Food for thoughts

Le plan est  actualisé chaque semaine au fur et à mesure que les leçons se déroulent en amphi.

Il est disponible ci-dessous.

 

Retourner à la présentation générale du cours.

 

 

(Avant le début des enseignements de Droit de la Régulation bancaire et financière, un aperçu du plan général du Cours avait été mis à disposition.)

Référence : Beauvais, P., Méthode transactionnelle et justice pénale, in  Gaudemet, A. (dir.), La compliance : un nouveau monde? Aspects d'une mutation du droit, coll. "Colloques", éd. Panthéon-Assas, Panthéon-Assas, 2016, pp. 79-90.

Voir la présentation générale de  l'ouvrage dans lequel l'article a été publié.

The economic theory of incentives implicitly assumes that an operator can not be compelled to act against his will, or at least that it is more efficient to offer him advantages in such a way that he does what he wants . In this, this conception is opposed to the traditional conception of Law, which posits, on the contrary, that subjects obey the order dictated by the legal norm.

But in globalized markets, operators have the tools to disobey and the asymmetry of information diminishes the power of control of the Regulators, which raises doubts as to the effectiveness of the legal constraint: it is not enough that the Law orders. In these circumstances, texts, regulators and judges must produce conditions that encourage agents to adopt behaviors that are consistent with the aims sought by the Regulators because the operators themselves have an interest in them.

Thus, whilst regulatory systems in any sector become increasingly repressive, even in liberal economies, it is not so much to punish the perpetrator but to incite others who are tempted to commit crimes, To abandon them. It is the system of exemplarity. This thought prior to Beccaria participates in the re-feoadization of the Law, demonstrated by Pierre Legendre, associated with the decline of the State and to which the Regulation fully participates. Judgeshave little inclination to handle repression in this way, which creates a clash between Criminal Law and Regulatory Law, which nevertheless puts repression at its center.

In the same way, Regulatory Systems must inject positive incentives, for example rewards for communication of information, which encourages delation, or incentives done by the regulator for the network manager make investments in the maintenance of it, against the immediate interest of its shareholder. Finally, all patent law and economics are now thought of as an incentive to inn/en/article/innovation/ovate. But, some incentives have proven perverse such as stock-options or bonuses. As a result, new texts seek to regulate these.

Complete reference : Archives de Philosophie du Droit (APD), Droit et économie, tome 37, ed. Sirey, 1992, 426 p. 

 

Read the table of contents.

Read the summaries of the articles in english. 

 

See the presentation of others volumes of Archives de Philosophie du Droit.

► Full Reference: B. Deffains, "La dette comme fondement de l'obligation de compliance" ("From the Debt to the Compliance Obligation"), 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 general presentation of the book, L'Obligation de Compliance, in which this contribution is published

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► Summary of this contribution  (done by the Journal  of Regulation  & Compliance):  The contribution builds on the definition of Compliance in that it requires large companies to contribute to the achievement of Monumental Goals, including the preservation of human rights and systems, e.g. climate system.  

This requirement is confronted with the notion of Debt as it results today from classic and new works available in economic science. In fact, in the primitive economy, debt refers not only to exchanges, but also to an ethical and social obligation leading back to the collective. The Economic Analysis of Law has highlighted this situation, where some of the entities involved in a situation benefit from positive externalities, or endure negative externalities on their own, thus creating a situation of debt: this generates an obligation to correct market failure through an obligation to manage risks, as expressed by Compliance Obligation. This implies that economic calculation can be used to quantify this debt, leading to new proposals for biodiversity accounting.

The author then highlights the recognition of Debt as the source of an Compliance Obligation. This can be expressed through the classical notion of natural obligation, which can be traced back to the French Civil Code, or through more solidarist or political conceptions of Law, linked to moral responsibility, with the overall moral equilibrium referring to civic duty, superimposed on the accounting equilibrium. The political dimension is very much present, as shown by Grotius and Kant, then Bourgeois (solidarism), Rawls and Sen (social justice), who link the deep commitment of each individual with the group. This sheds light on the essential role played by the State and public institutions in formalising and enforcing the Compliance Obligation, not only to ensure its effectiveness, but also to make everyone aware of its fairness dimension.

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🦉This article is available in full text to those registered for Professor Marie-Anne Frison-Roche's courses

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► Référence complète : A.-M. Ilcheva, "Condamnation de Shell aux Pays-Bas : la responsabilité climatique des entreprises pétrolières se dessine", D. 2021, pp. 1968-1970

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► Résumé de l'article : Après une brève description de l'affaire en cause au principal, l'auteure explicite dans un premier les fondements du jugement dit "Shell". Elle explique que l'action engagée était fondée sur le droit de la responsabilité civile délictuelle néerlandais, plus précisément le "duty of care" de l'article 6:162 du code civil néerlandais, lequel amène le juge, afin d'établir le fait générateur, à apprécier le comportement de l'entreprise défenderesse au regard du standard de comportement de la personne prudente et raisonnable. Sont également mobilisés par le juge des travaux scientifiques (rapport du GIEC), des normes de droit international (CEDH) et des normes de droit souple (Principes directeurs de l'ONU), afin de caractériser tant le fait générateur que le dommage (notamment futur). Dans un second temps, l'auteure envisage la portée de ce jugement, frappé d'appel au moment de la rédaction de son article. Elle souligne que le juge s'est appuyé sur la notion d'entreprise, permettant ainsi de contourner l'obstacle traditionnel lié à la personnalité morale, et qu'il a retenu ici une responsabilité préventive, tournée vers le futur. Elle termine en mettant en avant les conditions nécessaires pour que ce jugement soit effectif et constate que l'effort demandé à l'entreprise est plus important que celui préconisé par les rapports d'experts.

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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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A Central Bank is for the Law a rather mysterious object.

Despite what some competition authorities have said, it is not an ordinary bank. It is at the root of monetary creation and its primary mission is to fight against inflation, contributing more or less directly and in a more or less independent way according to political and legal systems to the economic policy pursued by governments.

Thus, while central banks all have constitutional status which guarantees autonomy, they have a more limited mission in Europe than in the United States. This is even more evident since monetary cre - ation has been transferred to the European Central Bank (ECB), which makes it even more necessary to interpret what the Central Bank can do, Reminded the Court of Justice of the European Union (CJEU) in 2015 of the ECB's non-conventional monetary policy programs.

The central bankers either directly by a department or indirectly by an independent administrative authority (IAA) backed by them and who, although independent, have no legal personality with regard to them ( for example in the French system concerning the " Autorité de contrôle prudentiel et de resolution - ACPR) exercises regulatory and supervisory powers over the banking and insurance sectors.

As such, they are regulators. When en Europe the power to create money has been taken away from them, passing from the Member States to the European Central Bank (ECB)  through the Euro Zone, it is this regulatory and supervisory power which remains their own, their mission being only to participate in the European collective mechanism.

But for exercising its regulatory and supervisory role, the central bankers have considerable powers, including approval, sanction and, since 2013 and 2014, resolution. But in this respect it must be considered that, in particular with regard to the European Convention on Human Rights, central bankers are like courts and in the exercise of numerous powers, procedural guarantees must be conferred on operators who are the object of those powers.

Référence complète : Lagarde, Ch., A regulatory Approch to FinTech, mai 2018. 

 

Lire l'article. 

"Compliance" is the typical example of a translation problem.

Indeed and for example, the term "Compliance" is most often translated by the French term "Conformité". But to read the texts, notably in Financial Law, "Conformité" is aimed rather at professional obligations, mainly aimed at the ethics and conduct of market professionals, especially service providers of investment. It is both a clearer definition in its contours (and in this more certain) and less ambitious than that expressed by the "Compliance". It is therefore, for the moment, more prudent to retain, even in French, the expression "Compliance".

The definition of Compliance is both contentious and highly variable, since according to the authors, it goes solely from the professional obligations of financial market participants to the obligation to comply with laws and regulations. In this latter sense, that is, the general obligation that we all have to respect the Law. To admit that, Compliance would be Law itself.

Viewed from the point of view of Law, Compliance is a set of principles, rules, institutions and general or individual decisions, corpus of which the primary concern is efficiency, in space and in time. The purpose is to put into practice general interest goal targeted by these gathered techniques.

The list of these goals, whether negative ("fighting": corruption, terrorism, embezzlement of public funds, drug trafficking, trafficking in human beings, organ trafficking, trafficking in poisonous and contagious goods - medicines, financial products, etc.) or positive ("fighting for": access to essential goods for everyone, preservation of the environment, fundamental human rights, education, peace , transmission of the planet to future generations) shows that these are political goals.

These goals correspond to the political definition of the Regulatory Law.

These political goals require means which exceed the forces of the States, which are also confined within their borders.

These monumental goals have therefore been internalized by public authorities in global operators. The Compliance Law corresponds to a new structuring of these global operators. This explains why the new laws put in place not only objective but structural repressions, as in France the "Sapin 2 Law" (2016) or the "obligation of vigilance Law" (2017) .

This internationalization of the Regulatory Law  in companies implies that the public authorities now supervise the latter, even if they do not belong to a supervised sector, or even to a regulated sector, but participate, for example, in international trade.

The Law of Compliance thus expresses a global political will relayed by this violent new Law, most often repressive, on companies.

But it can also express on the part of the operators, in particular the "crucial operators" a desire to have themselves concern for these monumental global goals, whether of a negative or a positive nature. This ethical dimension, expressed in particular by the Corporate Social Responsibility, is the continuation of the spirit of the public service and the concern for the general interest, raised world-wide.

► Full Reference:  B. Sillaman, "Taking the Compliance U.S. Procedural Experience globally", in M.-A. Frison-Roche (ed.), Compliance Jurisdictionalisation, Journal of Regulation & Compliance (JoRC) and Bruylant, coll. "Compliance & Regulation", to be published. 

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📘read a general presentation of the book, Compliance Jurisdictionalisation, in which this article is published

 

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► Summary of the article (done by the Journal of Regulation & Compliance): The French legal system is evolving, organizing interaction between lawyers with regulators and prosecutors, specially in investigations about corruption or corporate misconduct, adopting U.S. negotiated resolutions such as the Convention judiciaire d'intérêt public, which encourages "collaboration" between them. 

The author describes the evolution of the U.S. DOJ doctrine and askes French to be inspired by the U.S. procedural experience, U.S. where this mechanism came from. Indeed, the DOJ released memoranda about what the "collaboration" means. At the end (2006 Memorandum), the DOJ has considered that the legal privilege must remain intact when the information is not only factual in order to maintain trust between prosecutors, regulators and lawyers.

French authorities do not follow this way. The author regrets it and thinks they should adopt the same reasoning as the American authority on the secret professionnel of the avocat, especially when he intervenes in the company internal investigation.

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🦉This article is available in full text to those registered for Professor Marie-Anne Frison-Roche's courses

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Une dissertation juridique suit les règles de construction et de rédaction généralement requises pour les dissertations d'une façon générale mais présente certaines spécificités.

Le présent document a pour objet de donner quelques indications. Elles ne valent pas "règles d'or", mais un étudiant qui les suit ne peut se le voir reprocher. La correction des copies tiendra compte non seulement du fait que les étudiants ne sont pas juristes, ne sont pas habitués à faire des "dissertations juridiques", mais encore prendra en considération le présent document.

 

The goal for which a mechanism, a solution an institution or a rule is adopted, instituted or elaborated, is in principle external to them. Knowledge of this goal is a tool to better understand them and is only that.

On the contrary, in Regulation Law, the goal is the heart itself. By definition, Regulation Law is a set of instruments that articulate to take their meaning in relation to a goal. Moreover, these instruments are legitimate to represent a constraint only because they realize a goal which is itself legitimate. The interpretation of Regulation Law is based on the aims pursued: the reasoning is teleological.

This teleological nature explains that efficiency is no longer merely a concern - as for ordinary legal mechanisms, but rather a principle of Regulation Law. It explains the welcome, especially through the European Union Law of the theory of the useful effect. This link between rules, which are only means, and aims, refers to the principle of proportionality, which requires that constraints and exceptions be applied only when they are necessary, proportionality being the form off the classic principle of necessity.

Because the aim is the center, it must be expressed by the author of the Regulation standards, and this is all the more so if they are of a political nature, being not limited to mitigating technical failures of markets. This goal can be varied: the management of systemic risks, but also the consideration of the fundamental rights of people, the preservation of the environment, public health, civilization, education, etc. The silence of the legislature, which limits itself to the making of rules whereas these are merely instruments, without explicating the goal whereas the latter is a political decision, is a fault in the legislative art.

Moreover, in order that the person who applies the Regulation norm, in particular the Regulator and the Judge, has no excessive margin for interpretation and does not substitute for political power, the author of the Regulation norm needs to aim specifically for one goal : in this way, the one who applies the norm will be constrained. Or, if the author targets several purposes, then he must articulate them in relation to each other, by hierarchizing them for example. If he fails to do so, the institution which applies the regulatory standards will itself have to choose the purpose and exercise a power which he does not possess.

This express designation of purpose has been made for the European Banking Union,  this Regulation and Supervision construction, whose primary aim is to prevent systemic risks and resolve crises. Similarly, the purpose of the Regulation of essentiel infrastructures is to provide third parties access to the network. Similarly, in the case of a transitional regulation introduced following liberalization, the aim is to establish competition, the principle of which has been declared by the liberalization law. When this is not clearly stated, there is a lapse in the legislative art.

 

 

The procedural safeguards enjoyed by a person whose situation may be affected by a future judgment are principally the right to bring proceedings before the court, the rights of the defense and the benefit of the contradictory principle.

The legal action was for a long time considered as a "power", that is to say, a mechanism inserted in the organization of the judicial institution, since it was by this act of seizure, access by which the person enters the judicial machine, through the latter starts up.

But in particular since the work of René Cassin and Henri Motulsky, legal proceedings are considered as a subjective right, that is to say, a prerogative of any person to ask a judge to rule on the claim that the plaintiff articulates in an allegation, that is a story mixing the fact and the law in a building and on which he asks the judge to give an answer, such as the cancellation of an acte, or the award of damages, or the refusal to convict him (because the defense is also the exercise of this right of action).

The legal action is now recognized as a "right of action", the nature of which is independent of the application made to the court, a subjective procedural right which doubles the substantive subjective right (eg the right to reparation) and ensures the effectiveness of the latter but which is autonomous of it. This autonomy and this uniqueness in contrast with the variety of the sort of disputes (civil, criminal or administrative) makes the right of action a pillar of the "Procedural Law" on which a part of European and Constitutional Law are built. In fact, Constitutional Law in Europe is essentially constituted by procedural principles (rights of defense, impartiality, right of action), since the principle of non bis in idem is only an expression of the right of action. Non bis in idem is a prohibition of double judgment for the same fact which does not prohibit a double trigger of the action (and criminal, civil and administrative). This unified due process of Law has helped to diminish the once radical separation between criminal law, administrative law and even civil law, which are clearly separated from one another in the traditional construction of legal systems and which converge today in the Regulatory and Compliance Law.

Moreover, the subjective right of action is a human right and one of the most important. Indeed, it is "the right to the judge" because by its exercise the person obliges a judge to answer him, that is to say to listen to his claim (the contradictory resulting therefore from the exercise of the right of action ).

Thus the right of action appears to be the property of the person, of the litigant, of the "party". This is why the attribution by the law of the power for the Regulators to seize itself, which is understood by reason of the efficiency of the process, poses difficulty from the moment that this constitutes the regulatory body in "judge and party", since the Regulator is in criminal matters regarded as a court, and that the cumulation of the qualification of court and of the quality of party is a consubstantial infringement of the principle of impartiality. In the same way, the obligation that Compliance Law creates for operators to judge themselves obliges them to a similar duplication which poses many procedural difficulties, notably in internal investigations.

There is a classical distinction between public action, which is carried out by the public prosecutor, by which the public prosecutor calls for protection of the general interest and private action by a person or an enterprise, which seeks to satisfy its legitimate private interest. The existence of this legitimate interest is sufficient for the person to exercise his or her procedural right of action.

In the first place, the person could not claim the general interest because he or she was not an agent of the State and organizations such as associations or other non-governmental organizations pursued a collective interest, which could not be confused with the general interest. This procedural principle according to which "no one pleads by prosecutor" is today outdated. Indeed, and for the sake of efficiency, Law admits that persons act in order that the rule of law may apply to subjects who, without such action, would not be accountable. By this procedural use of the theory of incentives, because the one who acts is rewarded while and because he or she serves the general interest, concretizing the rule of law and contributing to produce a disciplinary effect on a sector and powerful operators, procedural law is transformed by the economic analysis of the law. The US mechanism of the class action was imported into France by a recent law of 2014 on "group action" (rather restrictive) but this "collective action" , on the Canadian model, continues not to be accepted in the European Union , Even if the European Commission is working to promote the mechanisms of private enforcement, participating in the same idea.

Secondly, it may happen that the law requires the person not only must have a "legitimate interest in acting" but also must have a special quality to act. This is particularly true of the various corporate officers within the operators. For the sake of efficiency, the legal system tends to distribute new "qualities to act" even though there is not necessarily an interest, for example in the new system of whistleblowers, which can act even there is no apparent interest.

Référence complète : Salah, M., La mondialisation vue de l'Islam, in Archives de Philosophie du Droit, La mondialisation entre illusion et utopie, tome 47, Dalloz, 2003, 27-54.

 

La mondialisation apparaît comme une occidentalisation des cultures et du droit. L'Islam qui prend forme juridique devrait se l'approprier sans se dénaturer. La réussite d'un tel processus difficile dépendra de la qualité de la régulation qui sera mise en place.

 

Lire une présentation générale de l'ouvrage dans lequel l'article a été publié.

Les étudiants de Sciences po peuvent via le drive lire l'article dans le dossier "MAFR - Régulation".

Le légicentrisme exprime avant tout une bataille de normes, puisque cette doctrine pose que la loi est la seule et unique expression de la souveraineté de la Nation. En cela, la loi dispose d'une autorité indépassable et c'est elle qui fonde l'État légal.

Ainsi, si l'on devait donner une figure au système juridique, ce serait un cercle avec en son cœur d'une façon unique la loi souveraine, à la fois autosuffisante dans son fondement (souveraineté) et dans sa production (principe de légalité).

Cette conception moniste (unité de la loi) a pour principale source la philosophie politique de Jean-Jacques Rousseau, c'est encore sur celui-ci que la France conserve le principe de souveraineté parlementaire (le Gouvernement est responsable devant le Parlement) et de souveraineté de la loi. Mais depuis la Révolution française, les esprits et les faits ont changé.

Ainsi, s'est construite une doctrine inverse : le "pluralisme juridique" qui pose en contradiction que le droit vient de nombreuses sources, comme la coutume, les pratiques, les jugements, etc. Il n'est pas étonnant que les auteurs qui affirment le pluralisme juridique ne viennent pas de la philosophie politique mais davantage de la sociologie comme Gurvitch ou Carbonnier.

En outre, les frontières nationales ont perdu de leur consistance, de fait et de droit. C'est pourquoi un auteur comme Mireille Delmas-Marty s'appuie sur le fait même de la construction de l'Europe des droits de l'homme d'une part et de la globalisation d'autre part pour affirmer que le légicentrisme a fait place à un pluralisme juridique généralisé.

Cependant, en droit positif les textes restent les mêmes. C'est ainsi que l'article 6 de la Déclaration des droits de l'homme et du citoyen de 1789, qui fait partie du bloc de constitutionnalité, dispose de la loi que "la loi est l'expression de la volonté générale".

De la même façon, l'article 5 du Code civil continue d'interdire au juge de rendre des jugements contraignants pour d'autres cas que celui particulier sur lequel il se prononce.

Cette permanence des textes les plus gradés, à savoir l'article 5 du Code civil et l'article 6 de la déclaration pose de nombreux problèmes aux juges. En effet, depuis l'arrêt du Tribunal des conflits Blanco, le droit administratif n'est plus lié par ce qui est posé par le Code civil et sans doute la puissance normative du Conseil d'Etat s'exprime plus ouvertement que celle de la Cour de cassation, qui feint de ne rendre que des arrêts de principe pour pouvoir affirmer qu'elle ne rend pas d'arrêt de règlement.

D'une façon plus complexe, le Conseil constitutionnel rappelle régulièrement que certes il est le gardien de la norme constitutionnelle supérieure à la loi mais quand le même temps, seul le législateur, puisque celui est le souverain, peut exprimer la volonté générale, ce à quoi le Conseil constitutionnel ne peut se substituer.

Mais le Droit de l'Union européenne, qui constitue un Ordre juridique à la fois autonome et dont les normes sont pourtant intégrées dans les ordres juridiques des Etats-membres, rend difficilement soutenable la conception du légicentrisme. Y a succédée une hiérarchie des normes complexes. Mais les fondements politiques de l'idée de légicentrisme alimente en grande partie l'hostilité à l'égard de l'Europe, aussi bien celle de l'Union que celle de la CEDH.

 

The Federal Communications Commission (FCC) is the independent regulatory authority in the United States that regulates at the federal level both the container and the content of telecommunications.

In this, the United States differs from the European Union, a legal space in which most often the regulatory institutions of the container and the content are distinct (for example in France ARCEP / CSA / CNIL) and in which the regulations of communications remain substantially at the level of the Member States of the Union.

Like other audiovisual regulators, it ensures pluralism of information by limiting the concentration of capital - and therefore of power - in the television and radio sector. We can thus see that the American system is not in principle different from the European system.

In addition, the FCC is characterized first of all by a very great power, imposing at the same time substantial principles on the operators, like that of the "decency", going in the name of this principle until sanctioning television channels which had let show a bare breast of a woman. The control is therefore more substantial than in Europe, this control weighing against the constitutional freedom of expression which is more powerful in the United States than in Europe. It is true that today the leading digital companies tend to formulate for us what is beautiful, good and decent, in place of public authorities.

The FCC continued to develop the major principles of the public communication system, as in 2015 that of the Open Internet (Open Internet) or to formulate the principle of "digital neutrality", adopted by a federal law, this principle having considerable economic and political implications.

But at the same time, a general mark of American law, the judge moderates this power, according to the principle of Check and Balance. Thus the Supreme Court of the United States in FCC v. Pacifica Foundation in 1978 this power of direct control of the content but also operates the control of the control.

The election in 2016 of a new president who is, among other things, totally hostile to the very idea of ​​Regulation is a test in the probative sense of the term. In January 2017, he appointed a new president of the FCC, hostile to any regulation and in particular to the principle of neutrality. The question which arises is to know if technically a regulation already established on these principles can resist, how and for how long, a political will violently and expressly contrary. And what will the judges do.

A monopoly refers to the power of a person to remove from a good its utility by excluding others. The monopoly refers to a situation on the market, the monopolist being the sole operator in the market. Lawyers are accustomed to the monopoly conferred by Law, for example the one that was the monopoly for the national public enterprise for electricity. In this case, what is done may be defeated, and the legislature may withdraw that privilege especially if the author of this norm is better placed in the hierarchy of norms than the previous author. For example, the European Union legislature withdrew the legal monopolies by means of directives from most of the operators holding them in the regulated sectors in order to liberalize them.

But the monopoly can have an economic source. Indeed, it may happen that a first operator constructs a structure, for example a wired telecommunications transport network. Because he is alone, agents on the market must resort to him to carry their communications, his business will be profitable. But from there, if a second operator built such an infrastructure, it would inevitably be in deficit for insufficient applicants. This is why no rational economic agent will build a second network. Thus, this network will remain unique. It is then an economically acquired monopoly that the legislative will can not change its nature. That is why it is called "natural".

Since what is can not be changed, Community law has taken note of the monopolistic nature of the majority of networks and the correlated power of their owner or manager, but has correlatively provided for their supervision by a regulator who not only Ex post to resolve possible differences between the infrastructure manager, the natural essential facility, and the one who wants to access it, but also, through an Ex ante power, to negotiate with that manager the return on his capital, his commitments investment in the network, etc., or even more directly by imposing on it the way in which it fixes access tariffs and so on.

These economically natural monopolies are therefore more powerful than legal monopolies, which States and lawyers have taken a long time to understand, but this also explains the reverse tendency of economists to write laws, The texts must handle this type of notions, its writers caring little about the political order and legal notions. The fact that the laws and regulations on regulated situations and supervised operators have long been elaborated solely from the point of view of lawyers, particularly of the public service, which was regrettable, does not justify this passage from one extreme to the other.

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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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► Référence complète : P.-Y. Gautier, « Contre le droit illimité à la preuve devant les autorités administratives indépendantes », Mélanges en l'honneur du Professeur Claude Lucas de Leyssac, LexisNexis, 2018, p.181-193.

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📘 Lire une présentation générale de l'ouvrage dans lequel l'article est publié

 

 

► Full Reference: O. Douvreleur,  "Compliance and Judge ruling only on points of Law", in M.-A. Frison-Roche (ed.), Compliance Jurisdictionalisation, series "Compliance & Regulation", Journal of Regulation & Compliance (JoRC) and Bruylant, to be published. 

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► Article Summary (done by the Journal of Regulation): Compliance maintains with the judge complex relations, and even more with the judge ruling only on points of Law  (in France, the Court de Cassation in the judicial order, the one who, in principle, does not know the facts that he leaves to the sovereign appreciation of the judges ruling on the substance of the disputes. At first glance, compliance is a technique internalised in companies and the place occupied by negotiated justice techniques leave little room for intervention by the judge ruling only on points of Law

However, his role is intended to develop, in particular with regard to the duty of vigilance or in the articulation between the different branches of Law when compliance meets Labor Law, or even in the adjustment between American Law and the other legal systems, especially French legal system. The way in which the principle of Proportionality will take place in Compliance Law is also a major issue for the judge ruling only on points of Law.

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📘 read the general presentation of the book, Compliance Jurisdictionalisation, in which this article is published

 

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The procedural guarantees enjoyed by a person whose situation may be affected by a forthcoming judgment are mainly the right of action, the rights of defense and the benefit of the adversarial principle.

The rights of the defense have constitutional value and constitute human rights, benefiting everyone, including legal persons. The mission of positive Law is to give effect to them in good time, that is to say from the moment of the investigation or custody, which is manifested for example by the right to the assistance of a lawyer or the right to remain silent or the right to lie. Thus the rights of the defense are not intended to help the manifestation of the truth, do not help the judge or the effectiveness of repression - which is what the principle of adversarial law does - they are pure rights, subjective for the benefit of people, including even especially people who may be perfectly guilty, and seriously guilty.

The rights of the defense are therefore an anthology of prerogatives which are offered to the person implicated or likely to be or likely to be affected. It does not matter if it possibly affects the efficiency. These are human rights. This is why their most natural holder is the person prosecuted in criminal proceedings or facing a system of repression. This is why the triggering of the power of a tribunal or a judge offers them in a consubstantial way to the one who is by this sole fact - and legitimately - threatened by this legitimate violence (one of the definitions of the State ).

The rights of the defense therefore begin even before the trial because the "useful time" begins from the investigation phase, from the searches, even from the controls, and continues on the occasion of appeals against the decision adversely affecting the decision. The legal action being a means of being a party, that is to say of making arguments in its favor, and therefore of defending its case, shows that the plaintiff in the proceedings also holds legal defense rights since he is not only plaintiff in the proceedings but he also plaintiff and defendant to the allegations which are exchanged during the procedure: he alleged to the allegation of his opponent is not correct.

They take many forms and do not need to be expressly provided for in texts, since they are principled and constitutionally benefit from a broad interpretation (ad favorem interpretation). This is the right to be a party (for example the right of intervention, the right of action - which some distinguish from the rights of the defense - the right to be questioned, such as the right to be brought into question (or examination), right to be assisted by a lawyer, right to remain silent, right not to incriminate oneself, right of access to the file, right to intervene in the debate (the rights of the defense thus crossing the adversarial principle), right to appeal, etc.

It is essential to qualify an organ as a tribunal because this triggers for the benefit of the person concerned the procedural guarantees, including the rights of the defense, which on the basis of Article 6 of the European Convention on Human Rights man was made about the Regulators yet formally organized in Independent Administrative Authorities (AAI). This contributed to the general movement of jurisdictionalization of Regulation.

Référence complète : Boursier, M.-E., L’irrésistible ascension du whistleblowing en droit financier s’étend aux abus de marché, Bulletin Joly Bourse, 1ier septembre 2016.

 

Les étudiants de Sciences po peuvent lire l'article en accédant au dossier "MAFR - Régulation"

► Full Reference: S. Pottier, "In Favour of European Compliance, a Vehicle of Economic and Political Assertion", in M.-A. Frison-Roche (ed.), Compliance Monumental Goals, Journal of Regulation & Compliance (JoRC) and Bruylant, "Compliance & Regulation" Serie, 2023, pp. 459-468

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📘read a general presentation of the book, Compliance Monumental Goals, in which this article is published

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► Summary of the article (donne by the Journal of Regulation & Compliance - JoRC): 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.

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► Référence complète : S. Mouton, "Dimensions constitutionnelles de l'Obligation de Compliance", in M.-A. Frison-Roche (dir.), L'obligation de Compliance, Journal of Regulation & Compliance (JoRC) et Dalloz, coll. "Régulations & Compliance", 2024

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📕lire une présentation générale de l'ouvrage, L'obligation de Compliance, dans lequel cet article est publié

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