🚧Thinking and using Vigilance through its Compliance Monumental Goals

vII. THE ENTRY OF VIGILANCE INTO THE FRENCH LEGAL SYSTEM  

Vigilance is an astonishing legal notion since there was so little talk of it before in 2017 an French ecologist deputy took up this word and built on it a bill which perhaps, even if voted, would not have attracted everyone's attention if it had not mobilised so many people against it, if the French Constitutional Council, seized to put the top down, had not said in its decision of 13 March 2017📎!footnote-2833 that the devoir de vigilance "duty of vigilance" certainly could not be the basis for civil fines but generates a "personal responsibility" for the parent company or the ordering company.  From the long title of this law of 27 March 2017 "relating to the duty of vigilance of parent companies and ordering companies" (relative au devoir de vigilance des sociétés mères et des entreprises donneuses d'ordre), the talkative being always punished, one retains only this word, slamming: Vigilance. A name for a Sparrowhawk📎.!footnote-2834.

It is true that the European directive, whose every comma is disputed, does not incorporate this striking vocabulary, using an expression: corporate sustainability due diligence, which claims to originate from considerations of competitive equality and refers firstly to the idea of "sustainability", is articulated secondly to other European texts or texts in preparation on sustainability and is deployed more clearly thirdly in Company Law, in particular extra-financial information and sustainability reports. But the link is constantly made by the academic doctrine between this French law of 2017, this soon to be adopted directive and what will later be its transposition into the French legal order📎!footnote-2838.

However, while the French 2016 law, from which this 2017 law takes up many of the techniques, in particular the drawing up of a plan for the detection and prevention of behaviours that need to be combated, or even eradicated in the future, definitively retains the name of its author - the so-called Sapin 2 Law - this French law of 2017 quickly lost the name of the deputy to be called the Vigilance Law. 

Maybe because a law is not an academic dissertation and one deduces too quickly that its required normativity would presuppose the absence of definitions, the Legislator moving directly to operational provisions, which the judge of the Judicial Court of Paris later complained about almost aloud in the famous judgement on 28 February 2023, Les amis de la terre et autres c/ Total Energie📎!footnote-2835, the "Vigilance Law" does not say what Vigilance is.

However, mastering Law requires definitions. What would be like an intuition in the face of cases allowing the "recognition" of the imperative of vigilance" is not enough. Moreover, it can exacerbate conflicts because everyone "feels" vigilance according to his or her culture, position, and interest, e.g. companies and NGOs. Conversely, abstract definitions, formulated by a third party, legislator, or judge, reduce these dangers upstream. But the 2017 law went straight to the modalities. To master this notion, one will therefore tend to look beyond this law, which made the notion famous before it was mastered or even known.

Since the benefit of the academic or institutional doctrine is undoubtedly to increase order in the functioning of the legal system📎!footnote-2836 , there should at the very least not be a notion of vigilance for each of the laws that use the term, each one drawing its own under the pretext that it develops a specific legal regime. Already and for example, the Banking Compliance Law uses the notion of vigilance, but it is not a duty: it is an obligation, that of the banker, a notion with another content, that of knowing his client (the famous KYC), detecting money laundering or corruption behaviours, then denouncing them📎!footnote-2839. Does the intensity change the notion?

Others rightly pointed out that if the 2017 French legislator had referred to ordinary civil tort law, it was because the latter therefore applied and that from this truism, one could deduce that even outside the particular situation covered by the so-called Vigilance Law, i.e. a value chain, a master company and a concern for human rights and the environment, the Tort Law of liability still had enough force, if not more than ever, to generate an obligation, and not just a "duty"📎!footnote-2829. Moreover, there was some concern that the Vigilance Law, insofar as it adds up the conditions and draws the situation concerned, thus creating a case of openness to liability, might not reduce the power of the general Tort Law, based on its generality📎!footnote-2830.

It is true that in the legal system the tem "vigilance" is found more in Civil Law than in Commercial Law, as Economic Law still finds it difficult to fit into this traditional "civil/commercial" distinction📎!footnote-2840. This is probably because in a liberal conception of the world, carried by Competition Law, everyone looks after himself and does not care about others or other interests than his own, whereas in the conception of the "civil" human being, parents have the obligation to be vigilant towards their children.

This sheds light on the saga that led French legal system, which addressed the technical question of the designation of the judge to deal with "vigilance law", a response provided first by case law📎!footnote-2831  and then by the legislation📎!footnote-2837, removing from the commercial judge the possible knowledge of vigilance law litigation and giving it to the civil judge alone. But this is only a respite because the mechanisms of vigilance are contractualised and the commercial judge remains the judge of the commercial contract, in particular of its termination: he will therefore know about it through this means because the legal technique of vigilance is not closed in the 2017 law, even less the general Contract Law📎!footnote-2869.

This also sheds light on the relationship of protection that is established between the 'parent' or 'principal' company and those who work for it, which generates a 'duty' on the former. When reading this vocabulary, how can we not think of Pierre Legendre's work on the parental function of States (La fonction parentale des Etats)📎!footnote-2832 ? This paternal function would now be entrusted to companies in the globalised economy, some criticizing the paternalism, or even the neo-colonialism, of this benevolent Western vigilance towards countries that are far away.

Without going into further detail, this shows the extent to which vigilance, which consists in watching another, in constantly observing as if from above📎!footnote-2870 a situation for the purpose of detecting in order to make the intervention as effective as possible, in always obtaining information on people and behaviours (detection therefore being the first pillar of the system) for which the company will be accountable for the behaviours, for example through its personal liability (prevention therefore being the second pillar of the system, so as not to come to that). This is why Nicolas Cayrol reminds us that in the field of Compliance, trials are trials not to act responsability but to create responsability📎!footnote-2871.

Why want such a system? To impose such an ambition?

To achieve Monumental Goals. 

II.UNDERSTANDING THE LEGAL CONCEPT OF VIGILANCE THROUGH THE COMPLIANCE MONUMENTAL GOALS

Since the Legislator has said so little, it is appropriate to take Vigilance out of this isolation making it incomprehensible and to understand it as a compliance tool, which, like all the others and articulated with them, aiming to achieve Monumental Goals📎!footnote-2841. The Monumental Goals of Vigilance work in a circle with the even broader goals of Compliance Law.

Indeed, in this circle, Vigilance Monumental Goals are only one piece of Compliance Monumental Goals. Compliance Law is a new branch of Law that is defined teleologically, based on these goals. These can be called "monumental" in that they express a great ambition for the future📎!footnote-2842.

Often, it is about asserting the ambition that the future will not be what it would become if nothing were done here and now: 'Negative Monumental Goals' therefore📎!footnote-2843. Systemic risk management is the best example. The banking and financial system is familiar with it.

Positive Monumental Goals" express an even greater ambition: to make progress so that the future is systemically improved through immediate and continuous action. Effective equality between human beings is one example. They underlie a new conception of enterprise.

Vigilance Monumental Goals fit perfectly into those of Compliance Law, of which they are only one part. Indeed, the concern for the environment and human rights constitute a case of application of these Negative Monumental Goals, by detecting infringements and risks, organising to build a system where, by force, climatic balances will be built, and human beings respected📎!footnote-2844.

Since the technical whole can be reduced to a systemic concern for others because the Law relies on the globalisation of economic structures📎!footnote-2845, a break is then made with the traditional conception of responsibility and if even the more recent conception of Tort Law has developed the preventive function of the latter, it is more towards a responsabilisation of the company, sometimes accepted by the latter, through in particular the legal notions of "raison d'être" and that Vigilance and Compliance lead.

In this systemic conception of Vigilance, part of Compliance Law whose object is no longer the past, and only takes on the present insofar as present action has a bearing on the future, the criteria for evaluating legal concepts are: effectiveness, efficiency and effectiveness. 

Dans cette conception systémique de la vigilance, pièce d'un Droit de la Compliance dont l'objet n'est plus le passé, et ne prend même le présent qu'en tant que l'action présente a prise sur l'avenir, les critères d'évaluation des notions juridiques sont : effectiveness, efficacy, efficiency.

In this respect, those responsible for ensuring Compliance Law ensure first that the instruments (plans, remedies, commitments, training, etc.) are effective, i.e. that they take place, but also that they are efficace: that they have an effect in line with the Monumental Goal sought, this link between implementation and goal being expressed by the legal principle of Proportionality📎!footnote-2846 Even more efficiency is achieved when the beneficial systemic effect is achieved, either through a happy negative effect (avoiding systemic loss, e.g. the collapse of the banking sector) or a happy positive effect obtaining systemic surplus, e.g. the effective equality of people).

Therefore, are only subjects of law that are obliged to comply and, for example, to be vigilant, those entities that are "in a position" to do something regarding these Monumental Goals.

These "Crucial Operators"📎!footnote-2847, which are the "systemic" operators in banking, the "ordering companies" in the French 2017 Vigilance law, are those which can concretely do something, because they have the informational, implementation, technological, human and financial means.

III. ARTICULATING VIGILANCE TECHNIQUES TO ACHIEVE MONUMENTAL GOALS

This teleological conception of Vigilance implies that, based on the normativity of the goals for which the Legislator, endowed with the power to watch over the general interest, has established the instruments, the capacities of those who have the means to do so should be mobilised. The company is thus at the heart of Vigilance, which it deploys in the value chains but also within the company to protect and promote climate protection or human rights.

In the mobilisation of the capacities required by Compliance, the company is chosen not so much because it would be already at fault, according to a sort of "portrait of a born criminal" that would be drawn up of it and its employees, contrary to the principle of freedom, in order to move towards a society of all-supervision, but because it has the de facto and de jure means to ensure such a mission of general interest.

As the French 2019 Pacte law emphasises, the company can express a raison d'être and, because it is in a position to do so, exploit its geographical position, its technology, its human resources, and human beings to help protect human beings. To do this, whether by force or by choice (CSR, raison d'être, Benefit Corporation), the company must first and foremost act and make others act, to contribute to a common action.

More technically, the company must show that it wields its levers, particularly legal ones, to obtain effects, by crossing the tools of others, particularly through Contract Law. In this respect, the duty of care takes he form of recourse to third parties, through "compliance contracts", and is given concrete form in specific stipulations, "compliance clauses"📎!footnote-2848.

Therefore, the more powerful the company is, the more it can carry its duty for the future of the systems and the human beings who will live in them📎!footnote-2849. Vigilance presupposes the power of companies, not only because, without reference to any breach, the "position of dominance" generates a "particular responsibility", as the Court of Justice of the European Union has affirmed📎!footnote-2850, but also because the power of the company is what enables it to carry out its duty📎!footnote-2851.

In this respect, Compliance Law differs from Competition Law📎!footnote-2852,, justifying in particular the gathering of information, alliances between companies and, for example, audits carried out at a third party operator as part of vigilance📎!footnote-2853.

The main thing is to measure the margins of each.

Indeed, Compliance is often presented as obeying. The company should comply in all respects, with all regulations, with all standards, and with all regulators, who thus even outside the regulated sectors📎!footnote-2854, could penetrate all companies, to govern them by Compliance Law.

It is essential to distinguish between 'consent', that by which the subject bends, and 'will', that by which he expresses his autonomy📎!footnote-2855. In a liberal system, consent is only the evidentiary trace of the will, is not an autonomous object.  Compliance Law is above all a space for the Wishes that are expressed here and now to build tomorrow📎!footnote-2858.

This creates room for action for everyone. Let's start with companies.

Thus the room for action companies is firstly regarding Monumental Goals, which it would be contrary to international public order for them to restrict, but which they can on the one hand strengthen by adhering to them in their own unilateral commitments, and on the other hand increase them by intensifying them, for example in the calendar or in the territory.

This expression of Will, and not of consent, is deployed in the many "tools of vigilance"📎!footnote-2857. Companies are free to choose the way in which they implement their "Compliance Obligation", of which the duty of vigilance is a variation. They must show what they do and the results of what they do; regulators, judges and stakeholders look at these results. The evidential burden is on the companies📎!footnote-2859. But this does not mean that they would lose the freedom to choose the instruments.

Stakeholders also have room to express their will. The legislator invites them to participate in the development of technical vigilance tools, while Corporate Law, in which vigilance enters via due diligence, implies a dialogue and that questions are answered.

By default, the judge is the one before whom wide margins are open for the expression of his will. "By default', because constrained by the weakness of the legislative art, constrained by the obligation in which he has always been, in Civil law systems, for instance under by Article 4 of the French Civil Code to respond to the requests made to him by the subjects of law, in Common Law systems more freely. He will therefore respond. 

The specificity of Compliance, a branch of Law of action that seizes the future, will lead him to adapt his way of conducting the judicial procedure📎!footnote-2860. Since everyone is isolated and weak in the face of the future, the judge seeks support, the recourse to amici curiae decided by the judicial Court of Paris📎!footnote-2904 being a sign of this, a modest judge who publicly and by method affirms that, obliged to judge, he does not know everything. Because the alliance is the means of dealing with this weakness, which is common to States, judges, the people concerned and companies, the judge can encourage mediation. And the more monumental the stakes, the more legitimate it is for him to do so📎!footnote-2861.

Finally, let us look at Europe's room for action. Europe is a political project for which the economy has been the most immediately available material. Regulatory and Compliance Law is in the process of finding its place in it, particularly in a political will to regulate the digital space📎!footnote-2862, for the concretisation of which digital companies in a position to do so are asked to be "vigilant" about what is published in the space they are able to control📎!footnote-2864. Demand with what is called an "extraterritorial effect", which is naturally found in the European Directive on the duty of vigilance, but which is rather aimed at the power of Compliance not to care about territory, which allows it to be effective in immaterial spaces and to be indifferent to borders through the primacy of systemic concern📎!footnote-2865.

Europe is built on the Rule of Law and the protection of human beings. The ashes of the Second War have made this project permanently urgent. To achieve this human project, Compliance Law is active, in that it puts the human being at the centre📎!footnote-2872. In this perspective, requiring the alliance as a method, obligation, duty, and spontaneous commitment to Vigilance are not only a piece of Compliance: they are the advanced point of this branch of Law that will be revolutionary📎!footnote-2874, if it is thought of and practised not as something that forces obedience, but as something that produces alliances. 

This right measure of Vigilance therefore implies a shared duty, between States, crucial companies, and stakeholders.

The 'right mesure' makes it possible to limit powers, first because allying oneself implies that one takes the other into consideration and the probationary system of Compliance will oblige each one to keep track of this consideration. This probationary obligation is intended to be applied to everyone, in a system where everyone justifies himself, in the democratic model of which Habermas has just reminded us of the urgency, particularly in a digital media society📎!footnote-2866.

This 'right measure' is secondly to be found in the company itself. In the same way that the company must never claim to save the world or to issue universal standards that would form our fundamental norms of behaviour📎!footnote-2867, which would be hubris, in the same way States must not consider that "companies", the legal beings through which companies enter into legal trade, would only be the neutral reflection of Society, a social group of which they alone would be the guardians and for whose good the company would become entirely "vigilant".

No, it is the Chinese conception which, taking companies as the armed arm of a central policy, charges companies and everyone, bent by a consent whose link with free will has been broken, no longer makes the difference between the Society, whose future is mapped out by the central power, and the companies which become entirely "vigilant", a new nature in a society where secrecy no longer has a place.

Keeping things in perspective is the biggest challenge in the emerging Vigilance Law.

Let us count on the judge, who always listens to both, the contradiction being inseparable from him📎!footnote-2868, to hold this measure thanks to which Compliance and Vigilance will build a future that will be for human beings, the measure of all things, no less worse, or even better, than today.

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