Sept. 1, 2022
Thesaurus : Doctrine
► Full Reference: R.-O. Maistre, "Quels buts fondamentaux pour le régulateur dans un paysage audiovisuel et numérique en pleine mutation ?" ("What Monumental Goals for the regulator in a rapidly changing audiovisual and digital landscape?"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, p. 47-54.
____
📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published
____
____
► Summary of the article (done by the Journal of Regulation & Compliance): In France, since the law of 1982 which put an end to the State monopoly on the audio-visual area, the landscape has profoundly evolved and diversified. In view of the multitude of players who are now established there, the Autorité de régulation de la communication audiovisuelle et numérique - Arcom (French Audiovisual and Digital Regulatory High Council) must ensure the economic balance of the sector and the respect for pluralism, in the interest of all audiences. The growing societal responsibilities of audiovisual media and new digital players have multiplied the "monumental goals" on which the Arcom) is watching.
Its competences have gradually been extended to the digital space and the successive laws concerning its missions aim at new objectives, in particular in terms of protection of minors, fight against online hate or against disinformation. The emergence of a new European model of Regulation makes it possible to give substance to these additional goals, the Regulator adopting a systemic perspective and calling on soft law tools to fulfill its new missions.
________
Sept. 1, 2022
Thesaurus : Doctrine
► Full Reference: A.-V. Le Fur, "Intérêt et raison d’être de l’entreprise : quelle articulation avec les buts monumentaux de la compliance ?" ("Interest and “raison d’être” of the company: how do they fit with the Compliance Monumental Goals?"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, p. 55-67.
____
📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published
____
► Summary of the article (done by the Author): Companies would have a soul. The legislator thinks so, since the French law called "loi Pacte" of 22 May 2019 obliges managers to act in the Corporate Interest and allows companies to formulate themselves a « raison d'être ». Compliance Law does the same, relying on companies to save the world from corruption, slavery, terrorism and global warming, thus achieving Monumental goals.
At first glance, the contours of Corporate Interest and « raison d’être » of the company are not far removed from the notion of Compliance Monumental Goals. This is not surprising, since the objective that presided over their introduction into the French Civil Code is the same as that underlying Compliance Law : to rethink the place of the company in the global Society, by affirming long-term values or concerns. This is a reason to use these corporate law concepts in the context of an X-ray of the concept of Monumental Goals.
However, a comparative approach is disappointing. The divergences between corporate notions and compliance lead to the conclusion that company law is not intended to impose anything other than a corporate public order. Notions that are more philosophical than legal, Corporate Interest and « raison d'être » are assigned functions that limit their scope. The imperative nature of corporate rules, and this is a consequence of the above, cannot be compared with that of compliance: uncertain, it is also relative when compared with the "violence" of compliance rules. The impact of the notions of Interest and « raison d'être » remains thus mainly internal to the company.
According to a second approach, it cannot be ruled out that Corporate Interest and « raison d'être » allow for a better understanding of higher and universal values by Company Law. Corporate Interest may incorporate Compliance Monumental Goals while the « raison d'être » may constitute a perspective for the realization of these goals.
The stakes are high : when the interest of the company, as a legal person and autonomous economic agent, joins the Monumental Goals, the means of achieving the latter are multiplied by internalizing them in all companies, not just the largest ones. However, despite all good intentions, a company is only governable if the compass does not become an elusive and indecisive vane; in other words, if legal certainty is respected. This is why a legal ordering of the concepts is necessary, which ultimately leads to a suggestion of their domain, content and scope.
________
Sept. 1, 2022
Thesaurus : Doctrine
► Full Reference : G. Beaussonie, "Droit pénal et Compliance font-ils système ?" ("Do Criminal Law and Compliance form a system?"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, p. 157-166.
____
📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published
____
► Summary of the article (done by the Journal of Regulation & Compliance): 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.
________
Sept. 1, 2022
Thesaurus : Doctrine
► Full Reference: B. Bär-Bouyssière, "Les obstacles pratiques à la place effective de la proportionnalité dans la compliance" ("Practical obstacles to the effective place of proportionality in Compliance"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, p. 199-208.
____
📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published
____
► Summary of the article (done by the Journal of Regulation & Compliance): The article is based on the undisputed assertion that Proportionality is inherent in Compliance, in particular when this takes the form of a sanction, but the author compares this assertion with its practical implementation.
The author notes that in all the compliance mechanisms, in particular in Competition Compliance, companies have difficulties in practice in satisfying with their obligations in Ex Ante because the standards are very heavy, expensive and difficult to understand, as they have difficulty. in Ex Post to obtain that the authorities do not make a disproportionate use of them, and to obtain that the courts effectively protect them from that.
These practical difficulties are due above all to the diversity of the standards concerned, those who create them as well as those who interpret them having to do so without excess, about what it is very difficult to obtain control. In addition, the weight of the implementation of compliance standards is not correlated with the concrete and financial ability of diverses companies to do so and the design of standards does not always integrate this correlation.
Faced with this, companies then tend to do more than is necessary, in order not to incur sanctions in the doubt, and moreover because the people in charge of the effectiveness of their compliance standards have in the mind not to engage their own responsibility, which encourages them to over-apply compliance obligations, when there should be a fair and strict relationship of necessity, that is to say this desired proportionality, this additional cost being a useless excess for all.
Finally, a practical difficulty is due to the violence, in itself necessary, of the sanctions, in the face of which the companies seek in Ex Post to show the disproportionate nature, but do not have very sure means of proof.
This is why it is often on the ground of rhetoric and of the conviction that enterprises are placed in practice, more than on that of the mathematical calculation of proportionality.
________
Sept. 1, 2022
Thesaurus : Doctrine
► Full Reference: S. Lochmann, "Les agences de notation ESG et l'effectivité de la compliance face à la compétitivité internationale" ("ESG Rating Agencies and Compliance as an effective way of increasing international competitiveness"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, p. 401-412.
____
📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published
____
► Summary of the article (done by the Journal of Regulation & Compliance): The purpose of this article is to show that the markets, those who provide them with financing and those who draw on them, need information on the environmental, social and governance dimensions of the companies involved, ESG rating agencies are companies that contribute to the overall performance of the system and converge on the Monumental Goals that drive Compliance Law.
From this perspective, and taking Moody's as a concrete example, the article first explains the role played by an ESG rating agency and its evaluation methodology, in particular the criteria used and the way in which companies inform the markets and stakeholders in this area, particularly with regard to climate change, converging in this respect with the public authorities and with the various international texts, treaties and texts of soft law that follow one another.
This convergence between the activity of ESG rating agencies and Compliance Law in that it is organised normatively around Monumental Goals is particularly marked in the organisation of a "just transition", with the agency's activity being inserted into the construction of European texts. It thus appears that the ESG investment ecosystem is in full evolution, implying full collaboration between all participants in the financing industry for sustainable financing and, ultimately, the permanence of democracy.
________
Sept. 1, 2022
Thesaurus : Doctrine
► Full Reference: D. de La Garanderie, "Sur les buts monumentaux de la compliance sociale" ("On the Monumental Goals of Social Compliance"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) et Dalloz, 2022, p. 101-108.
____
📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published
____
► Summary of the article (done by the Journal of Regulation & Compliance ): The article first shows that Social Law contributes to the construction of monumental goals in that it directly expresses in a human society the will to build, as for a cathedral, the rights of each person, Compliance being able to constitute the cement.
Secondly, the author takes as demonstrative examples of this the way in which Compliance techniques have effectively advanced the principle of equality between men and women in and through companies via Labour Law, improved health and safety conditions, the fight against harassment, put in place the duty of vigilance from which workers benefit, increased equal pay and now aims at well-being at work.
________
Sept. 1, 2022
Thesaurus : Doctrine
► Full Reference: B. Deffains, "L’enjeu économique de compétitivité internationale de la compliance" ("The economic challenge of international competitiveness of Compliance"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, p. 355-366.
____
📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published
____
► Summary of the article (done by the Author, translated by the Journal of Regulation & Compliance) : "Compliance", which can be define as obedience to the regulations is a stake for the company in that it can choose as a strategy to do it or not to do it, according to what costs it and brings it such a choice. This same choice of understanding is offered to the author of the norm, the Legislator or the Judge, even the entire legal system making regulation more or less expensive, and compliance with it for businesses. So when the French law known as “Vigilance law” was adopted in 2017, the French Parliament was criticized for dealing a blow to the “international competitiveness” of French companies. ”Today, it is on its model that the European Directive is conceived. The extraterritoriality attached to Compliance Law, often presented as an economic aggression, is nevertheless a consubstantial effect, with its desire to claim to protect beyond borders. , coming us back to a classic question in Economics: what is the price of virtue?
To fuel a debate that began a few centuries ago, it is on the side of the issues that the analysis must be made economically. Indeed, Compliance Law is not only located in Ex Ante, to prevent, detect, remedy, reorganize the future, but also claims to face more "monumental" difficulties than traditional branches of Law. And it is concretely by examining the new instruments that Compliance Law has put in place and offered or imposed on companies that the question of international competitiveness must be examined. The mechanisms of information, secrecy, accountability or responsibility, which have a great effect on the international competitiveness of companies and systems, have changed and their measure has not yet been taken.
________
Sept. 1, 2022
Thesaurus : Doctrine
► Full Reference: M. Malaurie-Vignal, "Les buts monumentaux du droit du marché. Réflexion sur la méthode" ("The Monumental Goals of Market Law. Reflections on the method"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, p. 85-100.
____
📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published
____
► Summary of the article (done by the Journal of Regulation & Compliance): The analysis done by this article is about Competition Law, and the methodology needed to be adopted for the technical functioning of this branch of Law. Taking up the various economic and legal theories on this subject, conceptions which have succeeded and clashed, the author develops that the monumental goal of Market Law is to develop an economic environment favorable to businesses and consumers, then asks the question if it could integrate an ethical dimension and more broadly non-economic considerations, in particular humanistic ones.
________
Sept. 1, 2022
Thesaurus : Doctrine
► Full Reference: J.-F. Vaquieri, "Les "Buts Monumentaux" perçus par l'entreprise. L'exemple d'Enedis" ("The "Monumental Goals" perceived by the company. The example of Enedis"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, p. 77-84.
____
📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published
____
► Summary of the article (done by the Journal of Regulation & Compliance): The article aims to show how a particular company in that it is charged by the State to effectively distribute electricity to everyone in France participates in the Monumental Goals, makes them concrete and integrates them into its functioning itself. The firm Enedis, a French monopolistic State company, operator of the distribution network participates directly in these Goals under the express application of the French Energy Code.
Under the control of the Regulator, the company is responsible for the continuity of the electricity supply and responds to the challenges of energy transition, Enedis ensuring equal treatment at national and local level, Compliance thus extending Regulatory system to which this firm responds and which it internalizes. The management of personal data, energy being at the heart of the digital revolution, implies a particularly strong internal framework of Compliance. This articulation between this new Compliance in terms of personal information and this classic Compliance as a continuation of the Regulation to serve the citizen, both converging for the benefit of people, explains that Enedis has put Compliance at the heart of its commitments, particularly expressed in its code of conduct, its industrial and human project (Projet industriel et humain - PIH) and its environmental actions.
The Compliance which is specific to Enedis is disseminated by it to various entities, in particular via concession contracts, giving these an original framework. This importance of Compliance for Enedis leads the company through the "Monumental Goals" which unite it to design and maintain balances between the diversity of these so that the values carried by the companies continue to decline, especially locally.
________
Sept. 1, 2022
Thesaurus : Doctrine
► Full Reference: Ch. Huglo, "À quelles conditions le droit climatique pourrait-il constituer un but monumental prioritaire ?" ("Under what conditions could Climate Law constitute a priority Monumental Goal?"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, p.169-174.
____
📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published
____
► Summary of the article (done by the Journal of Regulation & Compliance): The author considers that the service that Compliance renders to Society can indeed be considered as "Monumental" and, confronting Compliance with the issue of Climate, considers that Climate Law must become not only a "Monumental Goal", but also be the first. He underlines the deep obstacles to even pose this idea, obstacles of two orders, the first being the fact that Law has rather focused on past pollution, while the stake is also the measurement of the future impact and the prevention. The second is that the many texts and declarations have no direct binding force. It is therefore the courts which today, because of their independence and the place that Science takes in the adversarial debate that takes place before them, Civil Society bringing them the question of the Climate to which they are obliged de jure to answer , take the decisions on the basis of which the "climate justice" is built.
In this, Climate Law invested by Courts joins Compliance Law in the objectives pursued, putting knowledge, prevention and action to preserve what climate issue puts at stake today: Human Dignity.
________
Sept. 1, 2022
Publications
🌐follow Marie-Anne Frison-Roche on LinkedIn
🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law
____
► Full Reference: M.-A. Frison-Roche, "Définition du principe de proportionnalité et définition du Droit de la Compliance" ("Definition of the Proportionality principle and definition of Compliance Law"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, p. 245-271.
____
📝read the article (in French)
____
🚧read the bilingual Working Paper which is the basis of this article, with additional developments, technical references and hyperlinks
____
📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published
____
► Summary of the article (done by the Journal of Regulation & Compliance): The use of Proportionality always limiting powers is only justified when it is about sanctions, but sanctions are only one tool among others in Compliance Law, intended moreover to have little place in this Ex Ante branch of Law. And returning to the very nature of Compliance Law, which relies on operators, private or public, because they are powerful, then using proportionality to limite powers is detrimental to Compliance Law.
However, nothing requires that. Compliance Law is not an exception that should be limited. On the contrary, it is a branch of Law which carries the greatest principles, aimed at protecting human beings and whose Normativity lies in its "Monumental Goals": detecting and preventing future major systemic crisis (financial, health and climate ones).
However, literally the principle of Proportionality is: "no more powers than necessary, as many powers as necessary".
The second part of the sentence is independent of the first: this must be used.
Politics having fixed these Monumental Goals, the entity, in particular the company, must have, even tacitly, "all the necessary powers" to achieve them. For example, the power of vigilance, the power of audit, the power over third parties. Because they are necessary to fulfill the obligations that these "crucial operators" must perform as they are "in a position" to do so.
So instead of limiting the powers, the Principe of Proportionality comes to support the powers, to legitimize them and to increase them, so that we have a chance that our future is not catastrophic, perhaps better.
In this respect, Compliance Law, in its rich Definition, will itself have enriched the Principle of Proportionality.
________
Sept. 1, 2022
Publications
♾️ follow Marie-Anne Frison-Roche on LinkedIn
♾️ subscribe to the Newsletter MAFR Regulation, Compliance, Law
____
► Full Reference: M.-A. Frison-Roche, "Place et rôle des entreprises dans la création et l'effectivité du Droit de la Compliance en cas de crise" ("Place and rôle of Companies in the Creation and Effectiveness of Compliance Law in Crisis"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, p. 339-352.
____
📝read the article (in French)
____
🚧read the bilingual Working Paper which is the basis of this article, with additional developments, technical references, and hyperlinks
____
📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published
____
► Summary of the article (done by the Journal of Regulation & Compliance): 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" 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?
________
Sept. 1, 2022
Thesaurus : Doctrine
► Full Reference: F. Marty, "L'apport des programmes de conformité à la compétitivité internationale : une perspective concurrentielle" ("The contribution of compliance programmes to international competitiveness: a competitive perspective"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, p. 381-400.
____
📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published
____
► Summary of the article (done by the Journal of Regulation & Compliance): The author analyzes economically the question of whether the compliance programs set up to respect competition rules are for the sole purpose of avoiding sanctions or also contribute to the goal of increasing the international economic performance of companies. which submit to them.
The author explains that companies integrate by duplication external standards to minimize the risk of sanctions, developing a "culture of compliance", which produces their competitiveness increase and the effectiveness of the legal and economic system. In addition, it reduces the cost of investment, which increases the attractiveness of the company.
In this, this presentation based on the postulate of the rationality of companies and investors, compliance programs can fall under self-regulation. The duplication of the law that they operate takes place largely according to "procedural" type methods.
________
Updated: Sept. 1, 2022 (Initial publication: March 24, 2022)
Thesaurus : Doctrine
► Full Reference: A. Oumedjkane, A. Tehrani & P. Idoux, "Normes publiques et compliance en temps de crise : les buts monumentaux à l'épreuve. Éléments pour une problématique" ("Public Norms and Compliance in times of crisis: Monumental Goals tested. Elements for a problematic"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, p. 275-295.
____
📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published
____
► Summary of the article (done by the Authors): In this paper, compliance refers to the fact that large private firms, through internal procedures designed to abide by public norms, participate in achieving the goals set out by public authorities, as the latter cannot reach those goals without help (proper functioning of financial markets, environment protection, fight against the corruption…). While in times outside a crisis period, the need to maintain a close link between public norms and compliance to achieve those “monumental goals” has been established, the validity of this analysis must be assessed during crisis periods. Indeed, to put an end to the turmoil as soon as possible, it is tempting to rely primarily on public authorities.
Should then be studied, in the light of the health crisis, the possibility that the link between public norms and compliance be altered in times of crisis. Not only is the normative reaction of public authorities very intense during the period, but some features of the compliance could lead one to think that compliance is in no way useful in a context of emergency and instability. This paper nevertheless suggests that to achieve monumental goals, it is necessary to maintain a close link between public norms and compliance. Such a link was maintained indeed, even at the height of the health crisis, and this should probably also be the case beyond this period, as breaking the link involves some risks which are not specific to the current health crisis. In other words, despite its shortcomings, compliance may not lose all its assets in times of crisis.
________
Sept. 1, 2022
Thesaurus : Doctrine
► Full Reference: S. Pottier, "Pour une compliance européenne, vecteur d’affirmation économique et politique" ("For European compliance, a vector of economic and political affirmation"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, p. 475-482.
____
📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published
____
► Summary of the article (donne by the Journal of Regulation & Compliance): Today's monumental goals, particularly environmental and climatic ones, are of a financial magnitude that we had not imagined but the essential stake is rather in the way of using these funds, that is to determine the rules which, to be effective and fair, should be global. The challenge is therefore to design these rules and organize the necessary alliance between States and companies.
It is no longer disputed today that the concern for these monumental goals and the concern for profitability of investments go hand in hand, the most conservative financiers admitting, moreover, that concern for others and for the future must be taken into account, the ESG rating and the "green bonds" expressing it.
Companies are increasingly made more responsible, in particular by the reputational pressure exerted by the request made to actively participate in the achievement of these goals, this insertion in the very heart of the management of the company showing the link between compliance and the trust of which companies need, CSR also being based on this relationship, the whole placing the company upstream, to prevent criticism, even if they are unjustified. All governance is therefore impacted by compliance requirements, in particular transparency.
Despite the global nature of the topic and the techniques, Europe has a great specificity, where its sovereignty is at stake and which Europe must defend and develop, as a tool for risk management and the development of its industry. Less mechanical than the tick the box, Europe makes the spirit of Compliance prevail, where the competitiveness of companies is deployed in a link with States to achieve substantial goals. For this, it is imperative to strengthen the European conception of compliance standards and to use the model. The European model of compliance arouses a lot of interest. The duty of vigilance is a very good example. It is of primary interest to explain it, develop it and promote it beyond Europe.
________
Sept. 1, 2022
Thesaurus : Doctrine
► Full Reference: B. Petit, "Les buts monumentaux du droit (européen) des relations de travail : un système mouvant aux équilibres à consolider" ("The Monumental Goals of (European) Labour Law: a changing system with balances to be consolidated"), in M.-A. Frison-Roche (ed), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, p. 135-156.
____
📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published
____
► Summary of the article (done by the Author): Labor Law has been built on the pursuit of "monumental goals", many of which are now enshrined in international, european and national standards (social justice, the right to work, gender equality, the fight against discrimination, the fight against harassment, health and hygiene, etc.). The first step will be to shed light on the organization and articulation of these monumental goals, as reflected in positive international and european labor law. We then realize that from a "cardinal monumental goal" - the guarantee of the dignity of the person at work - there are distinct categories of "secondary monumental goals", depending on whether they develop a concern relating to the quality of work, its economic and financial sustainability, or the guarantee at work of civil and political rights recognized upstream to every person.
On this diversity of monumental goals, forces emanating from the concerned actors (companies, trade unions, and States) are exerted and promote certain goals rather than others; one vision of labor relationships rather than others. We observe that the different categories of "monumental goals" thus highlighted are driven by different rationalities, sometimes contradictory to each other, which requires the establishment of permanent balances, allowed by a serious reflection on the cardinal monumental goal of guaranteeing the dignity of the person at work. Unfortunately, in practice, this essential approach escapes the normative actors of labour relations law. The result is "conflicts" of monumental goals that manifest themselves in particular during social dialogue, at the time of collective bargaining and the functioning of employee representative bodies. It will therefore be necessary, in a second step, to question the way in which these conflicts can be arbitrated, bearing in mind that international and European social law is plural (ILO, Council of Europe, European Union) and that the coordination links between the legal systems concerned are fluid.
________
Updated: Sept. 1, 2022 (Initial publication: Nov. 4, 2021)
Publications
🌐 follow Marie-Anne Frison-Roche on LinkedIn
🌐 subscribe to the Newsletter MAFR Regulation, Compliance, Law
____
► Full Reference: M.-A. Frison-Roche, "Appréciation du lancement d'alerte et de l'obligation de vigilance au regard de la compétitivité internationale" ("Assessment of whistleblowing and of the obligation of vigilance with regard to international competitiveness"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, p. 413-436.
____
📝read the article (in French)
____
🚧read the bilingual Working Paper which is the basis of this article, with additional developments, technical references and hyperlinks
____
📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published
____
► English summary of the article (done by the Journal of Regulation & Compliance): Taking up the legal tools of Compliance and confronting them with the concern that Law must have for the Competitiveness of companies, it is necessary that these legal instruments not harm it because Compliance Law, because of its immense ambitions, can only function through an alliance between political wills with great pretensions (save the planet) and the entities which are able to achieve these goals (the crucial economic operators : the political drawing on the compagnies" power, it would be contradictory for the legal instruments put in place by Law to harm the ability of companies to face global economic competition, or worse to favor international competitors acting under legal systems which do not integrate Compliance obligations.
From this principle, it is possible to assess these two legal techniques of whistleblowing and vigilance obligation: both consist in capturing Information, which gives them a strong uniqueness and fits them into the global competition for Information.
Taking the whistleblowing, its first beneficiary is the company itself since the firm discovers a weakness and can therefore remedy it. Therefore, beyond the principle of protection of the whistleblower by their access to the legal statute, for instance the one conceived by the French 2016 law known as "Sapin 2", it is questionable that all the incentives are not put in place so that the holder of such information transmits it to the manager. It is not the European solution, even after the European Directive of 2019, national legal systems continuing to require the absence of financial compensation, the "heroic figure of the whistleblower and the refusal of their remuneration depriving the company of Information and improvement. First to the manager, with external transmission taking place if the latter does nothing, the internal manager is thus encouraged to act and put an end to the dysfunction, which increases the competitiveness of the company.
But the French legislation has on the contrary developed the right incentive as to the person to whom the information is transmitted because by obliging to transmit first to the manager, the external transmission intervening if the internal management does nothing, the incentive is thus made to the internal manager to act and put an end to the dysfunction, this legal solution increasing the competitiveness of the company.
Even more, and even if it seems counter-intuitive, the obligation of vigilance increases the competitiveness of the obliged companies. Indeed, Law by obliging them to prevent and fight against violations of human rights and the environment has tacitly given them all the necessary powers to do so, notably the power to collect Information on third-party companies, including (and even above all) those which are not subject to transparency obligations. In this respect, companies, as far as they are personally responsible, hold supervisory power over others, a power which allows to globalize Compliance Law and which, in the process, increases the Companies' own power. Therefore, the obligation of vigilance is in many respects a boon for the companies which are subject to it. The resumption of the mechanism by the next European Directive, itself indifferent to the territory, will only strengthen this global power of vigilant companies over possibly foreign companies which become its passive subjects.
________
Sept. 1, 2022
Thesaurus : Doctrine
► Full Reference: J.-Ch. Roda, "Compliance, enquêtes internes et compétitivité internationale : quels risques pour les entreprises françaises (à la lumière du droit antitrust) ?" ("Compliance, internal investigations and international competitiveness: what are risks for the French companies (in the light of Antitrust Law)?"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, p. 367-380.
____
📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published
____
► Summary of the article (done by the Journal of Regulation & Compliance): The author draws on American and European Competition Law to measure whether internal investigations, as far as they provide factual elements, can provide foreign authorities and competitors, here American, with "sensitive information" (notably via leniency programs), and as such constitute a competitive handicap. But this turns out to be quite difficult, whereas compliance audits, for example under the legal duty of vigilance, can provide American litigants with useful information, drawn from internal documents, in particular the reports of compliance officers, which can be captured by the procedures of discovery.
French law remains weak face of these dangers, due to its refusal to recognize the legal privilege mechanism concerning these internal documents, contrary to the American Law and the consequent effectiveness of discovery in international procedures, concerning internal documents, in particular resulting from internal investigations. Solutions have been proposed, the activation of a new conception of blocking laws being complex, the prospect of adopting a legal privilege being more effective, but there would remain the hypothesis of an international conflict of privilege, American Law having a strict design of legal advice justifying it and judges checking that powerful companies do not use it artificially.
________
Sept. 1, 2022
Thesaurus : Doctrine
► Full Reference: M.-E. Boursier, "Les buts monumentaux de la compliance : mode d'expression des États" ("Compliance Monumental Goals: States' mode of expression"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, p. 467-474.
____
📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published
____
► Summary of the article (done by the Journal of Regulation & Compliance): "Monumental goals" are the raison d'être of Compliance and give it meaning: they are enriched with a political objective making it rise to the status of true legal norms. Compliance Law emerged from the confrontation of States with globalisation, leading to an eviction of traditional legal notions. The monumental goals are the expression of public policies that can be deployed in such a context, thanks to the articulation that Compliance builds with private stakeholders, who spontaneous or constrained contribute.
Through this new Law, States regain their agility face to markets. Indeed, these monumental goals justify this new responsibility weighing on the companies and the new powers that the States express beyond their traditional borders.
________
Sept. 1, 2022
Thesaurus : Doctrine
► Full Reference: L. Benzoni, "Commerce international, compétitivité des entreprises et souveraineté : vers une économie politique de la compliance" ("International trade, competitivity and sovereignty: towards a political economy of compliance"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, p. 453-466.
____
📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published
____
► Summary of the article (done by the Journal of Regulation & Compliance): The author begins his reflection by stating that nations exist through their differentiations, basis of international trade and their possible competition, but that they also exist through their sovereignty, which depends on their capacity not to depend, which specialisation can lead to. Today, the question is more than ever asked. The author believes that the Monumental Goals of Compliance are to preserve the compatibility between the international competitiveness of companies and the ability to assume sovereignty in international trade under a free trade regime. The old mercantilist doctrine based a nation's wealth on its independence, for example on gold, and it was only at the end of the 18th century that trade itself, especially international trade, presented independence as the source of wealth, making sovereignty disappear in the general theory of free trade, soon to be omnipresent and institutionalised by the WTO. But the emergence of Compliance, with its links to corporate environmental, climatic and social responsibility, and the extraterritoriality naturally attached to it, leads to a reconsideration of this principle, with the principle of sovereignty resurfacing. The author then suggests a "climato-mercantilisme" ("climato-mercantilism") that directly involves companies and third parties in a new economic policy, of which Compliance would be a pillar.
________
Sept. 1, 2022
Thesaurus : Doctrine
► Full Reference: C. Peicuti et J. Beyssade, "La féminisation des postes à responsabilité dans les entreprises comme but de la compliance. Exemple du secteur bancaire" ("The feminization of responsibility positions in companies as a Compliance Goal. Example of the banking sector"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, 109-124.
____
📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published
____
► Summary of the article (done by the Journal of Regulation & Compliance): If the Compliance techniques are conceived as taking their meaning by their Goal, the latter being in particular the protection and the effective promotion of human beings, to be reinforced in the future thanks to Compliance Law tools, the example of the effective promotion of efficient equality between women and men in the banking sector to exercise responsible functions is clear.
strongly feminized, the image of banking sector remains masculine and in fact too few women exercise positions of responsibility, although no text is opposed to it and all rights have been allocated for this. To move from this situation to a future where equality will be effective, it is therefore in terms of regulatory mechanisms that we should think of the necessary transformation and even more of "transition" so that one day a de facto equality will be established. and appears natural to all.
The bank must then structurally integrate this Goal, which corresponds to the definition of Compliance. To do this, the banking company is part of a long-term voluntary Compliance process, relying in particular on human resources and on the public authorities of the European Banking Union which, by further implementing the concept of sustainable economy, facilitated this long-term action. In this transition, each action and result must be considered in relation to this sought-after goal of effective equality: each progress must be valued not so much in relation to the past but in relation to the future. This Ex Ante perspective justifies these self-binding Compliance techniques, such as plans, commitments, quotas, stakeholder implications, and more flexible techniques such as examples given by managers, internal training and joint affirmations with the public authorities, are all used by the company to achieve this Monumental Goal of effective equality between human beings.
The banking sector is all the more exemplary for this because the banking authorities themselves deploy incentives in this direction, the definition of Compliance Law as an alliance between the Authorities and the Companies therefore corresponding to such an action clearly in progress, structurally in the BPCE group.
________
Sept. 1, 2022
Thesaurus : Doctrine
► Full reference: André, Ch., Souveraineté étatique, souveraineté populaire : quel contrat social pour la compliance ? (" State sovereignty, popular sovereignty: what social contract for compliance? "), in Frison-Roche, M.-A. (ed.), Les buts monumentaux de la Compliance, series "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, to be published.
____
📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published
____
► Summary of the article (done by the Author): The “Compliance Monumental Goals” serve as vectors for “common” social values: the proposal is simple, but it seems both familiar and strange to a criminal lawyer.
Familiar, because even if compliance transcends the borders of academic disciplines, it shares with criminal law a logic sanctioning attacks on social interests. Strange, because Monumental Goals convey social values by sweeping away all the learned discussions that have been going on since Beccaria about the foundations and axiological functions of punishment. Indeed, the social values promoted by Monumental Goals are “common” in every sense of the word.
First, they are shared and internalized by the largest enterprises in the Western world, without the need for an international treaty on protected values. The question of sovereignty is overshadowed.
Second, they are common in that they are commonplace, ordinary, approved of by most Western consumer-citizens: probity, equality, respect for the environment, who would not be in favour of respecting them? Hence it is in companies’ interest to communicate and diffuse, urbi and orbi, how they respect these Monumental Goals. The question of citizens’ consensus on values is sidestepped, as they are supposed to be derived from the obvious (even if the goals could be achieved by different means, or even contradict each other).
Third, these values are common because they now enlist a multitude of communicants (the “compliance officer”, among others) who, more or less gracefully - the meticulous liturgy of compliance can put off some officiants and incite buffoonery - seek to spread the cult of these values at all levels of business. Since these values are respected, they are necessarily respectable: businesses become moralized by the multitude who respect them. Existence precedes essence, and the values conveyed contribute to the businesses’ raison d’être, beyond the pursuit of profit. The question of effectiveness vanishes, since these values are already there, regularly monitored, both internally and by public authorities. Sovereignty, citizenship, effectiveness: the logic of Compliance supplants the academic debates of criminal lawyers with practical solutions. Perhaps this is how the goals are “monumental”: vast, global, overwhelming. Compliance may not be the best of all worlds, but it is most certainly another world.
________
Updated: Sept. 1, 2022 (Initial publication: April 13, 2022)
Thesaurus : Doctrine
► Full Reference: N. Sudres, "Gel hydroalcoolique, Covid-19 et Compliance. Des insuffisances de la démarche de conformité à l’émergence d’îlots de compliance" ("Hydroalcoholic gel, Covid-19 and Compliance. From inadequacies of the conformity approach to the emergence of islands of Compliance"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, p. 307-337.
____
📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published
____
► Summary of the article (done par the Author): During the Covid-19 Crisis, managing the manufacture, prices, and availability of hydro-alcoholic gel, a key product in the fight against Covid-19 transmission, provides an issue to measure both the limits and resources of Compliance Law.
While the Culture of "conformity" with the Antitrust Law was insufficient to counter the surge in the issue of the prices of hydro-alcoholic gels and masks, implying the use of tools that seem the opposite of Compliance by State (such as price fixation and requisitioning), mechanisms inspired by them have been put in place to deal with other problems linked to the availability of Essential Goods in times of Health Crisis.
It remains in question whether these mechanisms should inspire the conception of stable Compliance Standards in the future.
________
Sept. 1, 2022
Thesaurus : Doctrine
► Full Reference: R. Bismuth, "Compliance et souveraineté : relations ambigües" ("Compliance and sovereignty: ambiguous relationships"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, p. 439-452.
____
📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published
____
► Summary of the article (done by the Author): At first glance, the notion of Sovereignty is difficult to combine with Compliance. Indeed, Sovereignty is part of Public International Law in a logic of essentially territorial distribution of competences, while Compliance has developed and disseminated in companies with tools and methods which largely ignore borders.
A closer look reveals more fundamentally three types of ambiguous interactions between the two. Compliance can first of all be understood as a tool allowing States, by relying on companies, to circumvent the obstacles and limits posed by a Sovereignty conceived in territorial terms and therefore to extend it. Such an approach can nevertheless lead to friction or even conflicts between Compliance and Sovereignty, the norms conveyed by the first not necessarily being in line with those imposed by the second.
This is particularly true when the Compliance "Monumental Goals" are not unilaterally defined or are not intended to be. Finally, by infusing companies with instruments and methods that are reminiscent of sovereign functions, compliance can also allow us to imagine an emerging movement tending to gradually establish Corporate Sovereignty beyond that of States.
________
Sept. 1, 2022
Thesaurus : Doctrine
► Full Reference: A. Le Goff, "La part des banques dans la concrétisation des buts monumentaux de la compliance" ("The banks' part in achieving the Compliance Monumental Goals"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, p. 69-75.
____
📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published
____
► Summary of the article (done by the Journal of Regulation & Compliance): As the head of a banking group, the question is whether compliance requirements and techniques put companies "under pressure" or whether these obligations represent an opportunity for them, the former not excluding the latter. The author shows that the entire banking sector is under pressure from regulations that express the aim of Monumental Goals, the complexity coming from the fact that these evolve over time, sometimes making it difficult to comply with them. Within this general framework, the author shows that a mutual bank such as Crédit Mutuel Arkéa has great opportunities, since these Monumental Goals resonate not only with its social responsibility, particularly in a context of crisis, but also with what is, for Arkéa, its "raison d'être". Regulation thus supports the Group's operations and it's identity.
________