Publications
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► Full Reference: M.-A. Frison-Roche, "Concevoir l'Obligation de Compliance : faire usage de sa position pour participer à la réalisation des Buts Monumentaux de la Compliance" ("Conceiving the Compliance Obligation: Using its Position to take part in achieving the Compliance Monumental Goals"), in M.-A. Frison-Roche (ed.), L'Obligation de Compliance, Journal of Regulation & Compliance (JoRC) and Dalloz, "Régulations & Compliance" Serie, 2024, to be published
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📝read the article (in French)
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🚧read the bilingual Working Paper on the basis this contribution has been built, with more developments, technical references and hyperlinks.
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📕read a general presentation of the book, L'Obligation de Compliance, in which this article is published
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► English summary of this contribution: Rather than getting bogged down in definitional disputes, given that Compliance Law is itself a incipient branch of Law, the idea of this contribution is to take as a starting point the different regimes of so many different compliance obligations to which laws and regulations subject large companies: sometimes they must apply them to the letter and sometimes they are only penalised in the event of fault or negligence. This brings us back to the distinction between obligations of result and obligations of means.
Although it might be risky to transpose the expression and regime of contractual obligations to legal obligations, starting from this observation in the Compliance Evidentiary System of a plurality of obligations of means and of result, depending on whether we are dealing with this or that technical compliance obligation, we must first classify them. It would appear that this plurality does not constitute a definitive obstacle to the creation of a single definition of the Compliance Obligation. On the contrary, it makes it possible to clarify the situation, to trace the paths through what is so often described as a legal jumble, an unmanageable mass of regulations.
Indeed, insofar as the company obliged under Compliance Law participates in the achievement of the Monumental Goals on which this branch of Law is normatively based, a legal obligation which may be relayed by contract or even by ethics, it can only be an obligation of means, by virtue of this very teleological nature and the scale of the goals targeted, for example the happy outcome of the climate crisis which is beginning or the desired effective equality between human beings. This established principle leaves room for the fact that the behaviour required is marked out by processes put in place by structured tools, most often legally described, for example the establishment of a vigilance plan or regularly organised training courses (effectiveness), are obligations of result, while the positive effects produced by this plan or these training courses (efficacy) are obligations of means. This is even more the case when the aim is to transform the system as a whole, i.e. to ensure that the system is solidly based, that there is a culture of equality, and that everyone respects everyone else - all of which come under the heading of efficiency.
The Compliance Obligation thus appears unified because, gradually, and whatever the various compliance obligations in question, their intensity or their sector, its structural process prerequisites are first and foremost structures to be established which the Law, through the Judge in particular, will require to be put in place but will not require anything more, whereas striving towards the achievement of the aforementioned Monumental Goals will be an obligation of means, which may seem lighter, but corresponds to an immeasurable ambition, linked with these Goals. Moreover, because these structures (warning platforms, training, audits, contracts and clauses, etc.) only have meaning in order to produce effects and behaviour leading to changes converging towards the Monumental Goals, it is the obligations of means that are most important and not the obligations of result. The judge must also take this into account.
Finally, the Compliance Obligation, which therefore consists of this interweaving of multiple compliance obligations of result and means of using the Entreprise's position, ultimately aims at system efficiency, in Europe at system civilisation, for which companies must show not so much that they have followed the processes correctly (result) but that this has produced effects that converge with the Goals sought by the legislator (effects produced according to a credible trajectory). This is how a crucial economic operator, responsible Ex Ante, should organise itself and behave.
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May 22, 2024
Interviews
► Full reference: M.-A. Frison-Roche, "Compliance et management : la médiation plutôt que la sanction ?" ("Compliance and management: mediation rather than punishment?"), interview conducted by Jean-Philippe Denis as part of a series of interviews on Compliance Law, in Fenêtres ouvertes sur la gestion (Open windows on management), broadcast by J.-Ph. Denis, Xerfi Canal, recorded December 12, 2023, released on May 22, 2024
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🌐consult the December 2023 presentation of the interview on LinkedIn
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🌐read the MAFR. Law, Compliance, Regulation of April 2024 based on this interview
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🧱consult the general presentation of this series of interviews on Compliance Law
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🎥view the full interview on Xerfi Canal
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► Starting point: Since 2016, Marie-Anne Frison-Roche has been building Compliance Law, notably through a collection co-published in French with Editions Dalloz and co-published in English with Editions Bruylant:
🧱lire la présentation de la collection en langue française, Régulations & Compliance ➡️click HERE
🧱read the presentation of the series in English, Compliance & Regulation ➡️click HERE
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► Summary of interview:
Jean-Philippe Denis. Question: To put it bluntly, isn't Compliance Law expressed by the BNP Paribas fine?
Marie-Anne Frison-Roche. Answer: It is still through this fine that Compliance is often perceived. How regrettable...
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Jean-Philippe Denis. Q.: At least, that's how the Politician realised there was a subject....
Marie-Anne Frison-Roche. A. : This is true, and not just for politicians and firms since this case has had an impact on European public opinion. This matter has therefore become known for the violence of the sanctions, and the intervention of heads of State to reduce their consequences. But we're talking about sanctions. Meanwhile, others talk about compliance through soft law, soft co-regulation, charters and soft commitments, the contours of which are sometimes uncertain. Today, adjustments are made regarding the Monumental Goals of preserving the systems on which this Compliance Law is based, and tools are used on this basis, tools with which lawyers are very familiar: contracts. Through contracts, enterprises structure their compliance obligations.
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Jean-Philippe Denis. Q.: You point out that Compliance Law is becoming more civilised and that more people are resorting to mediation.
Marie-Anne Frison-Roche. A.: Yes, Compliance Law is becoming more civilised, and civil law is becoming increasingly important, particularly through Contract Law, with stipulations being inserted to prevent human rights or environmental infringements. As Compliance Law operates on an ex-ante basis, the enterprise will organise dialogue with stakeholders, in particular when vigilance plans are drawn up, Vigilance mechanism being the spear head of Compliance Law. If the situation becomes litigious and the matter is referred to the courts, the civil courts, whose role is growing, will themselves organise mediation. Mediation, which is now part is an instrument for bringing the parties together and finding solutions.
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April 8, 2024
Public Auditions
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► Full reference: M.-A. Frison-Roche, Audition by the French National Assembly's Law Commission on the confidentiality of legal advice (the "Legal Privilege à la française"), 8 April 2024.
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I had expressed my opinion on the need for French legal system to better ensure the confidentiality of legal opinions drawn up by internal lawyers in companies, in an article published in 2023 in the French academic journal Recueil Dalloz: "La compliance, socle de la confidentialité nécessaire des avis juridiques élaborés en entreprise (Compliance Law, the cornerstone of the necessary confidentiality of legal opinions drawn up by companies". Compliance, the cornerstone of the necessary confidentiality of legal opinions drawn up by companies).
Following on from this article, and as a specialist in Regulatory and Compliance Law, I was invited by the French National Assembly's Law Commission to give my opinion on the proposed law n°2022 on the confidentiality of consultations by in-house lawyers ( Proposition de loi n°2022 relative à la confidentialité des consultations des juristes d'entreprises), often named in French Legal privilege à la française.
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► Summary of this presentation: I have shown that we must start not from the person (external lawyer / in-house lawyer, for instance) and not even centrally from the information in question (branch of Law by branch of Law), but from the Goals pursued, i.e. from Compliance Law.
In this respect, we must not be misled. We could do so by confusing mechanical "conformity" with this new branch of Law: Compliance Law. Conformity is merely a tool of Compliance Law. Out of concern for the correct use of the French language, as "Compliance" appears to many to be an American term, the proposed law uses the term "conformité" but refers to Compliance Law. Conformity" is merely the mechanical obligation to obey the applicable rules, which is the fate of any subject of law, subject to the mandatory rules, a passive position common to everyone in a State governed by the Rule of Law.
Compliance Law is quite different, with conformity being just one of its tools. On the one hand, Compliance Law imposes an active obligation, and on the other, it targets only certain legal subjects: companies. For them, it is a matter of ensuring that certain goals set by the legislator are actually achieved, which becomes effectively and efficiently possible thanks to the power of companies (financial power, organizational power, management power, information power, location power, information power). These "Monumental Goals" are either negative (preventing systems from collapsing) or positive (ensuring that systems improve).
For companies to play this role - a role that is not required of other "ordinary" people, as they are not "in a position" to take on such a burden, particularly in terms of finance and organization - those in charge of organizing themselves and taking action, i.e. companies, must "detect and prevent" system failures (as required by laws such as US FCPA, French so-called Sapin 2 and Vigilance laws, European CSRD and CS3D, etc.). To "detect and prevent", which is an order from the Legislator, companies need to know the weaknesses of their organization and of the people they answer to, in order to remedy them: "remediation" is a "remedy" to ensure the "sustainability" of "systems".
This set of key concepts lies at the heart of Compliance Law, the branch of law That focuses on the future.
It is the legal opinions, for example, and in particular the report resulting from internal investigations, that enable those who decide and control this organization (the managers) to fulfill the role entrusted to them by the State. If these opinions are not confidential, the result is not the remediation and preservation of global systems (competitive, climatic, digital, energy, banking, financial systems, etc.): the effective managerial solution in Ex-Ante then consists not in seeking information but, conversely, in not seeking this information, since obtaining it will lead to the weakening of the company through the sanction that the information produces, for lack of confidentiality.
The interests of the system, the State and the company are disjointed, because Compliance Law implies their alliance, which is what the confidentiality of legal opinions produces.
This is why Compliance Law must, by its very nature, ensure the confidentiality of legal advice.
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When asked about the actual text of the proposal, I felt that the explanatory memorandum was particularly relevant, since the link between Compliance Law (admittedly called "conformité" in the proposed bill by a rather too mechanical respect for the French legal language, from which the French legislator has so far been unable to dispense....) is clear, that this confidentiality is attached to the document, that the company can waive it, and that it is clearly distinct from professional secrecy, all three of which should be approved.
For my part, I've suggested a change to the procedure, which must be open to the confidentiality process.
Indeed, public authorities, such as Competition and Regulatory Authorities, are rather hostile to this confidentiality.
Having contributed a great deal to the development of Regulatory Law, and continuing to do so, I believe that Competition and Regulatory Authorities have a logic that needs to be understood. It is as follows: Regulatory Authorities are Ex-Ante (this was less true for the Competition Authorities, but it too is increasingly so) and are in a situation of information asymmetry. Their first concern is to combat this asymmetry. If we translate this into legal terms, it means that in order to carry out their mission of general interest, they must seek out all available information. However, legal opinions, and in particular the internal investigation report, are what I have described as "evidence treasure". In their logic, the Competition and Regulatory Authorities want to seize it.
There is therefore a conflict between two general interest logics: the general interest of the Monumental Goals of Compliance Law actively served by companies, at the behest of the Legislation, which requires the confidentiality of legal opinions, and the general interest of the action of Regulators who fight against information asymmetry and seek to seize the evidential treasures of legal opinions.
For the reasons given above, I believe that the Monumental Goals of Compliance must prevail. All the more so as the rights of the defence converge to this end.
Ultimately, however, it is up to the Judge, in the event of open conflict, to balance these two claims, which are based on the service of the general interest.
However, reading the proposition, it seems to me that the rather complicated procedure entrusts this to a multiplicity of judges... But since it is indeed Compliance Law which is the best basis for "legal privilege à la française", Compliance Law, which is the extension of Regulatory Law and whose advanced point is the Vigilance duty, it would be more appropriate and logical to entrust this litigation to the exclusive jurisdiction of the Paris Judicial Court. This court has already the exclusive competence for litigation about Vigilance.
This would have another fortunate effect: on appeal, the dispute would be brought before the Paris Court of Appeal, which has exclusive jurisdiction (barring exceptions) over disputes concerning decisions on French Competition and Regulatory Authorities. The judges of the "Pôle 5" (12 chambers specializing in economic law) of the very specific court are seasoned and would be well-suited to strike the necessary balance between the two general interests involved.
I think a procedural amendment to the proposed text along these lines would be welcome.
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► See in my work those that may be of interest with regard to this hearing (all with English summary, many with bilingual working paper) ⤵️
🕴️M.-A. Frison-Roche, 📝Le rôle du juge dans le déploiement du Droit de la Régulation par le Droit de la Compliance, in 📗Conseil d'État et Cour de cassation, De la Régulation à la Compliance : quel rôle pour le Juge ?, 2024.
🕴️M.-A. Frison-Roche, 📝Compliance et conformité : les distinguer pour mieux les articuler, 2024.
🕴️M.-A. Frison-Roche (dir.),📕L'obligation de compliance, 2024.
🕴️M.-A. Frison-Roche et M. Boissavy (dir.), 📕Compliance et droits de la défense, 2024.
🕴️M.-A. Frison-Roche (dir.), 📕Compliance et droits de la défense, Les Buts Monumentaux de la compliance, 2022.
🕴️M.-A. Frison-Roche, 📝Contrat de compliance, clauses de compliance, 2022.
🕴️M.-A. Frison-Roche, 📝Le Droit de la compliance, 2016.
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Updated: March 15, 2024 (Initial publication: Nov. 30, 2023)
Publications
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► Full Reference: M.-A. Frison-Roche, Births of a branch of Law: Compliance Law, Working Paper, November 2023.
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📕This Working Paper was drawn up as a contribution to the collective book given to Professor Louis Vogel (given on October 2024)
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► Summary of this Working Paper: The study looks at the various movements that have given birth to Compliance Law, with particular emphasis on Competition Law.
After a preliminary reflection on the construction of the legal system into branches of Law, their classification in relation to each other, the difficulty encountered in this respect by Economic Law, and the various movements that give birth to one of them, the diversity of which the branch subsequently keeps track of, the study is constructed in 4 parts.
To find out what gave rise to Compliance Law, the first part invites us to reject the narrow perspective of a definition that is content to define it by the fact of "being conform" with all the applicable regulations. This has the effect of increasing the efficacy of the regulations, but it does not produce a branch of Law, being just a set of tools like others.
The second part of the study aims to shed some light on what appears to be an "enigma", as it is often claimed that this is the result of a soft method, or of an American political decision, or of as many regulations as there are occasions to make. Instead, it appears that in the United States, in the aftermath of the 1929 crisis, it was a decision of establishing an authority and rules to prevent another atrocious collapse of the system, while in Europe in 1978, in memory of the use of files of personal and racial information, it was a question of establishing an authority and rules to prevent an atrocious attack on human rights. A common element that aims for the future ("never again") but not the same object of preventive rejection. This difference between the two births explains the uniqueness and diversity of the two Compliance Laws, the tensions that can exist between the two, and the impossibility of obtaining a global Law.
The third part analyses the way in which Competition Law has given rise to conformity: a secondary branch which is a guarantee of conformity with competition rules. Developed in particular through the soft law issued by the competition authorities, the result is a kind of soft obedience, a well-understood collaboration of the procedural type through which the firm educates, monitors and even sanctions, without leaving the cercle of Competition Law, of which conformity is an appendix. The distance between a culture of conformity and the substantial Compliance Law can be measured here.
The fourth part aims to show that Competition Law and Compliance Law are two autonomous and articulated branches of Law. Since Compliance Law is a branch of Law built on Monumental Goals, in particular the sustainability of systems and the preservation of the human beings involved so that they are not crushed by them but benefit from them, the current challenge of European integration is to build the pillar of Compliance Law alongside the competitive pillar. Jurisdictions are in the process of doing this and of linking the two.
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🔓read the Working Paper below⤵️
Feb. 9, 2024
Organization of scientific events
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► Full Reference: L. Aynès, M.-A. Frison-Roche, J.-B. Racine and E. Silva-Romero (dir.), L'arbitrage international en renfort de l'obligation de Compliance (International Arbitration in support of the Compliance Obligation), Journal of Regulation & Compliance (JoRC) and Institute of World Business Law of the ICC (Institute), Conseil Économique Social et Environnemental (CESE), Paris, February 9, 2024
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🏗️This symposium takes place in the cycle of symposiums organised by the Journal of Regulation & Compliance (JoRC) and its partners Universities, focusing in 2023-2024 on the general theme of the Compliance Obligation
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📚The works will then be inserted in the books:
📕L'obligation de Compliance, to be published in the 📚Régulations & Compliance Serie, co-published by the Journal of Regulation & Compliance (JoRC) and Dalloz, published in French.
📘Compliance Obligation, to be published on the 📚Compliance & Regulation Serie, co-published by the Journal of Regulation & Compliance (JoRC) and Dalloz, published in English.
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► General presentation of the symposium: "Compliance Obligation" appears to be far from International Arbitration if Compliance Law is only understood in terms of binding regulations or even Criminal Law. Arbitration would only have contact with Compliance Obligation in a repulsive way, when a person claims to have enforced a contract before an arbitration court that disregards a compliance prohibition, e.g. corruption or money laundering. It is therefore from a negative angle that the cross-over has taken place.
The fact that Arbitration Law respects the requisite of Criminal Law is nothing new. Moreover, the power of Compliance in its detection and prevention tools, particularly in terms of evidence, no doubt increases the global efficiency.
But Compliance Obligation is based on Monumental Goals, notably linked to global human rights and active ambitions about environment and climate which, particularly in the value chain economy, take the legal form of compliance clauses, or even compliance contracts, or various commitments and plans, which the parties can ask the international arbitrator to enforce. They will do so even more as arbitrators are often the only international, or even global, judges available.
The use they will do of Contract Law, Quasi-Contract Law, Enforcement Law, Tort Law, reinforces Compliance Law in a global dimension.
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► Interviennent :
🎤 Laurent Aynès, emeritus Professor at Paris 1 Panthéon-Sorbonne University, Attorney, Darrois Villey Maillot Brochier (Paris)
🎤 Marie-Anne Frison-Roche, Professor of Regulatory and Compliance Law, Director of the Journal of Regulation & Compliance (JoRC)
🎤 Jean-François Guillemin, former General Secretary of the Bouygues Group
🎤 Christophe Lapp, Attorney, Advant Altana (Paris)
🎤 Jean-Baptiste Racine, Full Professor at Paris Panthéon-Assas University (Paris 2)
🎤 Eduardo Silva-Romero, President of the Institute of World Business Law of the ICC (Institute), Attorney, Wordstone (Paris)
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🧮Read a detailed presentation of the event below⤵️
Updated: March 15, 2023 (Initial publication: May 18, 2021)
Publications
► Full Reference: M.-A. Frison-Roche, "Place and rôle of Companies in the Creation and Effectiveness of Compliance Law in situation of crisis", in M.-A. Frison-Roche (ed.), Compliance Monumental Goals, series "Compliance & Regulation", Journal of Regulation & Compliance (JoRC) and Bruylant, 2023, p.
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► Article Summary: This article has a very topic: the place of private Companies, regarding 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, 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?
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🚧Read the bilingual Working Paper, with more developments, technical references, and hypertext links.
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► read the presentations of the other Marie-Anne Frison-Roche's contributions in this book:
📝Compliance Monumental Goals, beating heart of Compliance Law,
📝Definition of Principe of Proportionality and Definition of Compliance Law,
📝 Assessment of Whistleblowing and the duty of Vigilance
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Updated: Feb. 2, 2023 (Initial publication: June 23, 2021)
Thesaurus : Doctrine
► Full Reference: Ch. Lapp, "La compliance dans l'entreprise : les statuts du process" ("Compliance in the company: the statues of processes"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p.141-150.
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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published
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► The summary below describes an article following the colloquium L'entreprise instituée Juge et Procureur d'elle-même par le Droit de la Compliance (The Entreprise instituted Judge and Prosecutor of itself by Compliance Law) , co-organized by the Journal of Regulation & Compliance (JoRC) and the Faculté de Droit Lyon 3. This manifestation was designed under the scientific direction of Marie-Anne Frison-Roche and Jean-Christophe Roda and took place in Lyon on June 23, 2021. During this colloquium, the intervention was shared with Jan-Marc Coulon, who is also a contributor in the book (see the summary of the Jean-Marc Coulon's Article).
In the book, the article will be published in Title I, devoted to: L'entreprise instituée Juge et Procureur d'elle-même par le Droit de la Compliance (The Entreprise instituted Judge and Prosecutor of itself by Compliance Law ).
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► Summary of the article (done by the author): The Company is caught in the grip of Compliance Law, the jaws of which are those of Incitement (1) and Sanction that the Company must apply to ensure the effectiveness of its processes to which it is itself subject (2 ).
First, the Company has been delegated to fabricate reprehensible rules that it must apply to itself and to third parties with whom it has dealings. To this end, the Company sets up "processes", that is to say verification and prevention procedures, in order to show that the offenses that it is likely to commit will not happened.
These processes constitute standards of behavior to prevent and avoid that the facts constituting the infringements are not themselves carried out. They are thus one of the elements of Civil Liability Law in its preventive or restorative purposes.
Second, the sanction of non obedience of Compliance processes puts the Company in front of two pitfalls. The first dimension place the company, with regard to its employees and its partners, in the obligation to define processes which also constitute the quasi-jurisdictional resolution of their non-compliance, the company having to reconcile the sanction it pronounces with the fundamental principles of classical Criminal Law, constitutional principles and all fundamental rights. The processes then become the procedural rule.
The second dimension is that the Company is accountable for the effectiveness of the avoidance by its processes of facts constituting infringements. By a reversal of the burden of proof, the Company is then required to prove that its processes are efficient. at least equivalent to the measures defined by laws and regulations, the French Anti-Corruption Agency (Agence Française Anticorruption - AFA), European directives and various communications on legal tools to fight breaches of probity, environmental attacks and current societal concerns. The processes then become the constitutive element, per se, of the infringement.
Thus, in its search for a balance between Prevention and Sanction to which it is itself subject, the Company will not then be tempted to favor the orthodoxy of its processes over the expectations of the Agence Française Anticorruption - AFA , regulators and judges, to the detriment of their efficiency?
In doing so, are we not moving towards an instrumental and conformist Compliance, paradoxically disempowering with regard to the Compliance Monumental Goals of Compliance?
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Feb. 2, 2023
Publications
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► Full Reference: M.-A. Frison-Roche, "Le juge, l'obligation de compliance et l'entreprise. Le système probatoire de la Compliance" ("The judge, the compliance obligation, and the company. The Compliance probationary system"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p 409-442.
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📝read the article (in French)
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🚧read the bilingual Working Paper which is the basis of this article, with additional developments, technical references and hyperlinks
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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published
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► Summary of the article (done by the Journal of Regulation & Compliance): the article aims to identify the link that must be established between the company in its relationship with the compliance obligations it assumes and the judges to whom it is accountable in this respect: this link is established by evidence. The evidentiary system of proof has yet to be constructed, and it is the purpose of this long study to lay the groundwork.
To this end, the article begins with a description of what is designated here as the "probatory square" in a "probatory system" that is superimposed on the system of rules of substantive legal system. This is all the more important because Compliance seems to be in frontal collision in its very principles with the general principles of the evidentiary system, in particular because it seems that the company would have to prove the existence of the Law or that it would have to bear in a definitive way the burden of proving the absence of violation, which seems to be contrary not only to the presumption of innocence but also to the principle of the freedom of action and of undertaking. In order to re-articulate Compliance Law, the obligations of compliance which legitimately weigh on the company, it is necessary to return to the probatory system specific to Compliance, so that it remains within the Rule of Law. This presupposes the adoption of a substantial definition of Compliance, which is not only compliance with the rules, which is only a minimal dimension, but implies that Compliance Law should be defined by the Monumental Goals on which the public authorities and the companies are in substantial alliance.
The evidentiary system of principle makes play between its four summits that are the burden of proof, the objects of proof this evidentiary square of principle, between the burden of proof, the means of proof and their admissibility. Compliance Law does not fall outside this evidential square, thus marking its full membership of the Rule of Law
In order to lay the foundations of the evidential system specific to Compliance Law, the first part of the article identifies the objects of proof which are specific to it, by distinguishing between the structural devices, on the one hand, and the expected behaviours, on the other. The first involves proving that the structures required to achieve the Monumental Goals of Compliance have actually been put in place. The object of proof is then the effectiveness of this implementation, which presents the effectiveness of the system. As far as behavioral obligations are concerned, the object of proof is the efforts made by the company to obtain them, the principle of proportionality governing the establishment of this proof, while the systemic efficiency of the whole reinforces the evidential system. However, the wisdom of evidence lies in the fact that, even though the principle remains that of freedom of evidence, the company must establish the effectiveness, efficiency, and effectiveness of the whole, independently of the burden of proof.
The second part of the article concerns those who bear the burden of proof in Compliance Law. The latter places the burden of proof on the company in principle, in view of its legal obligations. This burden comes from the legal origin of the obligations, which blocks the "round of the burden of proof". But in the interference of the different vertices of the evidentiary square, the question becomes more delicate when it comes to determining the contours of the compliance obligations that the company must perform. Moreover, the burden of proof may itself be the subject of proof, just as the company's performance of its legal obligations may also be the subject of contracts, which brings us back to the evidentiary system ordinarily applicable to contractual obligations. The situation is different when it comes to a "compliance contract" or when it comes to one or more compliance stipulations, concepts that are still not very well developed in Contract Law.
Furthermore, as all branches of Law belong to a legal system governed by the Rule of Law, other branches of law interfere and modify the methods and solutions of proof. This is the case when the fact, which is the object of proof, can give rise to a sanction, the Law of repression imposing its own solutions in the matter of the burden of proof.
In the third part of the article, the relevant means of proof in Compliance Law are examined, used in that Compliance Law is above all a branch of Law whose object is on the one hand information and on the other hand the Future. Open questions remain, such as whether companies could be forced by the Judge to build technologies to invent new means of proof. To show that they are indeed achieving the Monumental Goals they are charged with.
In the fourth part, the vital character of the pre-constitution of evidence is shown, which is the reflection of the Ex-Ante nature of Compliance Law: evidence must be pre-constituted to avoid the very prospect of having to use it, by finding all the means to establish the effectiveness, efficiency and even the effectiveness of the various Compliance Tools.
If companies do all this methodically, the Compliance evidence system will be established, in harmony with the general evidence system, Compliance Law and the Rule of Law.
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Oct. 5, 2022
Interviews
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► Référence complète : M.-A. Frison-Roche, " Youporn : Le Droit doit se renouveler face à la transformation du monde par l'espace numérique", entretien avec Olivia Dufour, Actu-juridique, 5 octobre 2022.
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💬Lire l'entretien dans son intégralité
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Lire l'entretien précédent : 💬L'efficacité de la Compliance illustrée par l'affaire Youporn
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► Présentation de l'entretien par le journal : "Comment parvenir à bloquer efficacement l’accès des mineurs aux contenus pornographiques sur internet ? C’est à cette difficile question que s’est attaquée l'Arcom (Autorité de régulation de la communication audiovisuelle et numérique). Avec pour l’instant un succès mitigé. Début septembre, alors que le régulateur demandait au juge de bloquer les cinq sites n’ayant pas obéi à son injonction de modifier leurs conditions d’accès, la justice a décidé de renvoyer le dossier devant un médiateur. Entre temps, un rapport sénatorial publié le 28 septembre souligne l’urgence d’agir. Nous avons demandé au professeur Marie-Anne Frison-Roche, spécialiste de droit de la compliance, comment à son avis il est possible de lutter efficacement contre les dérives de l’industrie pornographique".
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► Questions posées :
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July 6, 2022
Publications
🌐follow Marie-Anne Frison-Roche sur LinkedIn
🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law
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► Full Reference: M.-A. Frison-Roche, "L'appui du Droit de la Compliance pour la maîtrise quotidienne du Droit de la concurrence" ("The support of Compliance Law for the daily mastery of Competition Law"), in C. Lemaire & F. Martucci (eds.), Liber Amicorum Laurence Idot. Concurrence et Europe, vol. I, pref. C. Lemaire & F. Martucci, foreword B. Lasserre, Concurrences, 2022, pp. 369-374
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► English Summary of the article: Competition Law has become so huge and has included so many regulations and "regulatory" perspective that we end up giving up trying to grasp it as a whole, preferring to become a specialist in one of its parts. That would be to lose sight of the simple and strong reason that unites the whole and gives it its breath: Freedom.
Freedom experienced by the persons in their daily economic action, Freedom guarded by Competition Law, always returning to its principle: Free Competition. Therefore, the European Union places great emphasis on Competition. To make effective and to keep it in this state, “Competition Policy” is based on Competition Law, but if authorities and judges do not blame companies for their power, they do not rely on it.
To do this, Competition Law must be supported by Compliance Law, which strongly encourages companies to act for the effectiveness and the promotion of competitive principles. Competition Law is thus slipping from the Ex-Post towards the Ex-Ante, the commitments of companies leading them to cease being passive, even punished, to become convinced actors and themselves pedagogues. Something to please a great Professor of Competition Law, to whom homage is paid here.
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📗read the Table of Contents of the book in which this article is published (in French)
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🚧read the bilingual Working Paper which is the basis of this article, with additional developments, technical references and hyperlinks
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📝read the article (in French)
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Sept. 17, 2021
Thesaurus : Doctrine
► Full Reference complète : Beaussonie, G., Do Criminal Law and Compliance form a system?, in Frison-Roche, M.-A. (ed.),Compliance Monumental Goals, series "Compliance & Regulation", Journal of Regulation & Compliance (JoRC) and Bruylant, to be published.
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► Article Summary: By nature, Criminal Law is a system that is not intended to develop, principles which limit it being internal to it. Nevertheless if Proportionality is respected, its extension may be legitimate to preserve “fundamental social values” because Criminal Law is the branch of Law concerning what is grave, grave in consequences as in causes.
Not always being concerned by Efficiency, the temptation is important to supplement Criminal Law with other repressive mechanisms , not only Administrative Repression but today Compliance which pursues concordant objectives and aims by the "Goals Monumental ”to what would be most important and therefore for which Efficiency would be required, in particular because victory (for example against corruption) should be global.
Efficiency is obtained by the internalisation in powerful companies, but this efficiency comes at a price and Criminal Law should not impose too many obligations to do maintaining only a potential link with the commission of a "real offense ”. Its association with Compliance can therefore also only be exceptional and must not lead to forget that Freedom must always remain the principle.
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📝 Read the general presentation of the book in which this article is published.
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July 22, 2021
Publications
►Full reference: Frison-Roche, M.-A., Definition of Principe of Proportionality and definition of Compliance Law, Working Paper, July 2021.
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🎤 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 Compliance, in the Series Régulations & Compliance
📘 in its English version in the book Compliance Monumental Goals, in the Series Compliance & Regulation
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► 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 controlling the proportionality mechanism that makes this new system work.
The case law of the German Constitutional Court 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.
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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.
June 2, 2021
Publications
Full Reference : Frison-Roche, M.-A..,Rights, primary and natural Compliance Tools, in Frison-Roche, M.-A. (ed.), Compliance Tools, series "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Bruylant, 2021, p. 319-342
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Article Summary: In the traditional conception of the architecture of the sectors regulated by Law, and in Compliance Law which extends the regulatory techniques, rights have little place. But this configuration no longer takes place; on the contrary, rights are at the center of Regulatory and Compliance systems, and will be more and more so. They are and will be the primary tools of Compliance Law because they constitute a very effective "tool" to ensure the entire functioning of a system whose goals are so difficult to achieve. Because every effort must be done to achieve these goals, the public authorities not only rely on the power of crucial operators, but also distribute prerogatives to people and organizations who, thus encouraged, activate the Compliance system and participate in the achievement of the "monumental goal". Rights can prove to be the most effective tools for actually achieving the goals set, so much so that they can be seen as "primary tools".
But it is pertinent to have more pretension and to conceive rights as the most "natural" tools of Compliance Law. Indeed because all the Monumental Goals by which Compliance Law is defined can be expressed by the protection of persons, that is to say to the effectiveness of their prerogatives, by a mirror effect between rights. given as tools by Law by to persons and rights which constitute the very goal of all Compliance Law, in particular the protection of all human beings, even if they are in a situation of great weakness, rights becoming a "natural tool" of Compliance Law.
We are only at the beginning of their deployment and it is undoubtedly on them that Digital space in which we now live would be regulated, so that we will not suffocated there and that it will constitute for people a civilized space.
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Read the General Presentation of the book in which this article has been published
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April 21, 2021
Publications
► Full Reference: M.-A. Frison-Roche, "Les droits subjectifs, outils premiers et naturels du Droit de la Compliance" ("Rights, primary and natural Compliance Tools"), in M.-A. Frison-Roche (ed.), Les outils de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2021, p. 301-323.
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📝read the article (in French)
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🚧read the bilingual Working Paper which is the basis of this article, with additional developments, technical references and hyperlinks
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📕read a general presentation of the book, Les outils de la Compliance, in which this article is published
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► Summary of this article (done by the Journal of Regulation and Compliance): In the traditional conception of the architecture of the sectors regulated by Law, and in Compliance Law which extends the regulatory techniques, rights have little place. But this configuration no longer takes place; on the contrary, rights are at the center of Regulatory and Compliance systems, and will be more and more so. They are and will be the primary tools of Compliance Law because they constitute a very effective "tool" to ensure the entire functioning of a system whose goals are so difficult to achieve. Because every effort must be done to achieve these goals, the public authorities not only rely on the power of crucial operators, but also distribute prerogatives to people and organizations who, thus encouraged, activate the Compliance system and participate in the achievement of the "monumental goal". Rights can prove to be the most effective tools for actually achieving the goals set, so much so that they can be seen as "primary tools".
But it is pertinent to have more pretension and to conceive rights as the most "natural" tools of Compliance Law. Indeed because all the Monumental Goals by which Compliance Law is defined can be expressed by the protection of persons, that is to say to the effectiveness of their prerogatives, by a mirror effect between rights. given as tools by Law by to persons and rights which constitute the very goal of all Compliance Law, in particular the protection of all human beings, even if they are in a situation of great weakness, rights becoming a "natural tool" of Compliance Law.
We are only at the beginning of their deployment and it is undoubtedly on them that Digital space in which we now live would be regulated, so that we will not suffocated there and that it will constitute for people a civilized space.
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Updated: Dec. 24, 2020 (Initial publication: July 15, 2020)
Publications
This Working Paper has been the basis for the first conference of the two conferences in the colloquium in Toulouse (France) under the scientific direction of Lucien Rapp, about Les incitations, outils de la Compliance ("Incitations, as Compliance Tools"), on December 12, 2019, the first one about The sanction as incitation and the second one about Incitations and Compliance Law (synthesis of this colloquium).
Then, it has been the basis for the article, to be published in the books Les outils de la Compliance and Compliance Tools in the Series Régulations & Compliance.
Read a general presentation of this book.
Summary and Introduction of this Working Paper: At first glance, Compliance and Incentives appear to be totally opposite. For two major reasons. In the first place, because the sanctions have a central place in the Law of Compliance and the incentives suppose an absence of constraint on the operators. Secondly, because the incentives are linked to self-regulation and that Compliance Law assumes a strong presence of public authorities. Taking the first reason, one should choose: either Compliance or Incentives! Either the effectiveness of one or the effectiveness of the others; either the techniques of one or the techniques of others; either the philosophy of one or the philosophy of the others. Resign oneself to the loss that such a necessary choice would involve. But to put the terms thus amounts to think poorly about the situations and reduce the fields of the solutions which they call for. If we take a rich definition of Compliance Law, it is possible on the contrary to articulate Compliance and Incentives. From this perspective, sanctions can no longer become what blocks the use of incentives but, on the contrary, what constitutes them. Even more, the coupling between Incentives and the requirements of Compliance Law must be strongly encouraged, as soon as the public authorities supervise in Ex Ante all the initiatives taken by the "crucial operators".
This working document deals with the first issue
An honest observer can only feel immediately uneasy. Indeed, he can only raise the definition of the sanction as a "constraint" triggered Ex Post, at the very heart of Compliance Law which is presented as a set of Ex Ante mechanisms. Based on this contradiction in terms, should we give up the association and think that it would be wrong against the spirit to think of the sanction as an incentive?
It is undoubtedly in this connection that one perceives most clearly the clash of two cultures, which do not communicate, while technically they apply to the same situations. Indeed, because Compliance was firstly designed by Finance, everything is a tool for it. Therefore, the tendancy to think about the sanction only as an incentive is very strong in Compliance Law. It manifests itself continuously and will not stop (I). But whatever the reasons are to conceive it this way, the principles of the Rule of Law cannot disappear and if we do not want them to be erased, then they must be articulated (II). It’s an essential adjustment.
This is why we can literally say that Compliance has set Criminal Law on fire by its conception, logical but closed in on itself, of sanctions as simple incentives. For Law to remain, however, it is necessary to hold a very firm definition of Compliance Law centered on its Monumental Goal, which is the protection of the person.
La seconde problématique est analysée in "Compliance et Incitation : un couple à propulser", 2020.
Dec. 8, 2020
Thesaurus : Doctrine
► Référence complète : E. Mouial Bassilana, "Le contrat", in J.-B. Racine (dir.), Le droit économique au XXIe siècle. Notions et enjeux, LGDJ, coll. "Droit & Économie", 2020, pp. 212-235
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📕consulter une présentation générale de l'ouvrage, Le droit économique au XXIe siècle. Notions et enjeux, dans lequel cet article est publié
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► Résumé de l'article :
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🦉Cet article est accessible en texte intégral pour les personnes inscrites aux enseignements de la Professeure Marie-Anne Frison-Roche
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March 5, 2020
Conferences
Référence : Frison-Roche, M.-A., La mesure de l'effectivité et de l'efficacité des outils de la compliance (conception, présentation et modération des débats), in Les outils de la Compliance, Journal of Regulation & Compliance.
Voir les autres thèmes, autres dates et autres manifestations particulières du cycle dans son ensemble.
Cette conférence sert d'appui à la réalisation d'un ouvrage plus global portant d'une façon générale sur Les outils de la Compliance.
L'ouvrage Compliance Tools sera publié en même temps.
Présentation de la Conférence : Après avoir examiné différents outils spécifiques, comme La cartographie des risques ou Les incitations, et avant d'en aborder d'autres comme ceux relevant de la a Compliance by Design, celle-ci méritant aussi d'être examinée avec quelque distance dans sa prétention à être la solution à tout enjeu de compliance, il convient de regarder comment l'on mesure l'efficacité de tous ces outils de Compliance. En effet, puisque toutes les techniques sont des "outils", ils ne prennent sens qu'au regard d'une finalité qu'ils doivent atteindre effectivement. Cette effectivité doit être mesurée, et cela dès l'Ex Ante, l'entreprise devant en permanence donner à voir l'effectivité de la performance des outils de la Compliance.
Mais autant les normes prolifèrent, les discours se multiplient, les engagements sont pris, autant les techniques de mesure de l'effectivité de l'ensemble semblent assez faibles. Non pas que les sujets de droit astreints aux obligations de Compliance ou désireux de réaliser les buts systémiques ou de bien commun visés par la Compliance ne désirent pas en avoir, mais ces instruments de mesure semblent encore les moins construits, souvent déclaratifs ou de type discursifs, ou trop mécaniques. Dès lors, est-ce en partant du but que l'on cherche à atteindre que l'on doit mesurer l'efficacité des outils de Compliance, sans que cela transforme les tâches qui pèsent de grè ou de force sur les opérateurs en obligation de résultat ? Ou est-ce en demeurant en amont, par une seule "conformité" à ce qui leur est demandé, comme comportement et comme organisation structurelle, que les entreprises donnent à voir qu'elles ont effectivement rempli leur tâche, sans plus se soucier des effets produits sur la réalité des choses, cette réalité que ceux qui ont conçu la norme avaient en tête ?
Cette question a des implications majeure en terme de charge de preuve et de responsabilité, impliquant des organisations plaçant la confiance, coeur de la Compliance, plutôt dans des instruments technologiques connectant des data ou plutôt dans des personnes ayant le sens du bien commun. Cette question est aujourd'hui ouverte.
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Dec. 18, 2019
Publications
Référence complète : Frison-Roche, M.-A., Le maniement de la propriété intellectuelle comme outil de régulation et de compliance, in Vivant, M. (dir.), Les Grands Arrêts de la propriété intellectuelle, 3ième éd., 2019, 9-11, p.43-53.
This contribution is written in French.
Summary:
Intellectual Property, which comes from the State and is incorporated into public policy, can be designed not to reward the creator a posteriori, but to encourage others to innovate. It is then an Ex Ante regulatory tool, an alternative to the subsidy. If private copying is an exception, it is not in relation to the principle of Competition but in an insertion into a system of incentives, starting from the costs borne by the creator of the first innovation: the rights holder is then protected , not only according to a balance of interests involved but in order not to discourage innovative potentials and the sector itself. (1st decision) ;
The sectoral policy then permeates Intellectual Property, used to regulate a sector, for example that of the drug. While it is true that a laboratory wishing to market a generic drug did not wait for the expiration of the patent for the original drug to do so, it is however not relevant to sanction this anticipation by a few days because the investments made by the holder of the Intellectual Property right have been made profitable by this one and because the public authorities favor the generics in a concern of public health (2nd decision).
Systemic interest prevails and therefore Internet service providers have to bear the costs of blocking access while they are irresponsible because of the texts. This obligation to pay is internalized by Compliance Law because they are in the digital system best able to put an end to the violation of Intellectual Property rights which the ecosystem requires to be effective. (3rd decision).
Read the contribution (in French).
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Nov. 16, 2019
Publications
The Finance Bill has proposed to the Parliament to vote an article 57 whose title is: Possibilité pour les administrations fiscales et douanières de collecter et exploiter les données rendues publiques sur les sites internet des réseaux sociaux et des opérateurs de plateformes (translation: Possibility for the tax and customs administrations to collect and exploit the data made public on the websites of social networks and platform operators).
Its content is as is in the text voted on in the National Assembly as follows:
"(1) I. - On an experimental basis and for a period of three years, for the purposes of investigating the offenses mentioned in b and c of 1 of article 1728, in articles 1729, 1791, 1791 ter, in 3 °, 8 ° and 10 ° of article 1810 of the general tax code, as well as articles 411, 412, 414, 414-2 and 415 of the customs code, the tax administration and the customs administration and indirect rights may, each as far as it is concerned, collect and exploit by means of computerized and automated processing using no facial recognition system, freely accessible content published on the internet by the users of the online platform operators mentioned in 2 ° of I of article L. 111-7 of the consumer code.
(2) The processing operations mentioned in the first paragraph are carried out by agents specially authorized for this purpose by the tax and customs authorities.
(3) When they are likely to contribute to the detection of the offenses mentioned in the first paragraph, the data collected are kept for a maximum period of one year from their collection and are destroyed at the end of this period. However, when used within the framework of criminal, tax or customs proceedings, this data may be kept until the end of the proceedings.
(4) The other data are destroyed within a maximum period of thirty days from their collection.
(5) The right of access to the information collected is exercised with the assignment service of the agents authorized to carry out the processing mentioned in the second paragraph under the conditions provided for by article 42 of law n ° 78-17 of January 6, 1978 relating to data processing, the files and freedoms.
(6) The right to object, provided for in article 38 of the same law, does not apply to the processing operations mentioned in the second paragraph.
(7) The terms of application of this I are set by decree of the Council of State.
(8) II. - The experiment provided for in I is the subject of an evaluation, the results of which are forwarded to Parliament as well as to the National Commission for Data Protection at the latest six months before its end. "
This initiative provoked many comments, rather reserved, even after the explanations given by the Minister of Budget to the National Assembly.
What to think of it legally?
Because the situation is quite simple, that is why it is difficult: on the one hand, the State will collect personal information without the authorization of the persons concerned, which is contrary to the very object of the law of 1978 , which results in full disapproval; on the other hand, the administration obtains the information to prosecute tax and customs offenses, which materializes the general interest itself.
So what about it?
Read below.
June 28, 2019
Publications
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.
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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".
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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:
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June 23, 2019
JoRC
The European Banking Union is based on supervision as much as on regulation: it concerns the operators as much as the structures of the sector, because the operators "hold" the sector.
This is why the "regulator - supervisor" holds the operators by the supervision and is close to them.
He meets them officially and in "soft law" relations. This is all the more necessary since the distinction between the Ex Ante and the Ex Post must be nuanced, in that its application is too rigid, in that it involves a long time (first of all the rules, then to apply them, then to notice a gap between rules and behaviors, then to repair it) is not appropriate if the system aims at the prevention of systemic crises, whose source is inside the operators.
This is why the body in charge of solving the difficulties of the systemic banks for the salvation of the systeme meets the banking sector itself, to ensure that they are permanently "resolvable", so that the hypothesis of their resolution never arises. This is the challenge of this system: that it is always ready, for never be applying.
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In the European Banking Union, the Single Resolution Board (SRB) is in charge of "resolve" the difficulties of European systemic banks in difficulty. It is the public body of the second pillar of the Banking Union. The first pillar is the prevention of these difficulties and the third is the guarantee of deposits. The resolution is therefore more like an Ex Post mechanism.
But in this continuum through these three pillars between the Ex Ante and the Ex Post, the SRB does not wait passively - as would a traditional judge do - that the file of the troubled bank reaches it. Like a supervisor - which brings it closer to the first public in the system (Single Supervisory Board -SSB), which supervises all the banks, it is in direct contact with all the banks, and it approaches the hypothesis of a bank in trouble by a systemic perspective: it is therefore to the entire banking system that the SRB addresses itself.
As such, it organizes meetings, where he is located: in Brussels.
To resolve in Ex Post the difficulties of a bank, it has to present a quality (a little known concept in Bankruptcy Law): "resolvability". How build it? Who build it ? In its very design and in its application, bank by bank.
For the resolution body vis-à-vis all players in the banking and financial sector, it's clear: "Working together" is crucial in building resolvability ".
In the projection that is made, it is affirmed that there can be a successful resolution only if the operator in difficulty is not deprived of access to what makes to stay it alive, that is to say the banking and financial system itself, and more specifically the "Financial Market Infrastructures", for example payment services.
Does the Single Resolution Board expect spontaneous commitments from the FMIs for such a "right of access"? In this case, as the Single Resolution Board says, this right of access corresponds to "critical functions" for a bank, the resolution situation can not justify the closure of the service.
By nature, these crucial operators are entities that report to regulators who oversee them. Who enforces - and immediately - this right of access? When one can think that it is everyone, it risks being nobody .... That is why the resolution body, relaying in this a concern of the Financial Stability Board, underlines that it is necessary to articulate the supervisors, regulators and "resolvers" between them.
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To read this program, since it is a proposed program of work for the banking sector, four observations can be made:
1. We are moving more and more towards a general "intermaillage" (which will perhaps replace the absence of a global State, but it is an similar nature because it is always to public authorities that it refers and not to self-regulation);
2. But as there is no political authority to keep these guardians, the entities that articulate all these various public structures, with different functions, located in different countries, acting according to different temporalities, these are the companies themselves that internalize the concern that animates those who built the system: here the prevention of systemic risk. This is the definition of Compliance, which brings back to companies, here more clearly those those which manage the Market Infrastructures, the obligations of Compliance (here the management of systemic risk through the obligation of giving access).
3. Even without a single systemic guard, there is always a recourse. That will be the judge. There are already many, there will probably be more in a system of this type, more and more complex, the articulation of disputes is sometimes called "dialogue". And it is undoubtedly "decisions of principle" that will set the principles common to all of these particular organisms.
4. We then see the emergence of Ex Ante mechanisms for the solidity of the systems, and the solidity of the players in the systems, and then the Ex Post resolution of the difficulties of the actors according to access to the solidity of the infrastructures of these systems, which ultimately depend on judges (throughout the West) facing areas where all of this depends much less on the judge: the rest of the world.
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Jan. 2, 2019
Publications
► Référence complète : M.-A. Frison-Roche, "What can Compliance Law build relying on the European Humanist Tradition", Working Paper, January 2019.
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This working paper has served as a basis for an article published in French in the collective publication Pour une Europe de la Compliance in the serie Regulation & Compliance.
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Compliance is often presented as a complex, technical, almost incomprehensible set, in that it consists only of empty and moving procedures, mechanical corpus about which the goal would be a question that would not arise.
The question of the purpose of these huge compliance devices might not even have to be asked. And this for two reasons.
Firstly it would only be a matter of following "processes", that is, mechanical and endless procedures. This conception of compliance is often called "kafkaes". Closer to closer, one thinks first of all of the book written by Kafka's The trial l and Welles' adaptation to the cinema in which the charcters are surrounded by walls that are narrowing around them, but it is rather to his novel In the penal colony that must be thought, that is to say to a procedural system of isolation which we do not understand the foundation, which makes it without foundation and without end but also which takes mainly the form of a machine in which the person is placed and which mechanically writes the Law on and under the skin of his back. This internalization of the rule in the body of the condemned - that the French legal system before the French Revolution associated only with "enormous crimes" - being the ordinary way of actual and ordinary application of the rules can correspond to a certain vision of the Compliance, detached from any purpose.
The question of the purpose of Compliance may also not have to arise for a second reason, almost the opposite: they would always be devices that are specific to particular sectors. Thus, the banking sector, the insurance sector, the drug sector, the agri-food sector, the telecommunications sector, the energy sector, etc. Then the opposite happens: too many goals! Since each of these sectors has specificities such that it includes purposes that are specific to each of them. For example continuity for energy, access information for telecommunications, control of systemic risk for banking and finance, protection and secret for private information, etc. Now, either these ends so diverse are indifferent to each other, or they can contradict each other. Therefore, to ask the question of the purpose of compliance mechanisms would be to move to the stitution of not even trying to understand "processes" to be exceeded by too many substantial purposes pursued at the same time and in contradictorily senses ... .
This is why the question of the purpose of the Compliance is not asked in a main way. Even less if it is superimposed with another goal that is the European construction ....
But on the contrary, if we confront this question of the aims of the Compliance Mechanisms by crossing it with another issue, older but also under construction, namely the question of Europe, it is possible to make an alliance of these two difficulties to transform them as an asset. That one can help the other. Indeed, both Europe and Compliance in their current states are two constructs with uncertain goals or behaviors most often only "reactive" (I). If we do not want to mobilize all our strength to limit our weakness, which leads rather to feed it, we can go draw on the unity of this Europe so diverse but which finds it unity in the protection of the human being by the very idea of "person". However, Compliance Law can have the same unity, despite the diversity of sectors, and thus fill the meaning of these multiple procedures, providing the balance between information and secrets, circulation of data and conservation of that they concern, common and dialectic purpose that this European Compliance Law. in the process of being constituted can give the world an example in relying on the European tradition (II).
Nov. 5, 2018
Publications
Référence générale : Frison-Roche, M.-A., Banque et concurrence, in "Mélanges en l'honneur du professeur Claude Lucas de Leyssac", LexisNexis, 2018, pp.165-180.
Résumé : Banque et concurrence ne font pas bon ménage. Ce n'est pas tant que les banques feraient figure de récidivistes à propos desquels les autorités de concurrence devraient hausser le ton par des sanctions toujours plus lourdes afin que la leçon concurrentielle soit enfin entendue. Ce sont plutôt deux ordres qui s'affrontent, deux incompréhensions face à face. En effet les banques trouvent adéquat de s'entendre pour que le système bancaire fonctionne. Plus encore, les pouvoirs publics leur demandent un comportement politique en finançant l'économie lorsque celle-ci ne s'appuie pas sur les marchés financiers, voire de lutter contre l'exclusion sociale en pratiquant « l'inclusion bancaire », bastion avancé de la conception de l'entreprise promue par le Plan très politique d'Action pour la Croissance et le Transformation des Entreprises (PACTE). dès lors, comment elles-mêmes auraient-elles un comportement de marché consistant dans un comportement égoïste et d'agression envers leur homologue ?
Si l'on plonge dans ce creuset de l'incompréhension qui engendre le heurt violent entre les banques, qui évoquent leur mission, et les autorités de concurrence, qui se prévalent de la leur, on bute sur l'écueil de la définition même de ce qu'est une banque. L'on peut estimer qu'une banque est un prestataire de services divers, agissant sur des marchés en concurrence ; le droit assure le bon fonctionnement de ceux-ci, les autorités qui gardent l’efficacité des marchés se saisissant des banques qui y exercent leurs activités. Mais si l'on choisit d'insister sur le fait que les banques sont ce qui fait fonctionner l'économie et consolident le lien social, elles sont alors partie intégrante d'un système propre : le système bancaire, lequel est un élément essentiel de la société. La concurrence n'y est plus qu'adjacente.
Nov. 5, 2018
Publications
Sous l'égide de la Banque Mondiale, tous les deux ans, se réunit l' "Alliance des chasseurs de la corruption".
Les 25 et 26 octobre 2018, la rencontre se déroulait à Copenhague.
L'on pouvait suivre en direct les travaux de cette rencontre, qui demeurent ainsi disponibles.
L'on peut faire trois observations.
1. Tous stakeholders ! Sur le fond, l'on soulignera que, comme y a insisté au nom de la Banque Mondiale Pascale Dubois, elle-même en charge des politiques d'intégrité lors de la mise en place des programmes dans les pays, les actions contre la corruption bénéficient de plus en plus de l'action des entreprises, qui aujourd'hui voient leur réputation impliquée, réputation qu'elles perçoivent comme un actif à préserver ce qui justifie leur participation active à cette "Alliance". Cela renvoie à l'idée d'un "cercle de confiance" sur lequel repose la Compliance, même lorsqu'il y a contrainte exercée sur les entreprises, l'oratrice ayant abondamment parlé des programmes de compliance.
2. Une "Alliance" plutôt qu'un Ordre international inefficace ! Entre la forme et le fond, et bien que l'on puisse trouver grâce aux sites les précédentes rencontres biennales, le terme commun d' "Alliance" dans l'intitulé même d' International Corruption Hunters Alliance a de quoi retenir l'attention. En effet, dans l'ordre international ce sont les institutions internationales qui se rencontrent selon des formes codifiées, avec des textes, voire des accords, qui en résultent. Ici, nous avons des personnes "impliquées", à tous les titres : Etats, organisations publiques mais aussi entreprises et organisations non-gouvernementales. Comme le reflètent ce terme sans cesse utilisé par ces travaux de stakeholders, terme qui a la caractéristique pratique de pouvoir inclure tout le monde.
Il est vrai que la corruption est un fléau mondial qui concerne le particulier, les entités et les systèmes dont les institutions sont gardiennes : chacun peut donc à la fois en dire quelque chose et agir. Cette "Alliance" marque simplement le recul assumé d'un "ordre international" qui sans doute n'a pas pu se constituer à temps, alors que la criminalité trouve dans la globalisation un espace naturel, utilisant la fragmentation territoriale des Droits comme un bouclier que l'impératif de lutte ne semble plus pouvoir tolérer...
3. Tous "chasseurs" ! ou l'archaïsation du Droit de la Compliance. Le terme de "chasseurs" (hunters) est sur la forme plus encore remarquable. Cela rappelle le temps des "chasseurs de prime". Et c'est d'ailleurs parfois à ceux-ci que l'on compare les "moniteurs" dont l'efficacité est requise dans les techniques de programmes de compliance, leur exploits qu'ils relatent sur leur site étant parfois comparés à un "tableau de chasse" à la vue des entreprises terrassées. Cela n'est pas critiquable en soi. L'idée est qu'il faut pourchasser un fléau (la corruption étant implicitement comparée à une sorte de bête sauvage qui ravage tout).
Face à ce but, chacun est chasseur, l'entreprise comme l'ONG comme le tribunal comme le Gouvernement. Cela est de fait d'autant plus pertinent que sous un angle mondial la corruption s'étant infiltrée dans chaque catégorie, il convient sans doute de revenir à un tableau plus simple et plus archaïque : un fléau bien identifié (la corruption) et tout intéressé à l'éliminer dans une chasse "collective" (les intervenants ayant tous insisté sur ce caractère collectif).
Si on l'analyse du point de vue du droit, cela signe une nouvelle fois le mouvement d'archaïsation très fort du Droit de la Compliance, puisque les catégories juridiques s'effacent (par exemple la distinction entre l'entreprise privée et l'Etat) pour privilégier l'efficacité au regard d'un but.
Dans ce droit, dont Alain Supiot souligne notamment le caractère régressif et guidé par le principe de l'efficacité (qui n'est qu'un principe procédurale), pondéré par le principe de proportionnalité (qui n'est lui-aussi qu'un principe procédural), le Droit de la Compliance apparaît comme un Droit nouveau, dont il ne faut sans doute se contenter de viser comme seul principe l'efficacité.
En effet, et comme cela a été bien exposé à Copenhague, les criminels corrupteurs et corrompus ne connaissent plus les frontières dans leur activité mais les redécouvrent, utilisant la territorialité du Droit en défense lorsque des comptes leur sont demandés. La réponse du Droit est pour l'instant dans l'extraterritorialité des règles, les Etats se disputant alors, tandis qu'ils ne semblent s'accorder que dans l'informel des "alliances".
Tout cela montre l'urgence technique de concevoir d'une façon plus substantielle un Droit de la Compliance.
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