Economic Law, Regulation and Compliance

► Full Reference: Frison-Roche, M.-A.,  Ne jamais se passer des juges et des avocats dans le Droit de la Compliance ("Never exclude Judges and Lawyers in Compliance Law"), in Frison-Roche, M.-A. (ed.), La juridictionnalisation de la Compliance, series "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) & Dalloz, to be published. -   ► Le résumé ci-dessous décrit un article qui fait suite à une intervention dans le colloque Quels juges pour la Compliance ?  , coorganisé par le Journal of Regulation & Compliance (JoRC) et par le Centre de Recherche en Droit de l'Université Paris Dauphine-PSL (CR2D). Ce colloque a été conçu par Marie-Anne Frison-Roche, Juliette Morel-Morager et Sophie Schiller,  codirectrices scientifiques, et s'est déroulé à Paris le 23 septembre 2021. Dans l'ouvrage, l'article sera publié dans le Titre IV. - ► Article Summary: Before examining the issue of the role of the Judges in Compliance Law, it is necessary to ask the preliminary question : is it useful to tolerate the Judge and/or the Lawyers presence in Compliance Law ?  This question of their presence or their absence, because they would be useless, even harmful to the Compliance effectiveness, either judges, or lawyers, or both together, is indeed the prerequisite for the reflection of " Which judges for Compliance? " because if we think of Compliance exclusively through the Ex Ante and efficiency, as it is often done in the West through artificial intelligence or in China in a system of surveillance and economic, technological and political efficiency , there is neither judge nor lawyer. But It is indeed imperative to always keep in mind the need to never exclude Judges from Compliance systems, although this can be conceivable since they are Ex Ante mechanisms, which often aim by nature to avoid the trial. (example of the Differed Prosecution Agreement), because when there is a judge, the procedural mechanisms and Due Process principle are associated with it: the power of Compliance Law does not go wrong. However, Compliance Law is the Law of the future, that which will seize the immense challenges to be resolved today for tomorrow and it is not from the specific laws against corruption, such as FCPA or the French law known as "Sapin 2 law", which are only  examples, but from two enormous "monumental" subjects that are on the one hand Data and on the other hand Climate that Compliance Law is building, with the means that are required. But so that the rule "all the means necessary for the ends", which already tended to govern Regulatory Law of which Compliance Law is the exponential extension, does not carry all, one needs lawyers. Because the lawyers contradict. And ask. Ask judges and carry the actions of ordinary people for their subjective rights to be shaped. As Motulsky affirmed it in its thesis, written during the Second World War, before inventing – after this enormous systemic disaster – the "general procedural law". - 📕  read a general presentation of the book Compliance Juridictionnalization in which this article is published. -    

Full reference: Frison-Roche, M.-A., Rapport de synthèse (Conclusion) in André C., Frison-Roche, M.-A., Malaurie, M. and Petit, B., Les Buts monumentaux de la Compliance (Compliance Monumental Goals), Colloquium co-organised by the Journal of Regulation & Compliance (JoRC) and the Laboratoire Dante of Paris-Saclay University, -     📅  September 16, 2021. 🧭 Maison du Barreau, 12 place Dauphine 75004 Paris - ► Conclusions' Summary: Based on the multiple contributions of the day, the first part of this synthesis focuses on the practical interest of having Monumental Goals attached to compliance techniques.Conceptually defining these Monumental Goals as normative legal rules of Compliance Law has the first practical advantage of making clear this scattered and almost incomprehensible material, allowing us to better understand it.  The second practical advantage is to bring together the various branches of law in that they all contain compliance mechanisms, the points of contact thus discerned leading to a unification of technical legal rules.  The third practical advantage is to provide the various sources of law concerned with a means of applying and interpreting the law. The fourth practical advantage is to give meaning to all these technical provisions. In the second part of this synthesis, it appeared that these practical considerations therefore justify undertaking the "conceptual adventure". This one can take three pillars, in this "cathedral" that Dominique de la Garanderie designed, this "monument" corresponding well to the adjective Monumental which is better suited to these Goals than does the adjective "Fundamental", because it is a question of building, of building for a future which is not fatal. The first conceptual pillar consists in conceptualizing the Monumental Goals so that the Compliance Law finding a substantial meaning thus gives in a normative way a meaning to all the technical provisions which serve it in an instrumental way. The second conceptual pillar consists of giving everyone their place, that of public authority, that of the company and that of the population, each concerned and each not having to take the place of the other in the determination of the monumental goals, the company being in particular free in the design of the means while the political authority being in charge of drawing the Goals, the company being able to copy them on its own account. This conception does not depend on legal systems but on goals and legitimacy, in particular on the definition chosen for what is a company. The third conceptual pillar derives precisely from the humanist conception that one can claim to have of the Compliance Monumental Goal, risk management being only a means to achieve it. Humanism effectively carried by Compliance, taken on their own account by the companies alone capable of making them concrete, is what makes it possible to distinguish texts that are nevertheless technically similar, depending on whether they apply in  Rule of Law systems or in systems which are note governed by the Rule of Law Principle. This is why the technical future of Compliance Law lies in this conceptual adventure that it is necessary to lead. -   📝 read the program of this colloquium  🎥 see Marie-Anne Frison-Roche's conclusion in video (in French, with English subtitles) ✏️ read the notes translated in English on which this conclusion is based  - 📅 This colloquium is part of the Cycle of colloquium 2021 organized by the Journal of Regulation & Compliance (JoRC) and its partners around Compliance Monumental Goals.   📘 This manifestation is in French but the interventions will be part of an English collective book directed by Marie-Anne Frison-Roche, Compliance Monumental Goals, co-edited by the JoRC and Bruylant. 📕 An equivalent book in French, Les Buts Monumentaux de la Compliance, directed by Marie-Anne Frison-Roche, will be co-published by the JoRC and Dalloz. 

Full Reference: Frison-Roche, M.-A., Notes pour une synthèse sur le vif pour le colloque "Les Buts Monumentaux de la Compliance : radioscopie d'une notion" (Notes for an on the fly synthesis for the Colloquium "The Compliance Monumental Goals: Radioscopy for a Notion"), September 16, 2021.  -   ► Read the general programme of the Colloquium Compliance Law Monumental Goals ► Read the  presentation of the synthesis Report, notably its Summary.  - ► Methodology: The topic is not treated in a strictly personal point of view, as it will be in the book on The Compliance Monumental Goals, in an article devoted to "Defining Compliance Monumental Goals  and their branch of Law", more personal article. It will be even more clearly the expression of a personal vision of the definition of what is "Compliance" and what is "Compliance Law", with in particular the distinctions that should be done, in particular with "conformity" because these are these "Monumental Goals", a notion proposed in 2016  which makes it possible to distinguish the procedural notion of "conformity" (just obey) and the substantive notion of "Compliance Law". This article will include the multiple academic and technical references that should be done to do this.  But in the time allotted in a day's collloquium and because the purpose of a synthesis is to highlight on the spot what was common in the contributions heard, the document is based only on the different speechs made and is not enriched with technical references, nor does it refer to personal works. -   🔻read below the notes exhaustely taken

► co-organized between Laboratoire DANTE and the Journal of Regulation & Compliance (JoRC), this colloquium) is the core manifestation of the 2021 series of colloquia devoted to the general theme of Compliance Monumental Goals. It will take place on 16th of September 2021, at the Maison du Barreau, in Paris. This first work is in French but  will be the basis of the book in English : Compliance Monumental Goals,    This book will be published in the Compliance & Regulation Series, co-published by the JoRC and Bruylant. ► Presentation of the colloquium Thematic: To understand the notion of "Monumental Goals", it is firstly necessary to take crossed perspectives on them, particularly through the prism of Labor Law, Environmental Law and Enterprise Law. Many questions appear. Does the notion of “Monumental Goals” present any substance in Law? Is it uniformly understood, or do specificities appear, forged by specific cultures and disciplinary practices? What are the sources and implicit references or echoes? Because even if we admit the part of novelty, there is undoubtedly an anchoring in traditional legal concepts, like the general interest or sovereignty. How does the shift from meta-legal (prima facie introduced by the concept) to legal take place, and where do any operational difficulties lie when legal actors are called upon to act? The question of a possible categorization of "Monumental Goals" will thus be explored, through these three legal disciplines whose historicity, goals and implications for firms differ.   These reflections allow to ask why and how these "Monumental Goals" are developed. Indeed, what is the relevance of the association of "Monumental Goals" and Compliance? Beyond theoretical considerations relating to the meaning of Law, is this really an effective alloy encouraging companies to behave differently? By what ways? These questions arise in particular with regard to the imperatives of legal certainty and the operative nature of the concept. The question of "Monumental Goals" will thus be explored by the operational actors of compliance, both those who act within companies and those who act from the lato sensu State sphere, for understanding whether this notion is a pure rhetoric figure or constitutes a particularly promising lever for the evolution of market behavior.   ► with :  🎤 Christophe André, maître de conférences à l'Université Paris – Saclay (lecturer at the Paris-Saclay University) 🎤 Guillaume Beaussonie, professeur à l'Université Toulouse-1-Capitole (law professor at Toulouse-1-Capitole University) 🎤 Regis Bismuth, professeur de droit à Sciences po, Paris (law professor at Sciences po Paris) 🎤 Marie-Emma Boursier, doyen  de l'Université Paris – Saclay (dean of the Paris-Saclay University) 🎤 Muriel Chagny, professeur l'Université Paris – Saclay, directrice du Laboratoire Dante (Professor at the Paris-Saclay University, director of the Laboratory Dante) 🎤 Marie-Anne Frison-Roche, professeur à Sciences po (Paris) (Professor at Sciences Po Paris) 🎤 Isabelle Gavanon, avocate à la Cour d'Appel de Paris (attorney before the Paris Court of Appeal) 🎤 Emma Guernaoui, ATER à l'Université Paris II Panthéon-Assas (ATER at Paris II Panthéon-Assas University) 🎤 Dominique Heintz, avocat à la Cour d' appel de Paris (attorney before the Paris Court of Appeal) 🎤 Christian Huglo, avocat à la Cour d' appel de Paris (attorney before the Paris Court of Appeal) 🎤Dominique de La Garanderie, avocat à la Cour d'appel de Paris (attorney before the Paris Court of Appeal)  🎤 Anne-Valérie Le Fur, professeur à l'Université Paris – Saclay (Professor at Paris-Saclay University) 🎤 Anne Le Goff, secrétaire générale déléguée d'Arkéa (Deputy Secretary general at Arkéa) 🎤 Roch-Olivier Maistre, président du Conseil supérieur de l'audiovisuel (President of the French audiovisual regulation authority) 🎤 Marie Malaurie, professeur à l'Université Paris-Saclay (professor at the Paris-Saclay University) 🎤 Jérôme Marilly, avocat général à la Cour d'Appel de Paris (General attorney before the Paris Court of Appeal) 🎤 Benoît Petit, maître de conférences (HDR) à l'Université Paris-Saclay (lecturer at the Paris-Saclay University)  🎤 Jean-François Vaquieri, Secrétaire Général d'Enedis (Secretary General of Enedis) - Read a detailed presentation below:  

► Full Reference: Frison-Roche, M.A., Le Droit de la concurrence : des choix politiques pour son état futur – rapport de synthèse – ( ("Competition Law: political choices for its future state – Conclusion") , in Claudel, E. (ed.), Le Droit de la concurrence dans tous ses états ("Competition in all its states"), special issue, Gaz. Pal. , 15 Sept. 2021. This publication is in French, but the Working Paper which is the basis of this article is bilingual.  -   📅 this article follows the colloquium of the French Association Droit & Commerce in Deauville (France), the 25th  et 26th June 2021. -   ✏️ It is based on  the bilingual Working Paper built on the notes taken during the colloquium for establishing the conclusion which has been provided. -   Article English Summary: All of these contributions on the issue of the "Competition in all its states" highlighted the choices available for what could be this branch of Law tomorrow: choice of a political nature between various possible definitions of Competition Law.  In method, the main thing is that this definition be clear. For this, this definition must be based on a principle and that the goal pursued by competition law is simple, so that in a second step, competition law can be easily articulated on the one hand with other branches of law. (by the care of the judge, in particular), on the other hand with "policies", such as "competition policy", then other policies (by the care of political authorities, especially European). In essence, two conceptions of principle are opposed: either Competition Law will want to appropriate the goals of other branches, such as those of Regulatory and Compliance Law, or Competition Law will have the modesty to remain anchored in its definition as Market Law. This is the crossroads where we are.   -

► Full Reference: M.-A. Frison-Roche, Ex Ante Responsibility, Working Paper, December 2021. - 📝This Working Paper has been the basis for an article written in French, "La responsabilité Ex Ante", published in the Archives de Philosophie du droit (APD), in the book 📗La Responsabilité (2022). - ►  Working Paper Summary: Quel est le temps auquel s'articule la responsabilité ? La question est si classique que toutes les réponses ont été dessinées : si l'on est responsable plus aisément par rapport au temps, car l'on peut alors plus aisément faire un lien entre la situation appréhendée, sa réalisation dans le passé la rendant plus facilement connaissable, et le poids de "responsabilité" que l'on impute sur une personne, l'on peut articuler la responsabilité avec le futur. Si l'on brise le poids de cette responsabilité avec un évènement ou une situation, par exemple. Le Principe Responsabilité de Jonas ou l'Ethique de la Responsabilité font ainsi voyager la Responsabilité dans le temps, par un rapport entre le Droit et l'Ethique.  D'ailleurs l'on pourrait soutenir que le Droit peut faire ce qu'il veut et imputer une responsabilité à quiconque pour le temps qu'il désigne, par exemple désigne comme porteur d'une responsabilité, c'est-à-dire d'un poids, celui qu'il veut. Le "responsable" serait alors le titulaire d'une sorte de "poids pur", qui le charge parce que le Droit l'a voulu pour le temps qu'il veut, par exemple un devoir d'agir pour que le futur soit dessiné comme le veut le Droit, alors même que le Responsable n'a rien à se reprocher dans le passé.  Mais les Cours constitutionnelle défendent un rapport minimal entre la Responsabilité et le poids que celle-ci fait porter une personne, fut-t-elle morale, gardant ainsi le lien consubstantiel entre le Droit et la Morale, la technique juridique de la Responsabilité ne pouvant équivaloir à celle d'un prélèvement obligatoire. Ainsi l'idée d'une Responsabilité Ex Ante est simple dans son principe (I). Elle est celle d'un poids juridiquement posé sur une personne soit par elle-même (engagement), soit par la Loi ou par le Juge sur une personne de faire quelque chose pour que n'advienne pas quelque chose qui adviendrait ou pour qu'advienne quelque chose qui n'adviendrait pas si elle ne le faisait pas. Mais les conditions juridiques pour admettre un tel poids alors même que le lien avec une situation passée serait brisé est plus difficile (II). On continue certes continuer à voir dans le futur le passé, ce qui facilite le voyage dans le temps, et fonda par exemple le contrôle Ex Ante du contrôle des concentrations. Mais l'on peut se briser même de cette facilité et regarder non plus le rapport entre le passé et le futur, mais le présent et le futur : ce que l'on sait déjà aujourd'hui du futur, ce qui met en jeu le rapport entre le Droit et la Science ; ce que l'on observe de l'emprise de la personne présente sur le moment présent, c'est-à-dire le Pouvoir, ce qui fait en jeu le rapport entre le Droit et l'Economie politique. Dans cette dimension-là, la contrainte de la Responsabilité Ex Ante est alors maniée par le Juge, dont l'office lui-même devient un office Ex Ante. Les pouvoirs obligés Ex Ante par une telle responsabilité maniée par le Juge étaient les personnes en situation de pouvoir, sont non seulement les entreprises, mais encore les Etats, qui perdent le privilège – partagé avec les contractants – de disposer juridiquement du futur, et notamment en leur sein le Législateur.  Une telle révolution, qui se déroule sous nos yeux, s'explique parce qu'il faut agir maintenant pour que le futur ne soit pas catastrophique. La science nous informe qu'il le sera entéléchiquement. Il est donc juridiquement requis de désigner des responsables, non pas parce qu'ils auraient fait quelque chose, la dimension Ex Post n'étant pas le sujet, mais pour qu'ils fassent quelque chose, la Responsabilité Ex Ante étant un élément central de cette nouvelle branche du Droit qu'est le Droit de la Compliance.   

An August 10, 2021 New York Times article chronicles the relationship presented as "tumultuous" between President Biden and Facebook, the president, in person or through his closest administration, blaming Mark Zuckerberg, in person or through his closest collaborators, for the Facebook insufficient action against vaccine misinformation: ➡️📝Inside the White House Facebook Rift Over Vaccine Misinformation.  The article insists on the opposition between the two entities: " Frustrations grew behind the scenes among top leaders on both sides, potentially hurting the government's efforts to overcome the pandemic ". And reports many facts for this conclusion. But is it not possible to propose  another reading of these events? A reading that would be more strategic and more optimistic with regard to what is the obligation of digital operators obliged by Compliance Law. -   In fact, if we come back to the subject itself, it is a question of fighting against disinformation, including that which is raging about vaccination against Covid (the causes of the spread of the virus, its modes of spread and the effects of different vaccines, in particular) is just one example. To stem the health crisis, public policies for economic issues do not encounter the same major difficulty as public policies for health care: disinformation. On this major question, see the presentation of the May 2021 colloquium organized by the Journal of Regulation & Compliance (JoRC) and the Faculty of Law of Montpellier on ➡️📅 Public Norms and Compliance in time of Crisis: Monumental Goals put a test, the work being the basis of contributions in the book ➡️📘 Compliance Monumental Goals.  Faced with the spread of disinformation, especially during a health crisis, not only the jurisdictional Ex Post, certainly legitimate to sanction disinformation, is not enough in such a fight but the administrative action is not enough either. because the digital space has for characteristic not so much the novelty of these manipulations (which do not differ from the preceding methods) but their speed of propagation  and their dissemination which until now had never reached such dazzling and such dust. Faced with this, only a mechanism which entrusts, willingly or by force (the " free will" referring to the points of contact between Compliance Law and Corporate Social Responsibility, the "force" referring to the repression strongly present in the Compliance Law) to companies in a position to do something (what the banking sector referred to as "systemic firms" and which can be qualified more generally as "crucial companies" (➡️📝 Frisian- Roche, M.-A., "Proposition for a notion: the "Crucial Operator", 2006), the function of blocking or even destroying the crucible of disinformation is concretely possible (➡️📓 Frison-Roche, M.- A., The contribution of Compliance Law in the Governance of Interne, 2019). But many protest before such a mission which, under the pretext of "necessity" and under the guise of "weight" given to these companies, also gives them considerable powers over people: thus many have criticized the closure of Donald Trump's account as being an illegitimate political act and many saw the May 5, 2021 Facebook Oversight Board decision as an intolerable takeover of power, with the company allowing itself to become a complete legal system on its own : for one analysis of this very important decision, and commented on, often in a severe manner, but for a more approving approach because in the perspective of Compliance Law, the internalisation of repressive and jurisdictional functions is more of a principle: ➡️📧 " By its decision of May 5, 2021, the Oversight Board imposed a Compliance program on Facebook, May 2021; for a perspective that remains critical ➡️📝Heymann, J.," The Legal Nature of the "Supreme Court" of Facebook ", in➡️📘 Compliance Jurisdictionalisation, 2022).   These criticisms are on several levels; they can be summarized as follows: a company maintaining a platform on which contents may be published by anyone and controlling these contents would exercise "censorship", which would be unacceptable with regard to the freedom of speech; a company controlling the contents carries out an activity of judgment, while only a judge or at least a public authority could do it, therefore it would be unacceptable; a company controlling contents would exercise control over what is socially admissible, which would be a political activity, and a company is not politically legitimate to govern us.   These arguments are solid, especially from a judicial perspective. Even if it is possible to articulate the fight against the disinformation which rages thanks to the digital novelty (), and the constitutional freedom of expression (Minow, M., "How the government can support a free press and cut disinformation ", 2021), the risk of a weakening by courts, whether American or other, for example in France where judges have criticized the companies powers, even in China where it is in the name of privacy that the new control on the technological sector is taking place …. If the federal government of the United States, because it wants to carry out its public health policy and has little influence on the policies of the states, some of which are hostile to vaccination or believe that all of this is there Everyone's business, wants Facebook to exercise its power to deactivate the accounts of those who practice disinformation, especially in vaccine matters, or even exercise it in political matters (Timothy Snyder having shown that the practice of disinformation in the matter put endangering the American political system itself: ➡️📧 "Listening to Timothy Snyder: the United States like Europe defend democracy, but Europe uses Compliance Law more for that", June 2021), then it is necessary but enough that the Government accuses Facebook of "killing people" by not doing it. So, the Government allows the company to do it. This is what President Biden has just done. This is to be compared with the position taken in May 2021 by the US federal administration allowing companies to require employees to both return to work on sites and be vaccinated. This was already a sign that it is indeed the federal administration which, in order to make its public vaccination policy "effective", relies on companies, with the necessary powers for them to play their role:  see the analysis of this communication from the US Equal Employment Opportunity Commission (EEOC) of May 28, 2021 ➡️📧 "In Compliance Law, the political authority must clearly tell the company the extent of its power; fault from which the company will pass from the status of executor to that of Legislator ", June 2021.   It is therefore not an "opposition" but a strategic alliance.   Moreover, Facebook has just deactivated a series of accounts which systematically practice disinformation in matters of vaccination. The fact that the President of the United States characterized their inaction as "murder" makes it much easier for them when their action will be challenged in court. Because in front of a judge vis-a-vis whom it will be reproached for violating, by its too offensive action, the freedoms of the people the company will be able to take advantage of the fact that it was made accused of "murder" for not having had enough offensive action, and this by the Head of State. We are legally close to the hypothesis of "the order given by the legitimate authority". This reinforces an opinion expressed in March 2020 according to which Facebook, when it refers people to public information centers for the fight against the virus, is not acting either as a publisher or as part of its social responsibility but executes purely and simply its obligations arising from Compliance Law: ➡️📝Frison-Roche, M.-A., "Facebook, Facebook, le coronavirus et la Compliance", March 2020. In addition, as in any Compliance Law mechanism, such execution of their Compliance obligation by Facebook and all others who follow the exchanges between the crucial digital company and the Federal Executive, is supervised by the Regulatory Authorities, administrative authorities before which the operator can be prosecuted for failure, for example for not only for having done too much but also for having not done enough. This is particularly true in France, where the Conseil Supérieur de l'Audiovisuel – CSA French Superior Audiovisual Council) supervises digital operators in their obligations to limit the spread of infox, specifically questioning operators on the due diligence carried out and the results obtained, a specific annual report being published each year (see the report published on July 30, 2020 on the "application and effectiveness" of the fight against disinformation to be carried out by the platforms, in its English version).   -   ► s'inscrire à la Newsletter MaFR ComplianceTech®  

► Full Reference: Frison-Roche, M.-A., Le droit de la Compliance : un outil stratégique pour une Europe souveraine (Compliance law: a strategic tool for a sovereign Europe), interview with Jean-Philippe Denis, recorded on July 3, 2021 and broadcast on September 17, 2021 -   🎥 Watch the interview, as broadcast on Xerfi Canal channels.    🎥Watch the interview enhanced with French subtitles - ►Summary: Compliance Law powerfully and clearly helps to build a sovereign Europe.  Compliance Law is not the annex of Competition Law; it is another branch of Law, which aims instead to rely on the de facto power of companies, when they are in a position to achieve the "Monumental Goals" that the Political Authorities have decided to achieve, which requires an alliance between them and those companies in a position to achieve these "Monumental Goals". Companies can do this because they are in a position to do so, in that they are well located to act, have the information, the technology and the adequate financial means.) Compliance is a construction tool, and not, as it is still sometimes presented, a means to limit the ability of those who are concretely able to build, i.e. the companies. The architect remains and must remain the Politics. But the company remains the master of the means to achieve these goals, and free to duplicate them in its own care, via CSR, "raison d'être" and ethics.  

►  An article published on July 14, 2021 by The Wall Street Journal, "Brain Implant Lets Man 'Speak' After Being Silent for More Than a Decade", relays the information that it is now possible, on an experimental basis, to implant in the brain a device allowing a person deprived by a neurological accident to speak to be able to express himself again by writing his thoughts directly on a computer screen, on which the words thought are displayed in sentences. - Several years of "fundamental" research, notably on the part of Facebook, which, in particular by subsidizing the French professor of neurosciences Stanislas Dehaene, in a comparison between the learning development of the brain and the development of "deep learning", have been successful. to allow people who have lost the use of the voice to write directly on screens without this vocal medium by going directly from thought to writing. This leads to three reflections, putting Law and Technology at the center: 1. at first glance, speech being only a medium between thought and expression, it would be conceivable to do without it; 2. However, it is required to draw a parallel with the new technology of "emotional recognition" by which thoughts are accessible to third parties, which thwarts the fundamental right to make one's thoughts inaccessible to others;  The news has shown precisely that this technology, making possible to capture the true thoughts of others despite feigned facial expressions, poses a problem with regard to the fundamental right to lie or to remain silent (see in this regard 📧 MaFR, "Compliance and Ethics Technologies may be inadmissible "in themselves" and conceiving of their "ethical use" is therefore not admissible: practical case on the control of workers' emotions "). 3. By anticipating the possible use of this new technology and the legal reaction to this potentiality, the same question raises whether, per se, such an implantation of a tool for "capturing thoughts directly in the brain" to obtain their "direct translation on a screen" should not be considered as the equivalent of capturing thoughts, just as infringing on everyone's fundamental right to keep their thoughts inaccessible. Here again, the fact that in one or two cases, this made it possible to cure a person does not legitimize the technology in itself. Likewise, the fact that the person "consents" is not sufficient to legitimize what may be a per se attack on the dignity of the human person if the technology has the effect of capturing thoughts with a loss of control. the person concerned. For the moment, in the description given by the researchers according to the article which relates the innovation, it is the transmitter who controls the technology but the elimination of the medium of speech or writing deserves to be conceptualized, in the loss of isolation of the individual, isolation to which the Western tradition has often associated Freedom. - ► s'inscrire à la Newsletter MaFR ComplianceTech®

► An article from March 3, 2021, Smile for the camera: the dark side of China's emotion-recognition tech, then an article from June 16, 2021, "Every smile you fake" – an AI emotion – recognition system can assess how "happy" China's workers are in the office describes how a new technology of emotional recognition is able, through what will soon be out of fashion to call "facial recognition", to distinguish a smile that reflects a mind state of real satisfaction from a smile which does not correspond to it. This allows the employer to measure the suitability of the human being for his or her work. It is promised that it will be used in an ethical way, to improve well-being at work. But isn't it in itself that this technology is incompatible with any compensation through ethical support? The technology developed by a Chinese technology company and acquired by other Chinese companies with many employees, allows to have information on the actual state of mind of the person through and beyond his or her facial expressions and bodily behavior. Previously, the technology of emotional recognition had been developed to ensure security, by fighting against people with hostile plans, public authorities using it for example in the controls at airports to detect the criminal plans which some passengers could have. It is now affirmed that it is not about fighting against some evil people ("dangerousness") to protect the group before the act is committed ("social defense”) but that it is about helping all workers. Indeed, the use that will be made of it will be ethical, because first the people who work for these Chinese companies with global activity, like Huawaï, do it freely and have accepted the operation of these artificial intelligence tools (which is not the case with people who travel, control being then a kind of necessary evil that they do not have to accept, which is imposed on them for the protection of the group), but even and above all, the purpose is itself ethical: if it turns out that the person does not feel well at work, that they are not happy there, even before they are perhaps aware, the company can assist. Let’s take this practical case from the perspective of Law and let’s imagine that it is contested before a judge applying the principles of Western Law. Would this be acceptable? No, and for three reasons. 1. An "ethical use" cannot justify an unethical process in itself 2. The first freedoms are negative 3. "Consent" should not be the only principle governing the technological and digital space   I. AN "ETHICAL USE" CAN NEVER LEGITIMATE AN UNETHICAL PROCESS IN ITSELF These unethical processes in themselves cannot be made "acceptable" by an "ethical use" which will be made of them. This principle was especially reminded by Sylviane Agacinski in bioethics: if one cannot dispose of another through a disposition of his or her body which makes his or her very person available (see not. Agacinski, S., ➡️📗Le tiers-corps. Réflexions sur le don d’organes, 2018). Except to make the person reduced to the thing that his or her body is, which is not ethically admissible in itself, that is excluded, and Law is there in order to this is not possible. This is even why the legal notion of "person", which is not a notion that goes without saying, which is a notion built by Western thought, acts as a bulwark so that human beings cannot be fully available to others, for example by placing their bodies on the market (see Frison-Roche, M.-A., ➡️📝To protect human beings, the ethical imperative of the legal notion of person, 2018). This is why, for example, as Sylviane Agacinski emphasizes, there is no ethical slavery (a slave who cannot be beaten, who must be well fed, etc.). That the human being agrees ("and what about if it pleases me to be beaten?") does not change anything.   II. THE FIRST FREEDOM IS THE ONE TO SAY NO, FOR EXAMPLE BY REFUSING TO REVEAL YOUR EMOTIONS: FOR EXAMPLE HIDING IF YOU ARE HAPPY OR NOT TO WORK The first freedom is not positive (being free to say Yes); it is negative (being free to say No). For example, the freedom of marriage is having the freedom not to marry before having the freedom to marry: if one does not have the freedom not to marry, then the freedom to marry loses any value. Likewise, the freedom to contract implies the freedom not to contract, etc. Thus, freedom in the company can take the form of freedom of speech, which allows people, according to procedures established by Law, to express their emotions, for example their anger or their disapproval, through the strike. But this freedom of speech, which is a positive freedom, has no value unless the worker has the fundamental freedom not to express his or her emotions. For example if he or she is not happy with his or her job, because he or she does not appreciate what he or she does, or he or she does not like the place where he or she works, or he or she does not like people with whom he or she works, his or her freedom of speech demands that he or she have the right not to express it. If the employer has a tool that allows him or her to obtain information about what the worker likes and dislikes, then the employee loses this first freedom. In the Western legal order, we must be able to consider that it is at the constitutional level that the infringement is carried out through Law of Persons (on the intimacy between the Law of Persons and the Constitutional Law, see Marais , A., ➡️📕Le Droit des personnes, 2021).   III. CONSENT SHOULD NOT BE THE ONLY PRINCIPLE GOVERNING THE TECHNOLOGICAL AND DIGITAL SPACE   We could consider that the case of the company is different from the case of the controls operated by the State for the monitoring of airports, because in the first case observed people are consenting. "Consent" is today the central notion, often presented as the future of what everyone wants: the "regulation" of technology, especially when it takes the form of algorithms ("artificial intelligence"), especially in digital space. "Consent" would allow "ethical use" and could establish the whole (on these issues, see Frison-Roche, M.-A., ➡️📝Having a good behavior in the digital space, 2019). "Consent" is a notion from which Law is today moving away in Law of Persons, in particular as regards the "consent" given by adolescents on the availability of their body, but not yet on digital. No doubt because in Contract Law, "consent" is almost synonymous with "free will", whereas they must be distinguished (see Frison-Roche, M.-A., ➡️📝Remarques sur la distinction entre la volonté et le consentement en Droit des contrats, 1995). But we see through this case, which precisely takes place in China, that "consent" is in Law as elsewhere a sign of submission. It is only in a probative way that it can constitute proof of a free will; this proof must not turn into an irrebuttable presumption. The Data Regulatory Authorities (for example in France the CNIL) seek to reconstitute this probative link between "consent" and "freedom to say No" so that technology does not allow by "mechanical consents", cut off from any connection with the principle of freedom which protects human beings, from dispossessing themselves (see Frison-Roche, M.-A., Yes to the principle of will, No to pure consents, 2018). The more the notion of consent will be peripheral, the more human beings will be able to be active and protected. -

🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law  - ► Full Reference: M.-A. Frison-Roche, Monumental Goals, beating heart of Compliance Law, Working Paper, August 2021 - 📝This Working Paper is the basis for the article, "Les buts monumentaux, cœur battant du droit de la compliance", constituting the introduction ⤵ 📕in its French version, of the book Les buts monumentaux de la Compliance, in  the Series 📚Régulations & Compliance  📘in its English version, of the book, Compliance Monumental Goals, in the Series 📚Compliance & Regulation - ► Summary of the Working Paper: Compliance Law can be defined as the set of processes requiring companies to show that they comply with all the regulations that apply to them. It is also possible to  define this branch of Law by a normative heart: the "Monumental Goals". These explain the technical new legal solutions, thus made them clearer, accessible and anticipable. This definition is also based on a bet, that of caring for others that human beings can have in common, a universality.  Through the Monumental Goals, appears a definition of Compliance Law that is new, original, and specific. This new term "Compliance", even in non-English vocabulary, in fact designates a new ambition: that a systemic catastrophe shall not be repeated in the future. This Monumental Goal was designed by History, which gives it a different dimension in the United States and in Europe. But the heart is common in the West, because it is always about detecting and preventing what could produce a future systemic catastrophe, which falls under "negative monumental goals", even to act so that the future is positively different ("positive monumental goals"), the whole being articulated in the notion of "concern for others", the Monumental Goals thus unifying Compliance Law. In this, they reveal and reinforce the always systemic nature of Compliance Law, as management of systemic risks and extension of Regulation Law, outside of any sector, which makes solutions available for non-sector spaces, in particular digital space. Because wanting to prevent the future (preventing evil from happening; making good happen) is by nature political, Compliance Law by nature concretizes ambitions of a political nature, in particular in its positive monumental goals, notably effective equality between human beings, including geographically distant or future human beings. The practical consequences of this definition of Compliance Law by Monumental Goals are immense. A contrario, this makes it possible to avoid the excesses of a "conformity law" aimed at the effectiveness of all applicable regulations, a very dangerous perspective. This makes it possible to select effective Compliance Tools with regard to these goals, to grasp the spirit of the material without being locked into its flow of letters. This leads to not dissociating the power required of companies and the permanent supervision that the public authorities must exercise over them. We can therefore expect a lot from such a definition of Compliance Law by its Monumental Goals. It engenders an alliance between the Political Power, legitimate to enact the Monumental Goals, and the crucial operators, in a position to concretize them and appointed because they are able to do so. It makes it possible to find global legal solutions for global systemic difficulties that are a priori insurmountable, particularly in climate matters and for the effective protection of people in the now digital world in which we live. It expresses values that can unite human beings. In this, Compliance Law built on Monumental Goals is also a bet. Even if the requirement of "conformity" is articulated with this present conception of what Compliance Law is, this conception based on Monumental Law is based on the human ability to be free, while conformity law supposes more the human ability to obey. Therefore Compliance Law, defined by the Monumental Goals, is essential for our future, while conformity law is not. - Read the developments below⤵️

► Full Reference: Frison-Roche, M.-A, Reinforce the judge and the lawyer to impose Compliance Law as a characteristic of the Rule of Law, Working Paper, August 2021. - 🎤 this working document has been made to prepare some elements of the opening intervention in the symposium Quels juges pour la Compliance) ? (Which judges for Compliance?), co-organized by the Journal of Regulation & Compliance and the Institut Droit Dauphine, held at the Paris Dauphine University on September 23, 2021, constituting the first part of the intervention. - 📝it has been also the basis for an article:  📕 published in its French version in the book La juridictionnalisation de la Compliance, in the collection📚Régulations & Compliance  📘published in its English version in the book Compliance Jurisdictionalisation, in the collection 📚Compliance & Regulation - ► Summary of the Working Paper: One can understand that the compliance mechanisms are presented with hostility because they seem designed to keep the judge away, whereas there is no Rule of Law without a judge. Solid arguments present compliance techniques as converging towards the uselessness of the judge (I). Certainly, we come across magistrates, and of all kinds, and powerful ones, but that would be a sign of imperfection: its ex-ante logic has been deployed in all its effectiveness, the judge would no longer be required… And the lawyer would disappear so with him… This perspective of a world without a judge, without a lawyer and ultimately without Law, where algorithms could organize through multiple processes in Ex Ante the obedience of everyone, the "conformity" of all our behaviors with all the regulatory mass that is applicable to us, supposes that this new branch of Law would be defined as the concentration of processes which gives full effectiveness to all the rules, regardless of their content. But supposing that this engineer's dream is even achievable, it is not possible in a democratic and free world to do without judges and lawyers. Therefore, it is imperative to recognize their contributions to Compliance Law, related and invaluable contributions (II). First of all, because a pure Ex Ante never existed and even in the time of the Chinese legists¹ L’empire chinois n’a semble-t-il jamais apprécié les juges, ne leur faisant place que sous la forme de serviteurs purs de l’Etat, qu’ils soient des enquêteurs, des punisseurs et de gardiens de l’ordre public. Sur cet aspect du Droit chinois, v. … ; sur cette période particulièrement sanglante des légistes, où le principe de « certitude » de la législation a été portée à ses nues, v. …, people were still needed to interpret the regulations because a legal order must always be interpreted Ex Post by who must in any case answer the questions posed by the subjects of law, as soon as the political system admits to attributing to them the right to make claims before the Judge. Secondly the Attorney, whose office, although articulated with the Judge's office, is distinct from the latter, both more restricted and broader since he must appear in all cases where the judicial figure puts himself in square, outside the courts. However, Compliance Law has multiplied this since not only, extending Regulatory Law, it entrusts numerous powers to the administrative authorities, but it also transforms companies into judges, in respect of which the attorneys must deal with. Even more so, Compliance Law only takes its sense from its Monumental Goals²🕴️Frison-Roche, M.-A. (ed.), 📘​Compliance Monumental Goals, 2022.. It is in this that this branch of the Law preserves the freedom of human beings, in the digital space where the techniques of compliance protect them from the power of companies by the way that the Compliance Law forces these companies to use their power to protect people. However, firstly, it is the Judges who, in their diversity³The topic of this study is general. For a more analytical perspective, s.. 🕴️Frison-Roche, M.-A., « The function of the Judge in Compliance Law », in 🕴️Frison-Roche, M.A. (ed.), 📘Compliance Jurisdictionalisation, 2023. , impose as a reference the protection of human beings, either as a limit to the power of compliance tools⁴🕴️Frison-Roche, M.-A. (ed.), 📘Compliance Tools, 2021.  or as their very purpose. Secondly, the Attorney, again distinguishing himself from the Judge, if necessary, reminds us that all the parties whose interests are involved must be taken into consideration. In an ever more flexible, soft and dialogical Law, everyone presenting himself as the "advocate" of such and such a monumental goal: the Attorney is legitimate to be the first to occupy this place. - 🔓read the Working Paper developments below⤵️

Full reference: Frison-Roche, M.-A., Programme de mise en conformité (Compliance), Dictionnaire de droit de la concurrence, Concurrences, Art. N° 12345, 2021 Read the definition (in French)