19 February 2024 · Working papers

Working Paper

🚧Compliance and conformity: distinguishing them to articulate them

LinkedIn X

► Full Reference: M.-A. Frison-Roche, Compliance and conformity: distinguishing them to articulate them, Working Paper, February 2024.

____

📝 this working paper was drawn up to serve as a basis for the article published in French in the Chronique MAFR – Compliance Law, published in the Recueil Dalloz.

____

► Summary of this Working Paper: The words "conformité" and "compliance" are sometimes used interchangeably, presenting "conformité" as the translation into good legal French vocabulary of "compliance", which would come from the American system. This is not true, however, because each of these terms refers to two distinct and even opposing concepts.

"conformity"' would require companies to show that they are actively obeying all the 'regulations' applicable to them, regardless of their content. "Compliance Law" is a new substantial branch of Law that derives its normativity from the "Monumental Goals" targeted by the political and public authorities: these monumental goals are intended to ensure that systems do not collapse in the future (Negative Monumental Goals), or even improve (Positive Monumental Goals). The systems concerned are banking, finance, energy, health, transport, digital and climate systems. The scope of Compliance Law is therefore both much more limited and more ambitious.

Distinguishing between the two allows us to put conformity back where it belongs, as a tool of Compliance Law. As such, conformity justifies the collation and correlation of information, with the algorithmic system playing a major role in this. On the other hand, the human concern that underpins Compliance Law justifies making training and the actions of in-house lawyers, attorneys and judges, central to it. The evidentiary system of Compliance that is currently being developed is based on evidentiary techniques rooted on the one hand in the tool of conformity and on the other in the culture of Compliance, which can be articulated as soon as they are no longer confused.

____

🔓read the working paper below⤵️

____

🌐 follow Marie-Anne Frison-Roche on LinkedIn

🌐follow Marie-Anne Frison-Roche on Instagram

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

1. One word for another? No 🏗 In French legal legal productions, there are countless writings or statements in which the words "compliance" and "conformité" are used interchangeably. The author sometimes suspects that those who use the term 'compliance' are misguidedly attracted to the United States, or even subservient to it, while those who use the term 'conformité' are praised for their respect for the French language.¹.

No one disputes that the Law functions through the use of words², for instance the use of the French language is legally obligatory. In France Professor Cornu was both the person who founded the canonical book Vocabulaire juridique (Legal Vocabulary) and wrote an academic book on Legal Linguistics (Linguistique juridique³), demonstrating better than anyone else the requirement in Law to use the right word. But precisely "conformity" and "Compliance Law" do not refer to the same thing and it is to misunderstand the substance of this Law to use one for the other.

2. Compliance and conformity: two conceptions 🏗 There are two opposing conceptions. As many authors maintain, compliance would be only the requirement of "conformity": it would consist for a subject of law, more particularly a company, but also for example a public entity, to actively obey to all the regulations applicable to it⁴. Other authors assert that Compliance Law is not this logic of effectiveness of all the applicable regulations, but a true substantial branch of the Law which aims at "Monumental Goals", specific to precise systemic issues in which all the specific tools are teleologically anchored and mobilising systemic entities in a position to actively carry them, which are the large companies. This was the subject of my 2016 article: "Compliance Law"⁵. 8 years ago.

Semantic discussions are taking place between the authors. They echo those which, 20 years ago, took place between those who thought that "regulation" in the French legal vocabulary was merely the French translation of the English term regulation and that it was a question of regulations taken by the executive power, just a tool of a more modern Public Law, while others asserted that a true substantial branch of Law was being born: "the "Regulation Law", a conception which I had developed in an article in 2001⁶. More than 20 years already. We have seen what has happened in this regard.

3. Practical usefulness of distinguishing and articulating the two concepts of conformity and Compliance Law 🏗 As with Regulation Law, there is an urgent practical need not to confuse "conformity" and Compliance Law. Indeed, conformity implies the active obedience of the subject of the law to any regulation, regardless of its content, which is the crucible of all the dangers for the individual, whereas Compliance Law, built in the goals, develops principles of its own and can be deployed in the opposite way because its primary goal is the protection of the individual⁷. For example, conformity rules out secrets whereas Compliance Law, depending on its goals, may be intended to protect them, in particular the secrets of private life📎⁸ or professional secrets⁹, or the confidentiality of legal opinions¹⁰. The confusion is therefore very damaging in practice and a distinction must be made between "conformity" and Compliance Law (I). This distinction is all the more fruitful in that it in no way implies doing away with conformity: it allows it to be re-articulated with Compliance Law, of which it is an essential tool (II).

I. DISTINGUISHING BETWEEN THE OBEDIENCE IMPLIED BY CONFORMITY AND THE ACTION IMPLIED BY COMPLIANCE LAW

4. "Be conform with all applicable regulations" 🏗 If we say that companies must justify that they apply and enforce all the regulations applicable to them, then they should take the place of the administration, the Executive Power having in the political system the function of applying and enforcing texts; they should also take the place of the Judge in that the latter restores the effectiveness of Legality. This rightly provokes numerous protests from companies themselves, which do not want to be "agents of the FBI" and bear the cost of such a transfer. The function must remain that of the State. Criticism also comes from people who see "compliance" as a "privatisation of regulation"¹¹ which would give companies the power to "regulate" the whole world by obliging us all¹².

5. The frightening practical consequences of the mechanical and gigantic definition of compliance by "conformity" 🏗 More pragmatically, everyone realises that it is impossible to respect, at all times, in all places and through all the people for whom we are responsible, all the regulations that apply to us. This literally unbearable definition cannot be relevant. If we were to adopt it, then the Regulator, the Judge, any stakeholder and anyone who obtains recognition of standing or an interest in acting, would be able to get the company condemned at will. This "regulatory passion"¹³ is totally unreasonable and refers to a conception of legality that totalitarian systems conceive and apply, not States governed by the Rule of Law.

6. "Participate in achieving the Compliance Monumental Goals" 🏗 Compliance Law , for its part, is defined as the setting by political and public Authorities of "Monumental Goals"¹⁴ of a systemic nature. Looking to the future, these ambitions aim to protect systems from collapse (Negative Monumental Goals), including banking, financial, digital, climate, etc. systems. Sustainability¹⁵ and proportionality¹⁶ are major principles. More ambitious still, it may involve improving systems (Positive Monumental Goals¹⁷)), for example promoting respect for human beings through active concern for others. This global definition was proposed in 2016 by this aforementioned article¹⁸.

7. The practical consequences of the normative definition of Compliance Law by its Monumental Goals, with a more limited scope and broader ambitions 🏗 The subject of law subject to this new branch of Law is designated because it is "in a position" to act effectively to ensure that these goals are achieved. Its power is therefore an asset¹⁹, in particular because the company develops beyond territories²⁰, in spaces often structured by it, moving from territory to territory (value chain) or even without territory and without time (digital space)²¹. Companies must therefore deploy their power so that it serves these goals set by the States²², either by force (regulations), Compliance Law being the extension of Regulation Law²³, or willingly, Compliance Law having many points of contact with CSR²⁴.

But Compliance Law, by its very nature, has nothing to do with all applicable regulations! It only concerns the 'regulations' adopted to achieve these Monumental Systemic Goals, and not the others. This new branch of Law cannot go beyond that, which, in view of its power, must be kept within bounds. Furthermore, these regulations must be applied by companies, Regulators and Judges in a teleological manner, i.e. on the basis of Goals²⁵. Companies are required not to achieve these Monumental Goals immediately, but to make their best efforts, along a credible trajectory, to participate effectively, with efficacy and efficiently in achieving them²⁶. The probationary system of Compliance follows from this²⁷

II. PUTTING CONFORMITY BACK WHERE IT BELONGS, AS A TOOL OF COMPLIANCE LAW

8 . Identifying specific regulations, a tool among others in Compliance Law, for detecting non-conform behaviour and taking action 🏗 However, we must not eliminate from Compliance Law the importance of companies' knowledge of specific regulations and breaches, whatever the restrictive scope of the standard. For example, in order to achieve the Monumental Goal of eradicating corruption from economic and social systems, which is the aim of the American FCPA, the French Sapin 2 law, the British Bribery Act, etc., the company responsible for "detecting and preventing" this evil insofar as it is systemic, so that in the future the principle of probity shall be actually substituted for it, must be aware of the state of corruption, which implies being aware of its "non-conformities. This detection will make it possible to prevent the scourge. The internal investigation is therefore an essential tool²⁸.

9. Conformity, fueled by Information 🏗 The company's tool is therefore "conformity", whether imposed by "compliance programmes📎"²⁹, DPA and CJIP³⁰ or new management methods³¹. Internal investigation and audit technique³² come together. The company gathers information on its "non-conformities". This is how the French Competition Authority now presents its sanctions, which inform the company of the sanctions and, under the heading of "conformity", remind it of its legal obligations³³. It is therefore a matter of gathering information, an essential tool for achieving the aforementioned Monumental Goals.

10 . The promising future of conformity through 'intelligent' algorithmic technology 🏗 In the use of conformity, as an assembly of information with regard to the relevant regulations, put into perspective with all the past, present and even future situations that the company must be aware of, both internally and externally, the power of algorithmic tools makes it possible to obtain information on non-conformities and then, through the logical process of 'coincidence', on conformities. Databases are therefore invaluable, not to say indispensable, tools. The difficulty then lies not so much in obtaining the information as in the fundamental rights that sometimes stand in the way and that judges defend (privacy, rights of defence, business secrecy, defence secrecy, etc.)³⁴.

11. Beyond the informational tool of conformity, the human concern of Compliance, implies the legal recourse to dialogue and the construction of a culture 🏗 The company can thus have information, in an adequate mass which corresponds to the "regulations mass" to which Compliance Law is sometimes reduced³⁵, and by an automatic correlation thanks to algorithms. Compliance Law being defined normatively by concern for human beings, including future human beings³⁶, this information being only a tool, the legal mechanisms of dialogue between humans appear. Thus the adversarial principle is a Compliance principle, as is mediation³⁷. The company also takes stakeholders into account when developing its tools³⁸.

12. Beyond the informational tool of conformity, the human concern of Compliance brings out the jurist, the lawyer and the judge 🏗 Therefore, whereas if Compliance were just "conformity" there would be no need for anyone since algorithms would ensure the mechanical mapping of situations and people to all regulations, because Compliance Law is a branch of Humanist Law³⁹, which must express the culture of the company and the dialogue that makes it function as a group of people⁴⁰, it is not regulations that are at stake but "the spirit of the laws"⁴¹, meeting a "corporate culture", whose goal is common, the legal notion of "mission" expressing it. This spirit is instilled by the jurist, guarded by the judge, defended by the lawyer⁴².

13. The evidentiary system of Compliance Law: articulating the two types of evidence, by the tool and by the Goals 🏗 Consequently, the company bears the burden of proving that it has fulfilled its Compliance Obligation, even if it is the defendant in a case. But in the first place the algorithmic system enables it to satisfy this by showing all its best efforts in handling this conformity tool. Secondly, its action in terms of education, dialogue and openness to take proven action to protect the systems in its position, action measured in its effects, in particular through alliances and remedial approaches. The evidence required to demonstrate the fulfillment of this obligation of means is of a different nature, depending on whether it is a question of collating data or participating in this great "adventure of compliance"⁴³ , which is taking up the challenges of the future, in the face of which the role of companies is central.

15. Conclusion 🏗 Thus defined and rearranged in relation to each other, conformity, the – essentially technological – tool of Compliance Law, helps the latter to achieve the Monumental Goals that define it.

________

For instance, 🕴️A. Lyon-Caen, 📝Querelle de mots, 2023 : "Certains, comme sustainability ou compliance, se parent du charme ambigu de l'extranéité. Si les traditions ne se perdent pas, ils ne franchiront le seuil qu'une fois traduits et devenus, sans doute, « durabilité » et « conformité »" (free translation : "Some, like sustainability or compliance, are adorned with the ambiguous charm of foreignness. If traditions are not lost, they will only cross the threshold once they have been translated and become, no doubt, "durabilité" and "conformité".").

The tone can be less sarcastic. The aim is then simply to inform the reader, not to warn against the mirages of American Law, which would have dazzled the weak-minded.
Among the numerous books on this topic, see for instance 🕴️P. Amselek (ed.), 📗Théorie des actes de langage, éthique et droit, 1986.
🕴️G. Cornu, 📗Linguistique juridique, 2005.
V. par ex. (et là vous me mettez en référence des articles...).
🕴️M.-A. Frison-Roche, 🚧Compliance Law, 2016.
🕴️M.-A. Frison-Roche, 📝Le droit de la régulation (Regulation Law), 2001.
🕴️M.-A. Frison-Roche, 📝Subjective Rights Primary and Natural Tools of Compliance Law, in 🕴️M.-A. Frison-Roche (ed.), 📘Compliance Tools, 2021 ; see also in the same book 📝Training: Content and Container of Compliance.
On the topic of secrets and Compliance in personal data matters, see for instance 🕴️M.-A. Frison-Roche, 📓L'apport du Droit de la Compliance dans la Gouvernance d'Internet (The contribution of Compliance Law to the Internet Governance), 2019.
🕴️M.-A. Frison-Roche & 🕴️M. Boissavy (eds.), 📕Compliance et droits de la défense. Enquête interne – CJIP – CRPC (Compliance and Due process. Internal investigation and DPA), 2024.

Compliance Law also justifies the legal privilege of legal opinions ; in this way see 🕴️M.-A. Frison-Roche, 📝La compliance, socle de la confidentialité nécessaire des avis juridiques élaborés en entreprise (Compliance, basis for the necessary confidentiality of legal opinions drawn up in the company), 2023.
🕴️M.-A. Frison-Roche, 📝La compliance, socle de la confidentialité nécessaire des avis juridiques élaborés en entreprise (Compliance, the cornerstone of the confidentiality required for in-house legal opinions), 2023.
For instance, 🕴️E. Breen, 📝La "compliance", une privatisation de la régulation ? ("Compliance", a privatisation of Regulation?), 2019.
See for instance 🕴️G. Teubner, 📗Fragments constitutionnels. Le constitutionnalisme sociétal à l'ère de la globalisation, 2016.
Read the book by which Carbonnier warned against, 🕴️J. Carbonnier, 📗Droit et passion du droit sous la Vième République, 1995.
🕴️M.-A. Frison-Roche (ed.), 📘Compliance Monumental Goals, 2022.
This is particularly true of Vigilance, the advanced point of Compliance Law and extra-financial information.

See for instance, 🕴️M.-A. Frison-Roche, 🎥L'esprit des Lois en matière de vigilance (Spirit of Law in Vigilance matters), in 🧮Les Rencontres du Haut Conseil du Commissariat aux Comptes (H3C), Réalités et défis de la CSRD - Perspectives du devoir de vigilance, June 14, 2023 ; 🚧Vigilance, a piece of the European puzzle, 2023 ; 🚧The role of the Judge in the deployment of Regulatory Law in Compliance Law, 2023.
🕴️M.-A. Frison-Roche, 📝Definition of Proportionality and Definition of Compliance Law, in 🕴️M.-A. Frison-Roche (ed.), 📘Compliance Monumental Goals, 2023 ; see in the same book 🕴️L. Rapp, 📝Compliance, Proportionality and Normativity.
🕴️M.-A. Frison-Roche, 📝Compliance Monumental Goals, beating heart of Compliance Law, in 🕴️M.-A. Frison-Roche (ed.), 📘Compliance Monumental Goals, 2022.
🕴️M.-A. Frison-Roche, 🚧Compliance Law, 2016.
🕴️M.-A. Frison-Roche, 🚧Use of private companies by Compliance Law to serve Human Rights, 2023.
🕴️J.-B. Racine, 📝Geographical dominance in the choice and the use of compliance tools. Introductory remarks, in 🕴️M.-A. Frison-Roche (ed.), 📘Compliance Tools, 2021.
🕴️R.-O. Maistre, 📝What Monumental Goals for the Regulator in a rapidly changing audiovisual and digital landscape?, in 🕴️M.-A. Frison-Roche (ed.), 📘Compliance Monumental Goals, 2022.
🕴️M.-A. Frison-Roche, 🚧Conceiving Power, 2021.
🕴️M.-A. Frison-Roche, 🚧From Regulation Law to Compliance Law; see also 📝Séance de clôture : Le rôle du juge dans le déploiement du droit de la régulation par le droit de la compliance, in Conseil d'État (French Council of State) and Cour de cassation (French Court of cassation), 📗De la régulation à la compliance : quel rôle pour le juge ?, 2024.
🕴️M.-A. Frison-Roche, 📝Compliance Obligation, between will and consent: obligation on obligation works, in 🕴️M.-A. Frison-Roche (ed.), 📘Compliance Obligation, 2024.
🕴️M.-A. Frison-Roche, 📝Legal Approach to Compliance Tools: Building by Law the Unity of Compliance Tools from the Definition of Compliance Law by its "Monumental Goals", in 🕴️M.-A. Frison-Roche (ed.), 📘Compliance Tools, 2021.
On the very definition of the Compliance Obligation, 🕴️M.-A. Frison-Roche (ed.), 📘Compliance Obligation, 2024.
🕴️M.-A. Frison-Roche, 📝The Judge, the Compliance Obligation and the Company. The Compliance Evidence System, in 🕴️M.-A. Frison-Roche (ed.), 📘Compliance Jurisdictionalisation, 2024.
🕴️M.-A. Frison-Roche, 📝Connaître les pratiques pour redessiner les frontières et accroître les points de contact entre Compliance et droits de la défense dans l’enquête interne, la CJIP et la CRPC. Lignes de force de l'ouvrage Compliance et droits de la défense (Understanding practices to redraw the boundaries and increase the points of contact between Compliance and the rights of the defense in internal investigation, Judicial Public Interest Agreement and French guilty plea procedure (Main Aspects of the Book Compliance and rights of the defence)), in 🕴️M.-A. Frison-Roche & 🕴️M. Boissavy (eds.), 📕Compliance et droits de la défense. Enquête interne – CJIP – CRPC (Compliance and rights of the defence. Internal investigation – French Judicial Public Interest Agreement – French guilty plea procedure), 2024.

See, in the same book, 🕴️M.-A. Frison-Roche, 📝Circuler dans le temps pour mettre en phase Compliance et droits de la défense (Moving through Time to align Compliance and rights of the defence), 2024.
Sur les programmes de conformité, les études sont très nombreuses. Voir par exemple....
Sur la part des programmes dans les CJIP élaborées, voir ....
On the convergence between Law and Management that the topic implies, see 🕴️M.-A. Frison-Roche, 🎬recording and moderating a series of interviews on Compliance Law, in 🕴️J.-Ph. Denis, 📺Fenêtres ouvertes sur la gestion, Xerfi Canal, recording on `December 12, 2023, broadcast in 2024; see also 🕴️J.-Ph. Denis & 🕴️N. Fabbe-Costes, 📝Legal constraints and Companies Strategy in Compliance, in 🕴️M.-A. Frison-Roche (ed.), 📘Compliance Obligation, 2024.

On the convergence required between Law and Economy, see 🕴️L. Benzoni & 🕴️B. Deffains, 📝An Economic Approach to Compliance Tools: Finality, Measure, and Effectivity of Constrained or Chosen Compliance, in 🕴️M.-A. Frison-Roche (ed.), 📘Compliance Tools, 2021; see also 🕴️Ph. Aghion, 🕴️B. Deffain, 🕴️M.-A. Frison-Roche and 🕴️S. Hoynck, 🧮Face au défi climatique : innovations économiques et innovations juridiques, April 2, 2024.
This explains the convergence with "sustainability audits", activity taken in charge by statutory auditors but also in some countries also lawyers. Consequently, in France the supervisory body (the Haute Autorité de l'Audit - H2A) no longer supervises a profession but an activity.
See for instance the decisions 🏛️Autorité de la concurrence - ADLC (French Competition Authority), December 11, 2023, so-called Mariage Frères and 🏛️Autorité de la concurrence - ADLC (French Competition Authority), February 6, 2024, dite De Neuville.
On these rights and the role of the courts in these areas, 🕴️M.-A. Frison-Roche (ed.), 📘Compliance Jurisdictionalisation, 2024, not. 🕴️M.-A. Frison-Roche, 📝Reinforce the Judge and the Lawyer to impose Compliance Law as a characteristic of the Rule of Law; 🕴️M.-A. Frison-Roche & 🕴️M. Boissavy (eds.), 📕Compliance et droits de la défense. Enquête interne – CJIP – CRPC (Compliance and rights of the defence. Internal investigation – French Judicial Public Interest Agreement – French guilty plea procedure), 2024.
Sur la masse réglementaire, voir ....
🕴️P. Godé, 📝Le droit de l'avenir (un droit en devenir) (The law of the future (a law in the making)), in Mélanges en hommage à François Terré, L'avenir du droit, 1999 ; see also 🕴️M.-A. Frison-Roche, coordination of the conference Les pratiques juridictionnelles au service d'un espace juridique pour le futur, November 21, 2024.
🕴️Th. Goujon-Béthan, 📝Present and future challenges of linking the principles of civil and commercial procedure with the logic of Compliance, in 🕴️M.-A. Frison-Roche (ed.), 📘Compliance Obligation, 2024.
🕴️A.-V. Le Fur, 📝Interest and “raison d’être” of the company: how do they fit with the Compliance Monumental Goals?, in 🕴️M.-A. Frison-Roche (ed.), 📘Compliance Monumental Goals, 2023.
🕴️M.-A. Frison-Roche, 🚧What can Compliance Law build relying on the European Humanist Tradition, 2019.
🕴️A. Supiot, 📝Introduction. L'entreprise face au Marché total, in 🕴️A. Supiot (ed.), 📗L'entreprise dans un monde sans frontières. Perspectives économiques et juridiques, 2015.
🕴️M.-A. Frison-Roche, 🎥L'esprit des Lois en matière de vigilance (Spirit of Law in Vigilance matters), in 🧮Les Rencontres du Haut Conseil du Commissariat aux Comptes (H3C), Réalités et défis de la CSRD - Perspectives du devoir de vigilance, June 14, 2023
🕴️M.-A. Frison-Roche, 📝Reinforce the Judge and the Lawyer to impose Compliance Law as a characteristic of the Rule of Law, in 🕴️M.-A. Frison-Roche (ed.), 📘Compliance Jurisdictionalisation, 2024.
🕴️M.-A. Frison-Roche, 🚧The adventure of Compliance Law, 2020.
Sur la peine de conformité, voir par exemple ....

FieldsEconomic Law, Regulation and Compliance, Philosophy, theory and sociology of law

TagsDefinitionComplianceMonumental GoalsCompliance LawCompliance Tools