Law is not an exception that should be limited. On the contrary, it is a branch of Law which carries the greatest principles, aimed at protecting human beings and whose Normativity lies in its "Monumental Goals": detecting and preventing future major systemic crisis (financial, health and climate ones).

However, literally  the principle of Proportionality is: "no more powers than necessary, as many powers as necessary".

The second part of the sentence is independent of the first: this must be used.

Politics having fixed these Monumental Goals, the entity, in particular the company, must have, even tacitly, "all the necessary powers" to achieve them. For example the power of vigilance, the power of audit, the power over third parties. Because they are necessary to fulfill the obligations that these "crucial operators" have to perform as they are "in a position" to do so.

So instead of limiting the powers, the Principe of Proportionality comes to support  the powers, to legitimize them and to increase them, so that we have a chance that our future is not catastrophic, perhaps better.

In this respect, Compliance Law, in its rich Definition, will itself have enriched the Principle of Proportionality.

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đź“ť Go to the general presentation of the book in which this article is published in French.

 

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