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► Full Reference : Frison-Roche, M.-A., Compliance et personnalité, in Recueil Dalloz, n°11/7812, avril 2019, pp. 604-606 -   ► Chronique English Summary: Compliance is often presented as a set of mechanical procedures, in which human beings are absent. It's the opposite. It is an Information Law, in its function of preventing systemic risks and a markets protection Law, which poses the requirement of knowing “truly” the person who is “relevant”, generalizing what Company or Competition Law had partially admitted. Even more, beyond systems, Compliance Law, insofar as it is a Protection Law, aims to protect human beings, directly or indirectly concerned, establishing them as legal persons, true final subjects of law of this new branch of Law. - 📝read the chronique (in French). - 🚧  read the bilingual Working paper, Compliance and Personality, basis of this chronique,    working paper including footnotes, technical references and hyperlink - 📖 read the other chroniques Chronique MAFR Droit de la Compliance -

Full reference: Frison-Roche, M.-A., Creating "Regulation Law" at Dauphine, in Huault, I. and Bouchard, B. (ed.), 50 years of Research in Dauphine. 1968-2019, 2019, pp. 110-114 Read Marie-Anne Frison-Roche's article (in French)   Read also:  The foreword of the book written by Bruno Bouchard (in French) The preface of the book written by Ivar Ekeland (in French) The table of contents of the book (in French)

This working paper has served as a basis for an article subsequently published in French in the Law Journal Recueil Dalloz (see Compliance et personnalité, Recueil Dalloz, 2019). It is enriched with notes, references and links.    Summary: Compliance Law is often presented as empty and a mechanical set of procedures, in which human beings do not matter. It is the opposite. The concern of human beings justifies it fights against the legal technique of the personality. Indeed as Compliance Law is an legal construction around Information and even in its core function of prevention of the systemic risks and its markets protection, the Compliance Law sets the requirement to know "genuinely" the person who is "relevant" – behind the legal person – for the purpose set, for example the fight against corruption or money laundering, establishing in principe what are only exception in Corporate Law or Competition Law. In a more European conception of Compliance Law, as Law of direct protection of human beings beyong legal personnalities, from near the company and even far, humans being the real and effective beneficiaries of the new branch of Law. 

This working document is the basis for a conference held in Nice on February 4, 2020.   Refer to the presentation of the conference, in particular to the slides which are the support of its presentation.   The working document is also the underlying of the article to appear in the book: Compliance Tools..   Summary of the Working Paper. The link between Law and History is so often emphasized, also between Law and Society, but very little between Law and Geography. Braudel does not have enough emulators in the matter. However Pascal affirmed as an observation that the legal rules are not the same below and beyond the Pyrenees. Montesquieu in the new formulation which he proposes of the Theory of climates, gives to the observation of the variety of systems and their correlation with geography a more normative turn. Human beings would be different according to the regions and by the effect of time a difference of nature appears which implies that one should not conceive the same rule according to the zones of the world. Everyone often talk about Montesquieu and affirms the good idea to return to his conception on the art of designing Law. Why not use this specifif theory  in matters of Compliance Law, globally applied since the climates are so different? All the more if we take more literally the reference to "climate", to different climates and we have in mind the now very strong link between Law and environmental policies on the one hand and the tools of Compliance Law on the other hand (like the so-called "green finance").   If we have to do it with caution, we can already do it as an exercise, if only to test the way we design and apply Compliance tools without ever thinking about the differences in latitude, which are neither hot nor cold to artificial intelligences.   It is certainly with great caution that we should move forward but by expressing more consideration for the essential relationships between Law, Compliance and Geography. This consideration must be not just a simple indicator that ultimately comes in the risk mapping and in the programs compliance, If we pay attention, then firstly this avoids two pitfalls (I). The first is to avoid giving all the space to tools that do not integrate this geographic dimension, by reducing what Compliance itself is. This risk of giving too little importance to the geographic dimension in the design and use of Compliance tools (A) can take three forms. Indeed if we reduce Compliance to being only a "procedure" aiming to mechanically ensure the entreprise "conformity" to "regulation" (1), then this literally meaningless definition can apply everywhere and to everyone. But is Compliance Law just that? It is notably to ignore its normative teleological character. The second exclusion from geographic relevance, which similarly signals a poor vision of Compliance, consists in entrusting the entire mechanics of Compliance to platforms and algorithms, by which machines "talk" and would be able to "develop standards" (2) . If Compliance is only data capture, storage and correlation, this is conceivable. But the "ground" where the weak signals are perceived, memorized, where the standards are "internalized, shows that it varies according to the zones. As such, the idea of" regulation by data ", promoted by many regulations and Regulators deserves be more careful because the information does not make the decision by itself, Compliance Law remaining from Ex Ante with humans who decide for the future. Similarly, Compliance Law takes shape in companies, either all (about corruption, worker security), or those of certain sectors (banks for money laundering) or of a certain size (vigilance mechanisms). When it is assumed that the compliance standards, embodied by internal controls, are the same for all of the locations of the so-called "global" company (3), is this not a somewhat outdated vision of the company? While we question the State, because too hierarchical, this is the board of the company which sometimes imposes via its private regulatory power the same standard, fixed on the West …..   But once alerted on this first type of pitfall is to better guard against another type of pitfall. It is the reverse. Indeed, we must be careful not to give too much importance to the geographic dimension in the design and use that we have of Compliance tools (B).  It is not appropriate to draw boundaries between Compliance systems, since Compliance has given rise to a new Law branch, strongly linked to the phenomenon known as "globalization" (1). However, not only can we observe the permanence of these borders, on which international settlement systems run up, but we note that Compliance Law allows the construction of new walls, against which we could do nothing. While there is a war between exported local Compliances, of which that of the United States is the most conspicuous because its voice carries the most, but it is above all a defeat of the Law, but about which we tends to confuse the part and the whole (2).   Once we have tried to regain our senses a little, it could be possible to classify Compliance tools because the Compliance techniques, as soon as we want them substantial, that is to say built on the goals that their power can actually achieve, have an immense field of action which means that we must at the same time identify general but concrete rules. To find the right relationship between Compliance Law and Geography (II), we can propose a triptych. In the first place, there is undoubtedly what concerns technical information and conservation methods, where we can accelerate by passing stages of development and pass directly to detection techniques, without worrying about keeping in the geographic place what appears there before mais is not useful (A). Then by focusing on the normativity of Compliance, that is to say the different goals pursued, it turns out that some are certainly objectively anchored in the geography of an area, which finds particularly its relevance in terms of environment, but have effects that pass the Pyrenees dear to Pascal, which justifies global compliance requirements, as shown in the case of the Amazon, which is a "crucial object" (B).  Even more, if we put some hope in Compliance Law and that the monumental goal pursued by it is of a political nature and not only technical, Compliance being what sustains and not what replaces Politics , it is therefore necessary to assume the Ex Ante Responsibility carried by Compliance through the concept of Vigilance. This is taking place. What is yet to be devised is to improve the very definition of what Compliance Tools are ; for the moment, maybe they are too abrupt, too violent. In this, they must be conceived not as violence – however legitimate they may be, but as a "path", which the texts of energy "transition" show us. The company then becomes the supervisor of others to bring them from one state to another, as we can see about invest banking (C). Law as a "path" and not as a prescription, it is Kanak Law which shows us the example.  Sure that Montesquieu would appreciate it.   

► Référence complète : M.-A. Frison-Roche, "What can Compliance Law build relying on the European Humanist Tradition", Working Paper, January 2019. - This working paper has served as a basis for an article published in French in the collective publication Pour une Europe de la Compliance in the serie Regulation & Compliance. -     Compliance is often presented as a complex, technical, almost incomprehensible set, in that it consists only of empty and moving procedures, mechanical corpus about which the goal would be a question that would not arise. The question of the purpose of these huge compliance devices might not even have to be asked. And this for two reasons. Firstly it would only be a matter of following "processes", that is, mechanical and endless procedures. This conception of compliance is often called "kafkaes". Closer to closer, one thinks first of all of the book written by Kafka's The trial l and Welles' adaptation to the cinema in which the charcters are surrounded by walls that are narrowing around them, but it is rather to his novel In the penal colony that must be thought, that is to say to a procedural system of isolation which we do not understand the foundation, which makes it without foundation and without end but also which takes mainly the form of a machine in which the person is placed and which mechanically writes the Law on and under the skin of his back. This internalization of the rule in the body of the condemned – that the French legal system before the French Revolution associated only with "enormous crimes" – being the ordinary way of actual and ordinary application of the rules can correspond to a certain vision of the Compliance, detached from any purpose. The question of the purpose of Compliance may also not have to arise for a second reason, almost the opposite: they would always be devices that are specific to particular sectors. Thus, the banking sector, the insurance sector, the drug sector, the agri-food sector, the telecommunications sector, the energy sector, etc. Then the opposite happens: too many goals! Since each of these sectors has specificities such that it includes purposes that are specific to each of them. For example continuity for energy, access information for telecommunications, control of systemic risk for banking and finance, protection and secret for private information, etc. Now, either these ends so diverse are indifferent to each other, or they can contradict each other. Therefore, to ask the question of the purpose of compliance mechanisms would be to move to the stitution of not even trying to understand "processes" to be exceeded by too many substantial purposes pursued at the same time and in contradictorily senses … . This is why the question of the purpose of the Compliance is not asked in a main way. Even less if it is superimposed with another goal that is the European construction …. But on the contrary, if we confront this question of the aims of the Compliance Mechanisms by crossing it with another issue, older but also under construction, namely the question of Europe, it is possible to make an alliance of these two difficulties to transform them as an asset. That one can help the other. Indeed, both Europe and Compliance in their current states are two constructs with uncertain goals or behaviors most often only "reactive" (I). If we do not want to mobilize all our strength to limit our weakness, which leads rather to feed it, we can go draw on the unity of this Europe so diverse but which finds it unity in the protection of the human being by the very idea of ​​"person". However, Compliance Law can have the same unity, despite the diversity of sectors, and thus fill the meaning of these multiple procedures, providing the balance between information and secrets, circulation of data and conservation of that they concern, common and dialectic purpose that this European Compliance Law. in the process of being constituted can give the world an example in relying on the European tradition  (II). 

Full reference : Laget-Annamayer, A. (ed.), L'ordre public économique ("Economic Public Order"), coll. "Droit et Économie", Lextenso – LGDJ éditions, 2018, 397p.   This collective book is published in French.    This is the 32nd volume published in this collection.   Often launched as an all-encompassing expression, both by the doctrine and by the judge, public economic order remains a mysterious concept whose substance and contours are difficult to know, simply because it is liable to fluctuate according to its apprehension and depending on the economic and social context. Yet the expression has become widely used, almost incantatory, like a label, and there is therefore undoubtedly a gap between its invocation and its meaning in Law. It is to this discrepancy, and in an attempt to reduce the mystery, that this work is devoted. Not stopping at the only vision of public economic order in internal Public Law, he tries to seek the meanings of it in Comparative Law, in European and International Law, without omitting the historical, privatist or economic vision. It is therefore to this rich overview treated by specialists from different legal fields and beyond that this book invites. It does not aim to put an end to the debate, but on the contrary to arouse it in the context of reflections on the relationship between Law and Economics of which everyone knows the importance. Authors are : Olivier Baillet, Jacques Caillosse, Aurélien Camus, Jacques Chevallier, Dominique Custos, Pierre Delvolvé, Samuel Ferey, Sébastien Hourson, Pascale Idoux, Jean-Philippe Kovar, Aurore Laget-Annamayer, Jérémy Martinez, Francesco Martucci, Jeanne Mesmin d’Estienne, Claire Mongouachon, Eric Naim-Gesbert, Guillaume Richard, Jean-Marc Sorel, Pascal de Vareilles-Sommières.   Read the forth of cover. Read the Table of Contents.   See the whole collection in which this book is published

► Full Reference : Frison-Roche, M.-A., Droit de la concurrence et droit de la compliance ("Competition Law and Compliance Law), November 2018,  in Revue Concurrences n° 4-2018, Art. n° 88053, pp. 1-4.  -   ► Summary: Compliance Law is a new branch of Law, still under construction. One can have a “narrow definition” of seeing it as the obligation of businesses to show that they are constantly and actively complying with the law. One can have a richer definition, of a substantive nature, defining it as the obligation or the own will of certain companies to achieve “monumental goals” that go beyond economic and financial performance. Competition Law partly integrates its two conceptions of Compliance: Precursor, Competition Law concretizes dynamically the first conception of Compliance Law. It is with more difficulties but also much more future that Competition Law can express in dialectic the second conception of Compliance Law as internationalization of these “monumental goals”, especially in the digital space. -   📝 read the article (in French) - 🚧read the Working Paper on which this Article is based, with footnotes, technical references and hypertext links.     -

This working paper served as a basis for a conference done in French for the Centre de droit comparé (Center for Comparative Law) in Paris on 23 November 2018. Updated, it has served as a basis for an article published in French in a book of the Société de Législation comparé (Society of Comparative Legislation).   -   "The whistleblowers". This is a new expression. Which wins a full success. Barely heard once, we hear it everywhere … A theme not only of academic teaching, but rather a topic of daily conversation. Because it is every day that we speak about it, in terms more or less graceful. For example President Donald Trump on October 1, 2019 told the press he "wants to interrogate" the whistleblower who would have unlawfully denounced him and would not have, according to him, the right to conceal his own identity, evidence in this according Donald Trump of the false character of his assertions against him, while his lawyer indicates on October 6, 2019 that he does not speak on behalf of a single whistleblower thus taken apart but of a plurality people who gave information against the President of the United States. Even the most imaginative scriptwriters would not have written twists as abruptly or so fast. Spectators, we wait for the next episode, secretly hoping for climbs and slashs. Precisely if we go to the cinema, it is still a whistleblower whose dedication and success, or even drama, we are told, for the benefit of the global society, and especially of Democracy, since the secrets are fought for the benefit of the truth. Thus, the movie The Secret Man designates Mark Felt as the first whistleblower. Returning to what is often presented as a more "serious" media, for example in France the radio "France Culture" we can learn the story of a historian who worked as an archivist on events that the political power would have wanted to keep hidden by possibly destroying their traces but that his profession led to preserve¹On the more general fact that cinema is undoubtedly the medium which most seriously restores the state of the Law, c. Frison-Roche, M.-A., Au coeur du Droit, du cinéma et de la famille : la vie, 2016.: here it is expressly presented to the studious listeners as a "whistleblower" … While the same radio is trying to find the one that could be, as in a kind of contest, the "first whistleblowers"²L'histoire du premier lanceur d'alerte, France Culture, septembre 2019. ?. This rewriting of History can be made because finally Voltaire for Calas, or Zola for Dreyfus did they anything else?  It is also a topic of legislative debate since in the United States the Dodd-Frank Act of 2010 inserted in the 1934 law that established the Securities & Exchanges Commission (SEC) a complete system for retribution and remuneration of whistleblowers, while after elaborating guidelines about about in 2012³European Commission, Guidelines on Whistleblowing, 6 of December 2012, SEC(2012) 679 final, updated on 23 of April 2018. , the European Commission has published the text on November 20, 2018 in order to give the character a unified European status, in the device gradually developed to protect the one that was presented in 2018 as who  like that : ""The new whistleblowers' protection rules will be a game changer. In the globalised world where the temptation to maximise profit sometimes at the expense of the law is real we need to support people who are ready to take the risk to uncover serious violations of EU law. We owe it to the honest people of Europe.". Step for the Directive of October 7, 2019.  In Europe, the Directive first approved by a Resolution of the European Parliament on 16 April 2019 on protection of persons reporting breaches of Union law and then adopted on 7 October 2019 (Directive 2019/78 (EU) of the European Parliament European Union and the Council of the European Union on the Protection of Persons Reporting Breaches of Union law, will have to be transposed in the next two years to the legal systems of the Member States. is not general, since only "violations of European Union Law" are targeted but the character of the "whistleblower" is more generally referred to: it is "whole"⁴However, precisely the so common use of plurality ("whistleblowers") raises doubts about the uniqueness of the character. On this question, see. all the first part of the developments of this study, which leads to the conclusion rather than beyond the multitude of particular cases, there are rather two kinds of whistleblowers. V. infra I.. In short, the whistleblower is a star ⁵The director of the film La fille de Brest says that she considers the whistleblower at the origin of the case of the Pick as a "movie character".. A kind of historical character, covered with blows and glory, going from Voltaire to Snowden, one as the other being incarnated on the screens⁶Thus, the adventures of Snowden were brought to the screen by Oliver Stone in 2016, Snowden. On the question of knowing whether this film "faithfully reproduces" or not the case, Schetizer, P., Le film Snowden est-il à la hauteur de la réalité?, 2017. This article is favorable to the whistleblower, and to the film which tells us with emotion his case, in particular because (sic), it is easier than to read the Washington Post. …. Recognized by national legislations, which associate to him a legal regime of protection to such a point that, like a tunic of Nessus, it is this legal regime which will define his character and not the opposite. When we read the French law of December 9, 2016 relative à la transparence à la lutte contre la corruption et à la modernisation de la vie économique (on transparency in the fight against corruption and the modernization of economic life), usually known as "Sapin 2 Act", we note that the lawmaker makes much of this character, because he devotes to him the chapter II: "De la protection des⁷Underlined by us. lanceurs d'alerte" ("The protection of⁷Underlined by us. whistle-blowers") and that it is by his very protection that the French Parliament formally opens the door of Law to him and throws it openly. But why a plural? Certainly when we read the recitals of the European Directive of 7 October 2019 on the protection of whistleblowers⁸About this directive, v. the developments infra, this is only an enumeration of all the subjects about which it is a good idea to to protect them, which encourages us to see in this plural only the index of this non-exhaustive list of topics about which it is good that we are alerted, sign of the lack of definition … Reading the French law known as "Sapin 2" makes us less severe but more perplex. Indeed, from this plurality covered by the title of the chapter devoted to Les lanceurs d'alerte ("The whistleblowers"), there is no longer any question in the rest of the law, in the very definition that follows, Article 6 which opens this chapter devoted the "whistleblowers" offering the player immediately a singular since it begins as follows:  "Un⁹Underlined by us. lanceur d'alerte est une personne …" (A! footnote-1684 whistleblower is a person …"). No more mention of diversity. The art of legislative writing would have even required that the qualifying article should not be singular but not yet indefinite.  Thus seem to contradict in this law "Sapin 2" itself the very title which presents the character, in that it uses a definite plural ("the whistleblowers") while the article of definition which presents the topic does it by using the singular indefinite : "a whistleblower….". This is a first reason to move forward only in a very cautious way, in this "step by step" that constitutes a word-by-word reading: a gloss. This method consists in taking literally the expression itself. The second reason for this technical choice is that the gloss is well suited to an introduction of a collective work, allowing more specific developments to take place in other contributions, for example on the techniques, the difficulties and the limits of this protection, or the history of it, or the reasons for the arrival in French law of these American or Brithish whistleblowers and the way they develop, or not, in other legal systems or other countries. I will therefore content myself with taking again literally this already legal expression: The (I) launchers (II) of alert (III). See below developments.