Publications [799]

🌐follow Marie-Anne Frison-Roche on LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

____

► Full Reference: M.-A. Frison-Roche, "Concevoir l'Obligation de Compliance : faire usage de sa position pour participer à la réalisation des Buts Monumentaux de la Compliance" ("Conceiving the Compliance Obligation: Using its Position to take part in achieving the Compliance Monumental Goals"), in M.-A. Frison-Roche (ed.), L'Obligation de Compliance, Journal of Regulation & Compliance (JoRC) and Dalloz, "Régulations & Compliance" Serie, 2024, to be published

____

📝read the article (in French)

____

🚧read the bilingual Working Paper on the basis this contribution has been built, with  more developments, technical references and hyperlinks. 

____

📕read a general presentation of the book, L'Obligation de Compliance, in which this article is published 

____

► English summary of this contribution: Rather than getting bogged down in definitional disputes, given that Compliance Law is itself a incipient branch of Law, the idea of this contribution is to take as a starting point the different regimes of so many different compliance obligations to which laws and regulations subject large companies: sometimes they must apply them to the letter and sometimes they are only penalised in the event of fault or negligence. This brings us back to the distinction between obligations of result and obligations of means.

Although it might be risky to transpose the expression and regime of contractual obligations to legal obligations, starting from this observation in the Compliance Evidentiary System of a plurality of obligations of means and of result, depending on whether we are dealing with this or that technical compliance obligation, we must first classify them. It would appear that this plurality does not constitute a definitive obstacle to the creation of a single definition of the Compliance Obligation. On the contrary, it makes it possible to clarify the situation, to trace the paths through what is so often described as a legal jumble, an unmanageable mass of regulations.

Indeed, insofar as the company obliged under Compliance Law participates in the achievement of the Monumental Goals on which this branch of Law is normatively based, a legal obligation which may be relayed by contract or even by ethics, it can only be an obligation of means, by virtue of this very teleological nature and the scale of the goals targeted, for example the happy outcome of the climate crisis which is beginning or the desired effective equality between human beings. This established principle leaves room for the fact that the behaviour required is marked out by processes put in place by structured tools, most often legally described, for example the establishment of a vigilance plan or regularly organised training courses (effectiveness), are obligations of result, while the positive effects produced by this plan or these training courses (efficacy) are obligations of means. This is even more the case when the aim is to transform the system as a whole, i.e. to ensure that the system is solidly based, that there is a culture of equality, and that everyone respects everyone else - all of which come under the heading of efficiency.

The Compliance Obligation thus appears unified because, gradually, and whatever the various compliance obligations in question, their intensity or their sector, its structural process prerequisites are first and foremost structures to be established which the Law, through the Judge in particular, will require to be put in place but will not require anything more, whereas striving towards the achievement of the aforementioned Monumental Goals will be an obligation of means, which may seem lighter, but corresponds to an immeasurable ambition, linked with these Goals. Moreover, because these structures (warning platforms, training, audits, contracts and clauses, etc.) only have meaning in order to produce effects and behaviour leading to changes converging towards the Monumental Goals, it is the obligations of means that are most important and not the obligations of result. The judge must also take this into account.

Finally, the Compliance Obligation, which therefore consists of this interweaving of multiple compliance obligations of result and means of using the Entreprise's position, ultimately aims at system efficiency, in Europe at system civilisation, for which companies must show not so much that they have followed the processes correctly (result) but that this has produced effects that converge with the Goals sought by the legislator (effects produced according to a credible trajectory). This is how a crucial economic operator, responsible Ex Ante, should organise itself and behave.

________

► Full Reference: J.-Ph. Denis & N. Fabbe-Costes, "Legal Constraints and company Compliance Strategies", in M.-A. Frison-Roche (ed.), Compliance Obligation, Journal of Regulation & Compliance (JoRC) and Bruylant, "Compliance & Regulation" Serie, to be published

____

📘read a general presentation of the book, Compliance Obligation, in which this article is published

____

► Summary of the article (done by the Journal of Regulation & Compliance - JoRC): 

____

🦉This article is available in full text to those registered for Professor Marie-Anne Frison-Roche's courses

________

🌐follow Marie-Anne Frison-Roche on LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

____

► Full Reference: M.-A. Frison-Roche, "Conceiving the Compliance Obligation: Using its Position to take part in achieving the Compliance Monumental Goals", in M.-A. Frison-Roche (ed.), Compliance Obligation, Journal of Regulation & Compliance (JoRC) and Bruylant, "Compliance & Regulation" Serie, to be published

____

📝read the article

____

🚧read the bilingual Working Paper which is the basis of this article, with additional developments, technical references and hyperlinks

____

📘read a general presentation of the book, Compliance Obligation, in which this article is published

____

► Summary of the article (done by the Journal of Regulation & Compliance - JoRC): 

________

🌐follow Marie-Anne Frison-Roche on LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

____

► Full Reference: M.-A. Frison-Roche, "Will, Heart and Calculation, the three marks surrounding the Compliance Obligation", in M.-A. Frison-Roche (ed.), Compliance Obligation, Journal of Regulation & Compliance (JoRC) and Bruylant, "Compliance & Regulation" Serie, to be published

____

📝read the article

____

🚧read the bilingual Working Paper which is the basis of this article, with additional developments, technical references and hyperlinks

____

📘read a general presentation of the book, Compliance Obligation, in which this article is published

____

► Summary of the article (done by the Journal of Regulation & Compliance - JoRC): There is often a dispute over the pertinent definition of Compliance Law, but the scale and force of the resulting obligation for the companies subject to it is clear.  It remains difficult to define. First, we must not to be overwhelmed by the many obligations through which the Compliance Obligation takes shape, such as the obligation to map, to investigate, to be vigilant, to sanction, to educate, to collaborate, and so on. Not only this obligations list is very long, it is also open-ended, with companies themselves and judges adding to it as and when companies, sectors and cases require. 

Nor should we be led astray by the distance that can be drawn between the contours of this Compliance Obligation, which can be as much a matter of will, a generous feeling for a close or distant other in space or time, or the result of a calculation. This plurality does not pose a problem if we do not concentrate all our efforts on distinguishing these secondary obligations from one another but on measuring what they are the implementation of, this Compliance Obligation which ensures that entities, companies, stakeholders and public authorities, contribute to achieving the Goals targeted by Compliance Law, Monumental Goals which give unity to the Compliance Obligation.  Thus unified by the same spirit, the implementation of all these secondary obligations, which seem at once disparate, innumerable and often mechanical, find unity in their regime and the way in which Regulators and Judges must control, sanction and extend them, since the Compliance Obligation breathes a common spirit into them.

 In the same way that the multiplicity of compliance techniques must not mask the uniqueness of the Compliance Obligation, the multiplicity of sources must not produce a similar screen. Indeed, the Legislator has often issued a prescription, an order with which companies must comply, Compliance then often being perceived as required obedience. But the company itself expresses a will that is autonomous from that of the Legislator, the vocabulary of self-regulation and/or ethics being used in this perspective, because it affirms that it devotes forces to taking into consideration the situation of others when it would not be compelled to do so, but that it does so nonetheless because it cares about them. However, the management of reputational risks and the value of bonds of trust, or a suspicious reading of managerial choices, lead us to say that all this is merely a calculation.

Thus, the first part of the contribution sets out to identify the Compliance Obligation by recognising the role of all these different sources. The second part emphasises that, in monitoring the proper performance of technical compliance obligations by Managers, Regulators and Judges, insofar as they implement the Compliance Obligation, it is pointless to limit oneself to a single source or to rank them abruptly in order of importance. The Compliance Obligation is part of the very definition of Compliance Law, built on the political ambition to achieve these Monumental Goals of preserving systems - banking, financial, energy, digital, etc. - in the future, so that human beings who cannot but depend on them are not crushed by them, or even benefit from them. This is the teleological yardstick by which the Compliance Obligation is measured, and with it all the secondary obligations that give it concrete form, whatever their source and whatever the reason why the initial standard was adopted.

________

►Full Reference: M.A. Frison-Roche, "Droit de la compliance et Contentieux systémique" (Compliance Law and Systemic Litigation), in Chroniques Droit de la Compliance (Compliance Law Chronicles), Recueil Dalloz, 6 November 2025 

____

🚧read the bilingual Working Paper on which this article is based, with additional developments, technical references and hyperlinks

____ 

►read the English presentation of the previous chronicles:

• "Compliance et conformité : les distinguer pour mieux les articuler", 2024
• "La loi, la compliance, le contrat et le juge: places et alliances", 2023
• "Contrat de compliance, clauses de compliance", 2022
• "L'aventure de la compliance", 2020
• "Compliance et personnalité", 2019
• "Théorie juridique de la cartographie des risques", 2019

►read the English presentation of the whole chroniques

____

►English summary of this article: Legal systems have changed, and Compliance Law, in its uniqueness, reflects this change and plays a powerful role in it. Through new sets of compliance rules, particularly at European level, in areas such as data protection (GDPR), anti-money laundering (AMLA), climate balance protection (CS3D) and banking and financial system sustainability (Banking Union), techniques (always the same) have been developed and imposed on large companies, which must implement them: alerts, mapping, assessment, sanctions, etc. These new regulatory frameworks only make sense in relation to their ‘Monumental Goals’: to detect systemic risks Ex Ante and prevent crises so that the systems in question do not collapse, but ‘sustain". All the legal instruments in the corpus are normatively rooted in these Monumental Goals, which are the core that unifies Compliance Law (I).

Judges are the guardians (II) of this new and highly ambiguous normative framework, which relies on the practical ability of companies to do just that. They ensure that the technical provisions are applied teleologically in each of these compliance blocks, and that the regulatory frameworks are mutually supportive, for it is always the same systemic goal that all compliance regulations serve: to ensure that systems (banking, financial, climate, digital, energy, etc.) do not collapse, that they are sustainable, and that present and future human beings are not crushed by them but, on the contrary, benefit from them. This unity is still little perceived, as regulations pulverize this profound unity of compliance law in the myriad of changing provisions. Entrusting the "regulatory mass" to algorithms increases this pulverization, making the whole increasingly incomprehensible and therefore impossible to handle.  Acknowledging the judge's rightful place, i.e. at the heart of the matter, will enable us to master this new branch of law. But it's not the judge's job alone to restore clarity to a whole covered in the dust of his own technicality.

The systemic object of Compliance Law is transferred to Litigation. Indeed, the Litigation that emerges from the new Compliance Law is also fundamentally new, by transitivity. Indeed, the aim of Compliance Law is to make systems sustainable (or sustainable, or resilient, the vocabulary varies). The result is litigation which is itself "systemic litigation" (III), most often initiated by an organization against a systemic operator. The place and role of each are transformed (IV).

________

🌐follow Marie-Anne Frison-Roche on LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

____

► Full Reference: M.-A. Frison-Roche, "Trio", in Mélanges en l'honneur au Professeur  Denis Mazeaud, LGDJ-Lextenso, 2025, sous presse.

____

📝read the article (in French)

____

🚧read the text written on the morning when Rémy called me to talk about building this collective book Denis.

Since then, due to editorial deadlines, this text has been modified, since this article deals with the so specific French Concours d'Agrégation de Droit, and François Terré, who prepared me for it, joined Pierre Catala before the overall typescript became final.

At Pierre Catala's funeral, where Rémy recounted their last meeting, I was seated at the back next to Yves Lequette, and at François Terré's funeral I was again seated at the back next to Jacques-Henri Robert.

Yves Lequette and Jacques-Henri Robert, with whom I worked long and hard to prepare the Mélanges in honour of François Terré. Yes, it is indeed the Mélanges that, in a great chain, honour the masters. It doesn't matter that this is incomprehensible to those outside the Alma Mater.

____

► English Summary of this contribution : La contribution rend hommage à la personne de Denis Mazeaud en tant que candidat au Concours d'Agrégation des Facultés de Droit que nous passâmes ensemble. Tant que l'Université bénéficiera de professeurs construits ainsi, c'est-à-dire dans un rapport non compétitif avec leurs semblables et dans un rapport non financièrement valorisé avec leur savoir et leur talent, Alma Mater demeurera.

The contribution pays tribute to Denis Mazeaud as a candidate in the Concours d'Agrégation des Facultés de Droit that we took together. As long as the University benefits from professors built in this way, i.e. in a non-competitive relationship with their peers and in a non-financially valued relationship with their knowledge and talent, Alma Mater will remain.

____

📗Read the general presentation of these Mélanges.

________

🌐follow Marie-Anne Frison-Roche on LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

🌐subscribe to the Video Newsletter MAFR Surplomb

____

► Full Reference: M.-A. Frison-Roche, "La volonté, le cœur et le calcul, les trois traits cernant l'Obligation de Compliance" ("Will, Heart and Calculation, the three marks surrounding the Compliance Obligation"), in M.-A. Frison-Roche (ed.), L'Obligation de Compliance, Journal of Regulation & Compliance (JoRC) and Dalloz, coll. "Régulations & Compliance" 2024, to be published

____

📝read the article (in French)

____

🚧read the bilingual Working Paper on the basis this contribution has been built, with  more developments, technical references and hyperlinks. 

____

📕read a general presentation of the book, L'Obligation de Compliance, in which this article is published 

____

► English summary of this contribution : There is often a dispute over the pertinent definition of Compliance Law, but the scale and force of the resulting obligation for the companies subject to it is clear.  It remains difficult to define. First, we must not to be overwhelmed by the many obligations through which the Compliance Obligation takes shape, such as the obligation to map, to investigate, to be vigilant, to sanction, to educate, to collaborate, and so on. Not only this obligations list is very long, it is also open-ended, with companies themselves and judges adding to it as and when companies, sectors and cases require. 

Nor should we be led astray by the distance that can be drawn between the contours of this Compliance Obligation, which can be as much a matter of will, a generous feeling for a close or distant other in space or time, or the result of a calculation. This plurality does not pose a problem if we do not concentrate all our efforts on distinguishing these secondary obligations from one another but on measuring what they are the implementation of, this Compliance Obligation which ensures that entities, companies, stakeholders and public authorities, contribute to achieving the Goals targeted by Compliance Law, Monumental Goals which give unity to the Compliance Obligation.  Thus unified by the same spirit, the implementation of all these secondary obligations, which seem at once disparate, innumerable and often mechanical, find unity in their regime and the way in which Regulators and Judges must control, sanction and extend them, since the Compliance Obligation breathes a common spirit into them.

 In the same way that the multiplicity of compliance techniques must not mask the uniqueness of the Compliance Obligation, the multiplicity of sources must not produce a similar screen. Indeed, the Legislator has often issued a prescription, an order with which companies must comply, Compliance then often being perceived as required obedience. But the company itself expresses a will that is autonomous from that of the Legislator, the vocabulary of self-regulation and/or ethics being used in this perspective, because it affirms that it devotes forces to taking into consideration the situation of others when it would not be compelled to do so, but that it does so nonetheless because it cares about them. However, the management of reputational risks and the value of bonds of trust, or a suspicious reading of managerial choices, lead us to say that all this is merely a calculation.

Thus, the first part of the contribution sets out to identify the Compliance Obligation by recognising the role of all these different sources. The second part emphasises that, in monitoring the proper performance of technical compliance obligations by Managers, Regulators and Judges, insofar as they implement the Compliance Obligation, it is pointless to limit oneself to a single source or to rank them abruptly in order of importance. The Compliance Obligation is part of the very definition of Compliance Law, built on the political ambition to achieve these Monumental Goals of preserving systems - banking, financial, energy, digital, etc. - in the future, so that human beings who cannot but depend on them are not crushed by them, or even benefit from them. This is the teleological yardstick by which the Compliance Obligation is measured, and with it all the secondary obligations that give it concrete form, whatever their source and whatever the reason why the initial standard was adopted.

________

🌐follow Marie-Anne Frison-Roche on LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

____

► Full Reference: M.-A. Frison-Roche, "Obligation de Compliance : construire une structure de compliance produisant des effets crédibles au regard des Buts Monumentaux visés par le Législateur" (Compliance Obligation: build a compliance structure producing credible effects in the perspective of the Monumental Goals targeted by the Legislator), in M.-A. Frison-Roche (dir.), L'Obligation de Compliance, Journal of Regulation & Compliance (JoRC) and Dalloz, coll. "Régulations & Compliance", 2025, pp.3-44.

____

► This article is the introduction to the book

____

📝read the article (in French)

____

🚧read the bilingual Working Paper on the basis this article has been written, with more developments, technical references and hyperlinks

____

📕read the general presentation of the book, L'Obligation de Compliance, in which this article is published

____

► English Summary of this contribution: This article explains what companies' Compliance Obligation" is. Delving into the mass of compliance obligations, it uses the method of classification of those that are subject to an obligation of result and those that are subject to an obligation of means. It justifies the choice of this essential criterion, which changes the objects and the burden of proof of companies that are subject to an obligation of result when it comes to setting up "compliance structures" and are subject to an obligation of means when it comes to the effects produced by these compliance structures.

Indeed, rather than getting bogged down in definitional disputes, given that Compliance Law is itself a nascent branch of Law, the idea of this contribution is to take as a starting point the different legal regimes of so many different compliance obligations to which laws and regulations subject large companies: sometimes they have to apply them to the letter and sometimes they are only sanctioned in the event of fault or negligence. This brings us back to the distinction between obligations of result and obligations of means.

Although it would be risky to transpose the expression and regime of contractual obligations to legal obligations put by legislation, starting from this observation in the evidentiary system of compliance of a plurality of obligations of means and of result, depending on whether it is a question of this or that technical compliance obligation, we must first classify them. It would then appear that this plurality will not constitute a definitive obstacle to the constitution of a single definition of the Compliance Obligation. On the contrary, it makes it possible to clarify the situation, to trace the paths through what is so often described as a legal jumble, an unmanageable "mass of regulations".

Indeed, insofar as the company obliged under Compliance Law participates in the achievement of the Monumental Goals on which this is normatively based, a legal obligation which may be relayed by contract or even by ethics, it can only be an obligation of means, by virtue of this very teleological nature and the scale of the goals targeted, for example the happy outcome of the climate crisis which is beginning or the desired effective equality between human beings. This established principle leaves room for the fact that the behaviour required is marked out by processes put in place by structured tools, most often legally described, for example the establishment of a vigilance plan or regularly organised training courses (effectiveness), are obligations of result, while the positive effects produced by this plan or these training courses (effaciety) are obligations of means. This is even more the case when the Goal is to transform the system as a whole, i.e. to ensure that the system is solidly based, that there is a culture of equality, and that everyone respects everyone else, all of which come under the heading of efficiency.

The Compliance Obligation thus appears unified because, gradually, and whatever the various compliance obligations in question, their intensity or their sector, its structural process prerequisites are first and foremost structures to be established which the Law, through the Judge in particular, will require to be put in place but will not require anything more, whereas striving towards the achievement of the aforementioned Monumental Goals will be an obligation of means, which may seem lighter, but corresponds to an immeasurable ambition, commensurate with these Goals. In addition, because these structures (alert mechanisms, training, audits, contracts and clauses, etc.)  have real meaning if they are to produce effects and behaviours that lead to changes converging towards the Monumental Goals, it is the obligations of means that are most important and not the obligations of result. The judge must also take this into account.

Finally, the Compliance Obligation, which therefore consists of this interweaving of multiple compliance obligations of result and means of using the entreprise's position, ultimately Goals at system efficiency, in Europe at system civilisation, for which companies must show not so much that they have followed the processes correctly (result) but that this has produced effects that converge with the Goals sought by the legislator (effects produced according to a credible trajectory). This is how a crucial company, responsible Ex Ante, should organise itself and behave.

________

🌐follow Marie-Anne Frison-Roche sur LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

🌐subscribe to the Video Newsletter MAFR Surplomb

____

► Full Reference: M.-A. Frison-Roche, "À quoi engagent les engagements" (In Compliance Law, the legal consequences for Entreprises of their commitments and undertakings), in M.-A. Frison-Roche (dir.), L'Obligation de Compliance, Journal of Regulation & Compliance (JoRC) and Lefebvre-Dalloz, coll. "Régulations & Compliance", 2025, forthcoming

____

📝read the article (in French)

____

🚧read the bilingual Working Paper on which this article is based, with additional developments, technical references and hyperlinks

____

📕real the general presentation of the book, L'Obligation de Compliance, in which this article is published

____

► English summary of this article: The innocents might believe, taking the Law and its words literally, that "commitments" are binding on those who make them. Shouldn't they be afraid of falling into the trap of the 'false friend', which is what the Law wants to protect them from (as stated in the prolegomena)?

Indeed, the innocent persons think that those who make commitments ask what they must do and say what they will do. Yet, strangely enough, the 'commitments' that are so frequent and common in compliance behaviours are often considered by those who adopt them to have no binding value! Doubtless because they come under disciplines other than Law, such as the art of Management or Ethics. It is both very important and sometimes difficult to distinguish between these different Orders - Management, Moral Norms and Law - because they are intertwined, but because their respective standards do not have the same scope, it is important to untangle this tangle. This potentially creates a great deal of insecurity for companies (I).

The legal certainty comes back when commitments take the form of contracts (II), which is becoming more common as companies contractualise their legal Compliance Obligations, thereby changing the nature of the resulting liability, with the contract retaining the imprint of the legal order or not having the same scope if this prerequisite is not present.

But the contours and distinctions are not so uncontested. In fact, the qualification of unilateral undertaking of will is proposed to apprehend the various documents issued by the companies, with the consequences which are attached to that, in particular the transformation of the company into a 'debtor', which would change the position of the stakeholders with regard to it (III).

It remains that the undertakings expressed by companies on so many important subjects cannot be ignored: they are facts (IV). It is as such that they must be legally considered. In this case, Civil Liability will have to deal with them if the company, in implementing what it says, what it writes and in the way it behaves, commits a fault or negligence that causes damage, not only the sole existence of an undertaking. 

________

🌐follow Marie-Anne Frison-Roche on LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

🌐subscribe to the Video Newsletter MAFR Surplomb

____

► Full Reference: M.-A. Frison-Roche, "Le droit processuel, prototype de l'Obligation de Compliance " ("General Procedural Law, prototype of Compliance Obligation"), in M.-A. Frison-Roche (ed.), L'Obligation de Compliance, Journal of Regulation & Compliance (JoRC) and Dalloz, coll. "Régulations & Compliance" 2025, to be published.

____

📝read the article (in French)

____

🚧read the bilingual Working Paper on the basis this contribution has been built, with  more developments, technical references and hyperlinks. 

____

📕read a general presentation of the book, L'Obligation de Compliance, in which this article is published 

____

► English summary of this contribution : At first glance, General Procedural Law seems to be the area least concerned by the Compliance Obligation, because if the person is obliged by it, mainly large companies, it is precisely, thanks to this Ex Ante, in order to never to have to deal with proceedings, these path that leads to the Judge, that Ex Post figure that in return for the weight of the compliance obligation they have been promised they will never see: any prospect of proceedings would be seeming to signify the very failure of the Compliance Obligation (I).

But not only are the legal rules attached to the Procedure necessary because the Judge is involved, and increasingly so, in compliance mechanisms, but they are also rules of General Procedural Law and not a juxtaposition of civil procedure, criminal procedure, administrative procedure, etc., because the Compliance Obligation itself is not confined either to civil procedure or to criminal procedure, to administrative procedure, etc., which in practice gives primacy to what brings them all together: General Procedural Law (II).

In addition to what might be called the "negative" presence of General Procedural Law, there is also a positive reason, because General Procedural Law is the prototype for "Systemic Compliance Litigation", and in particular for the most advanced aspect of this, namely the duty of vigilance (III). In particular, it governs the actions that can be brought before the Courts (IV), and the principles around which proceedings are conducted, with an increased opposition between the adversarial principle, which marries the Compliance Obligation, since both reflect the principle of Information, and the rights of the defence, which do not necessarily serve them, a clash that will pose a procedural difficulty in principle (V).

Finally, and this "prototype" status is even more justified, because Compliance Law has given companies jurisdiction over the way in which they implement their legal Compliance Obligations, it is by respecting and relying on the principles of General Procedural Law that this must be done, in particular through not only sanctions but also internal investigations (VI).

Mais non seulement les règles juridiques attachées à la procédure s'imposent parce que le Juge s'avère présent, et de plus en plus, dans les mécanismes de compliance mais encore ce sont des règles de Droit processuel et non pas une juxtaposition de procédure civile, procédure pénale, procédure administrative, etc., parce que l'obligation de compliance elle-même n'est pas enfermée ni dans le droit civil, ni dans le droit pénal ,dans le contentieux administratif, etc., ce qui donne en pratique primauté à ce qui les réunit toutes : le Droit processuel (II).

A cette raison que l'on pourrait dire "négative" de la présence du Droit processuel s'ajoute une raison positive, parce que le Droit processuel s'avère être le prototype du "Contentieux systémique de la Compliance, et notamment de la pointe avancée de celui-ci qu'est l'obligation de vigilance (III). Il gouverne notamment les actions par lesquelles les Juges peuvent être saisis (IV), les principes autour desquels les procédures se déroulent, avec une opposition accrue entre le principe du contradictoire qui épouse l'obligation de compliance puisque l'un et l'autre traduisent le principe d'information et les droits de la défense qui ne les servent pas nécessairement, heurt qui va poser une difficulté processuelle de principe (V).

Enfin, et la qualité de "prototype" se justifie alors plus encore, parce que le Droit de la compliance a juridictionnalisé les entreprises dans la façon dont celles-ci mettent en oeuvre leurs Obligation légale de Compliance, c'est en respectant et en s'appuyant sur les principes de droit processuel que cela doit être fait, notamment à travers non seulement les sanctions mais encore les enquêtes internes (VI).

________

🌐follow Marie-Anne Frison-Roche on LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

🌐subscribe to the Video Newsletter MAFR Surplomb

🌐subscribe to the Newsletter MaFR Droit & Art

____

► Full Reference:: M.-A. Frison-Roche, "Compliance", in J.-Fr. Kerléo & E. Lemaire (dir.), Dictionnaire de l'éthique publique, LexisNexis, 2025, pp. 

____

📗 read the general presentation of the Dictionary.

____

📝read the article (in French).

_____

► English Summary of the article defining what is Compliance: The article explains Compliance in 7 points.

Firstly, it states that Compliance oscillates between a weak and a strong definition. It can be defined weakly as the demonstration of obedience to all applicable regulations, or it can be defined strongly as active participation in the achievement of 'monumental' ambitions for the future of the social group. Positive legal rules and case law are increasingly revealing the relevance of the strong definition, with the weak definition referring only to conformity to the Law.

Secondly, this understanding of the new branch of Law known as Compliance Law will enable us to master the regulations specifically relating to compliance (RGPD, French laws such as Sapin 2 Act and Vigilance Act, AML/FT, European AI Act, etc.), which are both more specific and more restrictive than the general obligation to comply with the applicable legal rules.

Thirdly, everyone can see the move from "extraterritoriality" to another thing which is the indifference to territoryd: Compliance is the right instrument for the digital space and for chains of activities.

Fourthly, this is due to the very nature of Compliance, which consists in internalising in companies in a position to be active the “Monumental Negative Goal” of preventing the collapse of systems (energy, climate, digital, banking, financial, algorithmic, etc.).

Fifthly, this internalisation is carried out by States and public authorities in entities in a position to act, i.e. in concrete terms in companies in a position to be active to reach the “Monumental Goals” by contributing to the improvement of systems so that these systems benefit in the present and the future the people who are de jure and de facto involved in them.

Sixthly, these goals become positive when it comes to educating people about probity and effective equality between human beings, notably through training policies. In this respect, Vigilance is the “cutting edge” of Compliance.

Seventhly, an “ex ante responsibility” of Crucial Operators subject to Compliance is emerging, and is articulated by Systemic Litigation which aims to balance and maintain systems, carried by States and these crucial companies.

____

📝read the preentation of the other article written by Marie-Anne Frison-Roche for this Dictionary: "Régulation"

________

🌐follow Marie-Anne Frison-Roche on LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

🌐subscribe to the Video Newsletter MAFR Surplomb

🌐subscribe to the Newsletter MaFR Droit & Art

____

► Full Reference: M.-A. Frison-Roche, "Régulation" (Regulatory Law), in J.-Fr. Kerléo et E. Lemaire (dir.), Dictionnaire de l'éthique publique, LexisNexis, 2025, pp. 

____

📗read the general presentation of the Dictionary.

____

📝read the article  (in French)

_____

► English Summary of this article defining Regulation: To define Regulation (Regulatory Law), the article begins with its origins, which were a source of misunderstanding, since the term Regulation might refer to simple regulations, thus masking the real branch of Law which is the Law of Regulation. But this confusion with simple and formal regulations has diminished Regulatory Law its importance, its novelty and its originality, and, by placing it within Public Law, equated Regulation on the one hand with the transition from public monopolies to a competitive organisation, and on the other hand privileged the legal study of what fell within the remit of the Administrative Courts, i.e. telecommunications, transport and energy, leaving out the Regulatory Law of banking and financial sector . As a result, the unity and strength of Regulatory Law is still difficult to perceive and manage today, while its relationship with competition and Europe remains difficult.

Regulatory Law is all the more difficult to define because it is still common to oppose, as was the case in the 1980s, "Economic Regulatory Law", which would aim to set economic efficiency objectives within the State, and "Public Liberties Regulatory Law", which would be alternatives to each other, preventing the audiovisual, media and digital sectors in particular from being legally perceived as an industry. We are still paying for this initial conception. All the more so since Regulatory Law is the second pillar on which Europe is built, along with Competition, with which it is linked. It can be identified by the existence of a regulated 'sector', most often through the establishment of a regulatory authority, generally in the form of an Independent Administrative Body. But it is defined by the prevalence of the technical and political goals pursued, which are not spontaneously achieved and which aim to favour the human beings involved in economic organisations.

While the function of Competition Authorities is to maintain the dynamism of competitive markets and to punish behaviour that hinders them without creating that dynamism, Regulatory Law, through its own rules, principles, institutions, procedures and decisions, will create non-spontaneous équilibra and maintain them over time.  To do this, it will inject non-spontaneous procedures, such as transparency, or generate obligations and powers because these are necessary for this balance to be achieved. This can take the form of exclusive rights, which can go as far as the creation of monopolies, particularly on transport infrastructures, or the form of pricing and tarification, which can go as far as free access. Access rights are essential, whether technical or political (access to networks, access to healthcare).

The political dimension of Regulatory Law is very much in evidence, as Europe is developing its own form of Regulation compared with the USA or China, demonstrating the link between Regulation and Sovereignty, the criterion? of the technical sector becoming less significant. This is illustrated by the clash over algorithmic systems (AI).  In this way, regulation is not a technical reaction to a "market failure", but the manifestation of a zone's political power both internally and externally. The DSA (2022) is an example of this, imposing this same logic extraterritoriality in the digital space through the Digital Services Act (DSA) adopted in 2022.

____

📝read the presentation of the other article written by Marie-Anne Frison-Roche for this Dictionary: "Compliance"

________

🌐follow Marie-Anne Frison-Roche on LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

🌐subscribe to the Video Newsletter MAFR Surplomb

____

► Full Reference: M.-A. Frison-Roche, "Le Juge requis pour une Obligation de Compliance effective" ("The Judge required for an effective Compliance Obligation"), in M.-A. Frison-Roche (ed.), L'Obligation de Compliance, Journal of Regulation & Compliance (JoRC) and Dalloz, coll. "Régulations & Compliance" 2025, to be published.

____

📝read the article (in French)

____

🚧read the bilingual Working Paper on the basis this contribution has been built, with  more developments, technical references and hyperlinks. 

____

📕read a general presentation of the book, L'Obligation de Compliance, in which this article is published 

____

► English summary of this contribution : The Judge is a character who seems weak in a Compliance Law that seems so powerful in a world where Technology is developing even a more impressive power. But present and future cases show, on the contrary, that he or she has a central role to play and that his/her role must be to use his/her own strength to remain what he/she is: the guardian of the Rule of Law, which is not so obvious because many Compliance tools, which are technological in nature, are in a way 'insensitive' to what we hold dear, the protection of human beings, which is based on the diligence of companies (I). 

The second role that we can expect of the Judge is that not only does he/she help to ensure the permanence of this Rule of Law, which relies to a large extent on him:Her in the face of a future world that is unknown to us, mainly in its digital and climatic dimensions, perspectives that Compliance Law seeks to grasp, by renewing Regulation Law, by acting in relation to companies whose role is active, which leads the Judge to control them and to be aware of the claims that can be made against them, without taking the place of their management powers (II). This presupposes a new method (III), and all the judges, however diverse, will converge in an active dialogue between the judges, which will enable, firstly, the traditional role of the judge, linked to the Rule of Law, to endure in a rapidly changing world and, secondly, each judge to take on this new role implied by Compliance Law (IV).

The perfect triangle will then be established, the strength and simplicity of which allows the use of the singular and the retention of capital letters for each of these three terms: Regulation Compliance Judge.

________

🌐follow Marie-Anne Frison-Roche on LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

____

► Full Reference: M.-A. Frison-Roche, "Obligation sur Obligation vaut" (....), in M.-A. Frison-Roche (dir.), L'Obligation de Compliance, Journal of Regulation & Compliance (JoRC) and Dalloz, coll. "Régulations & Compliance", 2025, forthcoming.

____

📝read the article

____

🚧read the bilingual Working Paper on the basis this article has been written, with more developments, technical references and hyperlinks

____

📕read the general presentation of the book, L'Obligation de Compliance, in which this article is published

____

► English Summary of this contribution: The demonstration of the part played by Will in the Compliance Obligation incumbent on companies is based on the distinction and articulation between the Regulatory Legal Obligation and the spontaneous Obligation of companies, in the use that companies make of their will to implement their Regulatory Legal Obligation and the use that they make of it to produce even new ambitions. This is why the demonstration is carried out in 3 stages.

The first part of the demonstration consists in finding the part played by the free will of companies in their Compliance Obligation by putting an end to two confusions: the first, which, within the Contract and Tort Law itself but also within Compliance Law, splits up and confuses "free will" and "consent", which would no longer require freely expressed acceptance; the second, which, specific to Compliance Law, confuses "Compliance" and "conformity", reducing the former to mechanical obedience, which would exclude any free will.

Having clarified this, the rest of this study focuses on the 2 ways in which a company subject to a Compliance Obligation by regulations expresses a part of its free will, which the study expresses in this proposed adage: Obligation upon Obligation is valid, since the regulatory legal obligation to which the company responds by the obedience owed by all those subject to the Law may be superimposed by its free will, which will then oblige it.

The first case of Obligation upon Obligation, studied in a second part, concerns the means by which the Regulatory Legal Compliance Obligation is implemented, the company subject to the Monumental Goals set by the Law remaining free to choose the means by which it will contribute to achieving them. Its free will will thus be exercised over the choice and implementation of the means. This can take two legal forms: contracts on the one hand and "commitments" on the other.

Thirdly, the second case of Obligation upon Obligation, which is more radical, is that in which, in addition to Compliance's regulatory legal Obligation, the company draws on its free will to repeat the terms of its regulatory legal Obligation (because it is prohibited from contradicting it), a repetition which can be far-reaching, because the legal nature (and therefore the legal regime) is changed. The judgment handed down by the The Hague Court of Appeal on 12 November 2024, in the case law Shell, illustrates this. What is more, the free will of the company can play its part in the Compliance Obligation by increasing the Compliance Obligation. This is where the alliance is strongest. The interpretation of the specific obligations that result must remain that of the Monumental Goals in a teleological application that gives coherence to the whole.

________

🌐follow Marie-Anne Frison-Roche on LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

🌐subscribe to the Video Newsletter MAFR Surplomb

____

► Full Reference: M.-A. Frison-Roche, "La considération par l'arbitrage de l'obligation de Compliance pour une place d'arbitrage durable" (Arbitration consideration of Compliance Obligation for a sustainable Arbitration Place), in M.-A. Frison-Roche (ed.), L'Obligation de Compliance, Journal of Regulation & Compliance (JoRC) and Dalloz, coll. "Régulations & Compliance", 2025, to be published

____

📝read the article (in French)

____

🚧read the bilingual Working Paper on the basis this contribution has been built, with  more developments, technical references and hyperlinks. 

____

📕read a general presentation of the book, L'Obligation de Compliance, in which this article is published 

____

► English summary of this contribution : The first part of this study assesses the evolving relationship between Arbitration Law and Compliance Law, which depends on the very definition of the Compliance Obligation (I). Indeed, these relations have been negative for as long as Compliance has been seen solely in terms of "conformity", i.e. obeying the rules or being punished. These relationships are undergoing a metamorphosis, because the Compliance Obligation refers to a positive and dynamic definition, anchored in the Monumental Goals that companies anchor in the contracts that structure their value chains.

Based on this development, the second part of the study aims to establish the techniques of Arbitration and the office of the arbitrator to increase the systemic efficiency of the Compliance Obligation, thereby strengthening the attractiveness of the Place (II). First and foremost, it is a question of culture: the culture of Compliance must permeate the world of Arbitration, and vice versa. To achieve this, it is advisable to take advantage of the fact that in Compliance Law the distinction between Public and Private Law is less significant, while the concern for the long term of contractually forged structural relationships is essential.

To encourage such a movement to deploy the Compliance Obligation, promoting the strengthening of a Sustainable Arbitration Place (III), the first tool is the contract. Since contracts structure value chains and enable companies to fulfill their legal Compliance Obligation but also to add their own will to it, stipulations or offers relating to Arbitration should be included in them. In addition, the adoption of non-binding texts can set out a guiding principle to ensure that concern for the Monumental Goals is appropriate in order the Compliance Obligation to be taken into account by Arbitrators.

________

🌐follow Marie-Anne Frison-Roche on LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

🌐subscribe to the video Newsletter MAFR Surplomb

🌐subscribe to the Newsletter MaFR Droit & Art

____

► Full Reference: M.-A. Frison-Roche, Compliance Law and Systemic Litigation, Working Paper, August 2025.

____

📝 This bilingual Working Paper is the basis of the article published in French "Droit de la compliance et contentieux systémique"

____

► Summary of this Working Paper: Legal systems have changed, and Compliance Law, in its uniqueness, reflects this change and plays a powerful role in it. New sets of compliance rules, particularly at European Union level, covering data protection (GDPR), anti-money laundering (AMLA), climate balance protection (CS3D) and banking and financial system sustainability (Banking Union), have been developed and imposed on large companies, which must implement them: alerts, mapping, assessment, sanctions, etc. These new regulatory frameworks only make sense in relation to their ‘Monumental Goals’: to detect systemic risks ex ante and prevent crises so that the systems in question do not collapse, but ‘last’. All the legal instruments in the corpus are normatively rooted in these monumental goals, which are the core that unifies Compliance Law (I).

The judge is the guardian of this new and highly ambitious regulatory framework, which relies on the practical ability of companies to implement it (II). Courts ensure that the legal technical provisions are applied in a teleological manner in each of these compliance blocks and that the regulations support each other, because all compliance regulations serve the same systemic goal: to ensure that the systems (banking, financial, climate, digital, energy, etc.) do not collapse, but sustains, and that present and future human beings are not crushed by them, but rather benefit from them. This unity is still little perceived because so meticulous regulations pulverise this profound unity of Compliance Law into a myriad of changing provisions. Entrusting the ‘regulatory mass’ to algorithms increases this fragmentation, making the whole even more incomprehensible and therefore impossible to handle. On the contrary, recognising the judge's place, i.e. at the centre, makes it possible to master this new branch of law. But the judge's sole function is not to restore clarity to a body of law covered by the dust of its own technicality.

There is a transfer to Litigation of the systemic object of Compliance Law. Indeed, the litigation that emerges from the new Compliance Law is itself fundamentally new, by transitivity. Indeed, the purpose of Compliance Law is to make systems sustainable (or resilient, or robust, depending on the terminology used). This results in litigation that is itself ‘Systemic Litigation’ (III), most often brought by an organisation against a systemic operator. The place and role of each party are transformed (IV).

____

🔓read the developments below⤵️

🌐follow Marie-Anne Frison-Roche on LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

🌐subscribe to the video Newsletter MAFR Surplomb

____

► Full Reference: M.-A. Frison-Roche, Compliance Obligation: build a compliance structure producing credible effects in the perspective of the Monumental Goals targeted by the Legislator, Working Paper, March 2024.

____

📝 This Working Paper is the basis of the article "Compliance Obligation: build a compliance structure producing credible effects in the perspective of the Monumental Goals targeted by the Legislator", in📘 Compliance 'Obligation de Compliance,

____

► Summary of this Working Paper: This article explains what companies' Compliance Obligation" is. Delving into the mass of compliance obligations, it uses the method of classification of those that are subject to an obligation of result and those that are subject to an obligation of means. It justifies the choice of this essential criterion, which changes the objects and the burden of proof of companies that are subject to an obligation of result when it comes to setting up "compliance structures" and are subject to an obligation of means when it comes to the effects produced by these compliance structures.

Indeed, this article goes on to analyse each body of regulations ("Sapins 2", "Vigilance", CSRD, CS3D, DSA, NIS2, DMA, DORA, AML-FT, ....) and the technical compliance obligations they impose, dividing them into obligations of result or obligations of means, depending on the text. This table of positive law thus drawn up, with reference to all the articles of the texts, shows that in positive law the Compliance Obligation has above all an evidential dimension, which is developed in the third part of the article: the company must show that it has put in place the compliance structures (obligations of result) required by the texts and it is up to third parties who criticise it for the unsatisfactory effects that these structures would have produced, according to them, to show that there is a fault or negligence on the part of the company (obligation of means).

Indeed, rather than getting bogged down in definitional disputes, given that Compliance Law is itself a nascent branch of Law, the idea of this contribution is to take as a starting point the different legal regimes of so many different compliance obligations to which laws and regulations subject large companies: sometimes they have to apply them to the letter and sometimes they are only sanctioned in the event of fault or negligence. This brings us back to the distinction between obligations of result and obligations of means.

Although it would be risky to transpose the expression and regime of contractual obligations to legal obligations put by legislation, starting from this observation in the evidentiary system of compliance of a plurality of obligations of means and of result, depending on whether it is a question of this or that technical compliance obligation, we must first classify them. It would then appear that this plurality will not constitute a definitive obstacle to the constitution of a single definition of the Compliance Obligation. On the contrary, it makes it possible to clarify the situation, to trace the paths through what is so often described as a legal jumble, an unmanageable "mass of regulations".

Indeed, insofar as the company obliged under Compliance Law participates in the achievement of the Monumental Goals on which this is normatively based, a legal obligation which may be relayed by contract or even by ethics, it can only be an obligation of means, by virtue of this very teleological nature and the scale of the goals targeted, for example the happy outcome of the climate crisis which is beginning or the desired effective equality between human beings. This established principle leaves room for the fact that the behaviour required is marked out by processes put in place by structured tools, most often legally described, for example the establishment of a vigilance plan or regularly organised training courses (effectiveness), are obligations of result, while the positive effects produced by this plan or these training courses (effaciety) are obligations of means. This is even more the case when the Goal is to transform the system as a whole, i.e. to ensure that the system is solidly based, that there is a culture of equality, and that everyone respects everyone else, all of which come under the heading of efficiency.

The Compliance Obligation thus appears unified because, gradually, and whatever the various compliance obligations in question, their intensity or their sector, its structural process prerequisites are first and foremost structures to be established which the Law, through the Judge in particular, will require to be put in place but will not require anything more, whereas striving towards the achievement of the aforementioned Monumental Goals will be an obligation of means, which may seem lighter, but corresponds to an immeasurable ambition, commensurate with these Goals. In addition, because these structures (alert mechanisms, training, audits, contracts and clauses, etc.)  have real meaning if they are to produce effects and behaviours that lead to changes converging towards the Monumental Goals, it is the obligations of means that are most important and not the obligations of result. The judge must also take this into account.

Finally, the Compliance Obligation, which therefore consists of this interweaving of multiple compliance obligations of result and means of using the entreprise's position, ultimately Goals at system efficiency, in Europe at system civilisation, for which companies must show not so much that they have followed the processes correctly (result) but that this has produced effects that converge with the Goals sought by the legislator (effects produced according to a credible trajectory). This is how a crucial company, responsible Ex Ante, should organise itself and behave.

___

🔓read the developments below⤵️

🌐follow Marie-Anne Frison-Roche on LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

🌐subscribe to the Video Newsletter MAFR Surplomb

🌐subscribe to the Newsletter MaFR Droit & Art

____

► Full Reference: P. Bonis & M.-A. Frison-Roche, "Réguler le numérique, ou Sisyphe heureux" (Regulating Digital, or a happy Sisyphus), in P. Bonis & L. Castex (dir.), Compliance et Nouvelles Régulations, Les Annales des Mines, series "Enjeux numériques, June 2025, p.5-7.

____

📝read the article (in French)

____

📗read the table of content of this special issue of Enjeux numérique, Régulation et Compliance (in French), in which this introductory article is published.

____

► English Summary of this article: This introduction to the collective publication on Regulation and Compliance, which aims to bring order to the Digital space, takes up the idea expressed by Camus when he referred to 'happy' Sisyphus, and expresses the idea that Regulation and Compliance are applied to this area with difficulty, relentlessness and failure, with texts constantly being adopted, modified and amplified on all sides, while the Digital Space is constantly changing, and the slope is constantly being climbed again. But this should not be seen as a failure, not even a flaw, because it is in the nature of digital regulation to always place the regulatory apparatus on our shoulders.

This weight is shared by all, by the Authorities of all countries, because there is something common to all and also because there is something specific for each, because the techniques differ and because the visions of the world that the Politicians print in the texts and project in the Digital will always differ. This weight is also shared by companies, which internalise the rules through Compliance mechanisms, making them necessary agents for the efficiency and sustainability of the digital system, but also players in it, in articulation with Internet users in a permanent and unstable articulation with the local to the finest and this global that the Internet has invented.

This presentation opens the series of contributions to the collective publication Régulation et Compliance, which makes up this special issue of Enjeux numériques in Annales des Mines.

____

🌐read also the English presentation of:🕴️Marie-Anne Frison-Roche, 📝Le Droit de la compliance, voie royale pour réguler l'espace numérique (Compliance Law as a Royal Road for regulating the Digital Space)

________

🌐follow Marie-Anne Frison-Roche on LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

🌐subscribe to the Video Newsletter MAFR Surplomb

🌐subscribe to the Newsletter MaFR Droit & Art

____

► Full Reference: M.-A. Frison-Roche, "Le Droit de la compliance, voie royale pour réguler l'espace numérique" (Compliance Law as a Royal Road for regulating the Digital Space), in P. Bonis et L. Castex (dir.), Compliance et nouvelles régulation, Annales des Mines, coll. "Enjeux numériques", juin 2025, pp.69-77.

____

📝 read the article (in French) 

____

🚧This article is underpinned by a English Working Paper in English, with additional technical developments and hypertext links. : Compliance Law as a Royal Road for regulating the Digital Space

____

► English Summary of this article:  In order to describe the role of Compliance Law in regulating the digital space and to conclude that this new branch of Law is the 'royal road' to this end, this study proceeds in 6 stages. 

Firstly, at first sight and conceptually, there is a gap between the political idea of Regulating and the ideas (freedom and technology as 'law') on which the digital space has been built and is unfolding. 

Secondly, in practice, there is such a huge gap between the ordinary methods of Regulatory Law, which are backed by a State, and the organisation of the Digital Space by these economic operators, that are both American and global. 

Thirdly, the political claim to civilise the Digital Space remains and is growing, relying on the very strength of the entities capable of realising this ambition, these entities being the crucial digital operators themselves, seized as Ex Ante. 

Fourthly, it corresponds to the conception and practice of a new branch of Law, Compliance Law, which should not be confused with "conformity" and which is normatively anchored in its "Monumental Goals". 

Fifthly, Compliance Law internalises Monumental Goals in the digital operators which disseminate them through structures and behaviours in the digital space. 

Sixthly, through the interweaving of legislation, court rulings and corporate behaviour, the Monumental Goals are given concrete expression, willingly or by force, in ways that can civilise the digital space without undermining the primacy of freedom.

____

🌐follow Marie-Anne Frison-Roche on LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

🌐subscribe to the Video Newsletter MAFR Surplomb

🌐subscribe to the Newsletter MaFR Droit & Art

____

► Full Reference : M.-A. Frison-Roche, To master the regulatory mass of Compliance, think of it as a jigsaw puzzle,  Working Paper , May 2025

____

📝 This Working Paper underpins the Newsletter MAFR Law -Compliance - Regulation  of 2 June 2025 : 

____

► Summary of this Working Paper:  People are rightly complaining that Europe's regulatory and compliance regulations are too numerous, too complicated and too changeable. As a result, they are said to be unmanageable.

Three solutions are proposed: specialise lawyers, regulatory corpus by regulatory corpus; deregulate; entrust everything to algorithms.

These are inadequate solutions, because regulations cannot be understood unless they are put into perspective with the rest of the legal rules .; we have entered a new world, and these new regulations reflect the need for a new Law (unless we want to destroy the Law itself, which is what some people are dreaming of doing); algorithms reproduce past solutions and do not produce the new legal conception required.

For an appropriate solution, we need to move away from a word-by-word understanding of the regulatory and compliance regulations and understand them as a whole, not only in relation to the purpose that gives them meaning, but also in relation to each other. In the positive sense of the term, they form a European 'jigsaw puzzle'. We need to look at the overall picture in which each regulation fits and makes sense. It finds its simplicity in relation to its purpose.

It is always a question of working towards the sustainability of systems by asking companies to contribute so that the systems do not crush human beings but benefit them. Thus, in practice, the Monumental Goals of Compliance Law give clarity to the body of regulations which, when seen as a whole, are manageable and practical. Judges interpret them in this way.

____

🔓read the Working Paper below⤵️

🌐follow Marie-Anne Frison-Roche on LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

🌐subscribe to the Video Newsletter MAFR Surplomb

____

► Full Reference: M.A. Frison-Roche, "100 fois remettre la Compliance sur le métier de la Stratégie" (100 times put Compliance back on the Strategy agenda), in Lettre d'information Compliance. Groupe SNCF, 100ième issue, 28 may 2025.

____

📝read the article (in French)

____

► English presentation of this article: This anniversary article sets out what Compliance is and should be in a large group. It expresses it in 4 points:

1. Actively master regulations by understanding their spirit

2. Improving risk detection without taking away the entrepreneurial spirit

3. Promoting convergence and managing conflict

4. Strengthen the company's identity by focusing on its strategic ambitions

 ________

► Full Reference : M.A. Frison-Roche, Le "Grand Arrêt" de la Cour d'appel de Paris du 7 mai 2025, Dalloz et al. c/Forseti, D.2025, p.

____

📝reread the article (in French)

____

► Ench presentation of this article: The first part of the article describes the Paris Court of Appeal's ruling against the company that created a Legaltech platform under the trade name 'Doctrine', which offers a large number of court rulings, particularly from lower courts. Sued for unfair competition by a group of publishers offering a similar service, they were not convicted at first instance, but were convicted by the Court of Appeal because it appeared that they had fraudulently obtained thousands of judgments, which, under Civil Law, constitutes unfair competition to the detriment of the plaintiffs.

The second part of the article draws 6 lessons from this. The power of general law. On the benefits that the perpetrator has derived from the slowness of justice.  On the importance of Open Data. On the fact that the law is not mastered by accumulating data but by putting it into perspective through the thinking of authors and publishers. On the indifference for this of the financiers who built and resold the "Doctrine" website. On the very nature of a 'Grand Arrêt', such as this one.

________

🌐follow Marie-Anne Frison-Roche on LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

🌐subscribe to the Video Newsletter MAFR Overhang

🌐subscribe to the Newsletter MaFR Droit & Art

____

► Full Reference: M.-A. Frison-Roche, Compliance law as a Royal Road for regulating the Digital Space, Working Paper, May 2025

____

📝 This Working Paper is the English basis for an article written in French "Le Droit de la compliance, voie royale pour réguler l'espace numérique", in 📕

____

► Summary of this Working Paper: In order to describe the role of Compliance Law in regulating the digital space and to conclude that this new branch of Law is the 'royal road' to this end, this study proceeds in 6 stages. Firstly, at first sight and conceptually, there is a gap between the political idea of Regulating and the ideas (freedom and technology as 'law') on which the digital space has been built and is unfolding. Secondly, in practice, there is such a huge gap between the ordinary methods of Regulatory Law, which are backed by a State, and the organisation of the Digital Space by these economic operators, that are both American and global. Thirdly, the political claim to civilise the Digital Space remains and is growing, relying on the very strength of the entities capable of realising this ambition, these entities being the crucial digital operators themselves, seized as Ex Ante. Fourthly, it corresponds to the conception and practice of a new branch of Law, Compliance Law, which should not be confused with "conformity" and which is normatively anchored in its "Monumental Goals". Fifthly, Compliance Law internalises Monumental Goals in the digital operators which disseminate them through structures and behaviours in the digital space. Sixthly, through the interweaving of legislation, court rulings and corporate behaviour, the Monumental Goals are given concrete expression, willingly or by force, in ways that can civilise the digital space without undermining the primacy of freedom.

____

🔓read the Working Paper below⤵️

🌐follow Marie-Anne Frison-Roche sur LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

🌐subscribe to the Video Newsletter MAFR Surplomb

____

► Full Reference: M.-A. Frison-Roche, "Compliance, Vigilance et Responsabilité civile : mettre en ordre et raison garder" (Compliance, Vigilance and Civil Liability: put in Order and keep the sense of Reason), in M.-A. Frison-Roche (dir.), L'Obligation de Compliance, Journal of Regulation & Compliance (JoRC) and Lefebvre-Dalloz, coll. "Régulations & Compliance", 2025, forthcoming

____

📝read the article (in French)

____

🚧read the bilingual Working Paper on which this article is based, with additional developments, technical references and hyperlinks

____

📕real the general presentation of the book, L'Obligation de Compliance, in which this article is published

____

► English summary of this article: The descriptions of the Liability incurred by large companies as a result of their compliance obligations are very diverse, even contradictory, going beyond the wishes that may be expressed as to what this liability should be. The first part of this study therefore sets out the various liabilities incurred by companies, which differ in the conditions under which they are implemented and in their scope, so as not to confuse them.

Indeed, as the various laws establish specific legal compliance obligations, they give rise to liabilities of varying conditions and scope, and it is not possible to avail of the regime of one in a situation that falls within the scope of another. It is therefore necessary to review the various bodies of compliance legislation, the GDPR, the ALM-FT regulations, the French so-called Sapin 2 law, the French so-called Vigilance law , the European IA Act , the European European DGA Act, etc., to recall the inflexion that each of these bodies of legislation has made to the liability rules applied to the companies subject to them. Nevertheless, the unicity of the Compliance Obligation, overcoming this necessary diversity of situations, regulations and liability regimes,  can provide grouping lines to indicate beyond this diversity the extent of the liability incurred by companies.

Once this classification has been made, the second part of the study develops the observation that none of this can create any principle of general liability on large companies in terms of compliance, and in particular not in terms of vigilance. It is not possible to deduce a general principle of specific obligations of liability or specific obligations to reparation, for example in the area of vigilance, as the texts creating specific vigilance obligation refer to the conditions of commun Tort Law (proof damage and causality), and International Public Law does not have the force to generate a general principle binding companies in this respect.

The third part stresses that it is nevertheless always possible to invoke Tort Law, and companies cannot claim to escape this. This may involve contractual liability, a situation  becoming increasingly frequent as companies contractualise their legal compliance obligations, reproducing them but also modifying them, and as Vigilance duty is an obligation that goes beyond the specific situations covered by the regulations. 

But it is essential, and this is the subject of the fourth part, not to make companies pure and simple guarantors of the state of the world, present and future. Indeed, if we were to transform sectoral compliances into illustrations of what would then be a new general principle, but one that applied only to them, they would consequently exercise the other side of this coin, namely power over others.

________

🌐follow Marie-Anne Frison-Roche on LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

🌐subscribe to the Video Newsletter MAFR Surplomb

____

► Full Reference: M.-A. Frison-Roche, "La Vigilance, pointe avancée et part totale de l’Obligation de Compliance" (Vigilance, the cutting edge and a full part of the Compliance Obligation), in M.-A. Frison-Roche (ed.), L'Obligation de Compliance, Journal of Regulation & Compliance (JoRC) and Dalloz, coll. "Régulations & Compliance" 2025, to be published.

____

📝read the article (in French)

____

🚧read the bilingual Working Paper on the basis this contribution has been built, with  more developments, technical references and hyperlinks. 

____

📕read a general presentation of the book, L'Obligation de Compliance, in which this article is published 

____

► English summary of this contribution : The "duty of vigilance" unleashes all the more radical and passionate positions, sometimes among Law professors, because it has not been precisely defined. One word is used for another, either inadvertently or deliberately, deliberately if it can attract this or that element from one legal corpus and import it into another.  The very exercise of definition is therefore required in practice. There are specific obligations of vigilance that come under such and such a body of regulations and are imposed on such and such a category of operators to fulfill such and such a function. These are precise circles which are not confused and must not be confused. This is superimposed on what the French 2017 law so-called "Vigilance law", which is much more encompassing since it applies to all large companies in the operation of the value chains they have set up. The European 2024 directive is in the same way. But there is no general duty or obligation of Vigilance. Such a claim would be based on confusing or shifting each of these 3 levels, which must be avoided because no positive law does support this (I).

If the duty of vigilance is attracting so much attention, whether or not the European CS3D is fully effective, it is because Vigilance is the "cutting edge" of Compliance Obligation (II). Vigilance requires companies, by consideration of their power and without reproaching them for it or demanding that it be reduced, to detect risks of damage to the environment and climate, but also to human rights, because they are in a position to do so in order to prevent them from turning into disasters. In this respect, the  Vigilance duty makes clearer the exact legal nature of the Compliance Obligation.

Moreover, Vigilance appears as the Total Part of the Compliance Obligation (III). Indeed, although it is restricted to one area, the value chain, and to two types of risk, deterioration of the environment and deterioration of human rights, it expresses the totality of the Compliance Obligation by means of tools that the 2017 French "Vigilance law" had itself duplicated from the 2016 so-called "Sapin 2 law": to preserve systems today, but above all tomorrow, in order they do not collapse (Negative Monumental Goals), or even consolidate them (Positive Monumental Goals), so that the human beings who are willingly or unwillingly involved in them are not crushed by them but benefit from them. This is why large companies are subject to the Obligation of Compliance and Vigilance, particularly in the humanist conception that Europe is developing.

The result is a new type of Litigation, of a systemic nature, for which the Courts have spontaneously become specialised, and for which the procedures will have to be adapted and the office  of the Judge shall have to evolve.

________