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The Finance Bill has proposed to the Parliament to vote an article 57 whose title is: Possibilité pour les administrations fiscales et douanières de collecter et exploiter les données rendues publiques sur les sites internet des réseaux sociaux et des opérateurs de plateformes (translation: Possibility for the tax and customs administrations to collect and exploit the data made public on the websites of social networks and platform operators). Its content is as is in the text voted on in the National Assembly as follows: "(1) I. – On an experimental basis and for a period of three years, for the purposes of investigating the offenses mentioned in b and c of 1 of article 1728, in articles 1729, 1791, 1791 ter, in 3 °, 8 ° and 10 ° of article 1810 of the general tax code, as well as articles 411, 412, 414, 414-2 and 415 of the customs code, the tax administration and the customs administration and indirect rights may, each as far as it is concerned, collect and exploit by means of computerized and automated processing using no facial recognition system, freely accessible content published on the internet by the users of the online platform operators mentioned in 2 ° of I of article L. 111-7 of the consumer code. (2) The processing operations mentioned in the first paragraph are carried out by agents specially authorized for this purpose by the tax and customs authorities.   (3) When they are likely to contribute to the detection of the offenses mentioned in the first paragraph, the data collected are kept for a maximum period of one year from their collection and are destroyed at the end of this period. However, when used within the framework of criminal, tax or customs proceedings, this data may be kept until the end of the proceedings. (4) The other data are destroyed within a maximum period of thirty days from their collection. (5) The right of access to the information collected is exercised with the assignment service of the agents authorized to carry out the processing mentioned in the second paragraph under the conditions provided for by article 42 of law n ° 78-17 of January 6, 1978 relating to data processing, the files and freedoms. (6) The right to object, provided for in article 38 of the same law, does not apply to the processing operations mentioned in the second paragraph. (7) The terms of application of this I are set by decree of the Council of State. (8) II. – The experiment provided for in I is the subject of an evaluation, the results of which are forwarded to Parliament as well as to the National Commission for Data Protection at the latest six months before its end. "   This initiative provoked many comments, rather reserved, even after the explanations given by the Minister of Budget to the National Assembly. What to think of it legally? Because the situation is quite simple, that is why it is difficult: on the one hand, the State will collect personal information without the authorization of the persons concerned, which is contrary to the very object of the law of 1978 , which results in full disapproval; on the other hand, the administration obtains the information to prosecute tax and customs offenses, which materializes the general interest itself. So what about it? Read below.

This working paper has been the basis for the introduction in the presentation made in the conference organized by the Journal of Regulation & Compliance (JoRC) on the topic : Compliance Tools, in collaboration with many Universities partners.  This first conference has been organized with the Sciences po Economic Department on November 28, 2019 on Risks Mapping.    This working paper is articulated with a second working paper, being the basis of the first development of this conference, on the caractère nouveau ou non en Droit de l'obligation de cartographie des risques.   These two working papers are the basis for two articles published in the collective book, Compliance Tools, in the Series Regulations & Compliance. 

Référence générale : Frison-Roche, M.-A., "La justice pénale est passée de l'inquisitoire à l'accusatoire" (By Compliance, Continental Criminal Justice Mechanisms have come from Inquisitorial Procedure to Adversarial System), Interview in French about the impact of the "conventions judiciaire d'intérêt public", the French equivalent of DPI, and Compliance Procedures in French Law, Lettre des juristes d'affaires, n°1416, October 14, 2019. Summary : In this interview and through the three questions asked, the answers show that we have gone from an inquisitorial system to an adversarial system, which is a  sort of Revolution especially in matter of proofw. The French legal system must be adapted, but also or, above all, this conception of Compliance efficiency is a mechanism without a judge. The expression of "deal of justice" is excessive, because precisely if there is a "deal", there is no a "judge" : the prosecutor was not a judge. These mechanisms are also handled by the administrative Independant Bodies of Regulation or Supervision, which act here as "prosecuting authorities", that is to say as prosecutor. They also "deal" the non-appearance of the judge, the opposite of "justice", in a classical conception which is the figure of the judge. It is true that in the case of the "convention judiciaire d'intérêt public" the French Law requires an approval by the judge of the CJIP: it is then that the stake moved. There is a change of culture: the prosecutor is in the center, the Regulator or the Supervisor are the "prosecuting authority" and it is as approval authority that the judge or the administrative Sanctions Committee intervenes. But later. When the essential are the proofs obtained in the first lapse of time. The firm or the person can be evaded by asserting his "right to the judge". This judge who seeks the truth while an authority to pursue wants something else: win. We must understand that.    Read the Interview (in French) and the answers to these three questions:  1. En quoi les mécanismes de justice négociée, relativement récents en France, bouleversent les concepts hexagonaux de l’ordre judiciaire ? /  How the negotiated justice mechanisms, relatively recent in France, upset the hexagonal concepts of the judiciary? 2. Les entreprises ont-elles véritablement le choix d’accepter ces « deals de justice » ? / Do companies really have the choice to accept these "deals of justice"? 3. En matière de lutte contre la corruption, les autorités de poursuite se comportent désormais comme des juges puisqu’ils exigent des engagements pour le futur. Quels sont les risques ? / In the fight against corruption, prosecution authorities now behave like judges since they demand commitments for the future. What are the risks ?

Generale Reference : Frison-Roche, M.-A., Les solutions offertes par le Droit de la Compliance pour lutter effectivement contre les contrefaçons de masse (The solutions offered by Compliance Law  to fight effectively against mass counterfeiting) , in Seminar of the Association des Praticiens du Droit Droit des Marques et des Modèles (APRAM), La contrefaçon de masse : va-t-on un jour réussi à y mettre un frein ? Quelques nouvelles pistes de réflexion (How to stop the mass Counterfeiting?, some new ideas), Paris, September 27, 2019.  Read the program of the Seminar. (in French) This conference is based on the report given to the French Government and published in July2019 : The contribution of Compliance Law to the Governance of Internet. It is also based on the new contribution to the new edition of the Grands Arrêts de la propriété intellectuelle : "Le maniement de la propriété intellectuelle comme outil de régulation et de compliance"(in French).  This publication is based on this Working Paper : The use of Intellectuel Property as a tool for Regulatory and Compliance Perspectives.      Summary : In this seminar devoted to new ways of reacting to "mass counterfeiting", the idea here is to start from the observation of an increase in the ineffectiveness of intellectual property rights – and thus of the I.P. Law. Law being a practical art, it is not a simple inconvenience, it is a central question. This can be remedied by improving the Ex Post legal process, but we can think of finding Ex Ante mechanisms. The Regulatory Law is Ex Ante, but digital world is not a sector, it is the world itself. A promising direction is therefore Compliance Law, in that it is both Ex Ante and non-sectoral. The contribution shows how Compliance Law is already useful, could be developed and how it could be applied so that these specific rights could be effectively protected in a digital world, where for the moment counterfactors have in fact the means to ignore them.   See the slides. (in French)  

Experience shows that in the digital the legal technique of consent is not protective enough.   If only because a simplest technology neutralizes the link that should exist between the "consent" of the user and the "free will" of the latter: the consent of the user only protects the latter to the extent that this one can in Law and in fact to say "no.     I. THE EXPERIENCE    For example I found on my Facebook New an access to an unknown web site which puts online an article on "the rights of trees" … I go. In accordance with the European Regulation (GDPR) transposed into French legal system, the site informs that there is possibility for the user to accept or refuse the use of their personal data for the benefit of "partners". If they continue reading, the user is supposed to accept everything, but they can click to "customize". I click: there I find two options: "accept everything" or "reject everything". But the "reject all" option is disabled. It is only possible to click on the "accept all" option.   It is also possible, because the law obliges, to consult the list of the partners of this website: I click and find a list of unknown companies, with foreign denominations, which without doubt once will collect my personal data (and those of my contacts) , having their own head office outside the European Union. It is stated in a text, which can not be copied, that these "partners" can use my data without my consent and for purposes that they do not have to inform me. But, again, these things I can "refuse everything". Here again the "reject all" mention exists but the fonctionality is not active, while the mention "accept all" is an active fonctionality.   As I can not refuse (since it's disabled), and as 99% of Internet users have never clicked on the first two buttons, all their data has been fed into the data market that allows the targeting of products that spill out in the digital space, to their detriment and that of their contact. While believing to read a free article on the "right of the trees". At the end, I do not read this article, since I did not click on the only active buttons: "accept everything".   In more than 50% of cases, the "reject all" or "customize" options are only images but are not active. And data absorption is also about contacts. In exchange for a whimsical article about trees and their rights, or creams to be always young, or celebrities who change spouses, or about so-called tests to find what king or queen you should be if the all recognized all your merits, etc. Proposed on the digital news feed by unknown sites; in partnership with foreign companies that you will never reach. And mass-viewed by Internet users who are also told that "consent" is the proven solution for effective protection …. While these are just panels hastily built by new Potemkins …   II. WHAT TO DO ?    1. Not be satisfied with "consent" from the moment that it is a mechanism that may not be the expression of a free will: how could it be if the option "to refuse" is not active?   2. The link between will and consent must therefore be "presumed" only in a simple presumption and in a non-irrefutable way, because we must refuse to live in a dehumanized society, operating on "mechanical consents", to which the digital does not lead necessarily.   3. Entrust by the Compliance Law to the "crucial digital operators" (in the case of Facebook thanks to which these proposals for free reading are made on the thread of news of the Net surfers) the care to verify in Ex Ante the effectiveness of the link between Will and Consent: Here and concretely the possibility for the user to read while refusing the capture of all its data (for the benefit of operators who do not even have the concrete obligation to give the information of the use that will be made of these personal data).   -

  Summary : In August 2019, about the fire devastating the Amazon, the French Minister of Ecology says that this fact "is not just the business of a state" (n'est pas que l'affaire d'un Etat). This assertion denies the postulates of Public International Iaw (I). This supposes a new system, based on the idea that the power of the State on its territory is erased when the object that is there is no longer related to this "part" but to the All that is Universe (II). Let's accept the augur. First question: if it is not only the case of a State, whose business is it? (III). Second question: to anticipate the other cases that fall under this regime, what should be the criteria in the name of which the All will have to prevail over the part and who will then take care of the case of which the "local" State is divested? (IV). Because the perspective goes beyond the environment, beyond Brazil, beyond the States. It leads to Compliance Law animated by "monumental goals" that are the concern for the Universe and humans, in a humanist spirit. Let's go.   - On August 27, 2019, on the French radio France Inter, Elisabeth Borne, French Minister of Ecology (Transition écologique) expresses it clearly:  "Quand on est sur un enjeu tel que l'Amazonie, ça n'est pas que l'affaire d'un État", that can be translated : "When we are on a stake such as the Amazon, it is not only the business of one State ". Starting from one case, "the Amazon", the Minister, thus taking up the position of the French President, associates a general consequence: "it is not only the affair of one State". This is not a trivial sentence.   This affirmation denies, and why not, the entire system of Public International Law (I). By a new reasoning based on the idea that the All prevails, as by an effect of nature, on the Part (II).   Admitting this, it leads to opening two sets of questions. The first is related to the following main question: if it is not only the case of one State, of which is this the concern (III)? The second set of questions revolves around the questioning of the criteria on behalf of which other cases must be seized in the name of "All " and how to do it (IV).     I. THE QUESTIONING OF THE CLASSIC SYSTEM OF PUBLIC INTERNATIONAL LAW   Since forever, but this is not suffcient to keep the system only for that, the world is legally organized around the concept of territory, which has as for corollary the notion – already more legal – of border. On this basis rests the postulate of International Law: parties, taking the legal form of States, which, if they have common interests, come into contact (A). Admittedly, the notion of "right of interference" has called into question that (B), but in the name of an altruism that does not destroy the territory. The new idea that appears here is that the territory would be no more than a part of an All, in the name of which one would be legitimate to speak, even to decide in the place of the State in whose territory an event takes place (C).   A. The postulate of Public (and Private) International Law: parties (States) which, because of common interests, are in contact The notion of State includes in its very definition the notion of territory (a territory, a population, institutions). Thus the State governs through its institutions what is happening on its territory. For example, if there is a fire, or a risk of fire, the State makes arrangements through all legal, financial, technical and human instruments available to it. It is accountable for what it does through its political and legal responsibility. When what is happening on its territory exceeds this one, in fact (epidemic, catastrophe with the consequences exceeding the borders, migrations, etc.) either according to its own opinion or according to that of the other States, the States, being sovereign subjects of Law in  the international system, act together on a pre-built legal basis: bilateral or/and multilateral treaties, having created legal integrated zones (like the European Union or the United States) or international institutions (like the IMF). A particular technique has been developed for several millennia – but here again the seniority is not sufficient to keep the system: diplomacy, anchored in each state in a particular ministry: the Ministry of Foreign Affairs, which each national government has. If one State totally excludes one phenomenon in the territory of another, the progressive procedure of ceasing diplomatic ties begins. This can result in wars. In the "case of the Amazon" both the President of Brazil and the President of the United States stick to the classical construction of Law. Indeed, the former asserted that the Amazon is in the territory of Brazil, thus falls under the jurisdiction of the power of the Brazilian State and the Brazilian Law, from which it follows that another State does not have to come to interfere. However, the French President takes the floor not as this forest extends also on a French territory but as it is the business of the World. On the contrary, the President of Brazil claims the closing effect, which excludes a third State from taking over directly something – even a difficulty – that takes place in the territory of another. The President of the US federal State has said that these are joint decisions between the President of Brazil and other heads of State, sovereign subjects of Law, who must agree to organize a solution to solve a local problem . Because in the same way that States can declare war, they can help each other. The whole Public (and Private) International Law is therefore based on this assumption: "parts" of the world, on which sovereign parties (States) have taken contact, because circumstances make something that falls within one of them or several others. This is precisely what is called into question. The notion of the "right of interference", whose evocation we hardly hear any more, had already done so. But on another basis.   B. The "right of interference": idea that somebody can directly interfere with what happens in a country , an idea that does not question the postulate of the International Maw, an idea that rests on something else: a " right for the other " The "right of interference" is the idea that in certain territories, things happen that are inadmissible. In memory of the jus cogens, a kind of "Natural Law" of Public International Law, Another, that could be another state, can come to meddle with what is happening in a territory that is closed, without declaring war. to the state that keeps its borders. It is the need of others, for example those who die in mass on this territory, or the nature that is devastated in the indifference of the State on whose soil the disaster is happening, which founds this "right" of another state to come and take charge. The foundation of this "right" is therefore a "duty".   C. The new idea: a territory is only part of the Globe, whose fate is everyone's concern The idea is new because it is not based on altruism. And no more about self-interest. Yet, de facto and de jure , the Amazon is not on the sole territory of Brazil. France is particularly well placed to say something about it since part of the Amazon is on French territory. Thus the inaction of the main concerned Brazil directly affects the interest of France, a "forest" being a block that can not be divided. If we were in Property Law, we would say that we are in indivision with Brazil and that in this respect, with the other States on whose territories this forest extends, a solution must be found. Because of the indivisibility of this particular object which is this particular fores, it is necessary that the States whose territory is concerned have a say in the matter. But this is not the argument put forward by France, particularly by the President of the Republic. It is said that the whole world is concerned about the fate of the Amazon. It could be said that, in this respect, when what could be described as a "global forest" is well treated, its management does indeed fall within the power of Brazil, Brazilian companies and the Brazilian State, but when it is abused to the point of seeing its future compromised, when fires may make it disappear, then this forest appears not to be localized in Brazil but being located in the World, of which Brazil is only a part. This reasoning, which then gives voice to everyone, for in the world every state is included in it, is a new reasoning. The economic-political theory of the "commons" does not account for it because it is not a very legal theory.    II. THE NEW REASONING THAT COVERS THE CLASSIC REASONING OF PUBLIC INTERNATIONAL LAW The new reasoning adopted by the Minister consists in saying that the Amazon does not concern only Brazil. This forest should therefore be directly related to the World (A). This is a welcome change in the system but based on a paradox (B).   A. When the Amazon is in danger of death, then it should no longer be attached to this part of the World that is Brazil, but directly to the World This forest is presented as the "lung" of the planet, it is the "future" of humanity. In this, it can concern only one State, not even the one on whose territory this "Humanity good" is located.  As such, without the need to declare war to Brazil, another State may speak, for example the French State through the one that represents it in the international order, that is to say its President, to say what to do, since according to him the President of Brazil does not say or do what it is absolutely necessary to do for the whole planet and for the future of Humanity. This induces a complete renewal of international institutions. Indeed a direct attachment to the World and no longer to Brazil gives the forest object a special status because of a goal that exceeds Brazil: save the Amazon would impose because it would save the world. Therefore, it can no longer be the subject of Brazil, which would be like "dispossessed" by a goal that is imposed on it: to save the Amazon rainforest, even though it is mainly on its territory, while other States become legitimate to dispose of this object, even if the forest would not be in part in their territory, even if they would not be affected in their own interests. This contradicts all Public International Law; because the agreement of the political representatives of Brazil is no longer required and no one yet evokes the need to declare war to Brazil, and fortunately! Such an upheaval justifies that such an affirmation is accepted with difficulty. One understands better than first consequence, which is not so innocuous, one of the first rules of diplomacy which is the politeness, between the heads of state, with regard to the spouses of these , have be broken, that the remarks have slipped on personal questions, etc.   B. A welcome but paradoxical change in the system Why not change the system? This is difficult to admit, not only because it is brutal, but because it is paradoxical. The paradox is the following. It is recognized that the theme of the disappearance of borders by "globalization" no longer reproduces the reality of facts, especially not the Chinese situation, the digitalization having on the contrary allowed the construction of even stronger boundaries. What we called "globalization" now belongs to the pastWhat we called "globalization" now belongs to the past. So today we should recognize on one side the reality of borders – which had not disappeared or are reborn – but only to better step over them, since – based on the concern of the world – states, yet each in their borders, would be legitimate to go directly to intervene in the business of others.  The paradox is therefore, on the one hand, the rejection of the allegation of a de facto disappearance of borders by an economic interdependence, technology having denied "globalization" as a fact  and the linked resurgence of borders allowing States to affirm more than ever that they would be "sovereign masters at home", which should logically lead to let Brazil decide for the Amazon, while yet on the other side we witness the questioning of the postulate of Public International Law as recognition of sovereignty and construction from agreements between states, requiring the agreement of the state whose territory is concerned (except war), questioning which leads to allow all to meddle with the fate of the Amazon, as if there was no border. This paradox leads to two questions. The first question is: if "it's not juste one State affair", who's concerned? The second question is: after the "case of the Amazon", what are the other cases? And how are we going to provide solutions, if we no longer have the solutions of Public International Law, that is to say, the agreement of the country whose territory is concerned and which we do not want not go to war? If we have clear ideas on the answers to be given to these two sets of questions, then because indeed when the future of all is in progress it can not be the affair of a single State, it is necessary to question Public International Law. But do we have clear ideas on these two questions? And what are the possibilities for possible solutions?   See the text following below.

Digital technology is not only a new world: it has transformed the world (see a demonstration in this sense, Frison-Roche, MA, The contribution of Compliance Law in Internet governance, report to the French Government, July 2019 ) .. Thus, one should not always put in the same basket even if the expression is euphonic "GAFAM". While some companies offer only intangible services, such as Facebook or Google, namely putting in contact, others have material activities. Amazon ensures the delivery of material objects, of which it provides storage for example, while Uber takes care of the transport of people. Admittedly, this company denies this meeting and ensures that it deals only with the connection, but Law has requalified its activity, which is indeed of a material nature. It is therefore difficult to find a unity in these companies, apart from the fact that they are American, that their power seems as sudden as it is unmatched, their global deployment and that they appear "indispensable" to billions of individuals. . Because many sellers consider that they can only reach potential buyers digitally, that the main market maker is Amazon, that the latter has enacted terms of sale that deprive these sellers numerous protections, the Germain Competition Authority, the Bundeskartellamt,  opened on November 28, 2018 an abuse of a dominant position against Amazon. The act taken by the Bundeskartellamt on July 17, 2019 with regard to Amazon and with the "Amazon agreement", in exchange for which the procedure initiated for a possible sanction of a possible abuse of a dominant position has stopped . Ex Post competition law is exchanged for a Compliance program that goes beyond the powers of a competition authority and the territorial scope of the latter. This does not pose a problem, since it is the “acceptance” that the company makes of it that gives rise to the binding effect and no longer the law which mandated the Competition Authority. This is an example of the remarkable transformation of Competition Law, which goes far beyond the digital issue. In 6 months, the lawsuit turns into an agreement. Which appears as a diktat of the Authority, bearing on the future, obliging in particular a different procedural behavior.   Read the analysis below.

This working document serves as a basis for a contribution to the Grands Arrêts de la Propriété intellectuelle (major cases in Intellectual Property), published under the direction of Michel Vivant, in the new section devoted to Regulatory perspective. Conceived as a "regulatory tool", intellectual property is then used by the State as an "incentive for innovation". Public authorities adopt solutions that stem from sectoral concerns that permeate intellectual property. Because the economic sectors become prime, the systemic perspective then prevails in the solutions retained in the judgments passed by the courts.   One can see it through three French court decisions:    ► Civ., 1ière, 28 février 2006, named Mulholland Drive ; ► Paris, 11 décembre 2012, Sanofi-Aventis ; ► Civ., 1ière, 6 juillet 2017, SFR, Orange, Free, Bouygues télécom et autres.   Summary: Intellectual property, derived from the State and inserted in a public policy, can be conceived, not to reward a posteriori the creator but to incite others to innovate. It is then an Ex Ante tool of Regulation, alternative to subsidies. If private copying is an exception, it is not in relation to the principle of competition but in an insertion in a system of incentives, starting from the costs borne by the author of the first innovation: the owner of the rights is then protected , not only according to a balance of interests, but in order not to discourage innovative potentials and the sector itself. (1st decision). The sectoral policy then pervades the intellectual property used to regulate a sector, for example that of the drug. While it is true that a laboratory wishing to market a generic medicine did not wait for the patent expiry of the original medicine to do so, it is not relevant to sanction this anticipation of a few days because investments made by the holder of the intellectual property right have been made profitable by it and because the public authorities favor generics for the sake of public health (2nd decision). The systemic interest provides and that is why Internet service providers have to bear the costs of access blocking while they are irresponsible because of the texts. This obligation to pay is internalized by Compliance because they are in the digital system best able to put an end to the violation of intellectual property rights that the ecosystem requires to be effective. (3rd decision).     It is necessary to underline the paradox represented by the infatuation of the theoreticians of Regulation with intellectual property, whose legal nature it transforms by an exogenous reasoning(I). Influenced, the case law uses reasoning based on incentives, investments, returns and costs, so that the State obtains the operators expected behaviors (II). As a natural result, there is a sectoral segmentation, for example  in telecommunications or pharmacy, which ends up calling into question the uniqueness of intellectual property, according to the technologies and public policies that affect them  (III). There are still imputations of new obligations on operators just because they are in the technical position of implementing intellectual property rights: the transition from Regulation to Compliance is thus taking place (IV).

 It is often observed, even theorized, even advised and touted, that Compliance is a mechanism by which public authorities internalize political (eg environmental) concerns in big companies, which accept them, in Ex Ante, because they are rather in agreement with these "monumental goals" (eg saving the planet) and that this shared virtue is beneficial to their reputation. It is observed that this could be the most successful way in new configurations, such as digital. But, and the Compliance Mechanism has often been brought closer to the contractual mechanism, this is only relevant if both parties are willing to do so. This is technically true, for example for the Deferred Prosecution, which requires explicit consent. This is true in a more general sense that the company wants to choose itself how to structure its organization to achieve the goals politically pursued by the State. Conversely, the compliance mechanisms work if the State is willing to admit the economic logic of the global private players and / or, if there are possible breaches, not to pursue its investigations and close the file it has opened, at a price more or less high. But just say No. As in contractual matters, the first freedom is negative and depends on the ability to say No. The State can do it. But the company can do it too. And Daimler just said No. -   Publicly, including through an article in the Wall Street Journal of June 28, 2019. The company sets out in a warning to the market that it is the object of a requirement on the part of the German Motor Authority (Kraftfahrt-Bundesamt)  of an allegation of fraud, by the installation of a software, aimed at misleading instruments for measuring emissions of greenhouse gases on cars using diesel. It is therefore an environmental compliance mechanism that would have been intentionally countered. On this allegation, the Regulator both warns the company of what it considers to be a fact, ie compliance fraud, and attaches it to an immediate measure, namely the removal of the circulation of 42,000 vehicles sold or proposed by Daimler with such a device. And the firm answers : "No". -   Which is probably only beginning, since a No ends the dialogue of Ex Ante to project in the Ex Post sanction procedures, calls 6 observations:   1. No doubt Daimler, a German car manufacturing company, has it in mind in this allegation of fraud calculating pollution of its diesel cars what happened to his competitor Volkswagen: namely a multi-billion dollar fine, for lack of compliance in a similar hypothesis (so-called dieselgate). The strategic choice that is then made depends on education through the experience of the company, which benefits as such from a previous case that has had a very significant cost. Thus educated, the question is to measure the risk taken to refuse any cooperation, when the company can anticipate that it will still result in such an amount ….   2. In addition, we find the difficulty of the distinction of Ex Ante and Ex Post. Indeed, saying No will involve for the company a cost of confrontation with the Regulator, then the peripheral jurisdictions or review courts. But in Germany, the Government itself, concerning a bank threatened with compliance proceedings and almost summoned by the US regulator to pay "of its own free will" a transactional fine, felt that this was not normal, because it must be the judges who punish, after a contradictory procedure with due process and after established facts.    3.  However, this is only an allegation, of probable assertions, of what legally allows to continue, but which does not allow to condemn. The confusion between the burden of proof, which presupposes the obligation to prove the facts before being able to sanction, and the burden of the allegation, which only supposes to articulate plausibility before being able to prosecute, is very damaging, particularly if we are committed to the principles of Repressive Law, such as the presumption of innocence and the due process. This distinction between these two probationary charges is at the heart of the probatory system in the Compliance Law. Because Compliance Law always looks for more efficiency, tends to go from the first to the second, to give the Regulator more power, since businesses are so powerful ….   4. But the first question then arises: what is the nature no so much of the future measure to be feared, namely a sanction that could be taken later, against Daimler, if the breach is proven, or which will not be applied to the firm if the breach is not established; but what is the nature of the measure immediately taken, namely the return of 42,000 vehicles?   This may seem like an Ex Ante measurement. Indeed, the Compliance assumes non-polluting cars. The Regulator may have indications that these cars are polluting and that the manufacturer has not made the necessary arrangements for them to be less polluting (Compliance) or even organized so that this failure is not detected ( Compliance fraud).   This allegation suggests that there is a risk that thiese cars will polluting. They must immediately be removed from circulation for the quality of the environment. Here and now. The question of sanctions will arise after that, having its procedural apparatus of guarantees for the company that will be pursued. But see the situation on the side of the company: having to withdraw 42,000 vehicles from the market is a great damage and what is often called in Repressive Law a "security measure" taken while the evidence is not yet met could deserve a requalification in sanction. Jurisprudence is both abundant and nuanced on this issue of qualification.   5. So to withdraw these cars, it is for the company to admit that it is guilty, to increase itself the punishment. And if at this game, taken from the "cost-benefit", as much for the company immediately assert to the market that this requirement of Regulation is unfounded in Law, that the alleged facts are not exacts, and that all this the judges will decide. It is sure at all whether these statements by the company are true or false, but before a Tribunal no one thinks they are true prima facie, they are only allegations.  And before a Court, a Regulator appears to have to bear a burden of proof in so far as he has to defend the order he has issued, to prove the breach which he asserts exists, which justifies the exercise he made of his powers. The fact that he exercises his power for the general interest and impartially does not diminish this burden of proof.   6. By saying "No", Daimler wants to recover this classic Law, often set aside by Compliance Law, classic Law based on burden of proof, means of proof, and prohibition of punitive measures – except imminent and future imminente and very serious damages  – before 'behavior could be sanctioned following a sanction procedure. Admittedly, one would be tempted to make an analogy with the current situation of Boeing whose aircraft are grounded by the Regulator in that he considers that they do not meet the conditions of safety, which the aircraft manufacturer denies , Ex Ante measurement that resembles the retraction measure of the market that constitutes the recall request of cars here operated. But the analogy does not work on two points. Firstly, flight activity is a regulated activity that can only be exercised with the Ex Ante authorization of several Regulators, which is not the case for offering to sell cars or to drive with. This is where Regulatory Law and Compliance Law, which often come together, here stand out.Secundly, the very possibility that planes of which it is not excluded that they are not sure is enough, as a precaution, to prohibit their shift. Here (about the cars and the measure of the pollution by them), it is not the safety of the person that is at stake, and probably not even the overall goal of the environment, but the fraud with respect to the obligation to obey Compliance. Why force the withdrawal of 42,000 vehicles? If not to punish? In an exemplary way, to remind in advance and all that it costs not to obey the Compliance? And there, the company says: "I want a judge".   ​ -