Competition law

► Full Reference: M.-A. Frison-Roche, "Le rôle du juge dans le déploiement du droit de la régulation par le droit de la compliance" ("Synthesis: The role of the Judge in the deployment of Regulatory Law through Compliance Law"), Synthesis in Conseil d'État (French Council of State) and Cour de cassation (French Court of cassation), De la régulation à la compliance : quel rôle pour le juge ? Regards croisés du Conseil d'État et de la Cour de cassation – Colloque du 2 juin 2023, La Documentation française, "Droits et Débats" Serie, 2024, pp. 173-182 - 🎥this article follows the closing speech of the biannual symposium organised by the Council of State and the Court of cassation, which in 2023 was entitled De la régulation à la compliance : quel rôle pour le juge ? (From Regulation to Compliance, what role for the judge ?) - 🚧read the bilingual Working Paper which is the basis of this article, with additional developments, technical references and hyperlinks - ► Presentation of this concluding article: It is remarkable to note the unity of conception and practice between professionals who tend to work in administrative jurisdictions and professionals who tend to work in judicial jurisdictions: they all note, in similar terms, an essential movement: what Regulatory Law is, how it has been transformed into Compliance Law, and how in one and even more so in the other the Judge is at the centre of it. Judges, as well as Regulators and European officials, explain this and use different examples to illustrate the far-reaching changes it brings to the Law and to the companies responsible for increasing the systemic effectiveness of the rules through the practice and dissemination of a Culture of Compliance. The role of the judge participating in this Ex Ante transformation is renewed, whether he/she is a judge of Public Law or a judge of Private Law, in a greater unity of the legal system. - ► English Summary of this article: The tug-of-war between 'Compliance' and 'conformity', which is exhausting us, obscures what is essential, i.e. the great novelty of a branch of law that assumes a humanist vision expressing the ambition to shape the future so that it is not catastrophic (preventing systems from collapsing), or even better (protecting human beings in these systems). The article begins by describing the emergence of Compliance Law, as an extension of Regulatory Law and going beyond it. This new branch of law takes account of our new world, brings its benefits and seeks to counter these systemic dangers so that human beings could be their beneficiaries and are not crushed by them. This branch of Ex Ante Law is therefore political, often supported by public Authorities, such as Regulatory Authorities, but today it goes beyond sectors, as shown by its cutting edge, the Obligation of Vigilance. The "Monumental Goals" in which Compliance Law is normatively anchored imply a teleological interpretation, leading to an "empowerment" of the crucial operators, not only States but also companies, responsible for the effectiveness of the many new Compliance Tools. The article goes on to show that Judges are increasingly central to Compliance Law. Lawsuits are designed to make companies more accountable. In this transformation, the role of the judge is also to remain the guardian of the Rule of Law, both in the protection of the rights of the defence and in the protection of secrets. Efficiency is not what defines Compliance, which should not be reduced to a pure and simple method of efficiency, which would lead to being an instrument of dictatorship. This is why the principle of Proportionality is essential in the judge's review of the requirements arising from this so powerful branch of Law.  The courts are thus faced with a new type of dispute, of a systemic nature, in their own area, which must not be distorted: the Area of Justice. - 📝read article (in French) - 🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

► Full Reference: M.-A. Frison-Roche, "Préalable : ce qu'est un engagement" ("Prerequisite: the Commitment"), in L. Aynès, M.-A. Frison-Roche, J.-B. Racine and E. Silva-Romero (dir.), L'arbitrage international en renfort de l'obligation de Compliance (International Arbitration in support of the Compliance Obligation), Journal of Regulation & Compliance (JoRC) and Institute of World Business Law of the ICC (Institute), Conseil Économique Social et Environnemental (CESE), Paris, February 9, 2024 - 🧮see the full programme of this event - 🌐consult on LinkedIn a general presentation of this event, which links to a presentation of each speech (in French) - 🧱consult the scientific direction sheet of this event, which gives an account of the various speeches made - 🔲see the slides used to support the presentation (in French) - 🎤see a presentation of the conference "Préalable : ce qu'est l'Obligation de Compliance" ("Prerequisite: what is the Compliance Obligation"), given at the same symposium - 🎤see a presentation of the conference "Le renforcement des engagements de Compliance par le renvoi Ex Ante à l'arbitrage international" ("Reinforcing Compliance commitments by referring Ex Ante to International Arbitration") which was finally not pronounced but will be the subject of an 📝article in the forthcoming book 📘Compliance Obligation  - ► Presentation of the conference: Having defined the Compliance Obligation in "Préalable : ce qu'est l'Obligation de Compliance" ("Prerequisite: what is the Compliance Obligation"), I set out to define what a commitment is. No one doubts that commitments, as words, constitute facts that can engage the liability of companies if there are inconsistencies or lies. The question today is whether a commitment can constitute a legal act, binding in ex ante. Companies make commitments either to fulfil their legal Compliance obligations, which is simply obeying the law, or to express their own wishes, either for themselves or for others. The cases are often confused, even though the scope is not the same. If the commitment takes the form of a contract, Compliance is concerned if the contract is used as an Ex Ante Compliance Tool📎¹🕴️M.-A. Frison-Roche (ed.), 📘Compliance Tools, 2021., either if the entire contract has this purpose, or if a compliance clause is inserted, and an arbitration clause may be linked to it. The commitment, a concept that comes more from the Economics of Regulation, was conceived between a Regulatory Authority and a Company: it is the unilateral decision of the Authority that gives legal force to the commitment. Case law confirms this (Conseil d'État (French Council of State)📎²🏛️Conseil d'État (French Council of State), 21 April 2023, No. 464349, Sté Orange v. Arcep. and Conseil constitutionnel (French Constitutional Council)📎³🏛️Conseil constitutionnel (French Constitutional Council), 19 March 2021, decision No. 2021-891 QPC, Association Générations futures et autres.) and this is particularly clear in Competition Law, but it is also true of the convention judiciaire d'intérêt public – CJIP (French Judicial Public Interest Agreement). If commitment is central to Compliance, particularly Vigilance, it is because Compliance Law is an extension of Regulatory Law📎⁴🕴️M.-A. Frison-Roche, 🚧From Regulation Law to Compliance Law ; 🚧Compliance Law loses the ties of Regulation Law but retains its principles: consequences for companies, 2018 ; 🚧The deployment of Regulatory Law through Compliance Law in the European project, 2023.. The company is forcibly instituted by the Compliance regulator, particularly in value chains, or on digital spaces (DSA). In drawing up a plan, the company is fulfilling its legal obligation. But if we were to consider that it is a commitment, then we would also have to consider that the plan is the result of its will, that it must consult the stakeholders in its preparation, but that the source of the plan is its will: the provisions are not stipulations, are not applications of the law, but unilateral voluntary provisions. In this respect, and because its source is the will of the company (which does not prevent its co-construction), a plan could contain a "graduated offer" of arbitration. This offer could be included in commitments that are less regulated by law, such as those made in the context of CSR. - 🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

► Full Reference: M.-A. Frison-Roche, In Compliance Law, the legal consequences for Entreprises of their commitments and undertakings, June 2024. - 📝 This Working Paper is the basis for the contribution "In Compliance Law, the legal consequences for Entreprises of their commitments and undertakings", in📘Compliance Obligation. - ► Summary of this Working Paper: The innocents might believe, taking the Law and its words literally, that "commitments" are binding on those who make them. Shouldn't they be afraid of falling into the trap of the 'false friend', which is what the Law wants to protect them from (as stated in the prolegomena)? Indeed, the innocent persons think that those who make commitments ask what they must do and say what they will do. Yet, strangely enough, the 'commitments' that are so frequent and common in compliance behaviours are often considered by those who adopt them to have no binding value! Doubtless because they come under disciplines other than Law, such as the art of Management or Ethics. It is both very important and sometimes difficult to distinguish between these different Orders – Management, Moral Norms and Law – because they are intertwined, but because their respective standards do not have the same scope, it is important to untangle this tangle. This potentially creates a great deal of insecurity for companies (I). The legal certainty comes back when commitments take the form of contracts (II), which is becoming more common as companies contractualise their legal Compliance Obligations, thereby changing the nature of the resulting liability, with the contract retaining the imprint of the legal order or not having the same scope if this prerequisite is not present. But the contours and distinctions are not so uncontested. In fact, the qualification of unilateral undertaking of will is proposed to apprehend the various documents issued by the companies, with the consequences which are attached to that, in particular the transformation of the company into a 'debtor', which would change the position of the stakeholders with regard to it (III). It remains that the undertakings expressed by companies on so many important subjects cannot be ignored: they are facts (IV). It is as such that they must be legally considered. In this case, Civil Liability will have to deal with them if the company, in implementing what it says, what it writes and in the way it behaves, commits a fault or negligence that causes damage, not only the sole existence of an undertaking.  - 🔓read the developments below ⤵️ - 🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law  🌐subscribe to the Video Newsletter MAFR Surplomb

► Full Reference : M.-A. Frison-Roche, "Conclusion. Compliance et contrats publics : une alliance naturelle" ("Conclusion. Compliance and Public Contracts: a natural alliance"), in M.-A. Frison-Roche, C. Gilles & A. Oumedjkane (dir.), Compliance et contrats publics (Compliance and public contracts), Journal of Regulation & Compliance (JoRC), Centre de recherches et d’études administratives de Montpellier (CREAM) and Centre d’Études et de Recherches Comparatives Constitutionnelles et Politiques (CERCOP) of the Montpellier University, Faculté de droit et de science politique de Montpellier, 39 rue de l’Université, Amphiteatre C Paul Valéry, January 12, 2024 - 🧮see the full programme of this event - ✏️read the notes taken on the spot to draw up the symposium conclusion - 🌐consult on LinkedIn a general presentation of this event, which links to a presentation of each speech (in French) - 🧱consult the co-organisation sheet of this event, giving an account of the various speakers - ► English Summary of the conference: Firstly, it would appear that, as with all the contracts studied in the area of Compliance, public contracts are, for the public authorities or public companies, an instrument through which they implement the Compliance Obligation imposed on them by the laws and regulations. Public bodies involved in public contracts are particularly concerned because of the points of contact, even intimacy, between Compliance Law and the general interest. But the contract, whether public or private, remains in its classic conception what results from the expression of two wills which exchange their consents📎¹🕴️M.-A. Frison-Roche, 🚧Compliance contract, Compliance clauses, 2022..   Secondly, in terms of free will, public contracts can be the means by which public bodies and their co-contractors express their conception of what needs to be done to preserve the future, for example in environmental and social matters. On the contrary, the seemingly technical issue of exclusions from public contracts, whether they be automatic exclusions or optional exclusions, expresses the extent to which economically powerful players (public authorities, municipalities, public companies) take care of each other. In this respect, Compliance Law runs counter to Competition Law📎²🕴️M.-A. Frison-Roche, 🚧Competition Law and Compliance Law, 2018. and profoundly affects Public Procurement Law.   But thirdly, the public contract, in that it expresses the general interest by its very nature, its ex ante nature reinforces regulatory action and the nature of Compliance as an extension of Regulation📎³🕴️M.-A. Frison-Roche (ed.), 📕Régulation, Supervision, Compliance (Regulation, Supervision, Compliance), 2017.. It appears to be the most appropriate instrument for this new branch of Law, without the need for it to be transformed. This underlines the extent to which Compliance Law must draw on classical Law, in this case Administrative Law.   Moreover, fourthly, the public contract appears to be the model for the Compliance Contract. The public contract is a model first of all because of the central place of the general interest. The "Monumental Goals" in which the substantive definition of  Compliance Law is anchored📎⁴🕴️M.-A. Frison-Roche, 📝Compliance Monumental Goals, beating heart of Compliance Law, in 🕴️M.-A. Frison-Roche (ed.), 📘Compliance Monumental Goals, 2022. are a development of this. Admittedly, this concern for the general interest drives the public entity, but the "raison d'être" of companies more generally also incorporates it through "governance", profoundly renewed by Compliance. The public contract is also a model because the contract is handled by a powerful party, in this case the public entity. The subject of Compliance Law is the powerful company, and only that company, chosen because it is powerful and because it uses that power to achieve the Monumental Goals. In this respect, the "exorbitant powers" that characterise the public contractor are reconstituted either by Compliance laws or by stipulations, which confer on all obliged or voluntary companies – by virtue of CSR, which has many points of contact with Compliance Law as long as it is not confused with obeying the applicable regulations (which is what "conformity" is)📎⁵🕴️M.-A. Frison-Roche, 📝Reinforce the Judge and the Lawyer to impose Compliance Law as a characteristic of the Rule of Law, in 🕴️M.-A. Frison-Roche (ed.), 📘Compliance Jurisdictionalisation, 2023. – a power over the co-contractor, or even over third parties, equivalent to that of the public entity📎⁶🕴️M.-A. Frison-Roche, 🚧Use of private companies by Compliance Law to serve Human Rights, 2023..  The judge is the one who, through contractual litigation, both public and private, will bring to life these Monumental Goals desired by the State, carried by powerful entities (administration, companies), pledge of the Rule of Law📎⁷🕴️M.-A. Frison-Roche, 📝Reinforce the Judge and the Lawyer to impose Compliance Law as a characteristic of the Rule of Law, in 🕴️M.-A. Frison-Roche (ed.), 📘Compliance Jurisdictionalisation, 2023.. These include contractual mechanisms for information, audit, disclosure, control, collaboration, supervision, etc., through which the company, whether private or public, takes charge of the structure it has created, for example the value chain it masters📎⁸🕴️M.-A. Frison-Roche, 📝Assessment of whistleblowing and the obligation of vigilance regarding International Competitiveness, in 🕴️M.-A. Frison-Roche (ed.), 📘Compliance Monumental Goals, 2022..   It can therefore be concluded that this logic of a public contract as an instrument of administrative action to achieve goals of general interest, now fully taken up in Compliance Law, must be acculturated into the Ordinary Contract Law and must be preserved in Public Contract Law, which presupposes a new balance with Competition Law, which for a long time carried within Public Law a contract model without concern for sustainability or the collective interest. To achieve this, dialogue between judges is essential. The Conseil d'État (French Council of State) and the Cour de cassation (French Court of cassation) set the example📎⁹Conseil d'État (French Council of State) and Cour de cassation (French Court of cassation), 📗Du droit de la régulation au droit de la compliance : quel rôle pour le juge ?, La Documentation Française, 2024 (to be published).. - 📝This conference will be followed by an article, "The public contract, model of the Compliance Contract", which will be published in the book 📘Compliance and contract. - 🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

► Full Reference: M.-A. Frison-Roche, Births of a branch of Law: Compliance Law, Working Paper, November 2023. - 📕This Working Paper was drawn up as a basis for a contribution to the collective book given to Professor Louis Vogel, published in 2024 - ► Summary of this Working Paper: The study looks at the various movements that have given birth to Compliance Law, with particular emphasis on Competition Law. After a preliminary reflection on the construction of the legal system into branches of Law, their classification in relation to each other, the difficulty encountered in this respect by Economic Law, and the various movements that give birth to one of them, the diversity of which the branch subsequently keeps track of, the study is constructed in 4 parts. To find out what gave rise to Compliance Law, the first part invites us to reject the narrow perspective of a definition that is content to define it by the fact of "being conform" with all the applicable regulations. This has the effect of increasing the efficacy of the regulations, but it does not produce a branch of Law, being just a set of tools like others. The second part of the study aims to shed some light on what appears to be an "enigma", as it is often claimed that this is the result of a soft method, or of an American political decision, or of as many regulations as there are occasions to make. Instead, it appears that in the United States, in the aftermath of the 1929 crisis, it was a decision of establishing an authority and rules to prevent another atrocious collapse of the system, while in Europe in 1978, in memory of the use of files of personal and racial information, it was a question of establishing an authority and rules to prevent an atrocious attack on human rights. A common element that aims for the future ("never again") but not the same object of preventive rejection. This difference between the two births explains the uniqueness and diversity of the two Compliance Laws, the tensions that can exist between the two, and the impossibility of obtaining a global Law. The third part analyses the way in which Competition Law has given rise to conformity: a secondary branch which is a guarantee of conformity with competition rules. Developed in particular through the soft law issued by the competition authorities, the result is a kind of soft obedience, a well-understood collaboration of the procedural type through which the firm educates, monitors and even sanctions, without leaving  the cercle of Competition Law, of which conformity is an appendix. The distance between a culture of conformity and the substantial Compliance Law can be measured here. The fourth part aims to show that Competition Law and Compliance Law are two autonomous and articulated branches of Law. Since Compliance Law is a branch of Law built on Monumental Goals, in particular the sustainability of systems and the preservation of the human beings involved so that they are not crushed by them but benefit from them, the current challenge of European integration is to build the pillar of Compliance Law alongside the competitive pillar. Jurisdictions are in the process of doing this and of linking the two.   - 🔓read the Working Paper below⤵️ - 🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law  🌐subscribe to the Video Newsletter MAFR Surplomb

🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐subscribe to the  Newsletter MAFR Regulation, Compliance, Law - ► Full Reference: M.-A. Frison-Roche, The deployment of Regulatory Law through Compliance Law in the European project, Working Paper, July 2023. - 📝this Working Paper is the basis for the article "Le déploiement du Droit de la Régulation par le Droit de la Compliance dans le projet européen" ("The deployment of Regulatory Law through Compliance Law in the European project"), which is part of the special issue La régulation par la compliance, perspective européenne, published in French by the Revue des affaires européennes (Law and European Affairs). - ► Summary of this Working Paper: Compliance Law is neither a method of obeying regulations, nor a simple neutral method of ensuring the effectiveness of norms, nor a means of enforcement displaced from Ex Post to Ex Ante.  It is an extension of Regulatory Law and goes beyond it. Like it, it aims to build spaces according to a political project specific to an area, such as Europe. Branch of Law looking to the future as Regulatory Law does, it constructs and maintains, in a systemic way, sustainable, albeit unstable, balances to achieve the 'Monumental Goals' in which its normativity resides: : security, sustainability, probity, truth, and dignity. By internalising these Monumental Goals in the companies in a position to achieve them, the "crucial companies", Compliance Law preserves the logic of Regulatory Law, offering it a prodigious expansion since it frees it from the condition of a sector and territorial borders, which seemed tautological, by associating private powers and public will, which remains primary. In this way, Compliance can regulate the digital space and climate issue through political choices made by a sovereign Europe. -   🔓read the developments below⤵️

► Full Reference: M.-A. Frison-Roche, The role of the Judge in the deployment of Regulatory Law through Compliance Law, Working Paper, April  2023. - 🎤 This working paper was drawn up to serve as the basis for the concluding summary session of the colloquium organised by the Conseil d'État (French Administrative Supreme Court) and the Cour de cassation (French Judicial Supreme Court), De la régulation à la compliance: quel rôle pour le juge? ("From Regulation to Compliance: what role for the Judge?") held on 2 June 2023 at the Conseil d'État.  - 📝 This working paper also served as the basis for the article that concludes the book De la régulation à la compliance : quel rôle pour le juge, published by the La Documentation Française, 2024. - ► Working Paper Summary: It is remarkable to note the unity of conception and practice between professionals who tend to work in administrative jurisdictions and professionals who tend to work in judicial jurisdictions: they all note, in similar terms, an essential movement: what Regulatory Law is, how it has been transformed into Compliance Law, and how in one and even more so in the other the Judge is at the centre of it. Judges, as well as regulators and European officials, explain this and use different examples to illustrate the profound transformation this has brought about for the law and for the companies responsible for increasing the systemic effectiveness of the rules through the practice and dissemination of a culture of compliance. The role of the judge participating in this Ex Ante transformation is renewed, whether he is a public law judge or a private law judge, in a greater unity of the legal system.   - 🔓read the Working Paper below⤵️ - 🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

► Full Reference : N. Moreno Belloso & N. Petit, "The EU Digital Markets Act (DMA). A Competition Hand in a Regulatory Glove", (2023) 48 European Law Review 391, available at SSRN: https://ssrn.com/abstract=4411743 - ► Summary of the article (made by the Authors) : "The newly enacted Digital Markets Act (DMA) finds itself at a crossroads. The DMA can develop into a specialist field of competition law for digital platforms or it can evolve into a new field of EU law, detached from competition law. The DMA’s ultimate trajectory will depend on the legal characterization given to the DMA. Is it a special competition law regime or an original instrument distinct from competition law? This paper lays the groundwork for characterizing the DMA by offering a complete descriptive analysis of the instrument. Among the elements discussed are the twin concepts of “gatekeepers” and “core platform services”, which together condition the DMA’s scope of application, as well as the legal obligations imposed on gatekeepers. The paper proposes a novel categorisation of the obligations, showing that each obligation can be associated with at least one of two conventional competition law concerns (exclusion or exploitation). The discussion shows the difficulty of pinpointing the exact nature of the DMA. We argue that this ambiguity creates challenges for the practical implementation of the DMA.". - 🦉This article is available in full text to those registered for Professor Marie-Anne Frison-Roche's courses -

► Full Reference: J.-Ch. Roda, "Compliance, Internal Investigations and International Competitiveness: What are Risks for the French Companies (in the Light of Antitrust Law)?", in M.-A. Frison-Roche (ed.), Compliance Monumental Goals, Journal of Regulation & Compliance (JoRC) and Bruylant, "Compliance & Regulation" Serie, 2023, pp. 355-368. - 📘read a general presentation of the book, Compliance Monumental Goals, in which this article is published - ► Summary of the article: The author draws on American and European Competition Law to measure whether internal investigations, as far as they provide factual elements, can provide foreign authorities and competitors, here American, with "sensitive information" (notably via leniency programs), and as such constitute a competitive handicap. But this turns out to be quite difficult, whereas compliance audits, for example under the legal duty of vigilance, can provide American litigants with useful information, drawn from internal documents, in particular the reports of compliance officers, which can be captured by procedures of discovery. French Law remains weak in the face of these dangers, due to its refusal to recognise the legal privilege mechanism concerning these internal documents, contrary to American Law and the consequent effectiveness of discovery in international procedures, concerning internal documents, in particular resulting from internal investigations. Solutions have been proposed, the activation of a new conception of blocking statutes being complex, the prospect of adopting a legal privilege being more effective, but there would remain the hypothesis of an international conflict of privilege, American Law having a strict design of legal advice justifying it and judges checking that powerful companies do not use it artificially. - 🦉This article is available in full text to those registered for Professor Marie-Anne Frison-Roche's courses -

► Full Reference: B. Deffains, "L’enjeu économique de compétitivité internationale de la compliance" ("The economic challenge of international competitiveness of Compliance"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, pp. 355-366. - 📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published - ► Summary of the article (done by the Author, translated by the Journal of Regulation & Compliance) :  "Compliance", which can be define as obedience to the regulations is a stake for the company in that it can choose as a strategy to do it or not to do it, according to what costs it and brings it such a choice. This same choice of understanding is offered to the author of the norm, the Legislator or the Judge, even the entire legal system making regulation more or less expensive, and compliance with it for businesses. So when the French law known as “Vigilance law” was adopted in 2017, the French Parliament was criticized for dealing a blow to the “international competitiveness” of French companies. ”Today, it is on its model that the  European Directive is conceived. The extraterritoriality attached to Compliance Law, often presented as an economic aggression, is nevertheless a consubstantial effect, with its desire to claim to protect beyond borders. , coming us back to a classic question in Economics: what is the price of virtue? To fuel a debate that began a few centuries ago, it is on the side of the issues that the analysis must be made economically. Indeed, Compliance Law is not only located in Ex Ante, to prevent, detect, remedy, reorganize the future, but also claims to face more "monumental" difficulties than traditional branches of Law. And it is concretely by examining the new instruments that Compliance Law has put in place and offered or imposed on companies that the question of international competitiveness must be examined. The mechanisms of information, secrecy, accountability or responsibility, which have a great effect on the international competitiveness of companies and systems, have changed and their measure has not yet been taken. -

► Full Reference: M. Malaurie-Vignal, "Les buts monumentaux du droit du marché. Réflexion sur la méthode" ("The Monumental Goals of Market Law. Reflections on the method"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, pp. 85-100. - 📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation & Compliance):  The analysis done by this article is about Competition Law, and the methodology needed to be adopted for the technical functioning of this branch of Law. Taking up the various economic and legal theories on this subject, conceptions which have succeeded and clashed, the author develops that the monumental goal of Market Law is to develop an economic environment favorable to businesses and consumers, then asks the question if it could integrate an ethical dimension and more broadly non-economic considerations, in particular humanistic ones. -

► Full Reference: J.-Ch. Roda, "Compliance, enquêtes internes et compétitivité internationale : quels risques pour les entreprises françaises (à la lumière du droit antitrust) ?" ("Compliance, internal investigations and international competitiveness: what are risks for the French companies (in the light of Antitrust Law)?"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, pp. 367-380. - 📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation & Compliance): The author draws on American and European Competition Law to measure whether internal investigations, as far as they provide factual elements, can provide foreign authorities and competitors, here American, with "sensitive information" (notably via leniency programs), and as such constitute a competitive handicap. But this turns out to be quite difficult, whereas compliance audits, for example under the legal duty of vigilance, can provide American litigants with useful information, drawn from internal documents, in particular the reports of compliance officers, which can be captured by the procedures of discovery. French law remains weak face of these dangers, due to its refusal to recognize the legal privilege mechanism concerning these internal documents, contrary to the American Law and the consequent effectiveness of discovery in international procedures, concerning internal documents, in particular resulting from internal investigations. Solutions have been proposed, the activation of a new conception of blocking laws being complex, the prospect of adopting a legal privilege being more effective, but there would remain the hypothesis of an international conflict of privilege, American Law having a strict design of legal advice justifying it and judges checking that  powerful companies do not use it artificially. -

🌐 follow Marie-Anne Frison-Roche on LinkedIn 🌐 subscribe to the Newsletter MAFR Regulation, Compliance, Law  - ► Full reference: M.-A. Frison-Roche, Regulatory and Compliance Law, expression of the missions of a professional Order, Working Paper, July 2022. - 🎤 This Working Paper has been done as basis for an intervention in the Annual Congress of the French Professional Order of the Géomètres-Experts, September 15, 2022 (conference given in French)  - 🎥watch the short presentation of this speech (in French)  - 🎥watch the full speech given on 15 September 2022, based on this working paper - ► Summary of the Working Paper: Professional orders should not present themselves as exceptions, however legitimate they may be, in relation to a principle, which would be the competitive system, but as the expression of a principle. This principle is expressed by two branches of Law whose importance is constantly growing in European Law, liberal branches which are based on the conception of economic life and the definition of company, turned towards the future: the Regulatory Law and Compliance Law, two branches of Law at the same time related and distinct. Indeed, and this is the topic of the first part, Competition Law conceives professional orders as exceptions since these "corporations" constitute structural agreements. French domestic legal system both consolidates the professional orders by backing them up to the State, which would sub-delegate its powers to them, but involves them in the questioning by the European Union of the States and their tools. Most often the temptation is then to recall with a kind of nostalgia the times when the professional orders were the principle but, except to ask for a restoration, the time would be no more. A more dynamic approach is possible, in accordance with the more general evolution of Economic Law. Indeed, the Professional Order is the expression of a profession, a little-exploited concept in Economic Law, over which the Order exercises the function of "Second-level Regulator", the public authorities exercising the function of "First-level Regulator". The Banking and Financial Regulatory Law is built in this way and operates thank to that, at national, European, and global level. This is what should be linked. The Professional Orders therefore have the primary function of spreading a "Culture of Compliance" among the professionals they supervise and beyond them (clients and stakeholders). This culture of Compliance is developed regarding the missions which are concretized by the professionals themselves. Therefore, the second part of the Working Paper deals with the legal evolution of the notion of "Mission" which has become central in Economic and General Law, through the technique of the mission-based company. However, there are multiple points of contact between the raison d'être, the company with a mission and Compliance Law as soon as the latter is defined by the concrete and overly ambitious goals that it pursues. : the Monumental Goals. Each structure, for example the French Ordre des Géomètres-Experts, is legitimate to set the Monumental Goal that it pursues and that it inculcates, in particular the conception of territory and the living environment, joining what unites all the Monumental Goals of Compliance: concern for others. The French Ordre des Géomètres-Experts, is adequate because it has a more flexible relationship, both tighter and broader, with the territory than the State itself. By instilling this in professionals, the Professional Order develops in the practitioner an "ex ante responsibility", which is a pillar of Compliance Law, constituting both a charge and a power that the practitioner exercises, and of which the Professional Order must be the supervisor. - 🔓read the Working Paper⤵️