🚧Compliance and conformity: distinguishing them to articulate them

1. One word for another? No 🏗  L'on ne compte pas les écrits ou les propos dans lesquels le mot "compliance" et celui de "conformité" sont employés l'un pour l'autre. L'auteur soupçonne parfois chez celui qui utilise le terme de "compliance" un attrait mal placé pour les États-Unis, voire une soumission à ceux-ci, tandis que l'on loue dans l'usage du terme "conformité" le respect que l'on doit de la langue française📎!footnote-3404.

No one disputes that the Law functions through the use of words📎!footnote-3392, 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 juridique📎!footnote-339), 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 it📎!footnote-3394. 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"📎!footnote-3405. 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 2001📎!footnote-3406. 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 individual📎!footnote-3418. 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📎!footnote-3407 or professional secrets📎!footnote-3395, or the confidentiality of legal opinions📎!footnote-3419. 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"📎!footnote-3408 which would give companies the power to "regulate" the whole world by obliging us all📎!footnote-3409. 

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"📎!footnote-3396 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"📎!footnote-3397  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. Sustainability📎!footnote-3421 and proportionality📎!footnote-3420 are major principles. More ambitious still, it may involve improving systems (Positive Monumental Goals!footnote-3398)), for example promoting respect for human beings through active concern for others. This global definition was proposed in 2016 by this aforementioned article📎!footnote-3410.

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 asset📎!footnote-3399, in particular because the company develops beyond territories📎!footnote-3400, in spaces often structured by it, moving from territory to territory (value chain) or even without territory and without time (digital space)📎!footnote-3401. Companies must therefore deploy their power so that it serves these goals set by the States📎!footnote-3402, either by force (regulations), Compliance Law being the extension of Regulation Law📎!footnote-3411, or willingly, Compliance Law having many points of contact with CSR📎!footnote-3403.

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 Goals📎!footnote-3412. 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 them📎!footnote-3422. The probationary system of Compliance follows from this📎!footnote-3413

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 tool📎!footnote-3423.

9. Conformity, fueled by Information 🏗 The company's tool is therefore "conformity", whether imposed by "compliance programmes📎"!footnote-3426, DPA and CJIP!footnote-3427 or new management methods📎!footnote-3428. Internal investigation and audit technique📎!footnote-3424 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 obligations📎!footnote-3429. 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.)📎!footnote-3430.

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 reduced📎!footnote-3414, and by an automatic correlation thanks to algorithms. Compliance Law being defined normatively by concern for human beings, including future human beings📎!footnote-3431, this information being only a tool, the legal mechanisms of dialogue between humans appear. Thus the adversarial principle is a Compliance principle, as is mediation📎!footnote-3432. The company also takes stakeholders into account when developing its tools📎!footnote-3433.

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 Law📎!footnote-3415, which must express the culture of the company and the dialogue that makes it function as a group of people📎!footnote-3434, it is not regulations that are at stake but "the spirit of the laws"📎!footnote-3416, 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 lawyer📎!footnote-3417.

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"📎!footnote-3435 , 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.

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