Thesaurus : Doctrine
Référence complète : Lalande, P.-A., Le pouvoir d’injonction au service de la réparation du préjudice écologique : une mise en œuvre de l’office du juge administratif en matière climatique, Actu-Juridique, 9 décembre 2021.
Nov. 27, 2021
► Full Reference: Frison-Roche, M.-A., Chair for "The temporal dimension: Imminence and Intertemporally", in Climate Change Cases before National and International Courts Cross-fertilization and Convergence", November 27, 2021, Paris.
Summary of the panel presentation: The specific topic of our panel is the “temporal dimension” of the judicial cases of Climate change.
We shall listen to two great experts on this topic, which is Time.
Listening the other previous speakers, I understand how this topic is important, because Climate Change requires an immediate action and it create a political issue, because everyone comes before courts.
A basis and fundamental problem, because the times are not adjusted.
let's come back to basic notions, to have three times : “past, present, future”.
The issue of Climate Change is in the Future, the necessity of Action is in the Present and the basis temporal question is to know if Courts are the bodies adequate to responde ; maybe it is inevitable that Judge must be recreate their office because the time of the classical judicial office is the Past.
Immediately, this simple et huge problem appears : in a classical repartition, the judge is the legal character to intervenir for the Past, the present (maybe is for you and me), and the future is the time for the State, and more precisely for the Parliament.
But the climate change is a huge topic, not in the past, not in the present, but in the future.
Therefore a gap exists between the time of the topic and the time of the court before the case is explained for obtaining a solution : how to give a good answer ? Judge maybe must travel in time, from past to future …. Maybe, he must, but might he?
Classically, the judge can anticipate a very next future, but not the more distant and systemic future. Climate change belongs to the second one.
This is why the title of this panel is non only about the necessity to take in consideration the “imminence” but also the “intertemporally” : maybe court are the sole able to create this intertemporality between Past and Future, and by this way to obtain from States and companies to do something immediately !
By two legal ways.
Courts can stay in Past, supervising States, if they dispose of effective legal decisions taken by States in the past about Climate Change (essentially Paris Agreement, for instance transposed in the French legal system by a formal law). This is why an efficient judicial solution would be the possibility for the courts to oblige State to implement their more or less committment they had taken in the past for the future (as the Conseil d’Etat did in the Commune de Grande-Synthe Cas Law).
Even for that, the courts must adopt a creative notion of what is a commitment from a State through a Law... ; as they must do about private companies comitment (in their codes of conduct or soft law of corporate social responsability).
But what to do if States didn’t take such commitment ?
Some can allege Courts are not Parliaments and are not legitimate to rule for the future … It is a political issue, a very classical one but very accurate for Climate change (where States and companies are face to courts...) and maybe And as our colleague said, judicial system is quite technically weak to concretize human rights.
Therefore, the second way, more innovative, est the new use of Tort Law : no more a liability Ex Post, but a responsibility Ex Ante. In every legal system, even in Civil Law systems, Tort Law is conceived by courts (for instance in French Law).
If the new reasoning is conveived in Ex Ante, Tort Law must be a set of legal tools to reach the monumental tools to reach the "Monumental Goal" (being by nature future) which is the Climate Change stopping.
In this teleological reasoning, the admissibility and the choice remedies, must be adapted to obtain what is central : the effectivity and the efficiencicy.
In this sens, the judgement between two parties (which was an Ex Post act) may be conceived as an systemic efficient action (which was an Ex Ante act), because it must be.
Aug. 16, 2021
► Full Reference: Frison-Roche, M.-A, Reinforce the judge and the lawyer to impose Compliance Law as a characteristic of the Rule of Law, Working Paper, August 2021.
🎤 this working document has been made to prepare some elements of the opening intervention in the symposium Quels juges pour la Compliance) ? (Which judges for Compliance?), co-organized by the Journal of Regulation & Compliance and the Institut Droit Dauphine, held at the Paris Dauphine University on September 23, 2021, constituting the first part of the intervention.
📝it has been also the basis for an article:
► Summary of the Working Paper: One can understand that the compliance mechanisms are presented with hostility because they seem designed to keep the judge away, whereas there is no Rule of Law without a judge. Solid arguments present compliance techniques as converging towards the uselessness of the judge (I). Certainly, we come across magistrates, and of all kinds, and powerful ones, but that would be a sign of imperfection: its ex-ante logic has been deployed in all its effectiveness, the judge would no longer be required... And the lawyer would disappear so with him...
This perspective of a world without a judge, without a lawyer and ultimately without Law, where algorithms could organize through multiple processes in Ex Ante the obedience of everyone, the "conformity" of all our behaviors with all the regulatory mass that is applicable to us, supposes that this new branch of Law would be defined as the concentration of processes which gives full effectiveness to all the rules, regardless of their content. But supposing that this engineer's dream is even achievable, it is not possible in a democratic and free world to do without judges and lawyers.
Therefore, it is imperative to recognize their contributions to Compliance Law, related and invaluable contributions (II).
First of all, because a pure Ex Ante never existed and even in the time of the Chinese legists📎
Even more so, Compliance Law only takes its sense from its Monumental Goals📎
🔓read the Working Paper developments below⤵️
L’empire chinois n’a semble-t-il jamais apprécié les juges, ne leur faisant place que sous la forme de serviteurs purs de l’Etat, qu’ils soient des enquêteurs, des punisseurs et de gardiens de l’ordre public. Sur cet aspect du Droit chinois, v. … ; sur cette période particulièrement sanglante des légistes, où le principe de « certitude » de la législation a été portée à ses nues, v. …
🕴️Frison-Roche, M.-A. (ed.), 📘Compliance Monumental Goals, 2022.
The topic of this study is general. For a more analytical perspective, s.. 🕴️Frison-Roche, M.-A., « The function of the Judge in Compliance Law », in 🕴️Frison-Roche, M.A. (ed.), 📘Compliance Jurisdictionalisation, 2023.
🕴️Frison-Roche, M.-A. (ed.), 📘Compliance Tools, 2021.
June 28, 2019
It is often observed, even theorized, even advised and touted, that Compliance is a mechanism by which public authorities internalize political (eg environmental) concerns in big companies, which accept them, in Ex Ante, because they are rather in agreement with these "monumental goals" (eg saving the planet) and that this shared virtue is beneficial to their reputation. It is observed that this could be the most successful way in new configurations, such as digital.
But, and the Compliance Mechanism has often been brought closer to the contractual mechanism, this is only relevant if both parties are willing to do so. This is technically true, for example for the Deferred Prosecution, which requires explicit consent. This is true in a more general sense that the company wants to choose itself how to structure its organization to achieve the goals politically pursued by the State. Conversely, the compliance mechanisms work if the State is willing to admit the economic logic of the global private players and / or, if there are possible breaches, not to pursue its investigations and close the file it has opened, at a price more or less high.
But just say No.
As in contractual matters, the first freedom is negative and depends on the ability to say No.
The State can do it. But the company can do it too.
And Daimler just said No.
Publicly, including through an article in the Wall Street Journal of June 28, 2019.
The company sets out in a warning to the market that it is the object of a requirement on the part of the German Motor Authority (Kraftfahrt-Bundesamt) of an allegation of fraud, by the installation of a software, aimed at misleading instruments for measuring emissions of greenhouse gases on cars using diesel.
It is therefore an environmental compliance mechanism that would have been intentionally countered.
On this allegation, the Regulator both warns the company of what it considers to be a fact, ie compliance fraud, and attaches it to an immediate measure, namely the removal of the circulation of 42,000 vehicles sold or proposed by Daimler with such a device.
And the firm answers : "No".
Which is probably only beginning, since a No ends the dialogue of Ex Ante to project in the Ex Post sanction procedures, calls 6 observations:
March 7, 2018
Teachings : Droit de la régulation bancaire et financière, semestre de printemps 2017-2018
La régulation a longtemps été une affaire technique, voire technocratique. Mais les juges ont été présents, d'abord d'une façon périphérique, à travers le contrôle de légalité que les juges administratifs assurent sur la façon dont l'État exerce ses pouvoirs.
Les choses ont vraiment changé lorsque, sous l'influence de l'Europe, le Régulateur lui-même, parce qu'il avait déplacé son centre de gravité de l'ex ante vers l'ex post, a été qualifié par le juge judiciaire de "Tribunal".
Dès lors, la procédure a pénétré d'une façon essentielle dans le système.
Ainsi, les juges eux-mêmes, à l'occasion des recours, voire en premier ressort, ont pu se concevoir eux-mêmes comme des régulateurs.
Cela nous rapproche de la conception anglo-saxonne du rapport entre le droit et l'économie.
Consulter la bibliographie de base et approfondie disponibles ci-dessous
March 17, 2014
Thesaurus : 02. Lois
Updated: July 31, 2013 (Initial publication: Nov. 8, 2011)
Teachings : Les Grandes Questions du Droit, semestre d'automne 2011
Updated: July 31, 2013 (Initial publication: Oct. 25, 2011)
Teachings : Les Grandes Questions du Droit, semestre d'automne 2011
Jan. 22, 1997
Référence complète : FRISON-ROCHE, Marie-Anne, Principes et intendance dans l’accès au droit et à la justice, JCP, éd. G., 1997, I, 4051.
Sept. 15, 1992