Updated: Dec. 28, 2022 (Initial publication: July 10, 2022)


🚧 Regulatory and Compliance Law, expression of the missions of a professional Order

by Marie-Anne Frison-Roche

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 Full reference: M.A. Frison-Roche, Regulatory and Compliance Law, expression of the missions of a professional Order, Working Paper, July 2022.


🎤 This Working Paper has been done as basis for an intervention in the Annual Congress of the French Professional Order of the Géomètres-Experts, September 15, 2022 (conference given in French) 


🎥watch the short presentation of this speech (in French) 


🎥watch the full speech given on 15 September 2022, based on this working paper


 Summary of the Working Paper: Professional orders should not present themselves as exceptions, however legitimate they may be, in relation to a principle, which would be the competitive system, but as the expression of a principle. This principle is expressed by two branches of Law whose importance is constantly growing in European Law, liberal branches which are based on the conception of economic life and the definition of company, turned towards the future: the Regulatory Law and Compliance Law, two branches of Law at the same time related and distinct.

Indeed, and this is the topic of the first part, Competition Law conceives professional orders as exceptions since these "corporations" constitute structural agreements. French domestic legal system both consolidates the professional orders by backing them up to the State, which would sub-delegate its powers to them, but involves them in the questioning by the European Union of the States and their tools. Most often the temptation is then to recall with a kind of nostalgia the times when the professional orders were the principle but, except to ask for a restoration, the time would be no more.

A more dynamic approach is possible, in accordance with the more general evolution of Economic Law. Indeed, the Professional Order is the expression of a profession, a little-exploited concept in Economic Law, over which the Order exercises the function of "Second-level Regulator", the public authorities exercising the function of "First-level Regulator". The Banking and Financial Regulatory Law is built in this way and operates thank to that, at national, European, and global level. This is what should be linked.

The Professional Orders therefore have the primary function of spreading a "Culture of Compliance" among the professionals they supervise and beyond them (clients and stakeholders). This culture of Compliance is developed regarding the missions which are concretized by the professionals themselves.

Therefore, the second part of the Working Paper deals with the legal evolution of the notion of "Mission" which has become central in Economic and General Law, through the technique of the mission-based company. However, there are multiple points of contact between the raison d'être, the company with a mission and Compliance Law as soon as the latter is defined by the concrete and overly ambitious goals that it pursues. : the Monumental Goals.

Each structure, for example the French Ordre des Géomètres-Experts, is legitimate to set the Monumental Goal that it pursues and that it inculcates, in particular the conception of territory and the living environment, joining what unites all the Monumental Goals of Compliance: concern for others. The French Ordre des Géomètres-Experts, is adequate because it has a more flexible relationship, both tighter and broader, with the territory than the State itself.

By instilling this in professionals, the Professional Order develops in the practitioner an "ex ante responsibility", which is a pillar of Compliance Law, constituting both a charge and a power that the practitioner exercises, and of which the Professional Order must be the supervisor.


🔓read the Working Paper⤵️

Regulatory Law📎 !footnote-2581 and Compliance Law📎!footnote-2826 are branches of Ex Ante law, the purpose of which being to anticipate the future and prevent risks, and both expressing the desire to build the future. This is where they come up against Competition Law, which does not have this claim. Regulatory law is therefore distinct from Competition Law and is articulated with it📎!footnote-2583. Far from joining Competition Law, it is on the contrary the latter which, particularly in order to grasp the digital space, is in the process of migrating from Ex Post to Ex Ante: Economic Law is in the process of migrating massively to Ex Ante and we are in the process of witnessing a triumph of Regulatory Law, of which the European Digital Markets Act is an example.

Compliance Law is both an extension of Regulatory Law and goes beyond it📎!footnote-2584, because the various techniques of compliance📎!footnote-2822 are designed to anticipate the future, prevent the risks and build the future so that it is not left to the sole play of supply and demand (as Regulatory Law does already)📎!footnote-2823, but Compliance Law is a quite extraordinary Law in that it allows to regulate Ex Ante spaces even though they are not "sectors", for example to regulate in Ex Ante the digital space, the climatic balances, the speeches that are propagated in an instant throughout the world, etc.

Therefore, Compliance Law, whose object is the future, and which is not confined to a particular 'sector' but is carried by entities, the professional orders being one of them, is the Law which not only has the future as its object in a systemic way but constitutes par excellence the Law of the future.

In this respect, Compliance Law is a branche of Law that expresses dynamism by its very nature since it is a matter of taking the future in hand. Moreover, we must always look to the future, analyse the novelties it generates, with its opportunities and risks, and seek to find out how legal techniques can be used to insert efficiency, Law supporting projects designed by human beings.

This goes back to what a Professional Order is. There is no reason to think that because it structurally expresses a group of people who constitute a "profession", it is by this very fact in "defence" against what would be "modernity", i.e. "the Competitive Order"📎!footnote-2824. That some Competition Authorities, because they are instituted to guard the competitive organisation, treat any organisation that does not correspond to it, the States for example, is admissible, but the Competition Authorities do not govern the world, nor Europe.

A Professional Order is legitimate to express a "modernity"📎!footnote-2825 without necessarily having to either admit to being an exception to the principle of "Competition Law" or admit to falling into the pure and simple categories of Competition Law.

There are two reasons for this, in relation to which the competitive principle is as if blind: the profound reality of a Profession on the one hand and the profound reality of a Mission on the other. European legal news shows their growing importance, and the professional orders must rely on both.

An Order is an umbrella organisation of a Profession. The Order is a structure that lasts over time, in relation to the professional companies that belong to it, companies that are mobile in a market of services.  The two are linked: the competitive fluidity of professionals in the market for services, for example those offered by this extremely specific profession of surveyors.

Thus, we must recognise that liberal professionals are companies, offering services on markets, which is what Economic Law states, but because they have their own Mission, doctors, lawyers, notaries, etc., they have a mission, which is guarded by the Order.

Sometimes there is a double blindness: the Competition Authorities which do not see the second part of the proposal, wanting to see in professionals only ordinary companies; the Professional Authorities which do not see the first part of the proposal, wanting to see in companies only some kind of soldier monks only in charge of a public service.

Regulatory Law, whose definition is the establishment and the guard of a balance between the principle of competition and other a-competitive or even anti-competitive principles📎!footnote-2589 instead bridges the two📎!footnote-2590.

Moreover, Compliance Law, which extends this definition beyond the regulated sectors as soon as there is a "mission to fulfill", deploys this En Ante conception in structures that can seize the future, because Compliance Law defines itself by the Missions that the Public Authorities set and that "crucial operators"📎!footnote-2591 deploy.

The crucial operator is essential in Regulatory and Compliance Law since it is the one who, by virtue of its "position", will concretise the Mission that the Public Authority has conceived. In banking, where Regulation, Supervision and Compliance techniques are the most mature📎!footnote-2592, there are the "systemic banks" that are crucial. In matter of cyber security, there are the "critical operators". The idea is always the same: "critical operators" hold a position "that allows them in Ex Ante to avoid a systemic harm or/and to produce a systemic good, for instance a systemic durability.

A Professional Order is of this nature, but it must assume it, say so and show in concrete terms its usefulness and effective functioning in relation to it.

Indeed, the structural permanence that it represents over time implies that an Order, and the professionals who belong to it, always know what it is. Defining itself as an exception, even a legitimate one, to the principle of Competition is not necessarily a sufficient definition.  In a Europe where the space must remain liberal and therefore moving, the need for stability, solidity and sustainability is growing: this is why the Law of Banking Regulation, Supervision and Compliance, which was once specific, is now the model for the whole of European Union Law.

This is the model that inspires the new texts on climate or digital issues. These are the principles of banking and financial Regulatory Law, for example transparency, trust and information. Thus, the new texts of "regulation" that have been adopted for the so-called "regulated" professions must not be used as texts of "economic liberalisation" leading to the pure and simple Competition principle, but as texts fully organising a Regulation, i.e. in a liberal space a balance in the long term between the principle of Competition and other principles, so that everyone has confidence in the system📎!footnote-2593 and in its sustainability📎!footnote-2594.

Thus, the more uncertain the future seems, the more useful the institution is in that it is anchored, solid, recognisable, by its members and by third parties: that it can be said in a few words what it is, what is common to all its members.

Yet everyone stresses the uncertainty of the present and the future, so much so that crisis becomes the ordinary of it📎!footnote-2595Let us not complain about it, this is how innovation comes. But in this flood of novelty and uncertainty, anchors must be favoured: professional orders are one of them. And it is the legal system that has made this possible, yesterday in its relationship with the State, today in its relationship with Regulatory Law and in the shift that is taking place with Compliance Law (I).

The anchoring is no longer so much in the past and in the State, which remains essential, but more in its role as supervisor than in the mission given to the profession and to the structure of the profession, which gives an idea of its identity in space and time. This notion of "Mission" has always been present in Regulatory Law and in the culture of the profession. The French law so-called loi Pacte of 2019 has given it new impetus. It is important to take the full measure of this to show the modernity of the Orders (II).



French and European positive law seems to treat the professional orders badly ... Indeed, only the State and legal persons under Public Law could pursue more than the particular interest, while the mere fact that orders are legally "corporations", their sort of cartel structure would constitute an exception more or less bearable by Competition Law, to which European Union Law has long been equated. There is therefore a great misunderstanding of European Law, via Competition Law (1), and of French Law, via Public Law (2), which often leads to a sort of nostalgic evocation of what would have been the lost time of the Ancien Régime ... (3).

Let us forget all this knowledge. If we take a less nostalgic and less defensive look at what an Order is, we see that it expresses above all a profession (4). It is not so common for a profession to be seen as an organisation of solidarity among its members and for others.

The shift then takes place because it is not so much the State and the fact that the profession is "regulated" that makes it specific. Rather, it is the concern for another interest than the interest of the companies that make up this profession that allows it to structure itself and imposes it. The State is no longer the source of the powers of the Orders, which makes them more powerful and more solid at a time when the States are weakened: the States change their place, since they become the supervisors of the Orders, which are the regulators of these particular professionals.

The Order thus appears as the Ex Ante regulatory body of a profession, for which the public authorities are the supervisors and the courts the Ex Post control bodies (5).

This is not an exception to the principle of competition: as we shall see in the second part of this present analysis, it makes it possible to balance this principle of Competition with another concern, which is concern for others. The Order structures itself and acts permanently to ensure that this concern is active in professionals who have this in common, this internalisation taking the form of Compliance Law mechanisms (6).


1° The lack of understanding of traditional EU Law, which qualifies the Order above all as a structural agreement

As soon as Competition Law is placed at the centre of Economic Law, the Professional Orders can only be exceptions. Indeed, the competitive principle, what for instance the French Commercial Code expressly describes as the "play of competition" from which what consumers of goods and services pay📎!footnote-2596 must result, cartels and abuses of dominant position being prohibited insofar as they impede this "play". Accordingly and for example a, academic thesis of 2015📎!footnote-2597 posits that the legitimacy of Orders is inherently contested since they are "corporations", i.e. cartels.


2° The traditional understanding of French Law because it situates the State as the source of a derogatory status justifying the existence of Orders

In the French legal system, this is not so much an opposition, but rather a traditional conception. Indeed, the idea is that an economic activity is accessible to all, without condition, but that certain activities, for many reasons, are "regulated": it is therefore the State that will organise entry into this profession and the way in which it is exercised. The expression "regulated professions" is then used by many..

The State has the full weight of its authority on this organisation. For example, Article 433-17 of the French Criminal Code states in its first paragraph: "« L'usage, sans droit, d'un titre attaché à une profession réglementée par l'autorité publique ou d'un diplôme officiel ou d'une qualité dont les conditions d'attribution sont fixées par l'autorité publique est puni d'un an d'emprisonnement et de 15 000 euros d'amende. » (what we can translate as: "The use, without right, of a title attached to a profession regulated by the public authority or of an official diploma or of a quality whose conditions of attribution are fixed by the public authority is punishable by one year's imprisonment and a fine of 15,000 euros").

It is both a protection, since it is the State that has put its seal on this "profession", but it is also already struggling in the face of Europe..., whose Competition Law poses the opposite principle, posing first of all as a definition of the company not who constitutes it nor who holds it (principle of neutrality of capital) but defines it through the activity on a market. Now, as a matter of principle, one must be able to enter and leave a market freely: this is the 'game of competition', described above. Therefore, thinking in terms of a "regulated profession" is already a burden.

This protective but derogatory status carries a very heavy evidential burden. Indeed, since the principle is Competition, those who criticise the ordinal structure refer to the principle, whereas those who allege the ordinal structure must demonstrate that this structure, because it is a derogation, is nevertheless justified: a heavy burden of proof. Thus, when the Court of Justice of the European Union recognises the legitimacy of an ordinal structure in its capacity to regulate a profession, notably in the Wouters case📎!footnote-2598, a great deal of attention is given to this because it is a kind of feat, whereas it is perilous to be in the legal situation of the exception and comfortable to be in the situation of principle, the one to which the European Commission in particular refers.


 3° The temptation of nostalgia

The temptation is then great to be nostalgic. To recall that corporations were useful. That a country relying on intermediate bodies was quite happy and that it would be appropriate to restore them further. This can be done from the perspective of a 'reaction' to what would be a kind of devastating modernity that would be the cold competitive market.

These suggestions and works, based on history, have relevance, but for instance the French Revolutionary loi Le Chapelier, which abolished corporations as a free principle, admitting them only by decision of the State, combined with the décret d'Allarde, laying down the principle of freedom of trade and industry, are considered the basis of French Law, which legal developments qualified but did not call into question📎!footnote-2599.

The French Ancien Régime Law did not have only virtues, notably because it was not built on the principles of Liberty, Equality and Fraternity, it is undoubtedly necessary to move forward with a Law of Regulation and Compliance, which are liberal branches of Law.

Through them, it is to the mechanisms put in place in the banking and financial sectors, where Regulatory and Compliance rules are the most mature, that we can also turn.


4° The Professional Order, direct expression of a specific organisation: the "Profession" for which the Order exercises a function of "second level Regulation"

In law, the notion of profession has little place, compared to the legal notion of person: from the isolated individual to the State, they are always persons, but the profession, this unity between persons who act in the same direction, has little place, probably because it immediately refers to "corporations".

But if we take financial activity, it is regulated, through what is aptly described as the 'financialisation of the world, through and beyond the States by a lower level of Regulatory system, also born of the Ancien Régime but which was not swept away by the French Intermediary Law: the marketplaces. These marketplaces, which are actively promoted today, for example through the "attractiveness of the Paris market"📎!footnote-2600 are technically found through the market companies, for example Euronext, which structurally hold regulated markets.

These private companies issue standards, exercise disciplinary power and are considered as "second tier regulators", with market participants themselves represented in their internal governance structures. This ability to design common standards and ensure their ongoing effectiveness allows finance to be built on a European scale, with the supervisor intervening only at the top level, notably through the public authority that is the European Securities and Markets Authority (ESMA), created in 2010.

These systemic operators are also international in scope: for example, Euronext, a French public limited company, owns regulated financial markets in various Member States, for example the regulated market in Paris, but also outside the Union, for example in Norway, with European texts supporting it📎!footnote-2601.

Thus by nature, because sectorial Regulatory Law takes as its contours the contours of its sector📎!footnote-2602, its rules have de facto but also de jure an extraterritorial extension. The importance of soft law, both in Regulatory Law and in Compliance Law, as soft law is not overly sensitive to the borders of legal systems, favours this📎!footnote-2603.

The European Union, because it is increasingly moving away from the single pillar of Competition Law towards a more balanced Europe of Regulation, for example in energy matters, and of Compliance, for example in digital📎!footnote-2604 and climate matters, is destined to promote this type of structure.

The Professional Orders correspond in all respects to this development and are therefore the structures of the future.

It is by relating more to the model of robustness, stability, risk management, sustainability, which is found in Banking and Financial Regulation Law, not in exceptions but in principles, that the Professional Order appears as a situation of principle and not as a situation of exception.

This links up with what is becoming the centre of Regulatory Law and Banking and Financial Compliance, but also of Regulation

Professional Orders must present themselves as such.  


5° The Public Authority, First Level Regulator of Professional Orders and Ex Post Controller

Thus, no more than the Orders could only survive by demonstrating their capacity to be legitimate exceptions to the competitive game in the European space, the Orders do not come only from the State which would have, in a top-down manner, sub-delegated its powers to sub-regulators who would be the Orders which, in the name of the State, would be the guardians of some specific economic agents.

Yet they have so often been presented as such. This certainly gives them a foundation: backed by the State, the Orders relying on it. They express its values and borrow its vocabulary, particularly that of public service.

Linking its nature to that of the State to such an extent leads to its fate being legally bound to the State. Thus, when European Union law attacks the prerogatives of public power, neutralises the public nature of a company and considers it only as an ordinary company, it is logical that the European Commission only sees an Order as a corporation whose purpose is to hinder the competitive free play, the first impression against which the Order must fight.

But originally, Professional Orders also came from professions that were set up to fulfil a "mission". It is on this notion of mission that we must now focus our attention. This is all the more necessary as ordinary companies, private companies operating in competitive markets, are now focusing on their missions, which may not be just to make a financial profit.

It is then up to the Orders to spread a "Compliance Culture" within the profession and through the professionals in society.


6° The Order, creator of a "Culture of Compliance" in the profession and beyond regarding to a Mission 

In this second part, the determination of what a Mission is in Law will be developed. However, the point here is to emphasise that an Order has two roles.

In a classic way, it must first of all guarantee that professionals practice their profession and develop their business in line with the Mission entrusted to them. These are the powers of control on entry into the Profession, the requirements of competence and morality, the restrictions on modes of practice, the disciplinary powers, etc.

In a more novel way, which it is essential to develop, the Order must consider that it is not only responsible for ensuring that professionals "comply with the regulations applicable to them", which is a poor definition of what Compliance Law is. It is responsible for spreading a "Culture of Compliance" among its members, i.e. a concern on the part of everyone to participate in the achievement of the mission. The understanding of the Mission then becomes essential. In this respect, training becomes a major issue for the Orders, not as an adjunct but as a central Compliance Tool, as observed in the banking sector.

Moreover, the Order should not only address its members: it should also address its stakeholders in concentric circles. The notion of "stakeholder" is nowadays essential in the evolution of Regulatory and Compliance Law. It means that entities are porous and that whoever has information and power📎!footnote-2606 must use it for the benefit of those whose interests are affected.

Now the category of stakeholders, which is a legal category, keeps growing because the missions themselves keep growing, in that the missions now correspond to growing concerns, of which climate concern is the clearest example, taken directly by Compliance📎!footnote-2607.

The Orders must therefore address the outside world as well as the inside world, the notion of "transparency" taking on a dynamic dimension. It is not a question of being passively transparent so that, in the event of a breach of duty by the professional, he or she can be sanctioned. It is a question of direct intervention by the professional in the life of the community, for example in the territory, so that in the long term, risks are avoided, and new balances are obtained.

This should be called "Ex Ante Responsibility", which is a "pillar of Compliance Law"📎!footnote-2608. The Orders, Ex Ante structure must develop for the professionals and for themselves this dynamic conception of an Ex-ante Responsibility which is conceived and practiced from the Missions.

By building on the very notion of Mission, the Orders gain both a deeper legitimacy and a new momentum because these missions are above all about the Future.



The notion of "Mission" is now central to Economic Law, notably in French Law because the 2019 PACTE Law has, on the one hand, brought the company back into existence in the face of a Competition Law built on the notion of economic activity in a market and, on the other hand, has introduced the notion of a company with a Mission (1). A company offering services can have a goal that is not only profit, the raison d'être and the mission being in line with Compliance Law, which itself is defined by the "Monumental Goals" by which it defines itself (2). The preservation of the territory, starting from the properties, the conception of the territory as a place of life, constitutes a Monumental Goal of the companies impregnated with a Compliance Culture (3).


1° The Mission, a fully legal concept, common to Public and Private Law: public service missions and the company as seen by the French 2019 PACTE law

For decades, the notion of the company was as it were erased, because Competition Law, conceived solely by the market, which could be described as a "total market"📎!footnote-2609 , only understood the company through its economic activity and not as such.

In reaction to this, the French legislator, through the so-called Pacte law, modified the French Civil Code and the very definition of the company contract by stating in Article 1835: « Les statuts doivent être établis par écrit. Ils déterminent, outre les apports de chaque associé, la forme, l'objet, l'appellation, le siège social, le capital social, la durée de la société et les modalités de son fonctionnement. Les statuts peuvent préciser une raison d'être, constituée des principes dont la société se dote et pour le respect desquels elle entend affecter des moyens dans la réalisation de son activité. » (what can be translated as: "The articles of the contract of the corporate shall be drawn up in writing. They shall determine, in addition to the contributions of each partner, the form, object, name, registered office, share capital, duration of the company and the terms of its operation. The articles may specify a raison d'être, consisting of the principles with which the company endows itself and for the respect of which it intends to allocate means in the performance of its activity".

All companies can expressly become a "mission company" by incorporating this purpose in their articles of the corporate contract.

This legal and cultural change has been commented on extensively, in particular to show its intimacy with Compliance Law📎!footnote-2610, but the most authoritative commentary is undoubtedly that proposed by the Ministry of the Economy, which presents this possibility for companies to give themselves a raison d'être, i.e. to integrate « la prise en compte des impacts sociaux, sociétaux et environnementaux de leurs activités » comme le moyen de « concilier la recherche de la performance économique avec la contribution à l’intérêt général » ("the consideration of the social, societal and environmental impacts of their activities" as the means of "reconciling the search for economic performance with the contribution to the general interest")📎!footnote-2611.

Moreover, the Ministry insists on "the main advantages" of this quality of company with a mission: « donner du sens aux activités, améliorer l’image de marque, collaborer avec une pluralité d’acteurs, améliorer la performance économique, se protéger contre les rachats hostiles, améliorer la marque employeur » ("to give meaning to activities, to improve the brand image, to collaborate with a plurality of actors, to improve economic performance, to protect against hostile takeovers, to improve the employer brand").

Thus, not only the company reappears as a group of human beings📎!footnote-2612 but as a structure by these statutes it takes on another Mission.

In this respect, the Orders are not an exception, but the very principle of general economic development. The reflection then consists in identifying for each Order the raison d'être and the Mission entrusted to it📎!footnote-2613.

However, the concepts of raison d'être and mission-oriented companies are themselves directly related to Compliance Law.

This shows the European coherence of the evolution of Economic Law.


2° Points of contact between the raison d'être, the mission -oriented enterprise and the Monumental Goals of Compliance Law

Compliance Law is sometimes presented in a rather poor and mechanical definition as a series of processes by which the company ensures in Ex Ante that it - and the people for whom it is responsible - has a structure and behaviour that complies with the regulations applicable to itself. This merely procedural definition has no points of contact with the Missions of companies, or the objectives pursued by the laws.

However, a rich and substantial definition of Compliance Law, proposed as early as 2016📎!footnote-2614, corresponding to the humanist tradition of Europe📎!footnote-2616, is increasingly being imposed, i.e. not a series of processes in order to better comply with the applicable regulations but rather to use one's strengths as a powerful operator to achieve goals of great importance: the "monumental goals.

In this respect, the Monumental Goals are the "beating heart" of Compliance Law📎!footnote-2617: they give meaning to the set of compliance tools📎!footnote-2618, their meaning, their unity and the way they should be interpreted. The Monumental Goals are diverse but converge towards concern for others, which legally translates into a greater emphasis on the rights of clients, stakeholders, individuals!footnote-2619.

These Monumental Goals, which are aimed at the Future, can be negative in nature, when it is a question of preventing systemic risks, and positive in nature, when it is a question of imposing new balances. Therefore, new ambitions in climate change or digital technology are directly covered by Compliance Law. This is also the case for mission-oriented companies. Most often, companies with a mission are large global companies, which are the same as those that, because of their position, are targeted by Compliance Law, when the latter aims to preserve the principle of probity.

The Orders, in the dissemination of a Compliance Culture, which they must do on a permanent basis and ex ante, are in the same synergy.

But in the same way that each company develops its mission according to the sector in which it operates and its own identity, an Order must develop its own mission, make it known and share it.

By studying both the texts applicable to the profession of surveyors, the specific organisation of their Order and above all the vision developed by the Order for what the profession should be by 2030, it appears in the document published by the French Order that "concern for others" is primary: « les entreprises doivent réinventer leur modèle économique pour fonctionner de manière altruiste » ("companies must reinvent their economic model in order to operate altruistically")📎!footnote-2620.

This corresponds both to the now central notion of the "company with a mission", to the substantial definition of Compliance Law and to the definition that the Order of surveyors gives of what it must be in the next 10 years.

If we take the technical services provided by the professionals, we can return to the notions of territory and living environment.


3° The territory and the living environment, objects of a Humanist Monumental Goal

Surveyors technically have a grip on the territory. Territory is a notion which, like corporations, in that it evokes limits and boundaries, has been like the notion of enterprise attacked by Competition Law, preferring the notion of market. But the territorial anchoring and the idea of an industrial activity, that develops over time and resists crises, are developing.

The notion of sustainability is directly borrowed from Compliance Law, which prevents instability and aims to organise the stability of systems, the banking model being applied more generally.

Moreover, regional planning is no longer just a public policy, it is also, for example, the concern of banks that have opted for the status of a company with a mission, such as the French regional bank Crédit Mutuel - Arkéa📎📎!footnote-2621.

In the evolution of culture that the surveyor must follow, this concern for others, this concern for the future, this concern for sustainability, is part of a conception of Compliance Law whose history is in the banking sector📎!footnote-2622.



4° The Order, a smaller and larger territorial anchor than the State regarding the monumental goal: the impact on the profession

The Order, insofar as it derives its legitimacy from its Mission rather than from the State📎!footnote-2624 , will be able to both enable professionals to adjust as closely as possible in territories smaller than the national territory, through a "national-regional operation"📎!footnote-2625 and, if necessary, through a development beyond borders.

Indeed, the more there is a territorial anchorage, the less the borders, which are of a legal nature, impose themselves in an absolute way. Thus, extraterritoriality, which is consubstantial with Compliance Law, and which is relevant because of its goals, particularly when climate issues are targeted📎!footnote-2626, must be targeted by the national Order in its policy of community and contacts in international networks.


5° Developing Ex Ante Liability, a pillar of Compliance Law

This concern for others takes the form of CSR in ordinary companies. It is the task of the Order to integrate it into the professional structures themselves. CSR is a double-edged sword if it allows companies to evade their obligations; it is only admissible if it leads the company to effectively prove that, going beyond its obligations under the law, it is obliged by its will, in this case by its status, to participate in the achievement of a Monumental Goal.

This is a commitment, and it is a question of bringing out a "responsibility", which is not situated in Ex Post, as a consequence of a failure to comply with a regulation, but is situated in Ex Ante in relation to a goal towards which participation in a profession leads the company, through an obligation of means, to use its position to achieve it: in this case the "living environment".

Ex ante Responsability is a new concept📎!footnote-2627, part of a "Compliance Culture", which embodies the mission entity that is the Order.


6° To make the Order the supervisor of the effectiveness of the Missions and holder of the powers to do so

From this nature, a new use of means follows. Indeed, a structure has powers not so much because the State has conferred them on it, but because they are powers that are necessary for it. This interpretation by the Goals, a teleological interpretation, classic in Economic Law, justifies the powers of the Orders.

This implies the part of discipline and sanction, but because it is above all an imperative of disseminating a culture, among professionals, among stakeholders and in the public debate, it is also through incentive tools that the means expressing these orientations are expressed📎!footnote-2628.

This justifies the development of collaborative mechanisms📎!footnote-2629 and makes transparency no longer a prerequisite for sanction but more a prerequisite for discussion, which the construction of platforms favours.






🕴️M.-A. Frison-Roche📝Le droit de la régulation (Regulation Law), 2001.


🕴️M.-A. Frison-Roche, 🚧Compliance Law, 2016.


🕴️M.-A. Frison-Roche (dir.), 📘Compliance Tools, 2021. 


🕴️M.-A. Frison-Roche et 🕴️J.-Ch. Roda, 📕Droit de la concurrence, 2022 ; For the notion of "ordre concurrentiel" (which we can translate as "Competition Order"), s. 📕L'ordre concurrentiel. Mélanges en l'honneur d'Antoine Pirovano, 2003.


🕴️M.-A. Frison-Roche, 📝Avocat et ordre. Être moderne sans se perdrein 🕴️J.-L. Forget et 🕴️M.-A. Frison-Roche (dir.), 📕Avocats et ordres du 21e siècle, 2014.


Definition of « Régulation » ("Regulation Law"), in 🕴️M.-A. Frison-Roche🔤Compliance and Regulation Law bilingual dictionary, website mafr (www.mafr.fr). 


S. for example 🕴️M.-A. Frison-Roche📝Notariat et régulation font bon ménage ("Notaries and regulation get on well"), 2015.


🕴️M.-A. Frison-Roche📝Proposition pour une notion : l'opérateur crucial ("Proposition for a notion: the crucial operator"), 2006.


🕴️M.-A. Frison-Roche (dir.), 📕Régulation, Supervision, Compliance (English presentation), 2017. 


Articles L.410-1 and following of the Code de commerce (french commercial code), retaking the principle of the Treaty on the functioning of the European Union.

For more explanations on what is the basis of Competition Law, s. 🕴️M.-A. Frison-Roche  and 🕴️J.-Ch. Roda, 📕​Droit de la concurrence, 2022. 

This remains true. However, Economic Law is not reduced to Competition Law, which is itself increasingly moving towards Ex Ante, notably through the Digital Markets Act, and incorporates other concerns that the "competition game" (s. for example 🕴️E. Claudel, (dir.), 📗Le droit de la concurrence dans tous ses états, 2021). It should be noted, however, that this is especially true for Competition Law treatment of the digital space and still very little concerning for what concerns us here, namely the territory. 


🕴️W. Bigenwald, 📓La responsabilité des ordres professionnels du fait de leurs membres : fondement et régime, 2015. The author summarizes positive Law as follows: « L’existence des Ordres professionnels est dérogatoire au droit commun qui prohibe les dérogations et les groupements obligatoires sauf lorsqu’il s’agit de personnes morales de droit public. En tant qu’ils sont des corporations, les Ordres professionnels voient leur légitimité contestée » (what we can translate as : "The existence of Professional Orders is a derogation from ordinary law which prohibits derogations and compulsory groupings, except in the case of legal person under public law. As they are corporations, the legitimacy of Professional Orders is contested"). 


ECJ, 19th february 2002, case C-309/99, Wouters. S. for instance 🕴️I. Luc, 📝Ordres professionnels et concurrence, recalling that despite this kind of concession to self-regulation, the Orders remain subject to the control of Competition Authorities.


🕴️M.-A. Frison-Roche et 🕴️J.-Ch. Roda, 📕Droit de la concurrence, 2022.


Description on Euronext’s website : “Euronext operates the following Regulated Markets: 6 Securities Markets i.e. in Amsterdam, Brussels, Dublin, Lisbon, Oslo and Paris and 5 Euronext Derivatives Markets i.e. in Amsterdam, Brussels, Lisbon, Oslo and Paris. The integration of Euronext’s Regulated Markets in Europe has been fostered and accompanied by regulatory harmonisation. A single Euronext Rule Book governs trading on all Euronext Securities and Derivatives Markets. It contains both harmonised and non-harmonised - or local - rules. The regulators in Belgium, France, Ireland, the Netherlands, Norway and Portugal approve the relevant market rules, either collectively (Book I) or in respect to their own jurisdictions (Book II).”


🕴️M.-A. Frison-Roche📝Le droit économique donne la priorité à son objet et en épouse les contours ("Economic Law gives priority to its object and follows its contours"), 2005.


Annual study of the "Conseil d'Etat" (French Supreme administrative court), 📓Le droit souple, 2013.


🕴️M.-A. Frison-Roche, 🚧Concevoir le pouvoir ("Conceiving power"), 2021.


🕴️M.-A. Frison-Roche, 📓Environmental Compliance Law, as an Ex Ante Responsability2021 ; 📝Prévention du risque climatique et construction de l’équilibre climatique par le Droit de la Compliance, to be published. 


🕴️M.-A. Frison-Roche📝La responsabilité Ex Ante, pilier du Droit de la Compliance ("Ex Ante liability, pillar of Compliance Law"), 2022.


🕴️A. Supiot, 📗L'esprit de Philadelphie (The Spirit of Philadelphia), 2015. 


🕴️N. Notat, et 🕴️D. Senard, 📓L’entreprise, objet d’intérêt collectif2018. This report was the basis for the Loi Pacte


🕴️M.-A. Frison-Roche🚧Compliance Law, 2016.


🕴️M.-A. Frison-Roche📝Compliance Monumental Goals, beating heart of Compliance Lawin 🕴️M.-A. Frison-Roche (dir.), 📘Compliance Monumental Goals, 2023.


🕴️M.-A. Frison-Roche📝Compliance Monumental Goals, beating heart of Compliance Lawin 🕴️M.-A. Frison-Roche (dir.), 📘Compliance Monumental Goals, 2023.


🕴️M.-A. Frison-Roche📝Rights, primary and natural Compliance Toolsin 🕴️M.-A. Frison-Roche (dir.), 📘Compliance Tools, 2021. 


page 4.


S. supra. 


page 9.


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