► Référence complète : M.-A. Frison-Roche, notes prises pour faire le rapport de  synthèse du colloque Compliance et Contrats, 12 janvier 2024

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🧮lire la présentation de la conférence

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► Méthode : La conclusion a été conçue comme une synthèse des propos qui se sont succédés dans la journée.

Elle nourrira également la contribution à l'ouvrage Compliance et Contrat : "Le contrat public, modèle du contrat de compliance".

Parce qu'il s'agit d'une synthèse, le document ne s'appuie que sur les propos tenus et n'est pas doté de références techniques, ne renvoyant pas non plus à des travaux personnels, même si le lien entre le Droit de la Régulation et le Droit de la Compliance, qu'illustre particulièrement les contrats publics, a fait l'objet de nombreux écrits depuis des années.

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► Full reference: M.-A. Frison-Roche, Conceiving Power, Working Paper, December 2021

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📝 This Working Paper serves as the basis for an article to be published in the collective book drawn up in tribute to Professor Emmanuel Gaillard. 

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► Working Paper summary: In 1985, Emmanuel Gaillard's central work came out under the title Le pouvoir en droit privé  (The Power in Private Law)📎!footnote-2418, but when it was defended in 1981, his thesis directed by Dean Cornu was entitled La notion de pouvoir en droit privé (The notion of Power in Private Law) 📎!footnote-2419.

Let's give full force to the original title of the thesis.  

The deletion of the term notion perhaps implies that by defining something the essential is done, that there would be something of a pleonasm in aiming at The notion of Power and The Power, as Law likes to economise on words.  

But it was indeed a renewed, simpler and more powerful conception of the notion of Power, containing the entire regime necessarily imputed, that this work imposed, henceforth illuminating positive Law. Emmanuel Gaillard's definition, on the other hand, goes beyond Private Law. We would gladly have argued in favour of retaining the heading for the term Notion, proposing instead to dispense with the reference to Private Law alone ....

Perhaps it was because the concept is so vast that in this seminal thesis its scope was restricted to Private Law, since the author already had to account for the sheer multiplicity of manifestations in this part of the legal system; Or perhaps it was because the concept of 'Power' is so familiar in Public Law that it would have needed less definition in Public Law (which, moreover, is so diversely proposed in this more political area, which is already careful on principle to distinguish between powers, which must always be plural in order to be separated), and that it was therefore reasonable to want to arrive at a single concept of Power in Private Law, where the notion of subjective rights is more familiar. 

However, Emmanuel Gaillard's definition of Power as a prerogative placed, by legal rule or contract, in the hands of the person invested with them for the benefit, at least in part, of others, covers both Public and Private Law. This even contributes to the solidity of this thesis and explains why it flourishes today in legal systems where the distinction between Private Law and Public Law is weakening.

The power of this definition lies in its simplicity. Simple and brave minds are often the most fruitful. As Dean Gérard Cornu points out in his preface, the author, in particular because he bases himself more on positive law, for example that relating to the powers of corporate officers, does not get bogged down in discussions between authors only to end up preferring one over the other. He arrives at a definition that is close to our everyday experience: the one we experience when we collect an envelope on behalf of someone else and the agent asks us in what capacity we claim to be doing this on his behalf. We then show him our 'power', the legal power to do so for the benefit of the person to whom the letter is addressed, and can thus exercise the power to withdraw the letter, even though it is personal. When legal and common sense come together, it is a good omen, not only in terms of form, because everyone can understand it and the Law must remain comprehensible, but also in terms of substance, because everyone must be able to control the exercise of a power that is exercised for and over others. For this letter addressed to someone else, the person who has been able to take it by virtue of the power conferred on him/her, could just as easily open it and read it, then destroy it or give it to the worst enemy of the person to whom it was addressed. In Power, there is always might to do, and the danger to others that Power contains therefore. 

This highly legal definition of Power not only distances the holder from his/her own interests, but also channels the Power thus granted to the person who benefits from it. In this respect, Emmanuel Gaillard not only distinguished between Power and subjective right, but also identified the right amount of power required for this power to effectively fulfill this 'Mission', through the notion of abuse of power, when the holder uses for other beneficiaries this power that was conferred on him/her for this sole purpose.

What is more, this concept makes it possible to distinguish Power from discretionary force, because the holder of Power thereby exercises factual , by acting for others, deciding for others, deciding on others. Because Power is inseparable from might, but might must remain the means of power and no more, the Law shall produce the antibodies that are not only the theory of abuse of power but also an Ex Ante responsibility that accounts must always be rendered, either to the other for whom everything is done or to a third party. For this third party is often there from the outset, the guardianship judge for example: because the Power was put in place because of the beneficiary's weakness, both in himself/herself and because of the situation, an impartial and disinterested third party is needed to ensure proper execution from the outset, without there even being a dispute. In this respect, how useful this thesis is for thinking about what Supervision is today!  

This thesis, so clear, so simple and so strong, goes beyond Private or Civil Law. It is both much more restrictive than the more factual and political definition of Oower, which would be the ability to do something, and much broader than the usual definitions, since it embraces and legitimises de jure all situations where a person acts legally for the benefit of another.  Dean Cornu shows, moreover, in two sentences that such a notion of power also captures the office of the judge, who has power over others only to serve them 📎!footnote-2420. The definition corresponds to the mission of one who has power only to fulfill his office. It suits so well the conception we have today of Administration, especially if it takes the form of independent authorities.

Moreover, Power thus contains its own limit in its very definition, since others are present in it: the holder has power only to serve others. From then on, it is only a power because it is a kind of Charge. Emmanuel Gaillard immediately uses the term: "Un individu se voit confier une charge qu'il exerce dans un intérêt au moins partiellement distinct du sien propre"  ("An individual is entrusted with an office which he exercises in an interest at least partially distinct from his own") 📎!footnote-2422. Dean Carbonnier, who reformed the legislation in this area 📎!footnote-2456,, emphasised that the guardian has a public duty because the State entrusts him/her with a child. In the same way parental authority is a charge on the parents for the benefit of the children. More generally, Power is a burden that the Law places on a person to satisfy the interests of another.

This definition offered by Emmanuel Gaillard in 1981, anchored in Private Law only insofar as it is the entire legal system, is premonitory of the Regulatory and Compliance Law as it unfolds today. It would be enough to continue the Gaillard's sentences, as if they had been half-written, to finish them 40 years later and find in them the mechanisms of Supervision of companies by public authorities which are now in place not to reduce their power but to ensure that they exercise it for the benefit of others 📎!footnote-2457. The whole evolution of Company Law and Financial Law is here. Between the lines of this thesis, which develops the notion of duty 📎!footnote-2421, we can also see what positive Law is developing today, in particular through the 'duty of Vigilance', this personal responsibility for the benefit of others (I).

The definition of Power thus conceived contains within itself its regime and enables us to anticipate it better today: because the holder exercises Power only for others, at least partially, he is consubstantially accountable for it, responsibility being only one form of this accountability; because this service must be effective and others must benefit fully from it, because unlike the subjective right which allows the holder freely not to use his might, Power has never been the 'most absolute' availability to use his/her might: it is even the opposite. It is the expression of a Power assigned to a purpose, compelling the holder to use his/her Power to that end.  But it is equally necessary for the holder to have all the might to do so, otherwise the very notion of 'Power' is meaningless. This is the definition that should be given to the principle of Proportionality: the person on whom the Power rests must have not more power than is necessary, but all the power necessary to achieve the Monumental Goals for which the Power has been entrusted to him/her, so that others may derive full benefit from it (II). 

In today's positive Law, the definition of Power as a Duty is found not only in Private Law but also in Public Law, not least because pure might, i.e. those that do not account for the use of their might, are in decline while concern for others is on the increase. The days of discretionary powers are over, and the increased independence of those who exercise Power over others requires them to be accountable. Beyond this Accountability, the personal Responsibility of those who have the Power to serve others is being established. But, no doubt because the Law is slow to evolve, the correlative idea that the holder of Power must have all the powers required to carry out his/her mission is less entrenched:  As Emmanuel Gaillard has shown, the Law has only gone part of the way in sanctioning excesses of power, when the holder uses his/her power for other goals, but it has not yet clearly established that the holder - sometimes forced - of a Power is legitimate in using all the means required to achieve the result for which this Power, i.e. a charge and a duty, has been conferred on him/her.  

No doubt we need to read Emmanuel Gaillard's thesis again in all its potential, to imagine the reading we could do today of what he could have written as if on blank pages that would write themselves, a magical thesis where everything is already there, a thesis so short (250 pages) and so beautiful, so dense that it already contains the Law of the Future. The Law of the Future 📎!footnote-2458  where there must be much more responsibility for the benefit of others📎!footnote-2423 and powers since this notion includes others who are the beneficiaries. Droit de l'Avenir where Emmanuel Gaillard will be present, in particular thanks to this work of doctrine offered in 1981.  So that, in practical terms, those who are entrusted with looking after others - for example, today all companies obliged by Compliance Law to look after others so that they are not destroyed by hatred in the digital space, by corruption in the economic system or by climate change in a projected future - do not find themselves challenged by the same Law for the means of exercising this power for the benefit of others, for example when this involves 'judging'. Dean Cornu himself emphasised the identity of the two offices.

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► Référence : Frison-Roche, M.-A., présidente et membre du jury de la thèse de Mamadou Diallo, , La transposition du pouvoir administratif exorbitant en droit de la régulation économique, Université Panthéon-Sorbonne (Paris I) ,  Salle Duroselle, centre Sorbonne, 6 septembre 2021, 14h30-17h30. 

► Autres membres du jury :  

• Vidal, Laurent, maître de conférences HDR à l’Université de Paris 1 Panthéon-Sorbonne, directeur de la thèse ; 
• Perroud, Th., professeur à l’Université Paris II Panthéon-Assas, rapporteur et membre du jury ; 
• Marty, F., chargé de recherches CNRS, membre du Collège de l’Autorité de la concurrence, Professeur à l’Université de Nice, Rapporteur ; 
• Marais, B. du, conseiller d’État, professeur à l’Université Paris Nanterre.

► Résumé de la  thèse : la thèse prend la force de deux tomes pour un volume de 708 pages. Sa première partie porte sur l'action particulière de l'Etat dans l'économie, tandis que sa seconde partie porte plus particulièrement sur la façon dont le droit de la régulation, dont le droit de la concurrence n'est pas vraiment distingué, exprime cette puissance de l'Etat par rapport aux entreprises privées, exprime la légitimité de l'Etat à obtenir de celles-ci qu'elles obéissent aux règles. La dimension procédurales des institutions ainsi créées, les autorités de régulation, et leur contrôle, est plus particulièrement développée. 

La thèse a été présentée et soutenue publiquement à l'Université Panthéon-Sorbonne (Paris I), au sein de l'Ecole de Droit de la Sorbonne, dans le Département de Droit public et fiscal, le 6 septembre 2021 entre 14h30 et 17h30.

Au terme de la soutenance, le candidat a obtenu le titre de docteur en droit.

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► Lire la thèse 

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