Europe

Among all the things that were important to remember, one of the things that struck me most in the extraordinary conference of the President of the Court of Justice of the European Union Koen Lenaerts on "Europe of the Compliance "held on March 2, 2018 was his ability to make" live Europe ". Not only to make it understand but also to make it "live". Here is the challenge: that compliance is not an accumulation of processes without reason and without flesh, but a living whole taking its meaning into consideration of the human being, a person whose judge is concerned. On 2 March 2018, Koen Lenaerts therefore came to an amphitheater at the University Panthéon-Assas (Paris 2) to inaugurate the series of conferences organized by the Journal of Regulation & Compliance (JoRC), a cycle that has the general title: Pour une Europe de la Compliance (For the Europe of Compliance). The School of Public Affairs of Sciences Po, the Department of Economics of Sciences Po, the Ecole doctorale de droit privé  (Doctoral School of Private Law) at the Université Panthéon-Assas- Paris 2 (Panthéon-Assas University – Paris 2) and the School of Law of the University Panthéon-Sorbonne (Paris I), are associated with this cycle. Many personalities will take the floor. Presented by Professor Thierry Bonneau, the conference made by President Koen Lenaerts was extremely rich and solid, perfectly constructed. Everyone had known the quality of the conference to be delivered by the President of the CJEU. The content of his demonstration will be found in the article he will give for the book that will be published in the Régulations & Compliance Series edited by Marie-Anne Frison-Roche at Éditions Dalloz. And the reader will find all the strength of this demonstration. This is necessary to venture into this area of "Compliance" : Koen Lenaerts recalled that we were still looking for the definition and a French term that would do justice to a satisfactory definition¹Frison-Roche, M.-A., Compliance Law, 2016.. This question was echoed by Antoine Garapon in his discussion. Embodying the firmness that must be shown when words are uncertain, President Koen Lenaerts emphasized that the European Union is based on "Rule of Law". This means that the behaviors must respect Law. For that, – and that is why it is necessary to take in the literal sense the English expression "to comply with", the enterprise must not be passive but to make sure that its behavior is actually respectful of legal prescriptions. In this, there is a general paradigm shift, which inverses the relation betwenn the operator and the rules, from the Ex Post to the Ex Ante²On this passage, which internalises the "Regulatory Law" in the company, c. not. Frison-Roche, M.-A., From Regulation Law to Compliance Law, 2017, and the book, Régulation, Supervision, Compliance (Regulation, Supervision, Compliance), 2017.  as the entreprise has to be itself active to secure the effectiveness of the rule of Law. This internalization of the rule by the company develops both a procedural culture and a behavioral culture, in which companies can express an ethical dimension and build a "Trust Pact" ³About this notion, s. Frison-Roche, M.-A., Compliance and Trust, 2017 ; Drawing the Circles of Compliance Law, 2017. with states and public authorities. This change has been brought about by globalization, since states no longer have the means to impose ethical norms of behavior on businesses through the Ex Post intervention of their jurisdiction, but States like companies are gaining the benefit of this internalisation of rules in compagnies because the Compliance is inseparable from the accountability by which the company is compelled to justify that it actually tends to achieve the overall goals assigned by the public authority. Thus, after exposing the general movement by which Europe opened up to this upheaval, President Koen Lenaerts took on three technical dimensions crossed by this new conception. The first is the Financial Markets Law. The second is Competition Law, about which the President has notably developed the Court's reflections on whether the adoption of a compliance program by an enterprise found to have violated Competition Law, in particular by "negligence" is neutral, or constitutes a mitigating circumstance or constitutes an aggravating circumstance. This question was taken up after the presentation in the discussion with the room. The third is that of personal data. Taking again as in a waltz with three times his remarks, the president of the Court of Justice found that the compliance, whereas it consists in transforming the Ex Post into Ex Ante becomes juridicalised and in this the Court of justice holds its not only in Europe but also in relation to the world, without however ever forgetting that it is the States that are drawing up the rules that are the foundation of Europe. We will find in the article that will be published all these precious elements and no doubt that the elegance of the pen will be equal to that of speech. But, written exercise requires, the reader will not find what we had the chance to attend: the story of two cases by the one I would prefer to name the "Professor Koen Lenaerts". Two famous cases, which we teachers, comment and remind in our courses, that students learn and recite, quote in their copies. But never that way. The first case is the Schrerms case, where the court said that Facebook could not transfer this person's personal data to the United States since he was opposed to it. To make it clear, the President revived it through the litigant, who was a student and for this reason he spoke directly to the students present in the amphitheater. He pointed out that the plaintiff at the origin of the case was a law student, like them. He detailed his situation in Austria, making some quotes in perfect German, pointing out that this student was now at the doctoral stage, inviting students to be brave, as he was. At each episode of the story, the speaker told the students, making some detours on his own student life because finally we were all in family … Alma Mater. But his hands were telling the story even more: they were thrown themselves into the story, they brewed the space, it seemed as if they themselves were no more grandiloquent than the speaker but found their place exactly , in a magisterial position. Yes, here is a president in front of which companies have a hard time hiding the truth, a president with such firm hands and whose torso does not move but turns to the left and right to talk to everyone. The second story was even more beautiful. The Google Spain case, I know it. I even know it by heart. I read it, commented on it, cited it a lot of times … But all of a sudden that's what happened to a small Spanish merchant: President Koen Lenaerts told us his story, and I rediscovered the case. A small Spanish shopkeeper, whose name the speaker uttered in perfect Spanish, obtained from the Court of Justice that his "right to be forgotten" was recognized. President underlined the apparent paradox of his  insistence for the appearance of his surname in the judgment by which this person had thus obtained the erasing of his surname! Yes, I did not notice … Why did he ask for the mention of his name in the right to have his name deleted? Because it's a matter of honor. This is what the speaker insisted: do not joke with honor. And if you do, even Google will lose. The merchant had been subject to a forced property sale procedure because of financial difficulty, which spanish newspapers had echoed. His honor was been trampled. Then, by a happy return of fortune, he had recovered his property, his prosperity, his reputation. But from that, the press had not talked about it. Some lines in a newspaper of legal announcements, but that it is nothing for the human soul. That's why he wanted these mechanical digital links to disappear, which always and for all end up with articles presenting him as a wretch without ever ending up with articles presenting him as a prosperous merchant (because of the non-existence of these second articles). The speaker emphasized this dimension very much. And we know that the General Regulations that will come into force in May 2018 on personal data, which intrigues so much the Americans, draws in the judgment Google Spain its main solution in the matter: this "right to be forgotten" , subjective right so strange. He emphasized this dimension very much. And we know that the General Regulations that will come into force in May 2018 on personal data, which intrigues so much the Americans, draws in the judgment Google Spain its main solution in the matter: this "right to be forgotten" , subjective right so strange. Listening to President Koen Lenaerts, how not to think of Carbonnier? to  his articles of it, especially on sociological rule : "small causes, great effects"? From this conference, it will remain a great article, but as in the theater, where the ephemeral is part of the beauty of this art, what were these two stories, told by the one who knew how to listen when it was necessary to decide the two cases, stories told with the two firm hands that danced inviting students to enter this round, even as the President of the Court of Justice had to leave immediately to Luxembourg to hold such heavy obligations, yes it was simply beautiful .    

Full reference: Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Directive 2003/71/EC Read the regulation 

Reférence complète : Frison-Roche, M.-A., Les fonctions de la Compliance. Un choix politique à faire ("The functions of Compliance. A political choice to do"), in  Borga, N. et Roda, J.-Ch. (dir.), La compliance : nouveaux enjeux pour les entreprises, nouveaux rôles pour les juristes ? ("Compliance: new challenges for companies, new roles for lawyers?"), Centre du Droit de l'entreprise Louis Josserand, Université Lyon IIII Jean Moulin, France, Lyon, 2 juin 2017. Read the program (in French) Summary of the conference : Compliance mechanisms are being constituted in "Compliance Law", new branch of Economic Law. Its functions are determined by the goals. But the goals are "monumental", since it is nothing less than the end of corruption, trading in influence, arms trafficking, international terrorism, trafficking in human beings, selling of human organs, the effective safeguard of environmental protection, safeguarding the planet, access to culture for all, preservation of civilization, the effectiveness of human rights … The goals of a company are not a priori of this order, even if every firm understands that it is clever to appear amiable. By comparing the two types of goals, a difference of nature is measured. By the Compliance Law, companies are therefore invited to "get out of themselves. Consequently, the functions that shape the contours of Compliance Law transform those who are the "subjects of law", the enterprises: these are the subjects, insofar as they are agents of legality. But this can not be the case for all companies. If the effect of Compliance were to be generalized to all companies, this would be catastrophic and would make no sense. However, who firmly and precisely drew the circle of "legal subjects eligible to be the legality agent" of Compliance? With the considerable costs and responsibilities that go with it? If it has not been the Legislator, it will have to be the Judge. Because the judge is guardian of the spirit of Law and guardian of legal orders. Especially if it is a global legal order. - Moreover, companies are not only passive subjects of Compliance Law – which would be the case of a misunderstood Compliance Law – but are also active subjects of Compliance Law. Indeed, these "monumental goals" which draw the functions of the Compliance are exactly the same as those of the Corporate Social Responsibility. Thus, if the Compliance is conceived of only as an immense and empty submission of all undertakings to total regulation, the result will be an opposition between the regulatory power and the will of undertakings, a concrete opposition between public authorities and companies. If, on the other hand, we conceive Compliance Law as that by which "crucial enterprises" like the Regulators are moving towards the realization of "monumental goals, then Compliance Law crystallizes a" Trust Pact""between the two, Which goes beyond the borders and becomes a means of regulating globalization. This second conception is the future of European Law. -   See the slides (in French). Read the working paper on which the conference is based (working paper in English)

► Full Reference: Frison-Roche, M.-A., Globalization from the point of view of Law, working paper, May 2017. - 🎤 This working paper initially served as a basis for a synthesis report made in French in the colloquium organized by the Association Henri Capitant in the International German Days on the subject of "Le Droit et la Mondialisation" (Law and Globalization). 📝 Il sert dans un second temps de base à l'article paru dans l'ouvrage La Mondialisation. 📝 it serves as a second basis for the article (written in English, with a Spanish Summary) to be published in the Brezilian journal Rarb – Revista de Arbitragem e Mediação  (Revue d`Arbitrage et Médiation). It uses the Bilingual Dictionary of the Law of Regulation and Compliance. - ► Summary of the Working: Globalization is a confusing phenomenon for the jurist. The first thing to do is to take its measure. Once it has been taken, it is essential that we allow ourselves to think of something about it, even if we have to think about it. For example, on whether the phenomenon is new or not, which allows a second assessment of what is taking place. If, in so far as the law can and must "pretend" to defend every being, a universal claim destined to face the global field of forces, the following question – but secondary – is formulated: quid facere? Nothing ? Next to nothing ? Or regulate? Or can we still claim that the Law fulfills its primary duty, which is to protect the weak, including the forces of globalization? - read the Working Paper below⤵️

In Europe, Community Law prohibits States from providing aid to companies, which are analyzed as means for the benefit of their country which the State cares about (and sometimes wrongly)  having the effect and maybe the object of maintaining or constructing borders between peoples, thus contradicting the first European political project of a common area of peace and exchanges between the peoples of Europe. That is why this prohibition does not exist in the United States, since Antitrust Law is not intended to build such a space, which is already available to businesses and people. This essential difference between the two zones changes industrial policies because the US federal Government can help sectors where Member States can not. The European prohibition of State Aid can not be called into question because it is associated with the political project of Europe. This seems to be an aporia since Europe is handicapped against the United States. In any form it takes, Aid is prohibited because it distorts equality of opportunity in competition between  operators in the markets and constitutes a fundamental obstacle to the construction of a unified European internal market. On the basis of this simple principle, a branch of technical and specific law has developed, because States continue to support their entreprises and sectors, and many rules and cases divide this principe of prohibition into as many exceptions and nuances. Is built over the years a probation system related to it. Thus, the concept of a public enterprise was able to remain despite this principle of prohibition. But if there is a crisis of such a nature or magnitude that the market does not succeed by its own forces to overcome and / or the European Union itself pursues a-competitive objectives, exogenous Regulation, which can then take the form of legitimate State Aid. Thus a sort of synonymy exists between State Aid and Regulation. For this reason, the European institutions have asserted that State Aid becomes lawful when it intervenes either in strategic sectors, such as energy production in which the State must retain its power over assets, or the defense sector. Far from diminishing, this hypothesis is increasing. European Union Law also allows the State to intervene by lending to financial operators threatened with default or already failing, the State whose function is to fight systemic risk, directly or through its Central Bank. The aid can come from the European Central Bank itself helping States in issuing sovereign debt, the Court of Justice having admitted in 2015 the non-conventional monetary policy programs compliance with the treaties. In 2010, the European Commissioner for Competition stressed that public aid is essential tools for States to deal with crises, before regulations come to the fore in 2014 to lay the foundations of the European Banking Union.

Complete reference: Adalid, S., La Banque centrale européenne et l'Eurosystème. Recherche sur le renouvellement d'une méthode d'intégration, préf de Michaël Karpenschif et Blanche Sousi, Avant-propos de Christian Noyer, collection "droit de l'Union européenne", Bruylant, 2015, 753 p. Read the table of contents. Read the preface. Read the foreword.    

 Bank and Competition do not mix. It is not so much that the banks would act as repeat offenders on which the competition authorities should raise the tone by increasingly heavy penalties so that the competitive lesson is finally heard. It is rather two orders confronting each other, two incomprehensions face to face. Indeed, the banks find it appropriate to agree in order for the banking system to function. Moreover, governments demand them political behavior by financing the economy when the economy does not rely on financial markets. Hence, how would they themselves behave in a market consisting of selfish behavior and aggression towards their counterparts? If we plunge into this melting pot of incomprehension that engenders the violent clash between the banks, which evoke their mission, even their duty, and the competition authorities which avail themselves of theirs, we run into the pitfall of the definition even of what a bank is. It can be estimated that a bank is a provider of various services, operating in competing markets. In this perspective, the law ensures the proper functioning, the authorities that keep the efficiency of the markets seizing the banks that carry out their activities. But if we choose to insist that banks are what make the economy work and strengthen the social bond, then they are an integral part of their own system: the banking system. Moreover, the latter is an essential element of society, a perspective in which competition is merely contiguous. The more Europe manages to build banking Europe, the more it elaborates a mechanism for resolving difficulties, the more the bank is above all a matter of State and not of financial markets. In what is the political course of the history of peoples, competition ceases to be its first measure. It is therefore necessary to start from the undisputed existence of banking markets and the competitive mechanism which the law correlates with (I)). But the scale of the resistance reveals that it seems to have intentionally or not to have passed on the elementary and the essential: the very definition of what is a bank II. If it is accepted that the bank is the operator of the banking system, which fuels the economy as a whole, then competition law has only an adjacent role and can not constitute its backbone (III). The European Banking Union is demonstrating this.  

We sometimes believe Law is the new rules decided by the binding power of the State, rules which are only "positive law". This is false. Because current Law is the result of History (I), it is easy to see it through French institutions built in historical periods and conserved (II). But if it is true, how to really build Europe ? (III). I. Current Law is the result of History. Thus, the French law that governs us is the result of the history of French law, which itself was "polished" by the History of France. It cannot  be understood if one ignores everything that happened before, because history is still alive in the present legal rules. The Roman law, that medieval law, the law of the Old Regime, the "intermediate law" of the French Revolution are all present. Therefore, the strong influences of the North American law after the Second World War and European integration can cause some problems. Certainly, the law as it is an autonomous normative system raised its neutrality with respect to historical facts, especialy with cases on Nazis' behavior or genocides, but it is not a simple question. II. This impregnation of the law by its History says that all French institutional organization is marked by its history, including politics, the primary role of the executive, the place given to Parliament, the little regard for the Constitution, and aggressive ignorance of the judge is rooted in the French history. The French judicial organization itself is the result of the history of France, by the duality of orders of courts, as are the judicial courts in the relationship between the seat and the floor. III. Today, we tend to undermine the relationship between Law and History. If we don't, how do we build Europe between such different Nations? Whereas Europe includes Common Law countries and countries of Civil Law? If we don't separate Law and History, then Europe should only be a market area, except in finding a common core to all European histories, that could be the respects of human beings.