April 13, 2022

Editorial responsibilities : Direction of the serie Regulation & Compliance, JoRC and Bruylant

► Full Reference : Frison-Roche, M.-A. (ed.), Compliance Monumental Goals, series "Compliance and Regulation", Journal of Regulation & Compliance (JoRC) and Bruylant, 2022, to be published.

____

 

📕 In parallel, a book in French Les Buts Monumentaux de la Compliance, is published in the collection "Régulations & Compliance" co-published by the Journal of Regulation & Compliance (JoRC) and Dalloz. 

 

📅 This book follows a cycle of colloquia 2021 organized by the Journal of Regulation & Compliance (JoRC) and its universities partners. 

____

 

📚   This book is inserted in this series created by Marie-Anne Frison-Roche for developing Compliance Law.

📚   read the presentations of the other books of this Compliance Series :  :

📘  Frison-Roche, M.-A. (dir.), Compliance Juridictionnalisation2022

📘  Frison-Roche, M.-A. (dir.), Compliance Tools, 2020

 

► Read the presentations of the other books on Compliance in this collection:

📘 Frison-Roche, M.-A. (ed.)), Compliance Juridictionnalisation, 2022 

📘 Frison-Roche, M.-A. (ed.), Compliance Tools, 2020

 

go to the general presentation of this Series ​Compliance & Regulation, conceived, founded et managed by Marie-Anne Frison-Roche, co-published par the Journal of Regulation & Compliance (JoRC) and Bruylant. 

___

 

► General presentation of the book

The notion of "Compliance Monumental Goals " was proposed in 2016. This notion is central in the Compliance mechanisms in that they can claim to constrain and cost those in which they are inserted only in that they tend to achieve goals whose substantial quality is to be "monumental" . The legal nature of this concept, its place in Compliance Law must be studied and challenged. 

In addition, this notion is not obvious. Very serious arguments can be articulated against this notion. Compliance Monumental Goals must be justified, detailed, put into perspective and concretely illustrated, while their practical utility must be substantiated.

____

 

► Read the book articles presentations :

 

 

📝Oumedjkane, A., Tehrani, A. et Idoux, P., Public Norms and Compliance in times of Crisis: Monumental Goals tested: Elements for a Problematic ; 

 

📝Petit, B., The Arrangement of the Monumental Goals of Labor Law: a Moving and Often Paradoxical Whole ;

________

April 13, 2022

Editorial responsibilities : Direction of the "Regulations & Compliance" series, JoRC & Dalloz

► Full Reference : Frison-Roche, M.-A. (ed.), Les Buts Monumentaux de la Compliance (Compliance Monumental Goals), series "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, to be published.

____

 

In parallel, a book in English Compliance Monumental Goals, is published in the same collection. 

 

This book follows a cycle of colloquia 2021 organized by the Journal of Regulation & Compliance (JoRC) and by its universities partners. 

____

 

This volume is the continuation of the books dedicated to Compliance in this collection.

Read the presentations of the other books on Compliance in this collection:

📕  Frison-Roche, M.-A. (ed.), Les outils de la Compliance2020

📕 Frison-Roche, M.-A. (ed.), Pour une Europe de la Compliance2019

📕 Borga, N., Marin, J.Cl. Roda, J.-Ch. (ed.), Compliance : Entreprise, Régulateur, Juge, 2018

📕 Frison-Roche, M.-A. (ed.), Régulation, Supervision, Compliance2017

📕 Frison-Roche, M.-A. (ed.), Internet, espace d'interrégulation, 2016

 

📕  Read the presentations of the other titles of the collection.

____

► General construction of the Book 

After an Introduction on the definition of Monumental Goals and the normative anchoring of Compliance Law therein, a first Title is devoted to the "radioscopy" of this notion, in itself and branch of Law by branch of Law.

A second Title aims to measure how the Monumental Goals are questioned by a crisis situation, for example in a health situation, but not in that example, if they aggravate it and must be discarded, or if, on the contrary, they are exactly conceived for this hypothesis. of crisis, risks, catastrophes and that it is advisable to exploit them, in particular in order, in this "test", to benefit from the alliance between the political authorities, public powers and crucial operators.

Once made explicit and tested, the Monumental Goals must find a sure way to be taken into account. This is why a third Title aims to measure in principle and in practice how the Proportionality method can help the integration of Compliance, thus giving a new dimension to the Law without dragging it into insecurity and illegitimate grabbing of powers.

But because Compliance Monumental Goals express a very great ambition, the question of a bearable, even beneficial relationship with the international competitiveness of companies, standards and systems must be opened. This is the object of the fourth Title.  

Finally, because the Monumental Goals express by nature a new ambition of the Law in a world which must not give up in what could be the prospect of its abyss, the fifth Title has for object the relationship between the Monumental Goals of Compliance and Sovereignty.

___

General presentation of the book

The notion of "Compliance Monumental Goals " was proposed in 2016!footnote-1901. This notion is central in the Compliance mechanisms in that they can claim to constrain and cost those in which they are inserted only in that they tend to achieve goals whose substantial quality is to be "monumental" . The legal nature of this concept, its place in Compliance Law must be studied and challenged.

In addition, this notion is not obvious. Very serious arguments can be articulated against this notion. Compliance Monumental Goals must be justified, detailed, put into perspective and concretely illustrated, while their practical utility must be substantiated.

____

 

Read the foreword summarizing all the articles of the book. 

 

 

Read the first English presentations of some articles of the book :

📝 André, Ch., Les buts monumentaux de la compliance, vecteurs de valeurs sociales "communes". Regards d'un pénaliste 

📝 Bonnet, J., La crise, occasion de saisir la compliance comme mode de communication des autorités publiques ; 

📝 Frison-Roche, M.-A., Ancrer les Buts Monumentaux au cœur des systèmes ; 

📝 Frison-Roche, M.-A., Place et rôle des entreprise dans la création et l'effectivité du Droit de la Compliance en cas de crise ; 

📝 ​Frison-Roche, M.-A., Proportionnalité et Compliance ; 

📝 Le Fur, A.-V., Intérêt et raison d’être de l’entreprise : quelle articulation avec les buts monumentaux de la compliance ? ; 

📝 Oumedjkane, A., Tehrani, A. et Idoux, P., Normes publiques et Compliance en temp de crise : les Buts Monumentaux à l'épreuve. Eléments pour une problématique ; 

📝 ​Petit, B., L'agencement des buts monumentaux du droit du travail : un ensemble mouvant et souvent paradoxal ;

📝 ​Sudres, N., Gel hydroalcoolique, Covid-19 et Compliance :  des insuffisances de la démarche de conformité à l’émergence d’îlots de compliance 

_____

1

Frison-Roche, M.-A., Le Droit de la Compliance, 2016.

Oct. 14, 2021

Publications

 Full reference: Frison-Roche, M.-A., Proportionnalité et Conformité (" Proportionality and Compliance"), in Frison-Roche, M.-A. (ed.), Les buts monumentaux de la Compliance, series "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, to be published.

 This article is based on the Working Paper: Proportionality and Compliance

 It has followed the conference done in the colloquium Compliance et Proportionnalité. Du contrôle de proportionnalité à la proportionnalité du contrôle ("Compliance and Proportionality. From the Controle of Proportionality to the Proportionality of the controle 

___

 

 Article English Summary: Measuring the relationship between the Principle of Proportionality and Compliance Law depends entirely on the Definition chosen for Compliance Law. Let us first take the definition of Compliance Law as a simple "mode of effectiveness" of the rules to which we hold (I). The more we stick to this procedural definition of Compliance Law as a mode of effectiveness of the rules, the less it is easy to detect specificities in the application of the Principle of proportionality in compliance mechanisms. There are certainly many examples of the application of the principle of proportionality, but the addition and variety of examples are not enough to sculpt an original relationship between Proportionality and Compliance.

 

However, this exercise is not wasted. In fact, in the confusion which still marks the emergence of Compliance Law, the legal nature of the compliance mechanisms remains contested. However, the imposition of Proportionality, not only as it is an obligation but as a limitation of powers in this first definition focusing on Efficiency, recalls that Compliance, conceived as " process ", would then in any case be admissible at the very least as a" Procedure ", anchored in the Rule of Law Principle, therefore self-limititation expression.   But Proportionality is then like a cold shower in compliance, since it is defined by self-limitation in a Law which would be defined by effectiveness as its only definition...  Ineffectiveness In Efficiency...: it is no longer a relation, it is then an opposition which is established between the two terms ...

In this definition of Compliance Law, there is no other choice than to put process in this sort of  squaring circle because in this procedural Compliance Definition, as a method of effectiveness, of effectiveness and efficiency of the rules estimated more important more than others, it must however be admitted that Compliance Law, as any branch of the Law, without denying its very legal nature, must be anchored in the Rule of Law Principle.

By the principle of proportionality, this new branch of Law is forced to anchor classic solutions from Constitutional, Public or Criminal Law,  the Principle of Proportionality prohibiting the Compliance of be just a process. The Repression  Law  has a large part in this conception and the Proportionality Principle reminds it of the part that Criminal Law still takes (with difficulty and for the moment ...) in the admission of ineffectiveness that the Law demands, particularly in the face of Compliance technologies.

In this first definition, the Proportionality Principle thus reminds Compliance, entirely held in the idea of ​​Efficiency that it is a "Law" of Compliance" and anchored in the Rule of Law Principle, it must limit its Effectiveness . It is therefore a kind of "price" that these techniques pay, with regret ..., to the Rule of Law and in particular to the freedoms of human beings. There is a strong temptation not to want to pay this price. For example by affirming that there is a new technological world, which the new system, entirely in algorithms, will promote in a move away from the Law, rejected towards the Old World. Frequently proposed, or set up for instance in China. Others say that we must "do the balance". But when you balance Efficiency performance and Efficiency self-limitation, you know very well who will win ...

 

But why not look rather on the side of a Definition of Compliance Law where, on the contrary, the two concepts, instead of opposing each other, support each other!

 

Indeed, Compliance Law is then defined as an extension of Regulatory Law as a set of rules, institutions, principles, methods and decisions taking their meaning and normativity for specific Goals. . In this definition, which is both specific and substantial, these "Monumental Goals" are systemic and require that all means be mobilized for them to be achieved. Future and negative in nature (events that must not happen) but also future and positive in nature (events that must occur), Compliance Law does not apply to all the rules whose  effectiveness required, but this specific type of "Monumental Goals", in an alliance between the political authorities in charge of the future of human groups and the entities in a position to mobilize its means. The method is then different. It is no longer a question of entrenching and the prospect of repression fades into the background.

A reversal occurs. Proportionality ceases to be what limits Efficiency to become what increases Efficiency. As soon as Goals have be precised, Proportionality is not the consequence of the limitation (as in the principle of "necessity" of Criminal Law, insofar as the latter is an exception), it is the consequence of the fact that any legal mechanism is a "Compliance Tool", which only has meaning in relation to a "Monumental Goal". It is therefore essential to set the "Goal Monumental Goals". As this is where the legal normativity of Compliance is housed, the control must first and foremost relate to that. Then all the Compliance Tools must adjust in a "proportionate way", that is to say effective to its goals: as much as it is necessary, not more than it is necessary. According to the principle of economy (which is also called the "principle of elegance" in mathematics).

In consequence, the rule contrary to the Principle of Proportionality is: the rule useless to achieve the goal. The unnecessary rule is the disproportionate rule: this is how the judicial review of excessive sanctions should be understood, not by the notion of "the limit" but not by the notion of "the unnecessary".

Everything then depends on the legal quality of the goal. De jure - and this would deserve to be a requirement at constitutional level, the goal must always be clear, understandable, non-contradictory, attainable.

This increases the office of the Judge. This renews the power of the Legislator in a conception which ceases to be discretionary.

But the Legislator retains the prerogative of determining the Monumental Goals, while the Judge controls the quality of the formulation that he makes of them, in order to be able to measure the proportionality of the means which are put in front by the State and the Companies, while Companies can rally to the Monumental Goals of the Politics by making an alliance with them, but certainly not instituting others in an autonomous way because they are not normative political entities, whereas they are free to determine the means necessary to achieve these goals, the Judge controling the proportionality mechanism that makes this new system work.

The case law of the German Constitutional Council expresses this conception. It is fully consistent with what Compliance Law is in what is the one Monumental Goal containing all the systemic Monumental Goals: the protection of the human being.

____

 

📝 Go to the general presentation of the book in which this article is published in French.

 

__________

 

Sept. 16, 2021

Publications

► Full Reference: Frison-Roche, M.-A., Notes pour une synthèse sur le vif pour le colloque "Les Buts Monumentaux de la Compliance : radioscopie d'une notion" (Notes for an on the fly synthesis for the Colloquium "The Compliance Monumental Goals: Radioscopy for a Notion"), September 16, 2021. 

► Read the general programme of the Colloquium Compliance Law Monumental Goals

► Read the  presentation of the synthesis Report, notably its Summary

____

► Methodology: The topic is not treated in a strictly personal point of view, as it will be in the book on The Compliance Monumental Goals, in an article devoted to "Defining Compliance Monumental Goals  and their branch of Law", more personal article. It will be even more clearly the expression of a personal vision of the definition of what is "Compliance" and what is "Compliance Law", with in particular the distinctions that should be done, in particular with "conformity" because these are these "Monumental Goals", a notion proposed in 2016!footnote-2164  which makes it possible to distinguish the procedural notion of "conformity" (just obey) and the substantive notion of "Compliance Law". This article will include the multiple academic and technical references that should be done to do this. 

But in the time allotted in a day's collloquium and because the purpose of a synthesis is to highlight on the spot what was common in the contributions heard, the document is based only on the different speechs made and is not enriched with technical references, nor does it refer to personal works.

____

 

🔻read below the notes exhaustely taken

Sept. 16, 2021

Conferences

Full reference: Frison-Roche, M.-A., Rapport de synthèse (Conclusion) in André C., Frison-Roche, M.-A., Malaurie, M. and Petit, B., Les Buts monumentaux de la Compliance (Compliance Monumental Goals), Colloquium co-organised by the Journal of Regulation & Compliance (JoRC) and the Laboratoire Dante of Paris-Saclay University,

📅  September 16, 2021.

🧭 Maison du Barreau, 12 place Dauphine 75004 Paris

____

 Conclusions' Summary: Based on the multiple contributions of the day, the first part of this synthesis focuses on the practical interest of having Monumental Goals attached to compliance techniques.Conceptually defining these Monumental Goals as normative legal rules of Compliance Law has the first practical advantage of making clear this scattered and almost incomprehensible material, allowing us to better understand it.  The second practical advantage is to bring together the various branches of law in that they all contain compliance mechanisms, the points of contact thus discerned leading to a unification of technical legal rules.  The third practical advantage is to provide the various sources of law concerned with a means of applying and interpreting the law. The fourth practical advantage is to give meaning to all these technical provisions.

In the second part of this synthesis, it appeared that these practical considerations therefore justify undertaking the "conceptual adventure". This one can take three pillars, in this "cathedral" that Dominique de la Garanderie designed, this "monument" corresponding well to the adjective Monumental which is better suited to these Goals than does the adjective "Fundamental", because it is a question of building, of building for a future which is not fatal. The first conceptual pillar consists in conceptualizing the Monumental Goals so that the Compliance Law finding a substantial meaning thus gives in a normative way a meaning to all the technical provisions which serve it in an instrumental way. The second conceptual pillar consists of giving everyone their place, that of public authority, that of the company and that of the population, each concerned and each not having to take the place of the other in the determination of the monumental goals, the company being in particular free in the design of the means while the political authority being in charge of drawing the Goals, the company being able to copy them on its own account. This conception does not depend on legal systems but on goals and legitimacy, in particular on the definition chosen for what is a company. The third conceptual pillar derives precisely from the humanist conception that one can claim to have of the Compliance Monumental Goal, risk management being only a means to achieve it. Humanism effectively carried by Compliance, taken on their own account by the companies alone capable of making them concrete, is what makes it possible to distinguish texts that are nevertheless technically similar, depending on whether they apply in  Rule of Law systems or in systems which are note governed by the Rule of Law Principle.

This is why the technical future of Compliance Law lies in this conceptual adventure that it is necessary to lead.

_________

 

📝 read the program of this colloquium 

🎥 see Marie-Anne Frison-Roche's conclusion in video (in French, with English subtitles)

✏️ read the notes translated in English on which this conclusion is based 

_______

📅 This colloquium is part of the Cycle of colloquium 2021 organized by the Journal of Regulation & Compliance (JoRC) and its partners around Compliance Monumental Goals.  

📘 This manifestation is in French but the interventions will be part of an English collective book directed by Marie-Anne Frison-Roche, Compliance Monumental Goals, co-edited by the JoRC and Bruylant.

📕 An equivalent book in French, Les Buts Monumentaux de la Compliance, directed by Marie-Anne Frison-Roche, will be co-published by the JoRC and Dalloz. 

Sept. 16, 2021

Thesaurus : Doctrine

 Full Reference: Le Fur, A.-V., Ch.,  "Interest and “raison d’être” of the company: how do they fit with the Compliance Monumental Goals?, in Frison-Roche, M.-A. (ed.), Les buts monumentaux de la Compliance, series "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) et Bruylant, to be published.

___

► Article Summary (done by the Author):  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. 

____ 

 

📝 go to the general presentation of the book in which this article is published.

 

________

July 22, 2021

Publications

► Full reference: Frison-Roche, M.-A., Proportionality  and Compliance,  Working Paper, 22nd July  2021.

____

 

🎤 this Working Paper is the basis for a conference in the colloquium Compliance and Proportionality. From the control of Proportionality to the proportionality of the control, to be helded in Toulouse, France, on the 14th October 2021.

 

📝It constitutes the basis for an article: 

📕 this article will be published in its French version in the book  Les buts monumentaux de la Compliancein the Series 📚   Régulations & Compliance

 📘  in its English version in the book Compliance Monumental Goalsin the Series 📚   Compliance & Regulation

____

► Working Paper Summary: Measuring the relationship between the Principle of Proportionality and Compliance Law depends entirely on the Definition chosen for Compliance Law. Let us first take the definition of Compliance Law as a simple "mode of effectiveness" of the rules to which we hold (I). The more we stick to this procedural definition of Compliance Law as a mode of effectiveness of the rules, the less it is easy to detect specificities in the application of the Principle of proportionality in compliance mechanisms. There are certainly many examples of the application of the principle of proportionality, but the addition and variety of examples are not enough to sculpt an original relationship between Proportionality and Compliance.

 

However, this exercise is not wasted. In fact, in the confusion which still marks the emergence of Compliance Law, the legal nature of the compliance mechanisms remains contested. However, the imposition of Proportionality, not only as it is an obligation but as a limitation of powers in this first definition focusing on Efficiency, recalls that Compliance, conceived as " process ", would then in any case be admissible at the very least as a" Procedure ", anchored in the Rule of Law Principle, therefore self-limititation expression.   But Proportionality is then like a cold shower in compliance, since it is defined by self-limitation in a Law which would be defined by effectiveness as its only definition...  Ineffectiveness In Efficiency...: it is no longer a relation, it is then an opposition which is established between the two terms ...

In this definition of Compliance Law, there is no other choice than to put process in this sort of  squaring circle because in this procedural Compliance Definition, as a method of effectiveness, of effectiveness and efficiency of the rules estimated more important more than others, it must however be admitted that Compliance Law, as any branch of the Law, without denying its very legal nature, must be anchored in the Rule of Law Principle.

By the principle of proportionality, this new branch of Law is forced to anchor classic solutions from Constitutional, Public or Criminal Law,  the Principle of Proportionality prohibiting the Compliance of be just a process. The Repression  Law  has a large part in this conception and the Proportionality Principle reminds it of the part that Criminal Law still takes (with difficulty and for the moment ...) in the admission of ineffectiveness that the Law demands, particularly in the face of Compliance technologies.

In this first definition, the Proportionality Principle thus reminds Compliance, entirely held in the idea of ​​Efficiency that it is a "Law" of Compliance" and anchored in the Rule of Law Principle, it must limit its Effectiveness . It is therefore a kind of "price" that these techniques pay, with regret ..., to the Rule of Law and in particular to the freedoms of human beings. There is a strong temptation not to want to pay this price. For example by affirming that there is a new technological world, which the new system, entirely in algorithms, will promote in a move away from the Law, rejected towards the Old World. Frequently proposed, or set up for instance in China. Others say that we must "do the balance". But when you balance Efficiency performance and Efficiency self-limitation, you know very well who will win ...

 

But why not look rather on the side of a Definition of Compliance Law where, on the contrary, the two concepts, instead of opposing each other, support each other!

 

Indeed, Compliance Law is then defined as an extension of Regulatory Law as a set of rules, institutions, principles, methods and decisions taking their meaning and normativity for specific Goals. . In this definition, which is both specific and substantial, these "Monumental Goals" are systemic and require that all means be mobilized for them to be achieved. Future and negative in nature (events that must not happen) but also future and positive in nature (events that must occur), Compliance Law does not apply to all the rules whose  effectiveness required, but this specific type of "Monumental Goals", in an alliance between the political authorities in charge of the future of human groups and the entities in a position to mobilize its means. The method is then different. It is no longer a question of entrenching and the prospect of repression fades into the background.

A reversal occurs. Proportionality ceases to be what limits Efficiency to become what increases Efficiency. As soon as Goals have be precised, Proportionality is not the consequence of the limitation (as in the principle of "necessity" of Criminal Law, insofar as the latter is an exception), it is the consequence of the fact that any legal mechanism is a "Compliance Tool", which only has meaning in relation to a "Monumental Goal". It is therefore essential to set the "Goal Monumental Goals". As this is where the legal normativity of Compliance is housed, the control must first and foremost relate to that. Then all the Compliance Tools must adjust in a "proportionate way", that is to say effective to its goals: as much as it is necessary, not more than it is necessary. According to the principle of economy (which is also called the "principle of elegance" in mathematics).

In consequence, the rule contrary to the Principle of Proportionality is: the rule useless to achieve the goal. The unnecessary rule is the disproportionate rule: this is how the judicial review of excessive sanctions should be understood, not by the notion of "the limit" but not by the notion of "the unnecessary".

Everything then depends on the legal quality of the goal. De jure - and this would deserve to be a requirement at constitutional level, the goal must always be clear, understandable, non-contradictory, attainable.

This increases the office of the Judge. This renews the power of the Legislator in a conception which ceases to be discretionary.

But the Legislator retains the prerogative of determining the Monumental Goals, while the Judge controls the quality of the formulation that he makes of them, in order to be able to measure the proportionality of the means which are put in front by the State and the Companies, while Companies can rally to the Monumental Goals of the Politics by making an alliance with them, but certainly not instituting others in an autonomous way because they are not normative political entities, whereas they are free to determine the means necessary to achieve these goals, the Judge controling the proportionality mechanism that makes this new system work.

The case law of the German Constitutional Council expresses this conception. It is fully consistent with what Compliance Law is in what is the one Monumental Goal containing all the systemic Monumental Goals: the protection of the human being.

_____________

 

June 14, 2021

Compliance: at the moment

► Do Compliance and Democracy have a relationship? China replies: no. Europe responds and must respond: they are intimate. The definition of Compliance Law is therefore essential.

In an interview of great clarity  given in French to the Newspaper Les Echos on June 2, 2021, about Brexit, China and Russia (➡️📝 "Brexit, Chine, Russie : les confidences de la diplomate Sylvie Bermann"), Sylvie Bermann reminds the evolution of China. She sums up the situation as follows: « La Chine ne veut pas dominer le monde, elle veut être la première et surtout qu'on ne puisse pas lui imposer un système, la démocratie » ("China does not want to dominate the world, it wants to be the first and above all that no one can impose on it a system, Democracy,").

This is reflected in China's conception of Compliance Law. If one defines Compliance Law only as a "method" for the effectiveness of rules, consisting of a kind of "Ex Ante enforcement process" leading to 100% effectiveness of regulations by subjects who must show to everyone the respect they have for these regulations and who are rewarded by this proof thus given, then China, in its current use of Law, illustrates exactly this definition: subjects, individuals and companies, prove their "obedience" to rules - whatever the rules" substantial content -, which is evaluated ("rating") and rewarded, in a mechanical reign of the Ex Ante, served by technologies. Democratic mechanisms are not required; they are even disturbed, because they interfere with the efficiency of the system. The technological and purely technocratic conception of Compliance ("Regulation by data", for example) uses the same definition of Compliance Law, which leads to choose algorithms’ efficiency.

Europe must keep going to make another choice: European Compliance was born out of the Court of Justice of the European Union’s case law, in the 2014 judgment, Google Spain (➡️📝CJEU, Google Spain, May 13, 2021), to protect the person by inventing a subjective right: the right to be forgotten, in a digital space with infinite memory. Based on the Rule of Law, Compliance Law is then defined by its Monumental Goals, which are the protection of people and puts the judge at the center. It is the reverse of Chinese mechanics.

Therefore, they are definitions that lead the world: about the definition of Compliance Law by "Monumental Goals", see ➡️📅 the 2021 cycle of colloquia co-organized by the Journal of Regulation & Compliance (JoRC) and its university partners on Monumental Goals; on the technical influence of this definition on "Compliance tools" ➡️📕see Frison-Roche, M.-A., Legal Approach to Compliance Tools: Building by Law the unity of Compliance Tools from the definition of Compliance Law by its "Monumental Goals", 2021.

 

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June 2, 2021

Publications

► Full reference : Frison-Roche, M.-A., Building by Law the Unicity of Compliance Tools from the Definition of Compliance Law by its "Monumental Goals", in Frison-Roche, M.-A. (ed.), Compliance Tools, serie "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Bruylant, 2021, pp. 35-46

 

Summary of the article : The "tools of Compliance" do not stack on top of each other. They form a system, thanks to a unity drawn from the goals that all these multiple and different tools serve: the "Monumental Goals" by which Compliance Law is defined.

All these tools are configured by these goals and for mastering all these techniques, it is essential to put them all in perspective of what Compliance Law is, which is designed teleologically with regard to its goals. Extension of Regulatory Law and like it, Compliance Law is built on a balance between the principle of competition and other concerns that public authorities claim to take care of. Compliance Law has moreover more "pretensions" in this respect, for example in environmental matters. All the means are then good, the violence of the tools marrying without difficulty with the voluntary commitments since it is the goals which govern this branch of Law.

As legal solutions adopted show, a common method of interpretation and common levels of constraint for all Compliance Tools result from this definition. Starting from the goals (in which legal normativity is housed), the interpretation of the different tools is thus unified. Moreover, the different degrees of constraint do not operate according to the consideration of sources (traditional legal criterion) but by the goals, according to the legal distinction between obligations of means and obligations of results which result from the articulation between tools, of which the establishment is an obligation of result, and the goal, of which the achievement is only an obligation of means.

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📝 Read the bilingual working paper on which rely this article.

📝 Read a general presentation of the book in which this article has been published.

 

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May 15, 2021

Publications

Full Reference: Frison-Roche, M.-A. Place and Role of Companies in the Creation and Effectiveness of Compliance Law in Crisis, Working Paper, May 2021. 

This Working Paper has been elaborated as basis for a conference in the colloquium of Mai 17, 2021 (done in French: Normes publiques et Compliance en temps de crise : les buts monumentaux à l'épreuve.

This video is made with English substitutes. 

It is also the basis for an article in the book Compliance Monumental Goals, the English version of which is co-published by the Journal of Regulation & Compliance (JoRC) and Bruylant.

Summary: This article has a very topic: the place of private Companies, with regard to the chapter's issue: "the ordeal of a crisis". The crisis constitutes a "test", that is to say, it brings evidence. Let us take it as such.

Indeed, during the health crisis, it appears that Companies have helped the Public Authorities to resist the shock, to endure and to get out of the Crisis. They did so by force, but they also took initiatives in this direction. From this too, we must learn lessons for the next crisis that will come. It is possible that this has already started in the form of another global and systemic crisis: the environmental crisis. In view of what we have been able to observe and the evolution of the Law, of the standards adopted by the Authorities but also by the new case law, what can we expect from Companies in the face of this next Crisis, willingly and strength 

 

Lire ci-dessous les développements.

Nov. 23, 2020

Interviews

Full reference: Frison-Roche, M.-A., Facebook: Quand le Droit de la Compliance démontre sa capacité à protéger les personnes (Facebook: When Compliance Law proves its ability to protect people), interview with Olivia Dufour, Actu-juridiques Lextenso, 23rd of November 2020

Read the interview (in French)

Read the news of the Newsletter MAFR - Law, Compliance, Regulation about this question

Nov. 18, 2020

Conferences

Full Reference: Frison-Roche, M.-A., Compliance Law, an adequate legal framework for GAIA-X, in "The World with GAIA-X", Pan-European GAIA - X Summit November 2020, 18 November 2020.

 

See the general presentation of the Summit.

 

Summary  of the intervention  in the Round-Table with professors Jacques Crémer and Achim Wambach:

Europe may offer an adequate legal framework for the GAIA-X project through Compliance Law. Compliance Law is a new forme a Regulatory Law, driven by "Monumental Goals", negative Monumental Goals, for instance prevention of systemic failures, and positive Monumental Goals, for instance innovation or stability. This very new branch of Law works on these Monumental Goals, which must be explicit and internalized in Crucial Enterprises. These Crucial Enterprises concretize these Goals, supervised by public Authorities. 

European Compliance Law already works, for instance about Personal Data protection (case law and GDPR) or prevention banking systemic failures (Banking Union), Compliance Tools being in balance with Competition principle. European Union Law is moving from the Ex Post Competition Law to the Ex Ante Compliance Law, internalizing Monumental Goals in Crucial Enterprises. 

There is a perfect adequacy between European Compliance Law and GAIA-X. This project built by Crucial Enterprises must be supervised by public authority, maybe a specific or the European Commission. The governance of GAIA-X must be transparent and accountable. This private organization must use it powers in respect of the proportionality principle, controlled by the public supervisory body. The legal framework is required but it is sufficient. 

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See the slides, basis of this intervention.

 

See the video of this intervention. 

Updated: Nov. 13, 2020 (Initial publication: July 15, 2020)

Publications

Référence : Frison-Roche, M.-A., Building by Law the unity of Compliance Tools from the definition of Compliance Law by its "Monumental Goals"", Working Paper 2020. 

This Working Paper has been the basis for an article in the collective book Compliance Tools, 2020

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Working Paper summary: The "tools of Compliance" do not stack on top of each other. They form a system, thanks to a unity drawn from the goals that all these multiple and different tools serve: the "Monumental Goals" by which Compliance Law is defined.

All these tools are configured by these goals and in order to master all these techniques, it is essential to put them all in perspective of what Compliance Law is, which is designed teleologically with regard to its goals. Extension of Regulatory Law and as, Compliance Law is built on a balance between the principle of competition and other concerns that public authorities claim to take care of. Compliance Law has moreover more "pretensions" in this respect, for example in environmental matters. All the means are then good, the violence of the tools marrying without difficulty with the voluntary commitments since it is the goals which govern this branch of Law.

As adopted legal solutions show, a common method of interpretation and common levels of constraint for all Compliance Tools result from this definition. Starting from the goals (in which legal normativity is housed), the interpretation of the different tools is thus unified, without the necessity of a legislation including all these Compliance tools. Moreover, the different degrees of constraint do not operate according to the consideration of sources (traditional legal criterion) but by the goals, according to the legal distinction between obligations of means and obligations of results which result from the articulation between tools, of which the establishment is an obligation of result, and the goals, of which the achievement is only an obligation of means.

Sept. 16, 2020

Publications

Full reference: Frison-Roche, M.-A., Se tenir bien dans l'espace numérique, in Penser le droit de la pensée. Mélanges en l'honneur de Michel Vivant, Lexis Nexis and Dalloz, 2020, pp. 155-168

Read Marie-Anne Frison-Roche's article (in French)

Read the working paper, written in English, on which this article is based, enriched with additional developments, technical references and hyperlinks

 

Summary of the article: 

The digital space is one of the scarce spaces not framed by a specific branch of Law, Freedom also offering opportunity to its actors to not "behave well", that is to express and diffuse broadly and immediately hateful thoughts through Hate speechs, which remained before in private or limited circles. The intimacy of Law and of the legal notion of Person is broken: Digital permits to individuals or organizations to act as demultiplied and anonymous characters, digital depersonalized actors who carry behaviors that are hurtful to other's dignity. 

Against that, Compliance Law offers an appropriate solution: internalizing in digital crucial operators the mission to disciplinary and substantially hold the digital space. The digital space has been structured by powerful firms able to maintain order. Because Law must not reduce digital space to be only a neutral market of digital prestations, these crucial operators, like social networks or search engines, must be forced to substantially control behaviors. It could be about an obligation of internet users to act with their face uncover, "real identity" policy controlled by firms, and to respect others' rights, privacy rights, dignity, intellectual property rights. In their Regulatory function, digital crucial firms must be supervised by public authorities. 

Thus, Compliance law substantially defined is the protector of the person as "subject of law" in the digital space, by the respect that others must have, this space passing from the status of free space to the one of civilized space, in which everyone is obliged to behave well. 

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