🚧Status and Role of the 'trajectory' in Regulatory and Compliance Law

Trajectory is a key concept in Compliance Law.

It is not only in the legislation but also in case law (1).

Its importance comes from the fact that the compliance obligation of subjected entities relates to the future (2).

It is a central notion in systemic commitments , social or educational programs, etc. (3).

Its scope is mainly evidentiary and must be used in this way by the companies subject to it (4).

I. THE EPONYMOUS GRANDE SYNTHE CASE LAW

Let's take the Grande Synthe case law handed down by the French Conseil d'État, comprising 3 decisions.

In its decision of 19 November 2020, the Conseil d'État noted that the State had undertaken to reduce C02 emissions from the national territory by 40% by 2030, yet that France had regularly exceeded the emission ceilings it had set itself for this purpose. This constitutes an implicit refusal to take measures to implement the law setting France's reduction targets, which stems from a 2018 European directive, itself a follow-up to the Paris Agreement. The Conseil d'État is therefore ordering additional information so that the State's actions in implementing the texts that oblige it to act can be measured.

In the so-called Grande Synthe 2 decision of 1 July 2021, the Conseil d'État, ruling on the merits, held that this implicit refusal to take the necessary measures to curb the curve of C02 emissions produced on national territory, in order to ensure its compatibility with the national law and European Union law, should be annulled. In addition, the Conseil d'État enjoins the Government to take all necessary measures to curb this curve to this end.

In its reasoning, the Council stated that "faute d’avoir pris des mesures supplémentaires nécessaires pour infléchir la courbe…, le refus opposé à  la requérante par le pouvoir réglementaire est incompatible avec la trajectoire de réduction de ces émissions" ("in the absence of the additional measures necessary to curb the curve..., the refusal of the regulatory power to accept the applicant's request is incompatible with the trajectory for reducing these emissions") set by the decree, the law and the European regulation.

In the third stage, the applicant municipality, Sainte-Synthe, again referred the matter to the Conseil d'État to obtain a penalty payment against the State in order to ensure that it fulfilled its obligation to follow the reduction trajectory. However, in its so-called Grande Synthe 3 decision of 10 May 2023, the Conseil d'État rejected Sainte-Synthe's application on the following grounds.

The Conseil d'Etat noted that, at the time the case was referred to it, the State's action had not been sufficient to fulfill its obligations and that it would have to continue. However, it refused to impose a penalty payment on the State because the State's behaviour, which had already been observed, showed that the State's action made it possible to presume that, within the timeframe set, the reduction to which it was bound by law would be achieved.

As it cannot be presumed that the States will cease to perform its commitments and as it is thus demonstrating that it will be able and capable of fulfilling them, a penalty payment is not justified.

II. DEFINING THE TRAJECTORY: THE CONSEQUENCE OF A COMPLIANCE OBLIGATION THAT RELATES TO THE FUTURE

The trajectory is linked to the notion of the Compliance Obligation that weighs on those subject to it, the State in the Grande Synthe case law, and more often than not the crucial companies.

Companies subject to a Compliance Obligation need to detect and prevent disasters, such as climate change, corruption, money laundering, etc., so that future systems do not fall victim to them. The object of the obligation is therefore the Future.

This presupposes immediate action that extends into the future: "continuous" action that takes place over time.

The law is more familiar with perennial situations and the instantaneous fulfillment of obligations than with achievements that unfold over time.

But Compliance Obligations often fall into the latter category.

This brings us back to the notion of a trajectory: with a timetable, deadlines and a hoped-for final victory.

We are already familiar with this in Regulatory Law, which Compliance Law extends: for example, the roll-out of fibre, with a timetable, and so on.

III. THE TRAJECTORY, A CENTRAL CONCEPT AT THE CROSSROADS OF ALL SECTORAL COMPLIANCES

In fact, the notion of trajectory is central to the deployment of systems that not only involve continuous action but also require regulatory and supervisory authorities to measure progress.

This is the case, for example, when operators are required to train internal and external staff.  Training is an essential Compliance tool. It takes on its full meaning with the Goal of ensuring that those to whom it is addressed understand the purpose of the knowledge, internalise it and, if necessary, modify their own behaviour.

The Regulators measure the "progress trajectory" that is achieved among the people who benefit from the training, in exactly the same way as progress is measured on the pollution reduction trajectory.

We can also take the example of the feminisation of decision-making bodies in companies, where control will focus in the same way on the trajectories which are so many guarantees, required but sufficient, of future successes and goals achieved tomorrow.

This reveals the very nature of the notion of "trajectory": a notion of probation.

IV. THE TRAJECTORY: A PROBATIONARY CONCEPT, CONSEQUENCES FOR SUBJECTED COMPANIES

En effet, si l’entreprise ne peut faire l’objet d’une contrainte immédiate, comme le prononcé d’une astreinte, pour la réalisation d’une obligation qui ne sera complète que dans le futur, c’est à la condition de prouver qu’elle respecte cette trajectoire.

In fact, while the company cannot be subject to an immediate constraint, such as the imposition of a penalty payment, to fulfill an obligation that will only be complete in the future, it must prove that it is complying with this trajectory.

It is therefore an obligation of proof.

This obligation of proof relies on the company, even if the company is in the place of the defendant in a lawsuit.

The object of the evidence is to show that, in the light of its past and present behaviour, it is reasonable to expect that the enterprise will fulfill its commitments in the future (either by virtue of the law that binds it, or because it has undertaken to do so by contract for example).

To do this, the company will have the probative prudence to preconstitute these elements of proof and to carry out these projections in advance in order to be able to justify the credibility of the trajectory.

In this way, even though its Compliance Obligation relates to the future, the company will be able to provide satisfactory proof.

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