📝The Dynamics of the Compliance Monumental Goals, in Frison-Roche, M.-A., 📘Compliance Monumental Goals

OVERALL APPROACH

Frison-Roche, M-A., Monumental Goals, beating heart of Compliance Law

Compliance Law can be defined as the set of processes requiring companies to show that they comply with all the regulations that apply to them. It is also possible to define this branch of Law by a normative heart: the "Monumental Goals". These explain the technical new legal solutions, thus made them clearer, accessible and anticipable. This definition is also based on a bet, that of caring for others that human beings can have in common, a universality. 

Through the Monumental Goals, appears a definition of Compliance Law that is new, original, and specific. This new term "Compliance", even in non-English vocabulary, in fact designates a new ambition: that a systemic catastrophe shall not be repeated in the future. This Monumental Goal was designed by History, which gives it a different dimension in the United States and in Europe. But the heart is common in the West, because it is always about detecting and preventing what could produce a future systemic catastrophe, which falls under "negative monumental goals", even to act so that the future is positively different ("positive monumental goals"), the whole being articulated in the notion of "concern for others", the Monumental Goals thus unifying Compliance Law.

In this, they reveal and reinforce the always systemic nature of Compliance Law, as management of systemic risks and extension of Regulation Law, outside of any sector, which makes solutions available for non-sector spaces, in particular digital space. Because wanting to prevent the future (preventing evil from happening; making good happen) is by nature political, Compliance Law by nature concretizes ambitions of a political nature, in particular in its positive monumental goals, notably effective equality between human beings, including geographically distant or future human beings.

The practical consequences of this definition of Compliance Law by Monumental Goals are immense. A contrario, this makes it possible to avoid the excesses of a "conformity law" aimed at the effectiveness of all applicable regulations, a very dangerous perspective. This makes it possible to select effective Compliance Tools with regard to these goals, to grasp the spirit of the material without being locked into its flow of letters. This leads to not dissociating the power required of companies and the permanent supervision that the public authorities must exercise over them.

We can therefore expect a lot from such a definition of Compliance Law by its Monumental Goals. It engenders an alliance between the Political Power, legitimate to enact the Monumental Goals, and the crucial operators, in a position to concretize them and appointed because they are able to do so. It makes it possible to find global legal solutions for global systemic difficulties that are a priori insurmountable, particularly in climate matters and for the effective protection of people in the now digital world in which we live. It expresses values that can unite human beings.

In this, Compliance Law built on Monumental Goals is also a bet. Even if the requirement of "conformity" is articulated with this present conception of what Compliance Law is, this conception based on Monumental Law is based on the human ability to be free, while conformity law supposes more the human ability to obey.

Therefore, Compliance Law, defined by the Monumental Goals, is essential for our future, while conformity law is not.

Part 1 . NOTION OF COMPLIANCE MONUMENTAL GOALS

Maistre, R-O., What are the monumental goals for the regulator in a rapidly changing audiovisual and digital landscape?

In France, since the law of 1982 which put an end to the State monopoly on the audio-visual area, the landscape has profoundly evolved and diversified. In view of the multitude of players who are now established there, the Conseil supérieur de l'audiovisuel - CSA (French High Audiovisual Council) must ensure the economic balance of the sector and the respect for pluralism, in the interest of all audiences. The growing societal responsibilities of audiovisual media and new digital players have multiplied the "monumental goals" on which the CSA (soon to be Arcom) is watching.

Its competences have gradually been extended to the digital space and the successive laws concerning its missions aim at new objectives, in particular in terms of protection of minors, fight against online hate or against disinformation. The emergence of a new European model of Regulation makes it possible to give substance to these additional goals, the Regulator adopting a systemic perspective and calling on soft law tools to fulfill its new missions.

Le Fur, A-V., Interest and “raison d’être” of the company: how does it fit together with the Compliance Monumental Goals ?

Companies would have a soul. The legislator thinks so, since the French law called "loi Pacte"  of 22 May 2019 obliges managers to act in the Corporate Interest and allows companies to formulate themselves a « raison d'être ». Compliance Law does the same, relying on companies to save the world from corruption, slavery, terrorism and global warming, thus achieving Monumental goals.

At first glance, the contours of Corporate Interest and « raison d’être » of the company are not far removed from the notion of Compliance Monumental Goals. This is not surprising, since the objective that presided over their introduction into the French Civil Code is the same as that underlying Compliance Law : to rethink the place of the company in the global Society, by affirming long-term values or concerns. This is a reason to use these corporate law concepts in the context of an X-ray of the concept of Monumental Goals.

However, a comparative approach is disappointing. The divergences between corporate notions and compliance lead to the conclusion that Company Law is not intended to impose anything other than a corporate public order. These notions being more philosophical than legal, Corporate Interest and « raison d'être » are assigned functions that limit their scope. Consequence of the previous description, the imperative nature of corporate rules cannot be compared with the nature of compliance: uncertain, they are also relative compared with the "violence" of compliance rules. The impact of the notions of Interest and « raison d'être » remains thus mainly internal to the company.

According to a second approach, it cannot be ruled out that Corporate Interest and « raison d'être » allow for a better understanding of higher and universal values by Company Law. Corporate Interest may incorporate Compliance Monumental Goals while the « raison d'être » may constitute a perspective for the realization of these goals.

The stakes are high : when the interest of the company, as a legal person and autonomous economic agent, joins the Monumental Goals, the means of achieving the latter are multiplied by internalizing them in all companies, not just the largest ones. However, despite all good intentions, a company is only governable if the compass does not become an elusive and indecisive vane; in other words, if legal certainty is respected. This is why a legal ordering of the concepts is necessary, which ultimately leads to a suggestion of their domain, content and scope. 

Malaurie, M., Monumental goals of Market Law - Reflection on the method

The analysis done by this article is about Competition Law, and the methodology needed to be adopted for the technical functioning of this branch of Law. Taking up the various economic and legal theories on this subject, conceptions which have succeeded and clashed, the author develops that the monumental goal of Market Law is to develop an economic environment favorable to businesses and consumers, then asks the question if it could integrate an ethical dimension and more broadly non-economic considerations, in particular humanistic ones.

Peicuti, C. and Beyssade, J., Feminization of positions of responsibility in companies as a Compliance goal. Example of the banking sector.

If the Compliance techniques are conceived as taking their meaning by their Goal, the latter being in particular the protection and the effective promotion of human beings, to be reinforced in the future thanks to Compliance Law tools, the example of the effective promotion of efficient equality between women and men in the banking sector to exercise responsible functions is clear.

strongly feminized, the image of banking sector remains masculine and in fact too few women exercise positions of responsibility, although no text is opposed to it and all rights have been allocated for this. To move from this situation to a future where equality will be effective, it is therefore in terms of regulatory mechanisms that we should think of the necessary transformation and even more of "transition" so that one day a de facto equality will be established. and appears natural to all.

The bank must then structurally integrate this Goal, which corresponds to the definition of Compliance. To do this, the banking company is part of a long-term voluntary Compliance process, relying in particular on human resources and on the public authorities of the European Banking Union which, by further implementing the concept of sustainable economy, facilitated this long-term action. In this transition, each action and result must be considered in relation to this sought-after goal of effective equality: each progress must be valued not so much in relation to the past but in relation to the future. This Ex Ante perspective justifies these self-binding Compliance techniques, such as plans, commitments, quotas, stakeholder implications, and more flexible techniques such as examples given by managers, internal training and joint affirmations with the public authorities, are all used by the company to achieve this Monumental Goal of effective equality between human beings.

The banking sector is all the more exemplary for this because the banking authorities themselves deploy incentives in this direction, the definition of Compliance Law as an alliance between the Authorities and the Companies therefore corresponding to such an action clearly in progress, structurally in the BPCE group.

Peicuti, C., and Beyssade, J., Feminization of positions of responsibility in companies as a Compliance Goal. Example in the banking sector.

If the Compliance techniques are conceived as taking their meaning by their Goal, the latter being in particular the protection and the effective promotion of human beings, to be reinforced in the future thanks to Compliance Law tools, the example of the effective promotion of efficient equality between women and men in the banking sector to exercise responsible functions is clear.

strongly feminized, the image of banking sector remains masculine and in fact too few women exercise positions of responsibility, although no text is opposed to it and all rights have been allocated for this. To move from this situation to a future where equality will be effective, it is therefore in terms of regulatory mechanisms that we should think of the necessary transformation and even more of "transition" so that one day a de facto equality will be established. and appears natural to all.

The bank must then structurally integrate this Goal, which corresponds to the definition of Compliance. To do this, the banking company is part of a long-term voluntary Compliance process, relying in particular on human resources and on the public authorities of the European Banking Union which, by further implementing the concept of sustainable economy, facilitated this long-term action. In this transition, each action and result must be considered in relation to this sought-after goal of effective equality: each progress must be valued not so much in relation to the past but in relation to the future. This Ex Ante perspective justifies these self-binding Compliance techniques, such as plans, commitments, quotas, stakeholder implications, and more flexible techniques such as examples given by managers, internal training and joint affirmations with the public authorities, are all used by the company to achieve this Monumental Goal of effective equality between human beings.

The banking sector is all the more exemplary for this because the banking authorities themselves deploy incentives in this direction, the definition of Compliance Law as an alliance between the Authorities and the Companies therefore corresponding to such an action clearly in progress, structurally in the BPCE group.

Petit, B.,The arrangement of the Monumental Goals of European labour law : a moving and often paradoxical set.

Starting from the premise that Law has the irreducible purpose of guaranteeing, in all circumstances, the Dignity of the person, it is possible to present the monumental goals assigned to labour law as a system based on a cardinal monumental goal (the guarantee of Dignity at work) from which a multitude of secondary monumental aims (fundamental rights at work) arise. This system is crossed by internal and external dynamics that force the equilibrium equations between the secondary monumental goals to constantly reinvent themselves. In Europe, two systems of Law coexist, each proposing its own equation: the Council of Europe and the European Union which, although they are working along to bring their systems into coherence, remain attached to their differences of approach.

Huglo, C., Under what conditions could climate law constitute a priority Monumental Goal ? 

The author considers that the service that Compliance renders to Society can indeed be considered as "Monumental" and, confronting Compliance with the issue of Climate, considers that Climate Law must become not only a "Monumental Goal", but also be the first. He underlines the deep obstacles to even pose this idea, obstacles of two orders, the first being the fact that Law has rather focused on past pollution, while the stake is also the measurement of the future impact and the prevention.  The second is that the many texts and declarations have no direct binding force. It is therefore the courts which today, because of their independence and the place that Science takes in the adversarial debate that takes place before them, Civil Society bringing them the question of the Climate to which they are obliged de jure  to answer , take the decisions on the basis of which the "climate justice" is built. 

In this, Climate Law invested by Courts joins Compliance Law in the objectives pursued, putting knowledge, prevention and action to preserve what climate issue puts at stake today: Human Dignity.

PART 2. IMPLEMENTATION OF COMPLIANCE MONUMENTAL GOALS IN ARTICULATION OF THE MAJOR PRINCIPLE OF PROPORTIONALITY

Rapp, L., Proportionality and normativity

Proportionality is to the exercise of powers what subsidiarity is to the exercise of competences: an indicator as well as a limit. It determines the scope and allows for control at the same time. It sets the standard, before being a standard itself. This may explain why, in principle, it is part of the judge's office and his methods of assessment. But a study of its recent evolution shows that it is gradually moving from the ex-post to the ex-ante, which makes it possible to anticipate that it will soon become an effective tool of compliance policies and a useful normative reference. The following developments demonstrate this, by explaining how one moves from the principle of proportionality to proportionality control, from proportionality control to proportional reasoning, from proportional reasoning to compliance control, and finally, in a last desirable evolution, from compliance control to the necessary proportionality of control. 

Bär-Bouyssière, B., Practical obstacles to the effective place of proportionality in Compliance

The article is based on the undisputed assertion that Proportionality is inherent in Compliance, in particular when this takes the form of a sanction, but the author compares this assertion with its practical implementation.

The author notes that in all the compliance mechanisms, in particular in Competition Compliance, companies have difficulties in practice in satisfying with their obligations in Ex Ante because the standards are very heavy, expensive and difficult to understand, as they have difficulty. in Ex Post to obtain that the authorities do not make a disproportionate use of them, and to obtain that the courts effectively protect them from that.

These practical difficulties are due above all to the diversity of the standards concerned, those who create them as well as those who interpret them having to do so without excess, about what it is very difficult to obtain control. In addition, the weight of the implementation of compliance standards is not correlated with the concrete and financial ability of diverses companies to do so and the design of standards does not always integrate this correlation.

Faced with this, companies then tend to do more than is necessary, in order not to incur sanctions in the doubt, and moreover because the people in charge of the effectiveness of their compliance standards have in the mind not to engage their own responsibility, which encourages them to over-apply compliance obligations, when there should be a fair and strict relationship of necessity, that is to say this desired proportionality, this additional cost being a useless excess for all.

Finally, a practical difficulty is due to the violence, in itself necessary, of the sanctions, in the face of which the companies seek in Ex Post to show the disproportionate nature, but do not have very sure means of proof.

This is why it is often on the ground of rhetoric and of the conviction that enterprises are placed in practice, more than on that of the mathematical calculation of proportionality.

Mendoza-Caminade, A., Proportionality and evaluation. The example of intellectual property law.

Segonds, M., Compliance, proportionality and sanctions. The example of sanctions taken by the French Anticorruption Agency.

Before devoting the developments of his article to the sole perspective of sanctions imposed under "Anti-corruption Compliance", the author recalls in a more general way that, as is the sanction, Compliance is in essence proportional: Proportionality is inherent to Compliance as it conditions any sanction, including a sanction imposed under Compliance.

This link between Proportionality and Compliance has been underlined by the French Anti-Corruption Agency (Agence française anticorruption - AFA) with regard to risk mapping, which must measure risks to arrive at effective and proportional measures. This same spirit of proportionality animates the recommendations of the AFA which are intended to apply according to the size of the company and its concrete organisation. It governs sanctions even more, in that punitive sanctions refer on one hand to Criminal Law, centered on the requirement of proportionality. Punitive sanctions It governs sanctions even more, in that punitive sanctions refer on the other hand to the disciplinary power of the manager who, from other sources of law, must integrate the legal requirement of proportionality when he/she applies external and internal compliance norms.

Frison-Roche, M-A., Definition of proportionality and definition of Compliance.

The use of Proportionality to always limit 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" must 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.

PART 3. COMPLIANCE MONUMENTAL GOALS TESTED BY CRISIS SITUATIONS

Oumedjkane, A., Tehrani, A., and Idoux. P.,  Public norms and Compliance in times of crisis: Monumental Goals tested. Elements for a problematic.

In this paper, compliance refers to the fact that large private firms, through internal procedures designed to abide by public norms, participate in achieving the goals set out by public authorities, as the latter cannot reach those goals without help (proper functioning of financial markets, environment protection, fight against the corruption…). While in times outside a crisis period, the need to maintain a close link between public norms and compliance to achieve those “monumental goals” has been established, the validity of this analysis must be assessed during crisis periods. Indeed, to put an end to the turmoil as soon as possible, it is tempting to rely primarily on public authorities. 

Should then be studied, in the light of the health crisis, the possibility that the link between public norms and compliance be altered in times of crisis. Not only is the normative reaction of public authorities very intense during the period, but some features of the compliance could lead one to think that compliance is in no way useful in a context of emergency and instability. This paper nevertheless suggests that to achieve monumental goals, it is necessary to maintain a close link between public norms and compliance. Such a link was maintained indeed, even at the height of the health crisis, and this should probably also be the case beyond this period, as breaking the link involves some risks which are not specific to the current health crisis. In other words, despite its shortcomings, compliance may not lose all its assets in times of crisis.