Food for thoughts

Full reference: Frison-Roche, M.-A., Compliance & Regulatory Soft Law, legal Certainty and Cooperation: example of the U.S. Financial Crimes Enforcement Network new Guidelines on AML/FT, Newsletter MAFR - Law, Compliance, Regulation, 2nd of September 2020

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Summary of the news

The Financial Crimes Enforcement Network (FinCEN) is an organ, depending on the American Treasury, in charge of fighting against financial criminality and especially against money laundering and terrorism financing. For this, it has large control and sanction powers. 

In August 2020, the FinCEN published a document untitled "Statement on Enforcement" which aimed to explicit its control and sanction methods. It reveals what firms risk in case of offense (from the simple warning letter to criminal pursuits passing through financial fines) and the different criteria on which FinCEN is based to use one sanction rather than another. Among these criteria, we find for examples the nature and the seriousness of committed violations or the firm's history but also the implementation of compliance program or the quality and the spread of the cooperation with FinCEN durning the investigation. 

One of the objectives of the publication of such an information document is to obtain the cooperation of firms by creating a confidence relationship between the regulator and the regulated firm. However, it is very difficult to ask to the firms to cooperate and to furnish information if they can fear that this same information can be used later as proof against them by the FinCEN. 

Another objective is to reinforce legal security and transparency. However, the FinCEN's declaration does not seem to commit it, because it is not presented as a chart but as a simple declaration. Indeed, the list of the possible sanctions and the criteria used by the FinCEN are far from being exhaustive and can be completed in concreto by the FinCEN without any justification.

Full reference: Frison-Roche, M.-A., For regulating or supervising, technical competence is required: example of the French creation of the "Pôle d'expertise de la régulation numérique"​, Newsletter MAFR - Law, Regulation, Compliance, 2nd of September 2020

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Summary of the news

Through a decree of 31st of August 2020, the government created a national service, the "Pôle d'expertise de la régulation numérique" (digital regulation expertise pole). It has to furnish to State services a technical expertise in computer science, data science and algorithm processes in order to assist them in their role of control, investigation and study. The aim is to favor information sharing between researchers and State services in charge of regulating digital space. 

As its acronym indicates, this pole of expertise aims to represents constance in a changing world. Moreover, more than being a national service, this organism must adopt a transversal dimension, its creation decree being signed by the Prime Minister, Minister of Economy, Minister of Culture and Minister of Digital Transition. The creation of such a pole shows the awareness of the government of the importance of technical competency in the regulation of digital space and of the necessity to centralize these expertises in one organ. 

However, as the decree indicates, this pole of expertise could be consulted only by "State services", that excludes regulators which are independent from the State and which could put the pole in conflict of interest, and courts even if they are supposed to play a central role in the regulation of digital space and even if they are allowed to ask the advice of the regulator about some cases. But if regulators cannot size the pole, to whom does it benefit except the legislator and a few officials? 

It would therefore have been better for this pole of expertise to be placed under the direction of regulatory and supervisory bodies, which would have enabled it to be able to be consulted both by regulators and by judges, both of whom are key players in digital regulation.

Full reference: Frison-Roche, M.-A., Compliance by Design, a new weapon? Opinion of Facebook about Apple new technical dispositions on Personal Data protection, Newsletter MAFR - Law, Compliance, Regulation, 31st of August 2020

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Summary of the news:

Personal Data, as they are information, are Compliance Tools. They represent a precious resource for firms which must implement a vigilance plan in order to prevent corruption, money laundering or terrorism financing, for examples. It is the reason why personal data are the angular stone of "Compliance by design" systems. However, the use of these data cannot clear the firm of its simultaneous obligation to protect these same personal data, that is also a "monumental goal" of Compliance Law. 

In order to be able to exploit these data in an objective of Compliance and protecting them in the same time, the digital firm Apple adopted for example new dispositions in order to the exploitation of the Identifier For Advertisers (IDFA) integrated in the iPad and in the iPhone and broadly used by targeted advertising firms, is conditioned to the consumer's consent.

Facebook reacted to this new disposition explaining that such measures will restrict the access to data for advertisers who will suffer from that. Facebook suspects Apple to block the access to advertisers in order to develop its own advertising tool. Facebook guaranteed to advertisers who work with it that it will not take similar measures and that it will always favor consultation before decision making in order to concile sometimes divergent interests. 

We can sleep and already make some remarks:

• GDPR imposing to companies that they guarantee a minimal level of protection for personal data does not apply in the United-States. It is then possible that Apple acted through Corporate Social Responsibility (CSR), more than through legal obligation. 
• The mode of regulation used here is the "conversational regulation" theorized by Julia Black. Indeed, regulators let the forces in presence discuss. 
• This "conversational regulation" does not seem to be very efficient in this case and an intervention of administrative authorities or of judges could be justified via Competition Law, Regulation Law or Compliance Law, knowing that Competition Law will favor access right to information and Regulation or Compliance Law private life right. 

The whole paradox of Compliance Law rests in the equilibrium between circulation of information and secret. 

Full reference: Frison-Roche, M.-A., "Interregulation"​ between Payments System and Personal Data Protection: how to organize this "interplay"​?, Newsletter MAFR - Law, Compliance, Regulation, 27th of August 2020

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Summary of the news

Regulation Law, in order to recognize and draw the consequences from the specificities of some objects, has been build, at the start, around the notion of "technical sector" although their delimitation is partially related to a political choice. But, in facts, there are multiple points of contacts between sectors, actors moving from one to another as objects. The regulatory solution is so to climb over some technical borders through the methodology of interregulation which is by the way the only one to enable the regulation of some phenomena going beyond the notion of sector and related to Compliance Law. 

This news takes the exemple of companies furnishing new payment services. In order to they can provide these services, these firms needs to access to banking accounts of concerned people and so to very sensitive personal data. Regulation of such a configuration needs a cooperation between the banking regulator and the personal data regulator. Legislation being not sufficient to organize in Ex Ante this interregulation, the European Data Protection Board has published some guidelines on 17th of July 2020 about the way it conceives the articulation between the PSD2 (European directive about payment services) and GDPR and has announced that it intended to expand the circle of its interlocutors to do this interregulation. Such an initiative from EDPB can be justified by the uncertainty  about how interpreting both texts and articulating them.   

Full reference: Frison-Roche, M.-A., Difficulty of Compliance in Self-Regulation system: example of the Summer 2020 meetings of OPEC about the "conformity"​ for Oil Market Stability​, Newsletter MAFR - Law, Compliance, Regulation, 26th of August 2020

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Summary of the news

The world production of oil is largely coordinated by the Organization of the Petroleum Exporting Countries (OPEC) and especially by its Joint Ministerial Monitoring Committee (JMMC). On 15th of July 2020, this Committee decides to reduce the world production of oil in order to maintain a certain price stability in a context of restricted demand because of the COVID-19 pandemic. 

However, such a stability can be maintained only if each member respects this decision and effectively reduce its production level. This meeting of 15th of July also aimed to get member's conformity. In order to get this conformity, the JMMC declared that it will use "name and shame", shaming countries which do not respect the Committee's declaration and naming those which respect it. A second meeting, on 19th of August 2020, reminded to non-compliant countries their obligation and urged them to comply before the 28th of August. 

We can observe two things: 

• The term used by the Committee is "conformity" and not "compliance", which implies less adherence to "monumental goals than the mechanical respect of formal rules.
• In an self-regulation system where there is not supposed to be a need for "conformity", the need for it is a clue that this self-regulation is malfunctioning.

Full reference: Frison-Roche, M.-A., The always in expansion "Right to be Forgotten"​: a legitimate Oxymore in Compliance Law built on Information. Example of​ Cancer Survivors Protection, Newsletter MAFR - Law, Compliance, Regulation, 25th of August 2020 

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Summary of the news

The "right to be forgotten" is an invention of the Court of Justice of the European Union during the case Google Spain in 2014. It implies that digital firms block the access to personal data of someone who asks it. This "right to be forgotten", which permits to impose secret to third parties has largely been generalized by GDPR in 2016. This new fundamental subjective right is a very political and European right. United-States which, on the contrary of Europe, did not experience nazism, links the "right to be forgotten" to the protection of consumer, conception which especially leads California Consumer Privacy Act adopted in 2018 to link this right to a situation of absence of necessity of this data for the firm which obtained it. 

In Europe, this willingness to protect directly the person increases the scope of such a subjective right. Thus, in France and in Luxembourg, since 2020, a cancer survivor can thus ask that such an information is not accessible among his or her health data, especially for insurance companies which use them in their risk calculus to set premium amount. Netherlands will do the same in 2021 to fight against discrimination between banks' and insurances' clients. 

The "monumental goal" is therefore not so much here the protection of individual freedoms as the protection of the vulnerable person, which is bye the way the keystone of a Compliance Law, concealing sometimes prohibition to circulate information (as here) and sometimes obligation to circulate information (in other cases, where the alert must be given) depending on whether vulnerable people are protected either by one or by the other.

Full reference: Frison-Roche, M.-A., The control by regulator of the essential infrastructure manager's investment plan: example of electric network and the notion of "doctrine", Newsletter MAFR - Law, Compliance, Regulation, 24th of August 2020

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Summary of the news

On 31st of July 2020, the Commission de Régulation de l'Energie (CRE and French energy regulator) has examined the investment plan of the French electric network manager (RTE) as it does every year. This investment plan is an economic document but it also contains societal purposes, especially the adaptation of the electric network in order to integrate renewable energies. 

The control by the CRE is not a financial control. The crucial operator (RTE) is free to decide the way it wants to manage its budget. The CRE just advices on the financial side by recommending for exemple to be more flexible in its financial strategies. The true CRE's control is about the investment plan's general orientations, the methodology of needs analysis and crucial operator's investment choices which must be aligned with those of the regulator.

Such a control leads to the emergence of an "investment doctrine" from the side of the crucial operator, mixing its own choices and the regulator's guidelines. Beyond this, the elaboration of the investment plan is the result of a true co-writing between the regulator and the firm which discuss together, exchanges points of view and methods. Such a method, expressing a kind of coregulation, could be used in other sectors. 

Full reference: Frison-Roche, M.-A., Being obliged by Law to unlock telephone is not equivalent to self-incrimination: Cour de cassation, Criminal Chamber, Dec. 19, 2019, Newsletter MAFR - Law, Compliance, Regulation, 21st of August 2020

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Summary of the news

The Cour de Cassation (French Supreme Judicial Court) made a decision on 19th of December 2019 about a case concerning a refusal to communicate his mobile phone's unlock code to the police while the police found him with a significant quantity of narcotic and a lot of cash and that there was a certain probability that this mobile phone get proofs of culpability of its owner. The individual was indicted not for narcotic trafficking but for not having communicate its unlock code which constitute an offense to article 434-15-2 of code pénal, from the loi du 3 juin 2018 renforçant la lutte contre la criminalité organisée, et le terrorisme et leur financement (law reinforcing organized crime, terrorisme and their financing).

The accused invokes before the court its right to not incriminate oneself. Indeed, the configuration face to policemen was such that if he refused to communicate its unlock code, he will be punished because of this obligation to communicate his code and that if he accepted, he will also be sanctioned because of the proofs contained into the mobile phone. Such a configuration therefore offered him no alternative to confessing, which is contrary to the European Convention on Human Rights and to European and national jurisprudence.

Face to such a case, the Cour de Cassation chose to segment the information and proposed the following solution: if the researched information cannot be obtained regardless of the suspect willingness, it is not possible to constraint this person to communicate this information without violating its procedural rights, but if the information can be obtained regardless of the suspect willingness then the individual is obliged to communicate his code. In the current case, as it was possible for policemen to obtain information contained in the phone by technical means, longer but existent, then the refuse of communication of the unlock code by the suspect constitute an obstruction that should be sanctioned. 

Such a decision is an exemple of the conciliation by the judge of two fundamental but contradictory "monumental goals" of Compliance Law: transparency of information towards public authorities and very sensible personal data protection. 

​To go further, read Marie-Anne Frison-Roche's working paper: Rethinking the world from the notion of data

Full reference: Frison-Roche, M.-A., When Compliance Law is violated, does the "right to be (re)compensated"​ exist, and must it be encouraged or not? - The Marriott case, Newsletter MAFR - Law, Compliance, Regulation, 20th of August 2020

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Summary of the news

In August 2020, Marriott International, online hotel room booking platform, has be sued before an English court by a consulting firm through a "class action" technic. The firm ask to Marriott International compensates the clients whose personal data jas been hacked while Marriott International which was in charge of this data, did not implement all it could to protect these data. According to the plaintiff firm, making the online platform responsible in Ex Ante of the clients' data security and constraint it to compensate injured clients in case of failure is a more important incentive for the firm to do its best to protect this data than a simple fine.    

Many similar actions are ongoing, especially during English Courts where the practice of "class action" is more developed. The question is therefore to know whether it is interesting to encourage the development of this kind of process in France. Concretly, a substantial subjective right (here the right to have its data protected) exists only if it is accompanied by a procedural right to size the judge in order to he or she activates it. The right to ask for a compensation in case of violation of these Compliance obligations but also is therefore not only a strong incentive for firms but also a condition of effectivity of these same obligations, knowing that the effectivity is the major care of Compliance Law.  

Full reference: Frison-Roche, M.-A., Regulators'​ Impartiality and contents control: "Les infidèles"​ case, Newsletter MAFR - Law, Compliance, Regulation, 19th of August 2020

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To go further, read the chapter of the book Compliance Tools: "The geographical pregnancy ​of Compliance tools" opened by an introductive chapter written by Jean-Baptiste Racine

Summary of the news

Impartiality of the regulator is one of the most important principles of Regulation and Compliance Law. However, this impartiality can be difficult to implement when the regulation object has a strong moral dimension. 

In August 2020, various religious associations sized the Conseil National de Régulation de l'Audiovisuel sénégalais (Senegalese audiovisual regulatory authority) to ask the interdiction of broadcasting on television of the film "Les infidèles" telling the story of a married woman with multiple lovers. 

First, the regulator distinguishes the sequences likely to be detrimental to cultural and religious identities and shocking sequences or likely to attack the dignity of the person. Then, it asks the deletion of indecent and obscene scenes and of scenes likely to be detrimental to cultural and religious identities, bans the broadcasting of the film in the television before 10.30 pm, asks an update of the trailer and requires the introduction of a pictogram "forbidden to children under 16" during the broadcasting. The CNRA judges itself able to regulate the content of telefilms in order to protect cultural identities with regards to the law of 4th of January setting its mission. 

In 2012, a similar controversy surrounded, in France, the broadcasting of a different film with the same name. However, the purpose and the context were very different because the film was broadcasted at cinema, because it presented adultery men, because it was comic, because the competent regulator was not an administrative body but a professional body and because the broadcasting country was not the same. Here, only the poster was modified. 

Thus, an impartial regulation must however taking into consideration "local cultural identities".  

Full reference: Frison-Roche, M.-A., Can Coordination between local Regulators replace a unique centralized Regulator? Example of the European organisation of the Open Internet Principle, Newsletter MAFR - Law, Compliance, Regulation, 18th of August 2020

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To go further, read Marie-Anne Frison-Roche's article: The hypothesis of interregulation 

Summary of the news

The principle of "open internet" enshrined in the European regulation of 30th of April 2016 guaranteeing a non discriminatory access to Internet contents and services. However, there is no European regulator to implement such a principle. Is it possible to guarantee the effectivity of this principle without a central regulator in charge of this principle? 

On 11st of June 2020, the BEREC (Body of European Regulators for Electronic Communications) adopted guidelines concerning the application of the open internet principle. The BEREC is not a European regulator but a network of national regulators aiming to coordinate their actions. This body is only a consultative body but its recommendations are taken into account by national authorities which have deep legal power, as Osborne-Clarke said about the technical implementation of the European principle of open internet at the national level.  

It is thus non necessary to have a central regulator to ensure the effectivity of a principle since the moment when there is a local regulators network able to coordinate their actions through soft law.   

Full reference: Frison-Roche, M.-A., Risk Mapping: is it legally different when it is made by Regulatory Bodies or by Regulated Enterprises?, in  Newsletter MAFR - Law, Compliance, Regulation, 17th of August 2020

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Summary of the news

Each year, the Autorité des marchés financiers (French financial markets regulator), the European Central Bank and the Agence française anti-corruption (French anti-corruption agency) publish risk maps. At first glance, risk maps established by the regulator aim to both help regulator and the regulated company to face risks by anticipating them. These documents would only be an assistance brought to firms in their Compliance mission and not an injunction from the regulator to take into account the risks that it emphasizes.  

However, Law forces firms to do their own risk maps under penalty of sanctions. Since the regulator has previously published its own risk map, can companies, obliged to write theirs, deviate from it? If the firm follows the map published by the regulator, can it protect itself against this if it is accused of not having fulfilled its compliance obligations? On the contrary, if the operator does not follow regulator's risk map, can this be blamed on it? Formally, regulator's risk maps do not come with an injunction to take it into account but, as everyone knows, any recommendation from a regulator or supervisor must be taken into account.

The legal solution could here be the implementation of a system of "comply or explain" which would mean that if the firm decides to no follow the risk map established by the regulator, it must be able to justify its choice. 

To go further, read:

• Frison-Roche, M.-A., Legal Theory of Risk Mapping, center of Compliance Law, working paper, 2020

Full reference: Frison-Roche, M.-A., Is Regulating Hate and Infox a legal obligation imposed to the Digital Enterprises or the expression of their free will to contribute to Democracy?, Newsletter MAFR - Law, Compliance, Regulation, 14th of August 2020

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Summary of the news

Internet permits to access to expanded knowledge but also make easier the broadcasting of fake news and hate speeches. Unfortunately, public powers cannot know who broadcast these fake news and hate speeches and are so not able to fight efficiently against this. A solution would be to expect from digital firms that they find a way to contain these fake news and hate speeches that they structurally contribute to diffuse. 

Digital firms already do that and especially Facebook which plans to sensibilize its American users to 2020 presidential elections. However, digital firms explain that if they fight against fake news and hate speeches, it is only because of its Corporate Social Responsibility (CSR). But, even if it is a calculus to get a better reputation and avoid boycott actions, this remains a willingness of the firm which is therefore neither forced to succeed, nor even to act. 

The solution proposed by Compliance Law is to make of this effort a legal obligation by internalizing in crucial operators (digital firms) the "monumental goal" to fight against fake news and hate speeches so that digital companies are required to act and that they are supervised by public authorities in this task. The forthcoming law about digital services will impose to digital firms Ex Ante obligations while the law of 22 of December 2018 related to the fight against information manipulation already forces platforms operators a legal obligation to "cooperate" in the fight against fake news. 

To go further, read : 

• Frison-Roche, M.-A., When Facebook "Invite" Each Internet User to Act Against COVID-19 by Redirecting Him or Her Towards Public Information Center, Is It by Legal Obligation (Compliance) or by Corporate Social Responsibility (CSR)? With Which Consequences?, working paper, 2020
• Frison-Roche, M.-A., Having a Good Behavior in the Digital Space, working paper, 2020

Full reference: Frison-Roche, M.-A., Why the decision of the French Constitutional Council of 7.08.2020 about authors of terrorist offences is so informative for Compliance & Criminal Law, Newsletter MAFR - Law, Compliance, Regulation, 13th of August 2020

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Summary of the news

On 7th of August 2020, the Conseil Constitutionnel (French Constitutional Court) made a decision concerning the constitutionality of a French law implementing safety measures against authors of terrorist offenses after their sentence. The law permitting to impose, through an act from the administration, various controls or interdiction to communicate with some people for authors of terrorist offenses after the end of their sanction.  

Although the Conseil Constitutionnel estimated that such dispositions was disproportionate with regards to the objective, which prompted it to censor the text, it recognized that, since terrorism seriously disturbs public order through intimidation and terror, the fight against terrorism contributes to the objective of constitutional value consisting of preventing attacks on the public order. Thus it is not the nature but the intensity of the proposed measures which pushed the Conseil Constitutionnel to state this text not constitutional. By the way, the Conseil affirms that if the legislator submits it a law whose the measures are more proportionate to the goal, these, although Ex Ante and justified only by the existence of a risk, will be declared in conformity with the Constitution.

The Conseil Constitutionnel confirms here that the fight against terrorism financing is a "monumental goal" of Compliance Law. 

Full reference: Frison-Roche, M.-A., Against money laundering, what time matters? Does it work, between ExAnte and ExPost? (BIL case), Newsletter MAFR - Law, Compliance, Regulation, 11th of August 2020

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Summary of the news

The activity of money laundering is detrimental not only in itself but also because it permits the development and the sustainability of other criminal activities such as drug trafficking, weapon trafficking or human beings selling. Fighting against money laundering could permit to indirectly fight against these underlying activities, by the way very difficult to fight. Thus, the fight against money laundering has become a "monumental goal", which justifies the adoption of tools sometimes much more powerful than those used by classical criminal Law. For the sake of efficiency, the legal obligation to prevent money laundering is given to every body able to do it, as banks, real estate agents or gaming society, under the penalty of sanction. 

On 10th of August 2020, the Luxembourgish financial market supervisor convicts the International Bank of Luxembourg to pay a fine of 4,5 millions of euros because of weaknesses detected in its process of fight against money laundering. However, when the sanction has been pronounced, the bank had already remedied the weaknesses identified. It is important to observe that what is important for Compliance Law, it is not that a non compliant behavior is punished but rather that the crucial firm modifies its behavior in order to being more efficient in the realization of the "monumental goal", only concern of the public authority. Thus, an Ex Post sanction against the crucial operator is not an end in itself and can be justified only if it permits to incite the crucial operator to act or rather to desincite to do anything. Compliance Law is an Ex Ante legal system. 

To go further, read: 

• Frison-Roche, M.-A., Le couple Ex Ante - Ex Post, justificatif d'un droit spécifique et propre de la Régulation, 2006 (in French)

Full reference : Frison-Roche, M.-A., The practical utility to have a firm definition of "Compliance", Newsletter MAFR - Law, Compliance, Regulation, 10th of August 2020.

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Summary of the news

Some says that defining Compliance is a theoretical and non useful exercice that should be left aside to tackle the study of concrete technical cases. However, to be able to use Compliance tools, it is first necessary to have a clear, firm and simple idea of what is Compliance. Moreover, the future of this new branch of law intensely depends on the definition we choose to use. 

Compliance Law gives to some crucial private firms new responsibilities such as the one to fight against global dangers or the one of saving the planet. In this, Compliance Law can be perceived as a kind of new deal between the private sector and public authorities, with the only difference that this time the consent of the private sector is not required.

Some would say that the concretization of such projects is the duty of the State and that private firms, if they must respect the rules, do not have to find a way to concretize a "monumental goal". However, the world face new and systemic dangers in the face of which the State alone is powerless, technically or geographically, and against which crucial companies can act.

It is not about, as some advocate to put human being aside of Compliance Law by letting machines decide. It is about placing the human being and its protection at the heart of Compliance Law. In this, Compliance Law can become a new humanism. 

To go further, read Marie-Anne Frison-Roche's working paper, The Dreamed Compliance Law 

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► Full Reference: M.-A. Frison-Roche, The dreamed Compliance Law, Working Paper, June 2020. 

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This Working Paper, "The Dreamed Compliance Law", is the basis for an article, written in French, "La compliance" (Compliance), inserted in the collective work to be published under the direction of Jean-Baptiste Racine, Le Droit économique du XXIème siècle (The XXIe century Economic Law , in the Serie Droit & Economie,   LGDJ-Lextenso, 2020.

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No one can know what the Law of the 21st century will be. Pretending to know it is just not to realize its ignorance. Why then writing about it, since the future is always surprising?

One can only write about the unknown part of the Law of tomorrow. If the future is then modeled on what was written, so much the better for the prophet, a tribute that can, for example, be paid to Pierre Godé!footnote-1813 who described in 1999 what was going to be 10 years later "Law of the future" constituted by Environmental Law!footnote-1804. If the future denies the author or if its contours in no way follow the lines of the written word, this is not serious since the writing of the Law, even if it has the specificity of being partly prescriptive in that it has the power to write the future, a normative pen that rounds up letters!footnote-1805, it participates in all writing: above all to be that of a dream.

Lévi-Strauss argued that teaching is defined as dreaming out loud. Teaching and describing the Law of a century that we will never know gives even more freedom to dream about it. This freedom increases when the object is a branch of Law in the process of being born, state of the stammering "Compliance Law" of which some still maintain, as it was made for Regulation Law, that there is not existing. The hand can then, as it pleases, trace its beautiful or hideous features: what face will Compliance Law have, as soon as we assume that it will exist?

It may as well be a nightmare (I) as a happy dream (II).

It is up to us to choose in which category this branch of Law will flourish. Because what we can be sure of is this fulfillment. It is certainly already taking sides to presuppose the very existence of Compliance Law. Not only to consider it possibility with hostility because to be an enemy of something or someone is already to recognize their existence. Before that, two objections radically block the very existence of Compliance Law and their shadow remains in the future of it!footnote-1809.

Firstly, it is said that Compliance does not come under Law, but for example only ethics since it would consist in keeping well in companies which care about the interest of others or the planet, for example by spontaneous care of the environment; Compliance being a crystallization of social responsibility, the one for which we have our conscience, we express our "raison d'être" and we are not accountable!footnote-1807. Or it would consist in technologically putting in place tools for capturing technical information using data storage and processing methods. Compliance is then a sub-category of "Data Regulation"!!footnote-1814, a mechanical concept in which Law is no more present. In these two perspectives, Compliance Law cannot exist, no more tomorrow than it would exist today. These two radical conceptions, completely entrusting Compliance mechanisms to everyone except lawyers, do not make sense because it suffices to note the development of judgments and laws to measure the legal phenomenon already present!footnote-1808.

Second, there would be many Compliance mechanisms but insufficient to constitute a branch of Law. Indeed we would find Compliance in Company Law, Labor Law, Financial Law, Banking Law, Criminal Law, Administrative Law, European Law, International Law, etc.

These classic branches, which have been formed for so long, depending on the point of view adopted, would gain in modernity or be threatened with decay by this kind of extension which will be Compliance. There would thus be as many "little legal sectoral rules" as there are branches of law. These new internal developments would be like a new bud, on which care should be taken - if the tree regains its strength - or a weed to be eradicated - if the French garden loses its perspective.

Thus the matter being scattered as many as specialist lawyers, often criminalists or specialists in banking and Financial Law, then tomorrow all specialists in all branches of Law, this could constitute the most radical obstacle to the constitution of Compliance Law. Indeed, we would come back to confuse Compliance and the "modernization" of Law itself as a whole, since it would only be a question of perfecting each of the classic branches of the legal system.

If we keep in this half-sleep that is any projection in the future the hope of a constituted branch of Law, we must discard these two perspectives of annihilation, either in the total absence of Law or in recovery by all Law. To dismiss the sorrowful spirits who see no future in Compliance and keep only its enemies in the space of this article, let us assume that Compliance Law will exist in the 21st century. In what form and by what means, in the palm of which institutions, in the shadow of which legal system? Since it is a question of projecting ourselves onto the black screen of our nights of dreamy lawyers, let us take the current state only as a trailer. Like the one developed by the genius who by the contempt not only brought down into the flames of hell the cinema which has become a consumer industry with which producers force-feed us but offered us the vision of its future. What is what we see today the trailer? We let our imagination run wild since the trailer films are autonomous works compared to the film which follows them.

We have no idea what will happen and what we are watching from the brief and violent current images of Compliance Law, the cinema of which rather makes a hero of the whistleblower!footnote-1811 and a character of the narrow and ridiculous importance of the compliance officer!footnote-1812, does little to help us. But if we force the features of the present lineaments, the alternative of this Law in childhood is therefore that of a nightmare (I) or an idyllic solution for difficulties that will increase (II).

Everything will depend on the concept that we will retain of Compliance Law. Because the script is not written, because Compliance Law is a Law with a political dimension, that it is defined by the ambitions that we can claim to have by setting monumental goals that we are going to achieve, a claim that will make it one major branch of the Law of tomorrow, or we can abandon any claim, lower our heads and arms, and reject any claim. It is then that the power of Compliance Law, which will be no less great, will turn against us, human beings, as in a nightmare.

Full reference: Salah, M. M., The Legal Framework for New Silk Roads: a Globalized Law at the Service of a Global ambition. When China Discovers the Virtues of Globalization of Law, International Business Law Journal, n°3, 2020, p. 319-351

This article is available for Sciences Po's students via the Drive in the folder MAFR Regulation et Compliance

Full reference: Fasterling, B., "Criminal Compliance - Les risques d'un droit pénal du risque", Revue internationale de droit économique, 2016/2 (t.XXX), p. 217-237

Read the article.

Full reference: Frison-Roche, M.-A., L'impossible unicité juridique de la catégorie des "lanceurs d'alertes" ("The impossible legal unicity of the category of "whistleblowers""), in Chacornac, J. (dir.), Lanceurs d'alertes, regards comparatistes, ("Whistleblowers, comparative perspectives"), Publications of the Centre français de droit comparé ("French Comparative Law Center"), May 2020, Volume 21, p.13-31. 

Read the article (in French).   

Read the general presentation of the collective book in which this article is published

Read the bilingual working paper which had served of basis for this article. 

Read the presentation of the conference "Les lanceurs d'alertes: glose" (Whistleblowers: glose") and especially the slides elabored for the colloquium organized by the Centre français de droit comparé ("French Comparative Law Center") on 23th of November 2018 under the direction of Jérôme Chacornac

____

Introduction of the article

"Whistleblowers". This is a new expression. Which is a great success. Barely heard once, we hear it everywhere ...

A topic not of course or knowledge test, but rather a topic of daily conversation. Because it is spoken to us every day, in more or less gracious terms. For example President Donald Trump on October 1, 2019 declared to the press "want to question" the whistleblower who would have illegally denounced him and would not, according to him, have the right to conceal his identity, proof in this according to him of the lying character of his assertions against him, while his lawyer indicates on October 6, 2019 that he is not speaking on behalf of a single whistleblower thus taken to task but of a plurality of people who gave information against the President of the United States. Even the most imaginative screenwriters would not have written such brutal and rapid twists and turns. Spectators, we are waiting for the next episode, secretly hoping for the escalation.

And precisely if we go to the cinema, it is still a whistleblower whose dedication and success, we are told about, even the drama, for the benefit of global society, and in particular democracy, since the secrets are fought for the benefit of the truth. The Secret Man designates Mark Felt as the first whistleblower. Returning to what we often present as being a more "serious" media!footnote-1391, we listen to France-Culture and here is another story told by a historian who worked as an archivist on events that political power would have liked to keep hidden by possibly destroying their traces but which its trade led to preserve: here it is expressly presented to the studious listeners like a "whistleblower" .... While the same radio tries to find the one who could well be, as in a kind of contest the "first whistleblower"!footnote-1727? .... This rewriting of History can be defended because ultimately what did other Voltaire do for Calas, or Zola for Dreyfus?

It is also a subject of legislative discussion since in the United States the Dodd-Frank law of 2010 inserted in the law of 1934 which established the Securities & Exchanges Commission a complete device of remuneration and remuneration of the whistleblowers, whereas after having developed flexible but guiding lines in this regard in 2012!footnote-1698, the European Commission published on November 20, 2018 the text of what will become a Directive intended to give a unified European status to the character, in the system gradually developed to protect the one who was presented in 2018 as that "cannot be punished for having done what is right".

In Europe, the Directive first approved by a Resolution of the European Parliament on April 16, 2019 on the protection of persons denouncing breaches of Union Law and then adopted on October 7, 2019 (Directive of the European Parliament and of the Council of European Union on the Protection of Persons who Report Violations of European Union Law, different title, it should be noted, will have to be transposed into the laws of the Member States within the next two years. , since only "violations of Union Law" are targeted, but the character of the "whistleblower" is more generally targeted: he is "whole"!footnote-1699.

In short, the whistleblower is a star!footnote-1390. A sort of historical figure, covered in blows and glory, going from Voltaire to Snowden, both of whom find themselves embodied on the screens!footnote-1681 ....,

Consecrated by law, which associates with it a legal regime of protection to such an extent that, like a Nessus tunic, it is this legal regime which will define the character and not the reverse. When we read the law of December 9, 2016 relating to transparency in the fight against corruption and the modernization of economic life, known as "Sapin 2", we notice that the Legislator makes much of this character, since 'he dedicates its chapter II to him!footnote-1682: "From the protection of whistleblowers", and that it is by his very protection that he formally opens the door of Right to him.

But why a plural? Admittedly when we read the recitals of the Community Directive of October 7, 2019 on the protection of whistleblowers!footnote-1702, it is only a list of all the subjects on which it is a good idea to protect them, which therefore prompts us to see in this plural only the index of this non-exhaustive list of subjects which it is good to tell us, a sign of the lack of definition of who should alert us. Reading the French law known as "Sapin 2" makes it less severe but more perplexing. Indeed, this plurality referred to by the title of the chapter devoted to "whistleblowers", there is no longer any question in the rest of the law, in the very definition which follows, article 6 which opens this chapter devoted to "whistleblowers" offering the reader immediately a singular since it begins as follows: "A!footnote-1684 whistleblower is a person ...". No mention of diversity. The art of legislative writing would however have required that the qualifying article not only be singular but that it should not yet be undefined. Stendhal if he had still deigned to have the law for bedside book would have wanted to find at the beginning of chapter a sentence like: "The!footnote-1683 whistleblower is a person ...".

Thus seem to contradict themselves within the law "Sapin 2 the very title which presents the character, in that it uses a defined plural (the) while the defining article which presents it is in the undefined singular (one). ...

Here is a first reason not to advance any more but in a very careful way, in this "step by step" that constitutes a reading word for word: a gloss. This consists of taking the expression itself literally. The second reason for this technical choice is that the gloss is well suited to the introduction of a collective work, thus allowing more targeted developments to take place in other contributions, on the techniques, the difficulties and the limits of this protection, or on its history, or the reasons for the arrival in French law of these whistleblowers and the way they develop, or not, elsewhere.

I am therefore going to content myself with taking this already legal expression to the letter: The (I) whistle (III). blowers (II). 

Full reference: Support, A., "La refondation de l'Europe ne pourra se faire sans sortir des traités actuels" ("The refoundation of Europe cannot be done without leaving the current treaties"), column in Le Figaro, 22nd of May 2020

Read Alain Supiot's column (in French)

In this column, Alain Supiot underlines the opportunity offered by the judgment of the Court of Karlsruhe of May 5, 2020 concerning the proportionality of the unconventional monetary measures adopted by the ECB.

Référence complète : Supiot, A., La Gouvernance par les nombres, col. "Poids et mesures du monde", Fayard, 2015, 418 p.

Lire la 4ième de couverture.

Lire la Table des matière.

Lire la conclusion de l'ouvrage.

Regarder les cours d'Alain Supiot reprenant les thèmes de l'ouvrage.

Regarder la présentation vidéo du contenu de l'ouvrage.

Lors de son édition en 2020 sous format de poche dans la collection Pluriel, Alain Supiot a rédigé une nouvelle préface : lire la nouvelle préface. 

L'ouvrage a été traduit en anglais par Saskia Brown. Il a été publié en novembre 2017 sous le titre : The governance by Numbers. The Making of a Legal Model of Allegiance.

Full reference: Pistor, K., Germany Constitutional Court Goes Rogue, Project Syndicate, 8th of May 2020

Read the article 

This working paper is the basis for an article in the French Law Journal Le Clunet.

When we compare the terms "Compliance" and "Extraterritoriality", it is often with dissatisfaction, even anger and indignation. On the momentum, after having expressed a principle of disapproval of such a merger, attention is focused on how we can fight against it, to break the link between Compliance and Extraterritoriality. But do we have to go so fast? Is this negative initial assessment correct?

Indeed, thus gone, it is frequently explained that the binding mechanisms of Compliance are suffered, that they come from abroad!footnote-1750, that they apply with efficiency but in an illegitimate way, without agreement of the one who must submit to it, whose resistance is therefore certainly ineffective but nevertheless justified. In the same spirit, when we start to shell the cases, like so many scars, sort of rosary, even crown of thorns, BNPP case!footnote-1718, Astom case!footnote-1717, etc., the wounds not yet closed turn into reproaches made against the rules, public authorities, even reproaches made against named people.

We are leaving this kind of complaint against X, which targets what would be this appalling "Compliance", this Law which would be both hostile and mechanical which would not have been able to stay within the limits of borders, Compliance being thus placed in contrast to sovereignty and protection, which presuppose staying within its limits!footnote-1716 and being able to protect companies from abroad. More concretely, this presentation targets more directly the United States, which uses "the legal weapon", slipped under what is then designated as "the artifice of the Law" with extraterritorial scope. But this effect would in reality be the very object of the whole: their hegemonic will to better organize at least a global racket, notably through the Foreign Corrupt Practices Act (FCPA) and at best a world government through notably the embargoes.Those who believed otherwise would be naive or foolish. This silences the opponents because who likes this costume? So the world would be put in a ruled cut; what the mafia could not have done, Compliance Law would have obtained, offering the whole world to the United States thanks to the extraterritoriality of its national Law.

Compliance Law would thus become the very negation of Law, since it has the effect, even the purpose (barely concealed by strategic, powerful and shameless States), of counting borders for nothing, whereas Public International Law, in that it is built between the sovereign subjects of law that are the States presupposes the primary respect for borders to better exceed them while Private International Law takes the same postulate to better welcome foreign Law in situations presenting a foreign element!footnote-1726. Jurists believed in the force of Law; by Compliance, we would return to the sad reality that only the powerful, here the United States, dominate and - ironically - it is under the pretext of Law that they do it. It would be necessary to be well duped, or accomplice, to see there still legal where there is only the balance of powers. When one is more intelligent or skilful than that, one understands that the "small" can only be "subject" to the Compliance Law, one would have to be powerful to be the normative source and its enforcement agent. It is then towards this mis-named Department of Justice (DoJ) that the fearful, hateful and resigned glances turn. 

If you see it that way, what should you do then? The answer is obvious: react!

It is necessary to save the sovereignty, France, companies, the Law itself. If that is how the question is posed, how can we disagree? It is therefore necessary to destroy the Compliance Law and the extra-territoriality of American Law which had found this "Trojan horse", an expression so frequently used. This is the basis for the administrative reports available, for example the Berger-Lellouche!footnote-1719 parliamentary reports and the Gauvainfootnote-1720 report. Both of them broadly develop the two preceding claims, namely that the extra-priority of compliance mechanisms is illegitimate and harmful, since it is a mechanism invented by the Americans and harming the Europeans, or even invented by the Americans to harm Europeans, the description being made in much more violent terms than those used here. The description seems acquired, the reflections therefore relate to the remedies. The reaction is most often to "block" the Compliance Law in its extraterritorial effect.

But without discussing the effectiveness of the remedies proposed downstream, it is necessary to return to this description so widely shared made upstream. Because many elements on the contrary lead to affirm that ComplianceLaw first of all and by nature can only be extraterritorial and that it must be. Whether or not the State in which it was created has malicious intentions. The description which is made to us most often describes particular cases from which we draw generalities, but we cannot reduce Compliance Law to the already cooled cases, as BNPP case, or to the always hot case of the American embargo on Iran. Furthermore, one cannot take the issue of embargoes and draw conclusions, legitimate for it, but which would apply to the whole of Compliance Law. The fact that theCompliance Law is a branch of Law at the stage still of emergence can lead to this confusion which consists in taking the part for the whole, but it is very regrettable because what is justified for the embargoes does not is in no way relevant for all Compliance Law, of which precisely the Law of embargoes is only a small part, even an abusive use. This overlapping is not often perceived, because the definition of Compliance Law and its criterion are not clearly enough defined, namely the existence of a "monumental goal"!footnote-1725, which does not exist in an embargo decided unilaterally by an order decreed by the President of the United States, but which exists in all other cases and fully justifies extraterritoriality, extraterritoriality which is even consubstantial with Compliance Law (I).

Once we have distinguished the embargoes, as an atypical, sometimes even illegitimate part, of Compliance Law, we should continue this work of distinction by emphasizing that the United States has certainly invented Compliance Law!footnote-1721 but only developed a mechanical concept for the prevention and management of systemic risks. Europe has taken up this systemic conception of the protection of systems, for example financial or banking, but superimposed another conception, drawing on its deep humanist tradition!footnote-1722, whose protection of personal data is only an example and whose monumental goal is the protection of the human being. This primary concern then justifies the European use of Compliance mechanisms to interfere with global objects regardless of their location, especially the environment, and to block the entry onto the ground of objects that enter, which is contrary to Competition Law but builds a legitimate barrier under this Compliance Law, in the indifference of an extraterritorial origin (II).

Indeed, this branch of the new Law which is Compliance Law is not reducible to Competition Law!footnote-1723, any more than it is not reducible to a method. It is a substantial, extraterritorial Law because the "monumental goals" which give it substantial unity are extraterritorial. This can directly contribute to the future of a Europe which on the one hand will be able to pursue, in an extraterritorial manner, monumental humanist goals, in the field of the environment or the protection of personal information or access to the Law (in particular by the technique of compliance programs) and which, on the other hand, by the techniques of traceability of products!footnote-1724, will have the means not to bring in products manufactured in an indecent manner, except in countries which do not grant value than in Competition Law to enter the WTO.

Read the developments below.