Articles

General reference : Frison-Roche, M.-A., Drawing up Risk Maps as an Obligation and the paradoxe of the "Compliance Risks", in Frison-Roche, M.-A. (ed.), Compliance Tools, serie "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Bruylant, 2021, pp. 61-72   - Summary of the article : There are few synthetic or theoretical studies on Risk Mapping even though it is in fact the Compliance central tool, perhaps because it is more a management tool than a legal one. Risk Mapping is often described but does not receive any other legal qualifications than being a "modality", suffering in this respect from an evil which affects the whole of Compliance, still little understood by Law, attention often so focused on the Ex Post (sanctions) while Compliance is by nature in the Ex Ante. Going from disarray to incomprehension, everyone can note the existence of "compliance risks" among the mapped risks, because if as so many affirm that it would be necessary to speak only of simple conformity as obedience, demonstrated in Ex Ante, to Law, how a sub-set of a tool would therefore have the same object as the set of Law that this tool serves … This aporia can only be resolved if Compliance Law is defined substantially by its "monumental goals" which exceed obedience to regulations. Consequently, Law taking up Risk Mapping, this mechanism may first appear as an ancillary obligation to the main obligation consisting in achieving "monumental goals". The ancillary obligation to draw up the maps is an obligation of result, while the main obligation to achieve the monumental goals is an obligation of means. These cartographies being very diverse and being only occasionally targeted by specific laws, it can also constitute only a legal fact or, through the play of various charters, a unilateral legal commitment. But it isnbecoming the basis of an autonomous legal obligation incumbent on enterprises in position to know certain risks, obligation referring to the existence of a subjective right tof knowing and measuring them ("right to be worried") which the third parties who are going to run them would hold, thus allowing them to choose to run them, or not. -   Read the bilingual working paper, with additional developments, technical references and hyperlinks, on which this article is based    Read a general presentation of the book in which the article is published   -

► Full reference : Frison-Roche, M.-A., Building by Law the Unicity of Compliance Tools from the Definition of Compliance Law by its "Monumental Goals", in Frison-Roche, M.-A. (ed.), Compliance Tools, serie "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Bruylant, 2021, pp. 35-46   Summary of the article : The "tools of Compliance" do not stack on top of each other. They form a system, thanks to a unity drawn from the goals that all these multiple and different tools serve: the "Monumental Goals" by which Compliance Law is defined. All these tools are configured by these goals and for mastering all these techniques, it is essential to put them all in perspective of what Compliance Law is, which is designed teleologically with regard to its goals. Extension of Regulatory Law and like it, Compliance Law is built on a balance between the principle of competition and other concerns that public authorities claim to take care of. Compliance Law has moreover more "pretensions" in this respect, for example in environmental matters. All the means are then good, the violence of the tools marrying without difficulty with the voluntary commitments since it is the goals which govern this branch of Law. As legal solutions adopted show, a common method of interpretation and common levels of constraint for all Compliance Tools result from this definition. Starting from the goals (in which legal normativity is housed), the interpretation of the different tools is thus unified. Moreover, the different degrees of constraint do not operate according to the consideration of sources (traditional legal criterion) but by the goals, according to the legal distinction between obligations of means and obligations of results which result from the articulation between tools, of which the establishment is an obligation of result, and the goal, of which the achievement is only an obligation of means. -   📝 Read the bilingual working paper on which rely this article. 📝 Read a general presentation of the book in which this article has been published.   -

Full Reference : Frison-Roche, M.-A..,Rights, primary and natural Compliance Tools, in Frison-Roche, M.-A. (ed.), Compliance Tools, series "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Bruylant, 2021, pp. 319-342   -   Article Summary: In the traditional conception of the architecture of the sectors regulated by Law, and in Compliance Law which extends the regulatory techniques, rights have little place. But this configuration no longer takes place; on the contrary, rights are at the center of Regulatory and Compliance systems, and will be more and more so. They are and will be the primary tools of Compliance Law because they constitute a very effective "tool" to ensure the entire functioning of a system whose goals are so difficult to achieve. Because every effort must be done to achieve these goals, the public authorities not only rely on the power of crucial operators, but also distribute prerogatives to people and organizations who, thus encouraged, activate the Compliance system and participate in the achievement of the "monumental goal". Rights can prove to be the most effective tools for actually achieving the goals set, so much so that they can be seen as "primary tools". But it is pertinent to have more pretension and to conceive rights as the most "natural" tools of Compliance Law. Indeed because all the Monumental Goals by which Compliance Law is defined can be expressed by the protection of persons, that is to say to the effectiveness of their prerogatives, by a mirror effect between rights. given as tools by Law by to persons and rights which constitute the very goal of all Compliance Law, in particular the protection of all human beings, even if they are in a situation of great weakness, rights becoming a "natural tool" of Compliance Law. We are only at the beginning of their deployment and it is undoubtedly on them that Digital space in which we now live would be regulated, so that we will not suffocated there and that it will constitute for people a civilized space. -   Read the bilingual working paper, with additional developments, technical references and hyperlinks, on which this article is based    Read the General Presentation of the book in which this article has been published   -

Full reference : Frison-Roche, M.-A., Incentives and Compliance, a promising couple to increase the Compliance Law utility, in Frison-Roche, M.-A. (ed.), Compliance Tools, series "Régulations & Compliance", Journal of Regulation & Compliance and Bruylant, 2021, pp. 141-148   - Summary of the article: The theory of incentives targets the mechanisms which do not use directly constraint (except to present sanctions themselves as incentives) but which leads nevertheless to expected behaviors. To appreciate the links which must or must not be done between incentives and Compliance, we should proceed in two times.  First, the association appears natural between incentive mechanisms and "Compliance Law" since the later is defined in a dynamic way. Indeed, if it is defined placing its legal normativity in its "monumental goals", as the end of corruption, the detection of money laundering in order to underlying criminality disappears, or as the effective protection of environment or the concrete care of human beings, then what matters is not the means in themselves but the effective tension towards these "monumental goals". In this perspective, what was related to public policies led by States, because they are definitively not able to do it, the charge is internalized in the firms which are able to tend towards this goals: "crucial operators" because they have the geographical, technological, informational and financial means.  In this perspective, the internalization of public willingness provoking a split with the concept of State linked to a territory which deprives Politics of its constraint power, incentive mechanisms appear as the most efficient mean to reach these monumental goals. They appear as this "natural" mean both negatively and positively defined. Negatively in which they do not need in Ex Ante institutional localizable sources and sanction power in Ex Post: it is enough to substitute the interest to obligation. Positively, incentives relay through operators' strategies what was the so critical and joked form of public action: the "plan". The duration is thus injected thanks to Compliance mechanisms, as we can see it through the development of it in the care for environment ("plan climat") or through the educational mechanism, which could be conceived only in duration.   However, the opposition seems radical between Compliance Law and Incentives. And this because of three convictions often developed and that we have to overcome. First, the idea that in a general way, there would be a Law only if there is a mechanism of immediate constraint which is associated to the norm. As long as the incentive is not based on obligation, then it will be nothing… Secondly, and as if that were a kind of consolation …, Compliance would not be really Law either … We so often say that it is only about a methodology, a range of processes without sense, procedures to follow without trying to understand, process that algorithms integrate in a mechanic without end and without sense or that on the contrary, Compliance would be full of sense by Ethics and Morality, which are far from Law. While incentives talk to the human spirit which calculate, Compliance would be so a process through which machines will be connected to other machines, so an extra soul, where calculation has no place… Thirdly, solutions would be to be find in Competition Law because it can do without States, submit them and approach what is a-sectorial, especially finance and digital, the world being financialized and digitalized. The violence of Competition Law which comes in Ex Ante thanks to "Compliance sanctions" applying for example to essential infrastructures Law, by continuing to deny the salience of the duration and taking care of the "market power" would be also not compatible with a marriage with incentive mechanisms which rely on duration and power of those to which it is applied, converging towards goals, which are set by what Competition Law ignores: the project. This project which pretends to build the future is the one of politics and of companies, which use their deployed power in time to concretize it. It is without any doubt there that the future of Europe is.  To overcome this triple difficulty, it is thus necessary, in a second time, to modify our conception of Law, especially thanks to Compliance Law, in which this new branch is autonomous from Competition Law, and even sometimes opposed to it, in order to the insertion of incentive mechanisms permit to unknown or against Competition Law organizations to reach "monumental goals" which are imperative to take into consideration. For example, the taking into consideration of climate challenges or the building of a sovereign identity of the data. This is expressly set by European Commission which supervises such initiatives, supervision being what is articulated with Compliance, in a couple that go beyond Regulation, and replaces in Ex Ante Competition Law, salient branch for Ex Post. All the texts which are in the process of expressing it are based on this reformed couple: Compliance and Incentive. This couple supposes that we recognize as such the existence of companies as project carriers, project which is the creation of marketed wealth circulating on a market, which could be an industrial project specific to a geographical zone both economical and political. Regulation is deployed to go away from the notion of sector and to transform itself in supervision of crucial firms in the correspondance between the project and the action, what refers to the notion of "plan". In this, banking supervision is just the advanced bastion of all thematic, energetic, climatic and health plans, or more broadly industrial and technological that could by incentive be implemented, this conception of Compliance permitting to build zones which are not reduced to immediate market exchange. The incentive corresponds to the fact that Compliance Law relies on the power of the firm to reach its own political goals, for example fighting against disinformation in the digital space or obtaining a healthy environnement. This supposes that Compliance stops to be only conceived as a model of rules effectivity, for example of Competition Law, to be recognized as a substantial branch of Law. A branch which expresses political goals. A branch which is anchored in crucial firms whose it recognizes the autonomy with regards to markets. This makes it possible, in particular through the coupling with incentive mechanisms leading to long-term collaborative operations supervised by public authorities, not to be governed by simple Competition Law, inapt to bring projects to fruition. -   Read the bilingual work paper, with additional developments, technical references and hyperlinks on which this article is based   Read a general presentation of the book in which the article has been published.   -

Full reference: Frison-Roche, M.-A., Resolving the contradiction between "sanction" and "incentive" under the fire of Compliance Law, in Frison-Roche, M.-A. (ed.), Compliance Tools, series "Regulations & Compliance", Journal of Regulation & Compliance (JoRC) and Bruylant, 2021, pp. 101-112   -   Summary of the article: Compliance and Incentives appear at first glance to be totally opposite. For two major reasons. Firstly, because sanctions have a central place in Compliance Law and that the incentives suppose an absence of constraint on the operators. Secondly, because the incentives are linked to self-regulation and that Compliance Law assumes a strong presence of public authorities. Thus, one should choose: either Compliance or Incentives! Either the effectiveness of one or the effectiveness of the others; either the techniques of one, or the techniques of others; either the philosophy of one or the philosophy of the other. Resign oneself to the waste that such a necessary choice would imply. But to put the terms in this way amounts to thinking poorly about the situations and reducing the fields of the solutions they call for. If we take a rich definition of Compliance Law, we can on the contrary articulate Compliance and Incentives. From this perspective, sanctions can no longer become what blocks the use of incentives but, on the contrary, what constitutes them. Even more, the coupling between the Incentives and the requirements of Compliance Law must be strongly encouraged, as soon as the public authorities supervise in Ex Ante all the initiatives taken by the "crucial operators". This working document deals with the first issue. Indeed, the so-called incentive theory targets mechanisms which do not directly resort to constraint. They would therefore have little place in Compliance Law. But it seems saturated with sanction procedures. We can even say that it seems to put them at the center, the public authorities presenting the number of sanctions as a sign of success, while the companies seem obsessed with their prospects, the two concerns ending in such a strange convergence that are the Convention Judiciaire d'Intérêt Public (non-prosecution agreement). The honest observer cannot help but be immediately uneasy. Indeed, it can only raise the definition of the sanction as a "constraint" triggered Ex Post, at the very heart of a Compliance Law which is presented as a set of Ex Ante mechanisms. Based on this contradiction in terms, should we give up the association and think that it would be wrong against the spirit to think of the sanction as an incentive? It is undoubtedly in this connection that one perceives most clearly the clash of two cultures, which do not communicate, while technically they apply to the same situations. Indeed, because Compliance was designed by Finance, everything is a tool for it. Therefore, the tendency to think of the sanction only as an incentive is very strong in Compliance Law, manifests itself continuously and will not stop (I). But whatever the reasons for conceiving it this way, the principles of the rule of law cannot disappear and if we do not want them to be erased, then they must be articulated (II). This is an essential game (II). This is why we can literally say that Compliance has set Criminal Law on fire by its conception, logical but closed in on itself, of sanctions as simple incentives. In order for Law to remain, however, we must hold a very firm definition of Compliance Law centered on its Monumental Goal, which is the protection of the person. -   Read the bilingual working paper, with additional developments, technical references and hyperlinks, on which this article is based.   Read a general presentation of the book in which this article is published.   -

Full reference: Frison-Roche, M.-A., Describing, conceiving and correlating compliance tools, in order to use them adequately, in Frison-Roche, M.-A. (ed.), Compliance Tools, series Regulation & Compliance, Journal of Regulation & Compliance (JoRC) and Bruylant, 2021, pp. 9-32.   -   Summary of the article: The article is the general introduction to the book on Compliance tools. In its first part it develops the overall problematic. In its second part, it presents each of the contributions, placed in the overall construction of the work.   -   Read a general presentation of the book in which this article has been published.    

Full Reference: Frison-Roche, M.-A., Training: content and container of Compliance Law, in Frison-Roche, M.-A. (ed.), Compliance tools, series "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Bruylant, 2021, pp. 245-264   -   Summary of the article Firstly, as Training is a specific Compliance tool, it is supervised by Regulators. It becomes mandatory when it is contained in Compliance programs or sanction decisions. Since effectiveness and efficiency are legal requirements, what is the margin of companies to design them and how to measure the result? Secondly, as long as each Compliance tool includes, more and more, an educational dimension, we can take each of them to identify this perspective. So even condemnations and prescriptions are so many lessons, lessons given, lessons to be followed. The question is then to know who, in this so pedagogical Compliance Law, are the "teachers"?   -   This article is based on a bilingual Working Paper, including additional technical developments, pop-up notes and hypertext links.   Consult an overview of the volume in which the article was published.     -

► Full Reference: M.-A. Frison-Roche, "Place and rôle of Companies in the Creation and Effectiveness of Compliance Law in situation of crisis", in M.-A. Frison-Roche (ed.), Compliance Monumental Goals, series "Compliance & Regulation", Journal of Regulation & Compliance (JoRC) and Bruylant, 2023, p. - ► Article Summary:  This article has a very topic: the place of private Companies, regarding the chapter's issue: "the ordeal of a crisis". The crisis constitutes a "test", that is to say, it brings evidence. Let us take it as such. Indeed, during the health crisis, Companies have helped the Public Authorities to resist the shock, to endure and to get out of the Crisis. They did so by force, but they also took initiatives in this direction. From this too, we must learn lessons for the next crisis that will come. It is possible that this has already started in the form of another global and systemic crisis: the environmental crisis. In view of what we have been able to observe and the evolution of the Law, of the standards adopted by the Authorities but also by the new case law, what can we expect from Companies in the face of this next Crisis, willingly and strength? -   🚧Read the bilingual Working Paper, with more developments, technical references, and hypertext links. - 📘go to the general presentation of the book, Compliance Monumental Goals, in which this article is published - ► read the presentations of the other Marie-Anne Frison-Roche's contributions in this book:  📝Compliance Monumental Goals, beating heart of Compliance Law,  📝Definition of Principe of Proportionality and Definition of Compliance Law, 📝 Assessment of Whistleblowing and the duty of Vigilance - .  

► Full Reference: M.-A. Frison-Roche, "La formation : contenu et contenant de la Compliance" ("Training: content and container of Compliance"), in M.-A. Frison-Roche (ed.), Les outils de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2021, pp.. 227-244. - 📝read the article (in French) -   🚧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, Les outils de la Compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation and Compliance): Firstly, as Training is a specific Compliance tool, it is supervised by Regulators. It becomes mandatory when it is contained in Compliance programs or sanction decisions. Since effectiveness and efficiency are legal requirements, what is the margin of companies to design them and how to measure the result? Secondly, as long as each Compliance tool includes, more and more, an educational dimension, we can take each of them to identify this perspective. So even condemnations and prescriptions are so many lessons, lessons given, lessons to be followed. The question is then to know who, in this so pedagogical Compliance Law, are the "teachers"? -

► Full Reference: M.-A. Frison-Roche, "Dresser des cartographies des risques comme obligation et le paradoxe des "risques de conformité"" ("Drawing up risk maps as an obligation and the paradoxe of the "compliance risks""), in M.-A. Frison-Roche (ed.), Les outils de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2021, pp. 53-62. - 📝read the article (in French) - 🚧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, Les outils de la Compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation & Compliance): There are few synthetic or theoretical studies on Risk Mapping even though it is in fact the Compliance central tool, perhaps because it is more a management tool than a legal one. Risk Mapping is often described but does not receive any other legal qualifications than being a "modality", suffering in this respect from an evil which affects the whole of Compliance, still little understood by Law, attention often so focused on the Ex Post (sanctions) while Compliance is by nature in the Ex Ante. Going from disarray to incomprehension, everyone can note the existence of "compliance risks" among the mapped risks, because if as so many affirm that it would be necessary to speak only of simple conformity as obedience, demonstrated in Ex Ante, to Law, how a sub-set of a tool would therefore have the same object as the set of Law that this tool serves … This aporia can only be resolved if Compliance Law is defined substantially by its "monumental goals" which exceed obedience to regulations. Consequently, Law taking up Risk Mapping, this mechanism may first appear as an ancillary obligation to the main obligation consisting in achieving "monumental goals". The ancillary obligation to draw up the maps is an obligation of result, while the main obligation to achieve the monumental goals is an obligation of means. These cartographies being very diverse and being only occasionally targeted by specific laws, it can also constitute only a legal fact or, through the play of various charters, a unilateral legal commitment. But it isnbecoming the basis of an autonomous legal obligation incumbent on enterprises in position to know certain risks, obligation referring to the existence of a subjective right tof knowing and measuring them ("right to be worried") which the third parties who are going to run them would hold, thus allowing them to choose to run them, or not.   -

► Full Reference: M.-A. Frison-Roche, "Les droits subjectifs, outils premiers et naturels du Droit de la Compliance" ("Rights, primary and natural Compliance Tools"), in M.-A. Frison-Roche (ed.), Les outils de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2021, pp. 301-323. - 📝read the article (in French) - 🚧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, Les outils de la Compliance, in which this article is published - ► Summary of this article (done by the Journal of Regulation and Compliance): In the traditional conception of the architecture of the sectors regulated by Law, and in Compliance Law which extends the regulatory techniques, rights have little place. But this configuration no longer takes place; on the contrary, rights are at the center of Regulatory and Compliance systems, and will be more and more so. They are and will be the primary tools of Compliance Law because they constitute a very effective "tool" to ensure the entire functioning of a system whose goals are so difficult to achieve. Because every effort must be done to achieve these goals, the public authorities not only rely on the power of crucial operators, but also distribute prerogatives to people and organizations who, thus encouraged, activate the Compliance system and participate in the achievement of the "monumental goal". Rights can prove to be the most effective tools for actually achieving the goals set, so much so that they can be seen as "primary tools". But it is pertinent to have more pretension and to conceive rights as the most "natural" tools of Compliance Law. Indeed because all the Monumental Goals by which Compliance Law is defined can be expressed by the protection of persons, that is to say to the effectiveness of their prerogatives, by a mirror effect between rights. given as tools by Law by to persons and rights which constitute the very goal of all Compliance Law, in particular the protection of all human beings, even if they are in a situation of great weakness, rights becoming a "natural tool" of Compliance Law. We are only at the beginning of their deployment and it is undoubtedly on them that Digital space in which we now live would be regulated, so that we will not suffocated there and that it will constitute for people a civilized space. -

► Full Reference: M.-A. Frison-Roche, "Compliance et incitations: un couple à propulser " ("Compliance and incentives : a promising tandem"), in M.-A. Frison-Roche (ed.), Les outils de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2021, pp. 123-130. - 📝read the article (in French) - 🚧read the bilingual Working Paper which is the basis of this article, with more developments, technical references and hypertext links - 📕read a general presentation of the book, Les outils de la Compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation and Compliance): The theory of incentives targets the mechanisms which do not use directly constraint (except to present sanctions themselves as incentives) but which leads nevertheless to expected behaviors. To appreciate the links which must or must not be done between incentives and Compliance, we should proceed in two times.  First, the association appears natural between incentive mechanisms and "Compliance Law" since the later is defined in a dynamic way. Indeed, if it is defined placing its legal normativity in its "monumental goals", as the end of corruption, the detection of money laundering in order to underlying criminality disappears, or as the effective protection of environment or the concrete care of human beings, then what matters is not the means in themselves but the effective tension towards these "monumental goals". In this perspective, what was related to public policies led by States, because they are definitively not able to do it, the charge is internalized in the firms which are able to tend towards this goals: "crucial operators" because they have the geographical, technological, informational and financial means.  In this perspective, the internalization of public willingness provoking a split with the concept of State linked to a territory which deprives Politics of its constraint power, incentive mechanisms appear as the most efficient mean to reach these monumental goals. They appear as this "natural" mean both negatively and positively defined. Negatively in which they do not need in Ex Ante institutional localizable sources and sanction power in Ex Post: it is enough to substitute the interest to obligation. Positively, incentives relay through operators' strategies what was the so critical and joked form of public action: the "plan". The duration is thus injected thanks to Compliance mechanisms, as we can see it through the development of it in the care for environment ("plan climat") or through the educational mechanism, which could be conceived only in duration.   However, the opposition seems radical between Compliance Law and Incentives. And this because of three convictions often developed and that we have to overcome. First, the idea that in a general way, there would be a Law only if there is a mechanism of immediate constraint which is associated to the norm. As long as the incentive is not based on obligation, then it will be nothing… Secondly, and as if that were a kind of consolation …, Compliance would not be really Law either … We so often say that it is only about a methodology, a range of processes without sense, procedures to follow without trying to understand, process that algorithms integrate in a mechanic without end and without sense or that on the contrary, Compliance would be full of sense by Ethics and Morality, which are far from Law. While incentives talk to the human spirit which calculate, Compliance would be so a process through which machines will be connected to other machines, so an extra soul, where calculation has no place… Thirdly, solutions would be to be find in Competition Law because it can do without States, submit them and approach what is a-sectorial, especially finance and digital, the world being financialized and digitalized. The violence of Competition Law which comes in Ex Ante thanks to "Compliance sanctions" applying for example to essential infrastructures Law, by continuing to deny the salience of the duration and taking care of the "market power" would be also not compatible with a marriage with incentive mechanisms which rely on duration and power of those to which it is applied, converging towards goals, which are set by what Competition Law ignores: the project. This project which pretends to build the future is the one of politics and of companies, which use their deployed power in time to concretize it. It is without any doubt there that the future of Europe is.  To overcome this triple difficulty, it is thus necessary, in a second time, to modify our conception of Law, especially thanks to Compliance Law, in which this new branch is autonomous from Competition Law, and even sometimes opposed to it, in order to the insertion of incentive mechanisms permit to unknown or against Competition Law organizations to reach "monumental goals" which are imperative to take into consideration. For example, the taking into consideration of climate challenges or the building of a sovereign identity of the data. This is expressly set by European Commission which supervises such initiatives, supervision being what is articulated with Compliance, in a couple that go beyond Regulation, and replaces in Ex Ante Competition Law, salient branch for Ex Post. All the texts which are in the process of expressing it are based on this reformed couple: Compliance and Incentive. This couple supposes that we recognize as such the existence of companies as project carriers, project which is the creation of marketed wealth circulating on a market, which could be an industrial project specific to a geographical zone both economical and political. Regulation is deployed to go away from the notion of sector and to transform itself in supervision of crucial firms in the correspondance between the project and the action, what refers to the notion of "plan". In this, banking supervision is just the advanced bastion of all thematic, energetic, climatic and health plans, or more broadly industrial and technological that could by incentive be implemented, this conception of Compliance permitting to build zones which are not reduced to immediate market exchange. The incentive corresponds to the fact that Compliance Law relies on the power of the firm to reach its own political goals, for example fighting against disinformation in the digital space or obtaining a healthy environnement. This supposes that Compliance stops to be only conceived as a model of rules effectivity, for example of Competition Law, to be recognized as a substantial branch of Law. A branch which expresses political goals. A branch which is anchored in crucial firms whose it recognizes the autonomy with regards to markets. This makes it possible, in particular through the coupling with incentive mechanisms leading to long-term collaborative operations supervised by public authorities, not to be governed by simple Competition Law, inapt to bring projects to fruition. -

► Full Reference: M.-A. Frison-Roche, "Résoudre la contradiction entre "sanction" et "incitation" sous le feu du Droit de la Compliance" ("Resolving the contradiction between "sanction" and "incentive" under the fire of Compliance Law"), in M.-A. Frison-Roche (ed.), Les outils de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2021, pp. 89-98 - 📝read the article (in French) - 🚧read the bilingual Working Paper which is the basis of this article, with more developments, technical references and hyperlinks  - 📕read a general presentation of the book, Les outils de la Compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation and Compliance): Compliance and Incentives appear at first glance to be totally opposite. For two major reasons. Firstly, because sanctions have a central place in Compliance Law and that the incentives suppose an absence of constraint on the operators. Secondly, because the incentives are linked to self-regulation and that Compliance Law assumes a strong presence of public authorities. Thus, one should choose: either Compliance or Incentives! Either the effectiveness of one or the effectiveness of the others; either the techniques of one, or the techniques of others; either the philosophy of one or the philosophy of the other. Resign oneself to the waste that such a necessary choice would imply. But to put the terms in this way amounts to thinking poorly about the situations and reducing the fields of the solutions they call for. If we take a rich definition of Compliance Law, we can on the contrary articulate Compliance and Incentives. From this perspective, sanctions can no longer become what blocks the use of incentives but, on the contrary, what constitutes them. Even more, the coupling between the Incentives and the requirements of Compliance Law must be strongly encouraged, as soon as the public authorities supervise in Ex Ante all the initiatives taken by the "crucial operators". This article deals with the first issue. Indeed, the so-called incentive theory targets mechanisms which do not directly resort to constraint. They would therefore have little place in Compliance Law. But it seems saturated with sanction procedures. We can even say that it seems to put them at the center, the public authorities presenting the number of sanctions as a sign of success, while the companies seem obsessed with their prospects, the two concerns ending in such a strange convergence that are the Convention Judiciaire d'Intérêt Public (non-prosecution agreement). The honest observer cannot help but be immediately uneasy. Indeed, it can only raise the definition of the sanction as a "constraint" triggered Ex Post, at the very heart of a Compliance Law which is presented as a set of Ex Ante mechanisms. Based on this contradiction in terms, should we give up the association and think that it would be wrong against the spirit to think of the sanction as an incentive? It is undoubtedly in this connection that one perceives most clearly the clash of two cultures, which do not communicate, while technically they apply to the same situations. Indeed, because Compliance was designed by Finance, everything is a tool for it. Therefore, the tendency to think of the sanction only as an incentive is very strong in Compliance Law, manifests itself continuously and will not stop (I). But whatever the reasons for conceiving it this way, the principles of the rule of law cannot disappear and if we do not want them to be erased, then they must be articulated (II). This is an essential game (II). This is why we can literally say that Compliance has set Criminal Law on fire by its conception, logical but closed in on itself, of sanctions as simple incentives. In order for Law to remain, however, we must hold a very firm definition of Compliance Law centered on its Monumental Goal, which is the protection of the person. -

► Full Reference: M.-A. Frison-Roche, "Décrire, concevoir et corréler les outils de la Compliance, pour en faire un usage adéquat" ("Describing, conceiving and correlating Compliance Tools, in order to use them adequately"), in M.-A. Frison-Roche (ed.), Les outils de la Compliance, coll. Régulations & Compliance, Journal of Regulation & Compliance (JoRC) and Dalloz, 2021, pp. 3-24. - 📝read the article (in French) - 📕read a general presentation of the book, Les outils de la Compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation & Compliance): The article is the general introduction to the book on Compliance tools. In its first part it develops the overall problematic. In its second part, it presents each of the contributions, placed in the overall construction of the work. -

► Full Reference: M.-A. Frison-Roche, "Approche juridique des outils de la Compliance. Construire juridiquement  l'unité des outils de la Compliance à partir de la définition du Droit de la Compliance par ses "buts monumentaux"" ("Legal approach to Compliance Tools. Building by Law the Unicity of Compliance Tools from the definition of Compliance Law by its "Monumental Goals""), in  M.-A. Frison-Roche, (ed.), Les outils de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2021, pp. 27-38. - 📝read the article (in French)  - 🚧read the bilingual Working Paper which is the basis of this article, with more developments, technical references and hypertext links - 📕read a general presentation of the book, Les outils de la Compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation and Compliance): The "tools of Compliance" do not stack on top of each other. They form a system, thanks to a unity drawn from the goals that all these multiple and different tools serve: the "Monumental Goals" by which Compliance Law is defined. All these tools are configured by these goals and for mastering all these techniques, it is essential to put them all in perspective of what Compliance Law is, which is designed teleologically with regard to its goals. Extension of Regulatory Law and like it, Compliance Law is built on a balance between the principle of competition and other concerns that public authorities claim to take care of. Compliance Law has moreover more "pretensions" in this respect, for example in environmental matters. All the means are then good, the violence of the tools marrying without difficulty with the voluntary commitments since it is the goals which govern this branch of Law. As legal solutions adopted show, a common method of interpretation and common levels of constraint for all Compliance Tools result from this definition. Starting from the goals (in which legal normativity is housed), the interpretation of the different tools is thus unified. Moreover, the different degrees of constraint do not operate according to the consideration of sources (traditional legal criterion) but by the goals, according to the legal distinction between obligations of means and obligations of results which result from the articulation between tools, of which the establishment is an obligation of result, and the goal, of which the achievement is only an obligation of means. -

Full reference : Frison-Roche, M.-A., Questionnaire de Proust (Proust's Quiz), in Droit & Littérature, n°5, pp. 37-38, Lextenso, 2021. The chosen topic for this volume is Proust.    Read (in French)   See its presentation on LinkedIn (in French)

► Full Reference: M.-A. Frison-Roche, "La compliance" ("Compliance"), in J.-B. Racine (ed.), Le droit économique au XXIe siècle. Notions et enjeux, LGDJ, "Droit & Économie" Serie, 2020, pp. 97-108 - 📝read the article (in French) - 🚧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, Le droit économique au XXIe siècle. Notions et enjeux, in which this article is published - 📚see the presentation of the other books published in this Serie, founded and directed by Marie-Anne Frison-Roche   ► English Summary of the article:  - 🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

Full reference : Frison-Roche, M.A., Pour une conception humaniste du Droit des affaires et de son enseignement (For a humanist conception of Business Law and of its teaching), in Un juriste pluriel. Mélanges en l'honneur d'Alain Couret, Editions Francis Lefebvre and Dalloz, 2020, pp. 985-990.   Read the article   Read the working paper, with additional developments, technical references and hyperlinks on which this article is based   Read the general presentation of the book in which this article has been published

Full reference: M.-A. Frison-Roche, Se tenir bien dans l'espace numérique, in Penser le droit de la pensée. Mélanges en l'honneur de Michel Vivant, Lexis Nexis and Dalloz, 2020, pp. 155-168. - 📝Read the article (in French) - 🚧Read the working paper, written in English, on which this article is based, with additional developments, technical references, and hyperlinks   English summary of the article: The digital space is one of the scarce spaces not framed by a specific branch of Law, Freedom also offering opportunity to its actors to not "behave well", that is to express and diffuse broadly and immediately hateful thoughts through Hate speechs, which remained before in private or limited circles. The intimacy of Law and of the legal notion of Person is broken: Digital permits to individuals or organizations to act as demultiplied and anonymous characters, digital depersonalized actors who carry behaviors that are hurtful to other's dignity.  Against that, Compliance Law offers an appropriate solution: internalizing in digital crucial operators the mission to disciplinary and substantially hold the digital space. The digital space has been structured by powerful firms able to maintain order. Because Law must not reduce digital space to be only a neutral market of digital prestations, these crucial operators, like social networks or search engines, must be forced to substantially control behaviors. It could be about an obligation of internet users to act with their face uncover, "real identity" policy controlled by firms, and to respect others' rights, privacy rights, dignity, intellectual property rights. In their Regulatory function, digital crucial firms must be supervised by public authorities.  Thus, Compliance law substantially defined is the protector of the person as "subject of law" in the digital space, by the respect that others must have, this space passing from the status of free space to the one of civilized space, in which everyone is obliged to behave well.  -   Read to go further:  Frison-Roche, M.-A., L'apport du Droit de la Compliance à la gouvernance d'Internet, 2019 Frison-Roche, M.-A. (dir.), Internet, un espace d'interrégulation, 2016 - 🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law 

Full reference: Frison-Roche, M.-A., L'impossible unicité juridique de la catégorie des "lanceurs d'alertes" ("The impossible legal unicity of the category of "whistleblowers""), in Chacornac, J. (dir.), Lanceurs d'alertes, regards comparatistes, ("Whistleblowers, comparative perspectives"), Publications of the Centre français de droit comparé ("French Comparative Law Center"), May 2020, Volume 21, pp. 13-31.    Read the article (in French).    Read the general presentation of the collective book in which this article is published Read the bilingual working paper which had served of basis for this article.  Read the presentation of the conference "Les lanceurs d'alertes: glose" (Whistleblowers: glose") and especially the slides elabored for the colloquium organized by the Centre français de droit comparé ("French Comparative Law Center") on 23th of November 2018 under the direction of Jérôme Chacornac - Introduction of the article "Whistleblowers". This is a new expression. Which is a great success. Barely heard once, we hear it everywhere … A topic not of course or knowledge test, but rather a topic of daily conversation. Because it is spoken to us every day, in more or less gracious terms. For example President Donald Trump on October 1, 2019 declared to the press "want to question" the whistleblower who would have illegally denounced him and would not, according to him, have the right to conceal his identity, proof in this according to him of the lying character of his assertions against him, while his lawyer indicates on October 6, 2019 that he is not speaking on behalf of a single whistleblower thus taken to task but of a plurality of people who gave information against the President of the United States. Even the most imaginative screenwriters would not have written such brutal and rapid twists and turns. Spectators, we are waiting for the next episode, secretly hoping for the escalation. And precisely if we go to the cinema, it is still a whistleblower whose dedication and success, we are told about, even the drama, for the benefit of global society, and in particular democracy, since the secrets are fought for the benefit of the truth. The Secret Man designates Mark Felt as the first whistleblower. Returning to what we often present as being a more "serious" media¹On the more general fact that cinema is undoubtedly the medium which most seriously restores the state of the Law, c. Frison-Roche, M.-A., Au coeur du Droit, du cinéma et de la famille : la vie, 2016., we listen to France-Culture and here is another story told by a historian who worked as an archivist on events that political power would have liked to keep hidden by possibly destroying their traces but which its trade led to preserve: here it is expressly presented to the studious listeners like a "whistleblower" …. While the same radio tries to find the one who could well be, as in a kind of contest the "first whistleblower"²L'histoire du premier lanceur d'alerte, France Culture, septembre 2019. ? …. This rewriting of History can be defended because ultimately what did other Voltaire do for Calas, or Zola for Dreyfus? It is also a subject of legislative discussion since in the United States the Dodd-Frank law of 2010 inserted in the law of 1934 which established the Securities & Exchanges Commission a complete device of remuneration and remuneration of the whistleblowers, whereas after having developed flexible but guiding lines in this regard in 2012³European Commission, Guidelines on Whistleblowing, 6 of December 2012, SEC(2012) 679 final, updated on 23 of April 2018. , the European Commission published on November 20, 2018 the text of what will become a Directive intended to give a unified European status to the character, in the system gradually developed to protect the one who was presented in 2018 as that "cannot be punished for having done what is right". In Europe, the Directive first approved by a Resolution of the European Parliament on April 16, 2019 on the protection of persons denouncing breaches of Union Law and then adopted on October 7, 2019 (Directive of the European Parliament and of the Council of European Union on the Protection of Persons who Report Violations of European Union Law, different title, it should be noted, will have to be transposed into the laws of the Member States within the next two years. , since only "violations of Union Law" are targeted, but the character of the "whistleblower" is more generally targeted: he is "whole"⁴However, precisely the so common use of plurality ("whistleblowers") raises doubts about the uniqueness of the character. On this question, see. all the first part of the developments of this study, which leads to the conclusion rather than beyond the multitude of particular cases, there are rather two kinds of whistleblowers. V. infra I.. In short, the whistleblower is a star⁵The director of the film La fille de Brest says that she considers the whistleblower at the origin of the case of the Pick as a "movie character".. A sort of historical figure, covered in blows and glory, going from Voltaire to Snowden, both of whom find themselves embodied on the screens⁶Thus, the adventures of Snowden were brought to the screen by Oliver Stone in 2016, Snowden. On the question of knowing whether this film "faithfully reproduces" or not the case, Schetizer, P., Le film Snowden est-il à la hauteur de la réalité?, 2017. This article is favorable to the whistleblower, and to the film which tells us with emotion his case, in particular because (sic), it is easier than to read the Washington Post. …., Consecrated by law, which associates with it a legal regime of protection to such an extent that, like a Nessus tunic, it is this legal regime which will define the character and not the reverse. When we read the law of December 9, 2016 relating to transparency in the fight against corruption and the modernization of economic life, known as "Sapin 2", we notice that the Legislator makes much of this character, since 'he dedicates its chapter II to him⁷Underlined by us.: "From the protection of whistleblowers", and that it is by his very protection that he formally opens the door of Right to him. But why a plural? Admittedly when we read the recitals of the Community Directive of October 7, 2019 on the protection of whistleblowers⁸About this directive, v. the developments infra, it is only a list of all the subjects on which it is a good idea to protect them, which therefore prompts us to see in this plural only the index of this non-exhaustive list of subjects which it is good to tell us, a sign of the lack of definition of who should alert us. Reading the French law known as "Sapin 2" makes it less severe but more perplexing. Indeed, this plurality referred to by the title of the chapter devoted to "whistleblowers", there is no longer any question in the rest of the law, in the very definition which follows, article 6 which opens this chapter devoted to "whistleblowers" offering the reader immediately a singular since it begins as follows: "A⁹Underlined by us. whistleblower is a person …". No mention of diversity. The art of legislative writing would however have required that the qualifying article not only be singular but that it should not yet be undefined. Stendhal if he had still deigned to have the law for bedside book would have wanted to find at the beginning of chapter a sentence like: "The¹⁰Underlined by us. whistleblower is a person …". Thus seem to contradict themselves within the law "Sapin 2 the very title which presents the character, in that it uses a defined plural (the) while the defining article which presents it is in the undefined singular (one). … Here is a first reason not to advance any more but in a very careful way, in this "step by step" that constitutes a reading word for word: a gloss. This consists of taking the expression itself literally. The second reason for this technical choice is that the gloss is well suited to the introduction of a collective work, thus allowing more targeted developments to take place in other contributions, on the techniques, the difficulties and the limits of this protection, or on its history, or the reasons for the arrival in French law of these whistleblowers and the way they develop, or not, elsewhere. I am therefore going to content myself with taking this already legal expression to the letter: The (I) whistle (III). blowers (II).