Resources

► Full Reference: L.-M. Augagneur, "La juridictionnalisation de la réputation par les plateformes" ("The jurisdictionalisation of reputation by platforms"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, pp. 97-113.  - 📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published. - ► Summary of the article (done by the author): The large platforms are in the position of arbiter of the reputation economy (referencing, notoriety) in which they themselves act. Although the stakes are usually low on a unit basis, the jurisdiction of reputation represents significant aggregate stakes. Platforms are thus led to detect and assess reputation manipulations (by users: SEO, fake reviews, fake followers; or by the platforms themselves as highlighted by the Google Shopping decision issued by the European Commission in 2017) that are implemented on a large scale with algorithmic tools. The identification and treatment of manipulations is itself only possible by means of artificial intelligence tools. Google thus proceeds with an automated downgrading mechanism for sites that do not follow its guidelines, with the possibility of requesting a review through a very summary procedure entirely conducted by an algorithm. Tripadvisor, on the other hand, uses an algorithm to detect false reviews based on "fraud modeling to identify electronic patterns that cannot be detected by the human eye". It only conducts a human investigation in limited cases. This jurisdictionality of reputation has little in common with that defined by the jurisprudence of the Court of Justice (legal origin, contradictory procedure, independence, application of the Rules of Law). It is characterized, on the one hand, by the absence of transparency of the rules and even of the existence of rules stated in predicative form and applied by deductive reasoning. It is replaced by an inductive probabilistic model by the identification of abnormal behaviors in relation to centroids. This approach of course raises the issue of statistical bias. More fundamentally, it reflects a transition from Rule of Law, not so much to "Code is Law" (Laurence Lessig), but to "Data is Law", that is, to a governance of numbers (rather than "by" numbers). It also comes back to a form of collective jurisdictionality, since the sanction comes from a computational apprehension of the phenomena of the multitude and not from an individual appreciation. Finally, it appears particularly consubstantial with compliance, since it is based on a teleological approach (the search for a finality rather than the application of principles). On the other hand, this jurisdictionality is characterized by man-machine cooperation, whether in the decision-making process (which poses the problem of automaticity bias) or in the contradictory procedure (which poses, in particular, the problems of discussion with the machine and the explicability of the machine response). Until now, the supervision of these processes has been based essentially on the mechanisms of transparency, a limited adversarial requirement and the accessibility of appeal channels. The French Law Loi pour une République Numérique ("Law for a Digital Republic"), the European Legislation Platform-to-Business Regulation and the Omnibus Directive, have thus set requirements on the ranking criteria on platforms. The Omnibus Directive also requires that professionals guarantee that reviews come from consumers through reasonable and proportionate measures. As for the European Digital Services Act, it provides for transparency on content moderation rules, procedures and algorithms. But this transparency is often a sham. In the same way and for the moment the requirements of sufficient human intervention and adversarial processes appear very limited in the draft text. The most efficient forms of this jurisdictionality ultimately emerge from the role played by third parties in a form of participatory dispute resolution. Thus, for example, FakeSpot detects false Tripadvisor reviews, Sistrix establishes a ranking index that helped establish the manipulation of Google's algorithm in the Google Shopping case by detecting artifacts based on algorithm changes. Moreover, the draft Digital Services Act envisages recognizing a specific status for trusted flaggers who identify illegal content on platforms. This singular jurisdictional configuration (judge and party platform, massive situations, algorithmic systems for handling manipulations) thus leads us to reconsider the grammar of the jurisdictional process and its characteristics. If Law is a language (Alain Sériaux), it offers a new grammatical form that would be that of the middle way (mesotès) described by Benevéniste. Between the active and the passive way, there is a way in which the subject carries out an action in which he includes himself. Now, it is the very nature of this jurisdictionality of compliance to make laws by including oneself in them (nomos tithestai). In this respect, the irruption of artificial intelligence in this jurisdictional treatment undoubtedly bears witness to the renewal of the language of Law. -

► Full Reference: C. Granier, "Réflexions sur l'existence d'une jurisprudence des entreprises" ("Reflections on the existence of a "Compagnies' case law""), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, pp. 81-95.  - 📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published - ► Summary of the article (done by the author): Because Compliance shakes up established frameworks, Compliance forces to look at certain concepts in a new light, which until then seemed to be well tamed. This is particularly the case with the notion of "Jurisprudence". Recent developments in Compliance indeed raise questions about the possible existence of "jurisprudence" (case law) that would be produced by companies during the implementation of compliance procedures. At first glance, the concept of "business jurisprudence" may appear unnatural because case law is traditionally understood as the fruit of the office of the Judge and, more particularly, of the State Judge. However, the observation that the company can position itself as a Judge with regard to itself and others in the context of the implementation of Compliance legitimately raises the question of the possibility for the latter. to produce case law. The example of Facebook's supervisory board and the first decisions rendered by this body increases the legitimacy of this crucial question. Thinking about the concept of "Jurisprudence of companies" implies to compare the process of emergence of the case law standard emanating from the Judge with the process of emergence of a "Jurisprudence" that would be produced by companies during their "jurisdictional functions". On the material level, an analogy between State case law and company case law seems conceivable. It then remains to overcome an obstacle of an organic nature: can an institution other than the judge be understood as producing case law? In view of contemporary developments in Law and the practical interest that exists in designing business case law, it seems appropriate to adopt a broader view of case law, which is detached from the traditional organic criterion. It therefore seems that it is possible but above all that it is necessary to think about the concept of "business case law" in order to highlight a new facet of the normative power of companies in the context of compliance, in particular with a view to its supervision. -

► Full Reference: S. Merabet, "La vigilance, être juge et ne pas juger" ("Vigilance, to be a judge and not judging"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, pp. 199-209.  - 📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published - ► Summary of the article (done by the author): Vigilance presents two diametrically opposed dangers. The company is caught in the crossfire. On the one hand, there is a risk that it exercises its role at a minimum, so that the obligations imposed on it are ineffective, thereby risking its own liability.   On the other hand, the danger is that the company oversteps its role and takes the place of the Judge. Does Vigilance always present the same dangers? Does it systematically involve the same role of the company? To be vigilant, is it to judge? The answer to these questions depends on the content of the obligations involved in Vigilance. However, these now seem very diverse. How to distinguish between the various duties of Vigilance? A first approach could consist in considering a formal identification which leads to distinguish stricto sensu Vigilance, that which is envisaged by the French so-called "Sapin 2" law and identified as such, and the related obligations, such as for example the duty of moderation of companies on social networks, which without being baptized "duty of vigilance", nevertheless come close. The extension of Compliance obligations blurs the line between what exactly falls under Vigilance and what not. A more substantial approach should be taken to consider the degree of control exercised by the company. Understood in this way, it is possible to distinguish two categories: Negative Vigilance, which implies the identification of a risk, and Positive Vigilance, which even more supposes the neutralization of the risk. The first assumes a limited role for the company, while the second encourages it to act positively, even before an Authority has spoken. In this case, the role of the company is closer to that of the judge. That shows that all the obligations of vigilance cannot therefore be understood in a unitary manner. As soon as the company is led – if not to take the place of the Judge – to act before the Judge even has the opportunity to pronounce himself/herself, then it seems legitimate to supervise the implementation of the company's duty of Vigilance, through a form of proceduralisation of Compliance. The company, as its employees or partners, would benefit from more Vigilance supervision. Insofar as all Vigilance obligations do not call the same role of the company, it is necessary to consider guiding principles of Vigilance, more or less intense depending on whether it is Negative or Positive Vigilance.  -

► Full Reference: Siproudhis, J.-B.,, C.,  Le transfert de responsabilité du régulateur et du juge vers l’entreprise : la démonstration par le système d’alerte ("The transfer of responsibility from the regulator and the judge to the company: demonstration by the whistleblowing mechanism"), in Frison-Roche, M.-A. (dir.), La juridictionnalisation de la Compliance, série "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) et Dalloz, à paraître.  -   ► Article Summary (done by the Author) : From the practitioner perspective, compliance is geared towards a gradual transfer of responsibilities from both regulators and judges.   In France, the whistleblowing mechanism imposed by the so-called "Sapin 2" and "Duty of Vigilance" laws illustrates this evolution. Indeed,  internal alerts management follows key judiciary process milestones : admissibility, investigations, dismissal or sanction. This turns corporations duties into prosecutors or judges’, provided that they respect a specific framework contributing to respect the rules of a fair trial. This requirement raises several legal and sociological challenges to which the author devotes his developments. -   📝 go to the general presentation of the book in which this article is published. -     This requirement raises several legal and sociological challenges to which the author devotes his developments.    

► Full Reference: Siproudhis, J.-B.,, C., The transfer of responsibility from the regulator and the judge to the company: demonstration by the whistleblowing mechanism, in Frison-Roche, M.-A. (ed.), Compliance Jurisdictionalisation, series "Compliance & Regulation", Journal of Regulation & Compliance (JoRC) and Bruylant, to be published.  -   ► Article summary (done by the author) : From the practitioner perspective, compliance is geared towards a gradual transfer of responsibilities from both regulators and judges.   In France, the whistleblowing mechanism imposed by the so-called "Sapin 2" and "Duty of Vigilance" laws illustrates this evolution. Indeed,  internal alerts management follows key judiciary process milestones : admissibility, investigations, dismissal or sanction. This turns corporations duties into prosecutors or judges’, provided that they respect a specific framework contributing to respect the rules of a fair trial. This requirement raises several legal and sociological challenges to which the author devotes his developments. -   📝 to the general presentation of the book in which this article is published  

► Full Reference: Ch. Lapp, "La compliance dans l'entreprise : les statuts du process" ("Compliance in the company: the statues of processes"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, pp. 141-150.  - 📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published - ► The summary below describes an article following the colloquium L'entreprise instituée Juge et Procureur d'elle-même par le Droit de la Compliance (The Entreprise instituted Judge and Prosecutor of itself by Compliance Law) , co-organized by the Journal of Regulation & Compliance (JoRC) and the Faculté de Droit Lyon 3. This manifestation was designed under the scientific direction of Marie-Anne Frison-Roche and Jean-Christophe Roda and took place in Lyon on June 23, 2021. During this colloquium, the intervention was shared with Jan-Marc Coulon, who is also a contributor in the book (see the summary of the Jean-Marc Coulon's  Article). In the book, the article will be published in Title I, devoted to:  L'entreprise instituée Juge et Procureur d'elle-même par le Droit de la Compliance (The Entreprise instituted Judge and Prosecutor of itself by Compliance Law ). - ► Summary of the article (done by the author): The Company is caught in the grip of Compliance Law, the jaws of which are those of Incitement (1) and Sanction that the Company must apply to ensure the effectiveness of its processes to which it is itself subject (2 ). First, the Company has been delegated to fabricate reprehensible rules that it must apply to itself and to third parties with whom it has dealings. To this end, the Company sets up "processes", that is to say verification and prevention procedures, in order to show that the offenses that it is likely to commit will not happened. These processes constitute standards of behavior to prevent and avoid that the facts constituting the infringements are not themselves carried out. They are thus one of the elements of Civil Liability Law in its preventive or restorative purposes. Second, the sanction of non obedience of Compliance processes puts the Company in front of two pitfalls. The first  dimension place the company, with regard to its employees and its partners, in the obligation to define processes which also constitute the quasi-jurisdictional resolution of their non-compliance, the company having to reconcile the sanction it pronounces with the fundamental principles of classical Criminal Law, constitutional principles and all fundamental rights. The processes then become the procedural rule. The second dimension is that the Company is accountable for the effectiveness of the avoidance by its processes of facts constituting infringements. By a reversal of the burden of proof, the Company is then required to prove that its processes are efficient. at least equivalent to the measures defined by laws and regulations, the French Anti-Corruption Agency (Agence Française Anticorruption – AFA), European directives and various communications on legal tools to fight breaches of probity, environmental attacks and current societal concerns. The processes then become the constitutive element, per se, of the infringement. Thus, in its search for a balance between Prevention and Sanction to which it is itself subject, the Company will not then be tempted to favor the orthodoxy of its processes over the expectations of the Agence Française Anticorruption – AFA , regulators and judges, to the detriment of their efficiency? In doing so, are we not moving towards an instrumental and conformist Compliance, paradoxically disempowering with regard to the Compliance Monumental Goals of Compliance? -

► Full Reference: J.-M. Coulon, "Le droit de la compliance dans le secteur d'activité de la construction et les contradictions, impossibilités et impasses auxquelles les entreprises sont confrontées" ("Compliance Law in the construction sector and the contradictions, impossibilities and impasses facing companies"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, pp. 133-140.  - 📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published - ► The summary below describes an article following the colloquium L'entreprise instituée Juge et Procureur d'elle-même par le Droit de la Compliance (The Entreprise instituted Judge and Prosecutor of itself by Compliance Law) , co-organized by the Journal of Regulation & Compliance (JoRC) and the Faculté de Droit Lyon 3. This manifestation was designed under the scientific direction of Marie-Anne Frison-Roche and Jean-Christophe Roda and took place in Lyon on June 23, 2021. During this colloquium, the intervention was shared with Christophe Lapp, who is also a contributor in the book (see the summary of the Jean-Marc Coulon's Article). In the book, the article will be published in Title I, devoted to:  L'entreprise instituée Juge et Procureur d'elle-même par le Droit de la Compliance (The Entreprise instituted Judge and Prosecutor of itself by Compliance Law ). - ► Summary of the article (done by the author): The construction industry is not a regulated sector. Its market is made up of a superposition of territorial strata which are all relevant markets, to which corresponds a specific microcosm of companies. Finally, the temporary association between companies for the purposes of carrying out a project or a work is consubstantial with this sector. The penetration of Compliance in this sector is inevitably very heterogeneous and results from both exogenous factors (other partners within temporary associations, influence of economic operators from other sectors of activity, capital providers and lenders, incitations from professional organizations ) the endogenous (submission to a Financial Regulatory Authority because the company is listed ; application of the laws on duty of vigilance, and French Law called "Sapin 2"). For example, subject to all these factors combined, the Bouygues group is particularly sensitive to compliance. Not only internal "legislator", the Bouygues group finds itself in turn "prosecutor and judge" both of itself and of others. Indeed, leading an investigation, filing a complaint, triggering an ethics alert, making use of the leniency program, this group is, however, no other than a sort of assistant for the Prosecutor. In addition, scrutinizing its stakeholders, sanctioning its employees, resorting to a Convention Judiciaire d'intérêt public (judicial agreement in the public interest) or negotiating its sanction within the framework of a procedure instituted by a multilateral bank, it fulfills the function of a judge. Legislator, prosecutor, judge, the Bouygues group is faced with a paradox, in a way encouraged to exercise “sovereignty”, yet it does not benefit from the attributes attached to it or from the unwavering support of the competent Public Authorities. -

► Full Reference: J. Heymann, "La nature juridique de la "Cour suprême" de Facebook" ("The legal nature of Facebook's "Supreme court""), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, pp. 151-167.  - 📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published - ► The summary below describes an article following the colloquium L'entreprise instituée Juge et Procureur d'elle-même par le Droit de la Compliance , co-organized by the Journal of Regulation & Compliance (JoRC) and the Faculté de Droit Lyon 3. This manifestation was designed under the scientific direction of Marie-Anne Frison-Roche and Jean-Christophe Roda and took place in Lyon on June 23, 2021. In the book, the article will be published in Title I, devoted to: The Entreprise instituted Judge and Prosecutor of itself by Compliance Law. - ► Summary of the article (done by the author): Taking place in the general theme aiming at making “words and things coincide”, the article offers some thoughts on the “conditions of the discourse” – in the sense in which Foucault understood it in his Archéologie des sciences humaines – relating to the phenomenon of “jurisdictionalization” of Compliance.             The thoughts are more specifically focusing on the nature of the so-called “Supreme Court” that Facebook instituted to hear appeals of decisions relating to content on the digital social networks that are Facebook and Instagram. Is this really a “Supreme Court”, designed in order to “judge” the Facebook Group?             A careful examination of the Oversight Board – i.e. the so-called “Supreme Court” created by Facebook – reveals that the latter, in addition to its advisory mission (which consists of issuing policy advisory opinions on Facebook’s content policies), exercises some form of adjudicative function. This is essentially conceived in terms of compliance assessment, of the content published on the social networks Facebook or Instagram with the standards issued by these corporations on the one hand, of content enforcement decisions taken by Facebook with the Law on the other hand. The legal framework of reference is yet rather vague, although its substantial content seems to be per se evolutive, based on the geographical realm where the case to be reviewed is located. An adjudicative function can therefore be characterized, even if the Oversight Board can only claim for a limited one.             The author can ultimately identify the Oversight Board as a preventive dispute settlement body, in the sense that it seems to aim at avoiding any referral to state courts and ruling before any court’s judgement can be delivered. Some questions are thus to be raised, relating with both legitimacy and authority of such a Board. But whatever the answers will be, the fact remains that the creation of the Oversight Board by a private law company already reveals all the liveliness of contemporary legal pluralism. -

► Full Reference: D. Latour, "Les enquêtes internes au sein des entreprises" ("Internal investigations within companies"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, pp. 169-186.  - 📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published - ► Summary of the article: -

► Full Reference: J. Jourdan-Marques, "L’arbitre, juge ex ante de la compliance ?" ("The arbitrator, ex ante judge of compliance?"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, pp. 317-334.  - 📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published - ► The summary below describes an article which follows an intervention in the scientific manifestation L'entreprise instituée Juge et Procureur d'elle-même par le Droit de la Compliance ("The company instituted Judge and Prosecutor of itself by Compliance Law"), co-organized by the Journal of Regulation & Compliance (JoRC) and the  Faculty of Law Lyon 3. This colloquium was designed by Marie-Anne Frison-Roche and Jean-Christophe Roda, scientific co-directors, and took place in Lyon on June 23, 2021. Due to the very close proximity of the content of this article to a scientific manifestation that was held previously, in the same series of colloquia, manifestation on Compliance and Arbitration, designed by Marie-Anne Frison-Roche and Jean-Baptiste Racine, and which took place in Paris on March 31, 2021 in Paris, it was decided with the author and the scientific managers of the scientific events concerned to publish the article not in Title I of the book, devoted to the topic of the Company instituted Judge and Prosecutor of itself by Compliance Law, but in Title III, devoted to the topic of Compliance and International Arbitration. - ► Summary of the article (done by the Journal of Regulation & Compliance) :  The article begins with a long introduction relating to the general relationship between Compliance and Arbitration. Then the author in a first part examines the place of the Arbitration upstream of the occurrence of the dispute, aiming at the relations of the company in its organization with other companies for its economic activities, for example commercial agents. The author examines the way in which Arbitration can resolve difficulties which arise between them, including when these issues are otherwise apprehended by Compliance Law and the institutions in charge of it, in particular because of the facts of corruption are alleged and the fact is alleged by the debtor himself when payment has not yet been requested by the creditor. The legal question then becomes whether or not there is a "dispute". Being even further upstream, the author takes the hypothesis of the adoption of a compliance program in which recourse to arbitration would be inserted by the Company, insertion which could then be at the origin of exemption from criminal liability, an arbitration award being able to produce such an effect if it is recognized in the legal order.  The second part of the article considers Arbitration in the absence of multiple parties, which could correspond to the acts issued by the Oversight Board of Facebook, this kind of tribunal and judge not being seized by parties to a litigation. It might be adequate to qualify this mechanism as an arbitration, even if this qualification is difficult to retain. In any case, if we did so by admission that a unilateral request gives rise to a jurisdictional mission, there should be guarantees surrounding such institutionalization. They can go through specific bodies for Compliance cases, outside or within existing arbitration institutions, which must then become the driving force in the matter. In addition, the choice of arbitrators should undoubtedly go through the institution itself so that impartiality remains unchallenged and profiles of arbitrators would be truly varied. The procedure would also have vocation to be inflected because of the absence of real litigation, justifying the adjustment of the adversarial principle (in the narrow sense of this one, linked to the debate) in particular by the intervention of amicus curiae and to avoid the fraud through arbitration and in procedure. In the absence of an adversary, the procedural office of the arbitrator could be reconsidered: without modifying the terms of the case, it would be appropriate for the arbitrator to have more power to decide on the adequate measures to be taken to remedy the non- conformity with compliance requirements. Finally, publicity seems to the author essential so that the arbitration is not instrumentalised by the parties, publicity which could also concern the debates and the documents produced. These admittedly very high requirements would in return give great credibility to the resulting award, justifying its scope, and one could consider labeling such a result, a label that the company could claim.  The author concludes that these transformations would move away so much from Arbitration that it would denature it, in particular because of the absence of litigation, but this allows Companies to outsource the management of the more and more heavier responsibility engendered by Compliance Law, by offering Compagnies the assistance of a judicial authority, as soon as the procedural guarantees are reinforced. -

► Full Reference:  Oumedjkane,  A., Tehrani, A. & Idoux, P.,  Public Norms and Compliance in times of Crisis: Monumental Goals tested: Elements for a Problematic,  in Frison-Roche, M.-A. (ed.), Les buts monumentaux de la Compliance, série "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, to be published.   ► Article Summary (done by the authors): In this paper, compliance refers to the fact that large private firms, through internal procedures designed to abide by public norms, participate in achieving the goals set out by public authorities, as the latter cannot reach those goals without help (proper functioning of financial markets, environment protection, fight against the corruption…). While in times outside a crisis period, the need to maintain a close link between public norms and compliance to achieve those “monumental goals” has been established, the validity of this analysis must be assessed during crisis periods. Indeed, to put an end to the turmoil as soon as possible, it is tempting to rely primarily on public authorities.  Should then be studied, in the light of the health crisis, the possibility that the link between public norms and compliance be altered in times of crisis. Not only is the normative reaction of public authorities very intense during the period, but some features of the compliance could lead one to think that compliance is in no way useful in a context of emergency and instability. This paper nevertheless suggests that to achieve monumental goals, it is necessary to maintain a close link between public norms and compliance. Such a link was maintained indeed, even at the height of the health crisis, and this should probably also be the case beyond this period, as breaking the link involves some risks which are not specific to the current health crisis. In other words, despite its shortcomings, compliance may not lose all its assets in times of crisis. -     📕 read the general presentation of the book

Full reference: CJEU, Grand chamber, Judgment Facebook Ireland e.a. v. Gegevensbeschermingsautoriteit, C-645-19, June 15, 2021 Read the judgment Read the abstract of the judgment done by the Court Read the press release    

Full Reference : Amico, Th., Compliance or the passage from ex post to ex ante: a Compernican revolution for the criminal lawyer?, in M.-A. (ed.), Compliance Tools, série "Régulations & Compliance", Journal of Regulation & Compliance and Bruylant, 2021, pp. 165-172.   See the General Presentation of the book   - Article Summary (done by Marie-Anne Frison-Roche) After referring to various definitions of Compliance Law, the author insists on the usefulness of the criminal lawyer in that he, familiar with the Ex Post that constitutes the sanction, can be of good advice. in the Ex Ante in which new compliance mechanisms are being developed, such as risk mapping or third party assessment. Addressing the punitive dimension of Compliance Law, the author shows that the criminal lawyer therefore naturally has a place there, whether it concerns the powers exercised by an administrative authority or the criminal law itself. In that he can "anticipate criminal proceedings", the criminal lawyer is therefore best able to ensure that the company does not expose itself to them, in particular in a good mastery of internal investigations, thus ruling out the criminal risk.   Read the other articles summaries.     -      

Full reference : Gutierrez-Crespin, A., Audit of Compliance systems, in Frison-Roche, M.-A., "Compliance Tools" , in M.-A. (dir.), Compliance Tools, série "Régulations & Compliance", Journal of Regulation & Compliance and Bruylant, 2021, pp. 151-158.   Read a general presentation of the volume in which the article has been published   - Summary of the article (by Marie-Anne Frison-Roche) The author identifies what characterizes a "Compliance audit". Different from a "Compliance program", which is an instrument of constraint, and even from an internal investigation, which aims to detect breaches, the Compliance audit aims to measure the risks of discrepancy in relation to Compliance requirements. or even identify areas for improvement. From this definition, it is explained how concretely a Compliance audit is carried out, by a risk-based approach, and who are the actors (internal and external to the company).   Read the other summaries   -

Full Reference : Calandri, L, Incentive(s) and Self-Regulation(s): what place for Compliance Law in the Audiovisual Sector?, in M.-A. (ed.), Compliance Tools, série "Régulations & Compliance", Journal of Regulation & Compliance and Bruylant, 2021, pp. 131-140.   See the General Presentation of the book   - Article Summary (done by Marie-Anne Frison-Roche) The author has taken the audiovisual sector, "pilot" in the matter, to measure very precisely the way in which in France the jurisprudence of the Conseil d'État (French Council of State) has introduced a logic of Compliance by leaving the operators free to organize themselves, while supervising them. After allowing, by the 2016 decisions Fairvest and Société Numéricable, the judicial control of acts of Soft Law, in particular those issued by the French Audiovisual Regulator, the Conseil d'État has organized a more flexible relation between Sector and Regulator, the author referring the Regulator's declaration that he is not the "gendarme" of this sector. The French Council of State isolates among its acts those which are only incentive and escape the control by the judge, in the same way as acts of soft law adopted by the companies of the sector, expression of a self-regulation, They also escape litigation and are therefore also "unjustifiable". The author concludes that this completely renovates the governance of the sector, the Regulator by becoming more the arbiter and the supervisor of this new soft law.   Read the other articles summaries.     -      

Full reference : Burlingame, R., Coppens, K, Power, N. & Lee, D.H., Anti-Corruption Compliance: Global Dimension of Enforcement and Risk Management, in M.-A. (dir.), Compliance Tools, série "Régulations & Compliance", Journal of Regulation & Compliance and Bruylant, 2021, pp. 199-208.   Read a general presentation of the volume in which the article has been published. -   Summary of the article (by Marie-Anne Frison-Roche) The authors show that the authors certainly face a diversity of legal systems due to their multiple localization, but in reality in terms of fight against corruption the French authority, the English authority and the American authority develop similar requirements in a common spirit. Indeed by reading the texts, in particular soft law, issued by the French Anticorruption Agency, the Department of Justice and the Serious Fraud Office, it appears that the primary concern is in the effectiveness of the compliance program adopted by companies. The authorities of the three countries also stress the need for the company's governing bodies to actively promote and disseminate the culture of anti-corruption compliance. For the three authorities, it is more precisely necessary that this program be adapted and tailor-made, that the governing body commits itself to its effective compliance and that a code of conduct, effective training and communication actions, the program to be based on structural internal investigation and whistleblowing mechanisms, and refer to an evaluation. The authors show that beyond the specificities of each of the systems, the three authorities are united in the fight against corruption, which reduces the insecurity of internationally exposed companies.   Consult the summaries of the other articles composing the book.   -

Full reference : Pailler, L., Technological Tools, Compliance by Design and GDPR: the Protection of Personal Data from Design, in M.-A. (dir.), Compliance Tools, série "Régulations & Compliance", Journal of Regulation & Compliance and Bruylant, 2021, pp. 299-306   Consult an overview of the volume in which the article was published.   - Summary of the article (by Marie-Anne Frison-Roche) The author considers that the GDPR has changed the "paradigm" of data protection for the bearer in Compliance, in that the data controllers must ensure the effectiveness of the rules defined by the Regulation, which they make accounts. In addition, the data, processed by the algorithm, is a “means of compliance” described and is used for vigilance plans and all the other tools, this brick being common to all Compliance Law. To respect Law, and in particular to protect people, Compliance by design continues to integrate "compliance" from the design of its tools through standard techniques (Privacy Enhancing Technologies – Pet's), legalized by the GDPR. The author analyzes the technological means of data protection from the design of the tool, which complement Law and the contract. They are part of the "measures" required to protect people, for example transfers to third countries, these technological means being classified according to their degree of effectiveness. If the principle is free in the choice of technology, but Law requires and controls that it be not only effective but also robust, easy to use and compatible with the tools of use. The author emphasizes that the notion of "effectiveness" encompasses these particular requirements. This effectiveness, which must be proven a priori ("documented") is checked by the Authorities in the appropriateness of the measurement techniques, their effective implementation and their concrete effect. Even if this is only subject to the state of the art, it must develop its technical resources, helped by the authorities (cf. "compliance pack" of the CNIL (French data regulator)). Even if the powers were aimed at optimizing costs, he must bear them, the context and the purpose of the processing do not ultimately become proportional. So if the risk is very high for people, it will be necessary to insert techniques and protectors other than those of Compliance Law. -   Consult the summaries of the other articles composing the book.   -

Full reference : Koenigsberg, S. et Barrière, Fr, Th., The Development of Attorney's Compliance Expertise , in M.-A. (dir.), Compliance Tools, série "Régulations & Compliance", Journal of Regulation & Compliance and Bruylant, 2021, pp. 159-164.   Consult an overview of the volume in which the article was published.   - Summary of the article (by Marie-Anne Frison-Roche) The authors observe that many law firms are now developing expertise in compliance, either in departments or in teams. They emphasize that this expertise is achieved through specialization, which makes it possible to support companies, in Ex Ante (for example in mergers) and in Ex Post (in litigation) in continuum between the two. Moreover, this expertise is built in a collaborative way between the team of lawyers and the company concerned, which reinforces this necessary continuity. -   Consult the summaries of the other articles composing the book.

Full reference : Larouer, M., The Manifestation of Incentives Mechanisms in French Compliance Law, in M.-A. (dir.), Compliance Tools, série "Régulations & Compliance", Journal of Regulation & Compliance and Bruylant, 2021, pp. 113-122. Consult an overview of the volume in which the article was published. - Summary of the article (by Marie-Anne Frison-Roche) The author develops in the introduction the idea that Law itself accepts the notion of incentive as being consubstantial with it, relying in particular on codes of conduct. Then the article develops demonstrations of incentive Law as a tool of complicity, first of all in the fight against corruption: the decision of the Sanctions Commission of the Agency Française Anticorruption (French Anti-Corruption Agency) shows that the recommendations of this Agency encourage the company to comply, protecting it from a sanction if it submits to it but does not prevent it from organizing in any other way. In addition, the judgment of the Commercial Chamber of the Court de Cassation (cassation court) stated that the breach of a contractual obligation which is however only the resumption of a constraint lodged in a compliance program which targets a third party justifies the termination of the contract. . More generally, the author shows that the legal system encourages companies to integrate Compliance by publishing vigilance plans and extra-financial performance, while noting that companies do not always do so. The article also concludes that French Compliance Law in its use of incentives is only at its "beginnings".   Consult the summaries of the other articles composing the book.   -

Full reference : Tardieu, H., Data Sovereignty and Compliance , in M.-A. (dir.), Compliance Tools, série "Régulations & Compliance", Journal of Regulation & Compliance and Bruylant, 2021, pp. 123-130. Consult an overview of the volume in which the article was published.   - Summary of the article (by Marie-Anne Frison-Roche) After having considered that Europe had in terms of power "lost the battle" of personal data, the author asks for the same error, linked to a lack of interest at the start, not be repeated concerning "company data". The European Commission having affirmed its will in 2020, it is now necessary to build a "European ecosystem" for the sharing of industrial data in confidence. For this, the author explains that it is necessary to develop "incentives for the sharing of company data", in order to increase their available volume and fuel common progress in Artificial Intelligence between European companies and to use common complementary data, which 'none could generate alone, allowing the creation of new services. These incentives can be new and adapted "regulations", but also the adoption by the industry of a "common data model". But the author stresses that it is necessary to go, by experiments allowed by the "regulatory sandboxes". This will allow the deployment of data sharing, with Compliance being able to contribute to it, a path for a sovereign Europe of shared industrial data, a monumental objective which can thus be achieved. - Consult the summaries of the other articles composing the book.   -