►Full reference: Frison-Roche, M.-A., Definition of Principe of Proportionality  and  definition of Compliance Law,  Working Paper, July  2021.

____

🎤 this Working Paper is the basis for a conference in the colloquium Compliance and Proportionality. From the control of Proportionality to the proportionality of the control, to be helded in Toulouse, France, on the 14th October 2021.

📝It constitutes the basis for an article: 

📕 this article will be published in its French version in the book  Les buts monumentaux de la Compliance, in the Series    Régulations & Compliance

 📘  in its English version in the book Compliance Monumental Goals, in the Series    Compliance & Regulation

____

► Working Paper Summary: Measuring the relationship between the Principle of Proportionality and Compliance Law depends entirely on the Definition chosen for Compliance Law. Let us first take the definition of Compliance Law as a simple "mode of effectiveness" of the rules to which we hold (I). The more we stick to this procedural definition of Compliance Law as a mode of effectiveness of the rules, the less it is easy to detect specificities in the application of the Principle of proportionality in compliance mechanisms. There are certainly many examples of the application of the principle of proportionality, but the addition and variety of examples are not enough to sculpt an original relationship between Proportionality and Compliance.

However, this exercise is not wasted. In fact, in the confusion which still marks the emergence of Compliance Law, the legal nature of the compliance mechanisms remains contested. However, the imposition of Proportionality, not only as it is an obligation but as a limitation of powers in this first definition focusing on Efficiency, recalls that Compliance, conceived as " process ", would then in any case be admissible at the very least as a" Procedure ", anchored in the Rule of Law Principle, therefore self-limititation expression.   But Proportionality is then like a cold shower in compliance, since it is defined by self-limitation in a Law which would be defined by effectiveness as its only definition...  Ineffectiveness In Efficiency...: it is no longer a relation, it is then an opposition which is established between the two terms ...

In this definition of Compliance Law, there is no other choice than to put process in this sort of  squaring circle because in this procedural Compliance Definition, as a method of effectiveness, of effectiveness and efficiency of the rules estimated more important more than others, it must however be admitted that Compliance Law, as any branch of the Law, without denying its very legal nature, must be anchored in the Rule of Law Principle.

By the principle of proportionality, this new branch of Law is forced to anchor classic solutions from Constitutional, Public or Criminal Law,  the Principle of Proportionality prohibiting the Compliance of be just a process. The Repression  Law  has a large part in this conception and the Proportionality Principle reminds it of the part that Criminal Law still takes (with difficulty and for the moment ...) in the admission of ineffectiveness that the Law demands, particularly in the face of Compliance technologies.

In this first definition, the Proportionality Principle thus reminds Compliance, entirely held in the idea of ​​Efficiency that it is a "Law" of Compliance" and anchored in the Rule of Law Principle, it must limit its Effectiveness . It is therefore a kind of "price" that these techniques pay, with regret ..., to the Rule of Law and in particular to the freedoms of human beings. There is a strong temptation not to want to pay this price. For example by affirming that there is a new technological world, which the new system, entirely in algorithms, will promote in a move away from the Law, rejected towards the Old World. Frequently proposed, or set up for instance in China. Others say that we must "do the balance". But when you balance Efficiency performance and Efficiency self-limitation, you know very well who will win ...

But why not look rather on the side of a Definition of Compliance Law where, on the contrary, the two concepts, instead of opposing each other, support each other!

Indeed, Compliance Law is then defined as an extension of Regulatory Law as a set of rules, institutions, principles, methods and decisions taking their meaning and normativity for specific Goals. . In this definition, which is both specific and substantial, these "Monumental Goals" are systemic and require that all means be mobilized for them to be achieved. Future and negative in nature (events that must not happen) but also future and positive in nature (events that must occur), Compliance Law does not apply to all the rules whose  effectiveness required, but this specific type of "Monumental Goals", in an alliance between the political authorities in charge of the future of human groups and the entities in a position to mobilize its means. The method is then different. It is no longer a question of entrenching and the prospect of repression fades into the background.

A reversal occurs. Proportionality ceases to be what limits Efficiency to become what increases Efficiency. As soon as Goals have be precised, Proportionality is not the consequence of the limitation (as in the principle of "necessity" of Criminal Law, insofar as the latter is an exception), it is the consequence of the fact that any legal mechanism is a "Compliance Tool", which only has meaning in relation to a "Monumental Goal". It is therefore essential to set the "Goal Monumental Goals". As this is where the legal normativity of Compliance is housed, the control must first and foremost relate to that. Then all the Compliance Tools must adjust in a "proportionate way", that is to say effective to its goals: as much as it is necessary, not more than it is necessary. According to the principle of economy (which is also called the "principle of elegance" in mathematics).

In consequence, the rule contrary to the Principle of Proportionality is: the rule useless to achieve the goal. The unnecessary rule is the disproportionate rule: this is how the judicial review of excessive sanctions should be understood, not by the notion of "the limit" but not by the notion of "the unnecessary".

Everything then depends on the legal quality of the goal. De jure - and this would deserve to be a requirement at constitutional level, the goal must always be clear, understandable, non-contradictory, attainable.

This increases the office of the Judge. This renews the power of the Legislator in a conception which ceases to be discretionary.

But the Legislator retains the prerogative of determining the Monumental Goals, while the Judge controls the quality of the formulation that he makes of them, in order to be able to measure the proportionality of the means which are put in front by the State and the Companies, while Companies can rally to the Monumental Goals of the Politics by making an alliance with them, but certainly not instituting others in an autonomous way because they are not normative political entities, whereas they are free to determine the means necessary to achieve these goals, the Judge controlling the proportionality mechanism that makes this new system work.

The case law of the German Constitutional Court expresses this conception. It is fully consistent with what Compliance Law is in what is the one Monumental Goal containing all the systemic Monumental Goals: the protection of the human being.

_____________

► Do Compliance and Democracy have a relationship? China replies: no. Europe responds and must respond: they are intimate. The definition of Compliance Law is therefore essential.

In an interview of great clarity  given in French to the Newspaper Les Echos on June 2, 2021, about Brexit, China and Russia (➡️📝 "Brexit, Chine, Russie : les confidences de la diplomate Sylvie Bermann"), Sylvie Bermann reminds the evolution of China. She sums up the situation as follows: « La Chine ne veut pas dominer le monde, elle veut être la première et surtout qu'on ne puisse pas lui imposer un système, la démocratie » ("China does not want to dominate the world, it wants to be the first and above all that no one can impose on it a system, Democracy,").

This is reflected in China's conception of Compliance Law. If one defines Compliance Law only as a "method" for the effectiveness of rules, consisting of a kind of "Ex Ante enforcement process" leading to 100% effectiveness of regulations by subjects who must show to everyone the respect they have for these regulations and who are rewarded by this proof thus given, then China, in its current use of Law, illustrates exactly this definition: subjects, individuals and companies, prove their "obedience" to rules - whatever the rules" substantial content -, which is evaluated ("rating") and rewarded, in a mechanical reign of the Ex Ante, served by technologies. Democratic mechanisms are not required; they are even disturbed, because they interfere with the efficiency of the system. The technological and purely technocratic conception of Compliance ("Regulation by data", for example) uses the same definition of Compliance Law, which leads to choose algorithms’ efficiency.

Europe must keep going to make another choice: European Compliance was born out of the Court of Justice of the European Union’s case law, in the 2014 judgment, Google Spain (➡️📝CJEU, Google Spain, May 13, 2021), to protect the person by inventing a subjective right: the right to be forgotten, in a digital space with infinite memory. Based on the Rule of Law, Compliance Law is then defined by its Monumental Goals, which are the protection of people and puts the judge at the center. It is the reverse of Chinese mechanics.

Therefore, they are definitions that lead the world: about the definition of Compliance Law by "Monumental Goals", see ➡️📅 the 2021 cycle of colloquia co-organized by the Journal of Regulation & Compliance (JoRC) and its university partners on Monumental Goals; on the technical influence of this definition on "Compliance tools" ➡️📕see Frison-Roche, M.-A., Legal Approach to Compliance Tools: Building by Law the unity of Compliance Tools from the definition of Compliance Law by its "Monumental Goals", 2021.

►subscribe to the MaFR ComplianceTech® Newsletter

► 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. Place and Role of Companies in the Creation and Effectiveness of Compliance Law in Crisis, Working Paper, May 2021. 

____

This Working Paper has been elaborated as basis for a conference in the colloquium of Mai 17, 2021 (done in French: Normes publiques et Compliance en temps de crise : les buts monumentaux à l'épreuve.

This video is made with English substitutes. 

It is also the basis for an article in the book Compliance Monumental Goals, the English version of which is co-published by the Journal of Regulation & Compliance (JoRC) and Bruylant.

Summary: This article has a very topic: the place of private Companies, with regard to 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, it appears that 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 

Lire ci-dessous les développements.

Full reference: Frison-Roche, M.-A., Facebook: Quand le Droit de la Compliance démontre sa capacité à protéger les personnes (Facebook: When Compliance Law proves its ability to protect people), interview with Olivia Dufour, Actu-juridiques Lextenso, 23rd of November 2020

Read the interview (in French)

Read the news of the Newsletter MAFR - Law, Compliance, Regulation about this question

► Full Reference: M.-A. Frison-Roche, "Compliance Law, an adequate legal framework for GAIA-X", in Pan-European GAIA - X Summit, The World with GAIA-X, November18, 2020.

____

🧮See the general presentation of the Summit

____

📈​See the slides, basis of this intervention.

____

► Summary of the intervention: Europe may offer an adequate legal framework for the GAIA-X project through Compliance Law. Compliance Law is a new form for Regulatory Law, driven by "Monumental Goals", negative Monumental Goals, for instance prevention of systemic failures, and positive Monumental Goals, for instance innovation or stability. This very new branch of Law works on these Monumental Goals, which must be explicit and internalized in Crucial Enterprises. These Crucial Enterprises concretize these Goals, supervised by public Authorities. 

European Compliance Law already works, for instance about Personal Data protection (case law and GDPR) or prevention banking systemic failures (Banking Union), Compliance Tools being in balance with Competition principle. European Union Law is moving from the Ex-Post Competition Law to the Ex-Ante Compliance Law, internalizing Monumental Goals in Crucial Enterprises. 

There is a perfect adequacy between European Compliance Law and GAIA-X. This project built by Crucial Enterprises must be supervised by public authority, maybe a specific or the European Commission. The governance of GAIA-X must be transparent and accountable. This private organization must use it powers in respect of the proportionality principle, controlled by the public supervisory body. The legal framework is required but it is sufficient. 

___

📈see the slides, basis of this intervention.

____

🎥watch the video of this intervention. 

________

Référence : Frison-Roche, M.-A., Building by Law the unity of Compliance Tools from the definition of Compliance Law by its "Monumental Goals"", Working Paper 2020. 

This Working Paper has been the basis for an article in the collective book Compliance Tools, 2020

___

Working Paper summary: 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 in order to master 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 as, 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 adopted legal solutions 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, without the necessity of a legislation including all these Compliance tools. 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 goals, of which the achievement is only an obligation of means.

🌐follow Marie-Anne Frison-Roche on LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law 

____

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

► Référence complète :  M.-A. Frison-Roche, M.-A., "Gouvernance d'Internet : nous sommes face à un enjeu de civilisation", Petites affiches, 18 juillet 2019, entretien mené avec Olivia Dufour, à propos du rapport reçu par le Gouvernement le 15 juillet 2019  : 

► Présentation de l'entretien par Les Petites Affiches : "Dans le rapport qu’elle a remis au secrétaire d’État au numérique en juillet, Marie-Anne Frison-Roche émet 55 propositions visant à élaborer une gouvernance d’internet fondée sur la compliance. Il s’agit en pratique pour le politique de définir des buts monumentaux : par exemple la lutte contre le réchauffement climatique et de les internaliser dans les acteurs cruciaux, par exemple Facebook ou Google sous le contrôle d’un superviseur. Ainsi Facebook serait-il appelé à surveiller les échanges numériques de la même façon qu’aujourd’hui Euronext surveille les échanges financiers. Au-delà de la question cruciale de la régulation du numérique, l’ambition consiste pour l’Europe à être fidèle à sa tradition humaniste en imposant par le droit la protection de la personne.".

____

►  Lire l'interview.

____

►  Se reporter au Rapport de Marie-Anne Frison-Roche, L'apport du Droit de la Compliance dans la Gouvernance d'Internet, à propos duquel l'interview a été donné. 

________

► Full reference: M.-A. Frison-Roche, "Le Droit de la compliance" ("Compliance Law"), D.2016, Chron., pp.1871-1874.

____

► English Summary of the article: Constraints weighing on companies in terms of Compliance multiply and get heavier. But the notion is contradictory, uncertain, "strange", the expression of "conformity" being only a transposition in French. 

Compliance appears today as the world internalisation of a public regulation, often conceived in the United-States, in firms, transformed in effectivity agents of global monumental goals: competition equity, fight against terrorism or States deemed unworthy (embargos). 

Rather than borrowing scattered solutions, it is essential to build a "Compliance Law", properly European, to which everyone will be accountable.This new branch of Law is built teleologically on its Monumental Goals. It is driven by crucial businesses. The Judge is at its centre.

____

📝read the article (in French)

____

🚧Read the bilingual Working Paper on the basis of which the article was written.