Goal

Full reference: Frison-Roche, M.-A., Due process and Personal Data Compliance Law: same rules, one Goal (CJEU, Order, October 29, 2020, Facebook Ireland Ltd v/ E.C.), Newsletter MAFR – Law, Compliance, Regulation, 1st of November 2020 Read by freely subscribing other news of the Newsletter MAFR – Law, Compliance, Regulation Read Marie-Anne Frison-Roche's interview in Actu-juridiques about this decision (in French)   Summary of the news:  As part of a procedure initiated for anti-competitive behaviors, the European Commission has three times requested, between the 13th of March and the 11th of November 2019, from Facebook the communication of information, reitarated in a decision in May 2020.   Facebook contests it alleging that the requested documents would contain sensitive personal information that a transmission to the Commission would make accessible to a too broad number of observers, while "the documents requested under the contested decision were identified on the basis of wideranging search terms, (…) there is strong likelihood that many of those documents will not be necessary for the purposes of the Commission’s investigation".  The contestation therefore evokes the violation of the principles of necessity and proportionality but also of due process because these probatory elements are collected without any protection and used afterwards. Moreover, Facebook invokes what would be the violation of a right to the respect of personal data of its employees whose the emails are transferred.  The court reminds that the office of the judge is here constraint by the condition of emergency to adopt a temporary measure, acceptable by the way only if there is an imminent and irreversible damage. It underlines that public authorities benefit of a presumption of legality when they act and can obtain and use personal data since this is necessary to their function of public interest. Many allegations of Facebook are rejected as being hypothetical.  But the Court analyzes the integrality of the evoked principles with regards with the very concrete case. But, crossing these principles and rights in question, the Court estimates that the European Commission did not respect the principle of necessity and proportionality concerning employees' very sensitive data, these demands broadening the circle of information without necessity and in a disproportionate way, since the information is very sensitive (like employees' health, political opinions of third parties, etc.).  It is therefore appropriate to distinguish among the mass of required documents, for which the same guarantee must be given in a technique of communication than in a technic of inspection, those which are transferable without additional precaution and those which must be subject to an "alternative procedure" because of their nature of very sensitive personal data.  This "alternative procedure" will take the shape of an examination of documents considered by Facebook as very sensitive and that it will communicate on a separate electronic support, by European Commission's agents, that we cannot a priori suspect to hijack law. This examination will take place in a "virtual data room" with Facebook's attorneys. In case of disagreement between Facebook and the investigators, the dispute could be solved by the director of information, communication and medias of the Directorate-General for Competition of the European Commission.  - We can draw three lessons from this ordinance:  This decision shows that Procedural Law and Compliance Law are not opposed. Some often say that Compliance guarantees the efficacy and that Procedure guarantees fundamental rights, the protection of the one must result in the diminution of the guarantee of the other. It is false. As this decision shows it, through the key notion of sensitive personal data protection (heart of Compliance Law) and the care for procedure (equivalence between communication and inspection procedures; contradictory organization of the examination of sensitive personal data), we see once again that two branches of Law express the same care, have the same objective: protecting people.  The judge is able to immediately find an operational solution, proposing "an alternative procedure" axed around the principle of contradictory and conciliating Commision's and Facebook's interests has shown that it was able to bring alternative solutions to the one it suspends the execution, appropriate solution to the situation and which equilibrate the interest of both parties.  The best Ex Ante is the one which anticipate the Ex Post by the pre-constitution of evidence. Thus the firm must be able to prove later the concern that it had for human rights, here of employees, to not being exposed to sanctioning pubic authorities. This Ex Ante probatory culture is required not only from firms but also from public authorities which also have to give justification of their action.    -    

Référence complète : Frison-Roche, M.-A., Le maniement de la propriété intellectuelle comme outil de régulation et de compliance, in Vivant, M. (dir.), Les Grands Arrêts de la propriété intellectuelle, 3ième éd., 2019, 9-11, pp. 43-53. This contribution is written in French. Summary:  Intellectual Property, which comes from the State and is incorporated into public policy, can be designed not to reward the creator a posteriori, but to encourage others to innovate. It is then an Ex Ante regulatory tool, an alternative to the subsidy. If private copying is an exception, it is not in relation to the principle of Competition but in an insertion into a system of incentives, starting from the costs borne by the creator of the first innovation: the rights holder is then protected , not only according to a balance of interests involved but in order not to discourage innovative potentials and the sector itself. (1st decision) ; The sectoral policy then permeates Intellectual Property, used to regulate a sector, for example that of the drug. While it is true that a laboratory wishing to market a generic drug did not wait for the expiration of the patent for the original drug to do so, it is however not relevant to sanction this anticipation by a few days because the investments made by the holder of the Intellectual Property right have been made profitable by this one and because the public authorities favor the generics in a concern of public health (2nd decision). Systemic interest prevails and therefore Internet service providers have to bear the costs of blocking access while they are irresponsible because of the texts. This obligation to pay is internalized by Compliance Law because they are in the digital system best able to put an end to the violation of Intellectual Property rights which the ecosystem requires to be effective. (3rd decision).   Read the contribution (in French).   Read the Working Paper written in English having served as a basis for this contribution and endowed with additional developments, technical references and hypertext links.  -

Watch the video explaining the content, meaning and scope of the decision made by the Conseil d'État (French Council of State) on November 15, 2019, La Banque Postale v. Autorité de contrôle prudentiel et de résolution (ACPR). The Autorité de contrôle prudentiel et de résolution – ACPR (French Authority of prudential control and resolution) pronounced a very high sanction, representing 7% of La Banque Postale's net annual result. The breach is constituted by the fact of not having prevented the use of the banking technique of the "money order" which was used to escape the freezing of the assets. The Conseil d'État recalls that by nature if the assets are frozen, it is not possible that anyone is able to dispose of these assets. However, by the use of "money orders", persons targeted by asset freezing decisions, tools used in connection with the fight against money laundering and the fight against terrorism, had been able to circulate money to from accounts managed by La Banque Postale, of which they were not customers. This case was not foreseen at the time when the Bank Postale was sanctioned by the ACPR for not having prevented such a use, the texts forcing it under its obligations of "conformity" to prevent this behavior of violation background gels on the part of his customers, but only that. This case of a use of a means by a person who is not a customer of the bank was not foreseen at the time when the alleged facts took place and the Bank claims not to be able to be punished since in the repressive matter it is necessary to respect the principle of non-retroactivity of the texts, – in this case texts later supplemented to aim at such an assumption -, the non-retroactivity being a major principle itself related to the principle of the legality of the offenses and the penalties. We are therefore in the hypothesis of a silence of the texts. What to decide? Can the Bank be condemned and so heavily or not by the ACPR? The Bank does not think so.  It acted against this sanction decision firstly because those who used these money orders were not its clients. It has strong reasons to avail itself of this fact, since subsequently the texts needed to be modified to aim not only the use of this technique of money order by those who have a count in the bank and also by those who act with cash through the bank without a count, that is to say without an account holder to look at. Because we are in criminal matters, the restrictive interpretation and non-retroactivity of the text should lead to follow the reasoning of the Bank. But the Conseil d'État does not because it considers that implicitly but necessarily even with this subsequent modification of the text, it had aimed that use before. By this way, the Conseil d'Étatuncil develops a very broad concept of the obligations of banks in their role in the fight against money laundering, and therefore a very repressive point of view, which permeates their "obligation of Compliance". Thus, when the bank also argues that it can not be sanctioned since for it this activity of money order is  deficit and that it did not cause harm to its customers even by assuming badly its obligations, theConseil d'État stresses that this is not a pertinent perspective since the Compliance obligations falls within the "overriding general interest of protection of public order and public security, to which the freezing of assets legislation responds". -   Read the  judgment of the Conseil d'État ( in French). 

Experience shows that in the digital the legal technique of consent is not protective enough.   If only because a simplest technology neutralizes the link that should exist between the "consent" of the user and the "free will" of the latter: the consent of the user only protects the latter to the extent that this one can in Law and in fact to say "no.     I. THE EXPERIENCE    For example I found on my Facebook New an access to an unknown web site which puts online an article on "the rights of trees" … I go. In accordance with the European Regulation (GDPR) transposed into French legal system, the site informs that there is possibility for the user to accept or refuse the use of their personal data for the benefit of "partners". If they continue reading, the user is supposed to accept everything, but they can click to "customize". I click: there I find two options: "accept everything" or "reject everything". But the "reject all" option is disabled. It is only possible to click on the "accept all" option.   It is also possible, because the law obliges, to consult the list of the partners of this website: I click and find a list of unknown companies, with foreign denominations, which without doubt once will collect my personal data (and those of my contacts) , having their own head office outside the European Union. It is stated in a text, which can not be copied, that these "partners" can use my data without my consent and for purposes that they do not have to inform me. But, again, these things I can "refuse everything". Here again the "reject all" mention exists but the fonctionality is not active, while the mention "accept all" is an active fonctionality.   As I can not refuse (since it's disabled), and as 99% of Internet users have never clicked on the first two buttons, all their data has been fed into the data market that allows the targeting of products that spill out in the digital space, to their detriment and that of their contact. While believing to read a free article on the "right of the trees". At the end, I do not read this article, since I did not click on the only active buttons: "accept everything".   In more than 50% of cases, the "reject all" or "customize" options are only images but are not active. And data absorption is also about contacts. In exchange for a whimsical article about trees and their rights, or creams to be always young, or celebrities who change spouses, or about so-called tests to find what king or queen you should be if the all recognized all your merits, etc. Proposed on the digital news feed by unknown sites; in partnership with foreign companies that you will never reach. And mass-viewed by Internet users who are also told that "consent" is the proven solution for effective protection …. While these are just panels hastily built by new Potemkins …   II. WHAT TO DO ?    1. Not be satisfied with "consent" from the moment that it is a mechanism that may not be the expression of a free will: how could it be if the option "to refuse" is not active?   2. The link between will and consent must therefore be "presumed" only in a simple presumption and in a non-irrefutable way, because we must refuse to live in a dehumanized society, operating on "mechanical consents", to which the digital does not lead necessarily.   3. Entrust by the Compliance Law to the "crucial digital operators" (in the case of Facebook thanks to which these proposals for free reading are made on the thread of news of the Net surfers) the care to verify in Ex Ante the effectiveness of the link between Will and Consent: Here and concretely the possibility for the user to read while refusing the capture of all its data (for the benefit of operators who do not even have the concrete obligation to give the information of the use that will be made of these personal data).   -

The European Banking Union is based on supervision as much as on regulation: it concerns the operators as much as the structures of the sector, because the operators "hold" the sector. This is why the "regulator – supervisor" holds the operators by the supervision and is close to them. He meets them officially and in "soft law" relations. This is all the more necessary since the distinction between the Ex Ante and the Ex Post must be nuanced, in that its application is too rigid, in that it involves a long time (first of all the rules, then to apply them, then to notice a gap between rules and behaviors, then to repair it) is not appropriate if the system aims at the prevention of systemic crises, whose source is inside the operators. This is why the body in charge of solving the difficulties of the systemic banks for the salvation of the systeme meets the banking sector itself, to ensure that they are permanently "resolvable", so that the hypothesis of their resolution never arises. This is the challenge of this system: that it is always ready, for never be applying. - In the European Banking Union, the Single Resolution Board (SRB) is in charge of "resolve" the difficulties of European systemic banks in difficulty. It is the public body of the second pillar of the Banking Union. The first pillar is the prevention of these difficulties and the third is the guarantee of deposits. The resolution is therefore more like an Ex Post mechanism. But in this continuum through these three pillars between the Ex Ante and the Ex Post, the SRB does not wait passively – as would a traditional judge do – that the file of the troubled bank reaches it. Like a supervisor – which brings it closer to the first public in the system (Single Supervisory Board -SSB), which supervises all the banks, it is in direct contact with all the banks, and it approaches the hypothesis of a bank in trouble by a systemic perspective: it is therefore to the entire banking system that the SRB addresses itself. As such, it organizes meetings, where he is located: in Brussels. Thus, on June 18, 2019, all banks came to discuss with the Single Resolution Board to know what it wants from the banks and for the banks, in what is called a "dialogue meeting". To resolve in Ex Post the difficulties of a bank, it has to present a quality (a little known concept in Bankruptcy Law): "resolvability". How build it? Who build it ? In its very design and in its application, bank by bank. For the resolution body vis-à-vis all players in the banking and financial sector, it's clear: "Working together" is crucial in building resolvability ". In the projection that is made, it is affirmed that there can be a successful resolution only if the operator in difficulty is not deprived of access to what makes to stay it alive, that is to say the banking and financial system itself, and more specifically the "Financial Market Infrastructures", for example payment services. Does the Single Resolution Board expect spontaneous commitments from the FMIs for such a "right of access"? In this case, as the Single Resolution Board says, this right of access corresponds to "critical functions" for a bank, the resolution situation can not justify the closure of the service. By nature, these crucial operators are entities that report to regulators who oversee them. Who enforces – and immediately – this right of access? When one can think that it is everyone, it risks being nobody …. That is why the resolution body, relaying in this a concern of the Financial Stability Board, underlines that it is necessary to articulate the supervisors, regulators and "resolvers" between them. - To read this program, since it is a proposed program of work for the banking sector, four observations can be made: 1. We are moving more and more towards a general "intermaillage" (which will perhaps replace the absence of a global State, but it is an similar nature because it is always to public authorities that it refers and not to self-regulation); 2. But as there is no political authority to keep these guardians, the entities that articulate all these various public structures, with different functions, located in different countries, acting according to different temporalities, these are the companies themselves that internalize the concern that animates those who built the system: here the prevention of systemic risk. This is the definition of Compliance, which brings back to companies, here more clearly those those which manage the Market Infrastructures, the obligations of Compliance (here the management of systemic risk through the obligation of giving access). 3. Even without a  single systemic guard, there is always a recourse. That will be the judge. There are already many, there will probably be more in a system of this type, more and more complex, the articulation of disputes is sometimes called "dialogue". And it is undoubtedly "decisions of principle" that will set the principles common to all of these particular organisms. 4. We then see the emergence of Ex Ante mechanisms for the solidity of the systems, and the solidity of the players in the systems, and then the Ex Post resolution of the difficulties of the actors according to access to the solidity of the infrastructures of these systems, which ultimately depend on judges (throughout the West) facing areas where all of this depends much less on the judge: the rest of the world. -  

Reference : Frison-Roche, M.-A., Le contrat est-il l'instrument optimal de la RSE ? ("Is the Contract the optimal instrument of CSR?")  in Trébulle, F.-G. (modérateur), Les instruments de la RSE : le contrat (The instruments of CSR"), cycle of conferences organized by the Cour de cassation (French Civil Supreme Court and the Universities of Paris-Dauphine, Paris VIII and Paris I),Cour de cassation, Paris, 11 mai 2017. Read the slides (in French) as served as the basis of the conference les slides Read the program on the Cour de cassation  wesite (in French). Read the program of the whole cycle of conferences in which this conference enters (in French)   Corporate Social Responsibility belongs to Economic Law. It thus enters into its logic of efficiency, leading to apprehend any legal mechanism as an instrument, the contract as the others. This does not mean that everything is only an instrument, on the contrary. Economic Law, when it takes the form of Regulation Law, places the principles in the aims pursued. It is in these principles that it can meet CSR if the goals are the same. In view of these aims, everything is an instrument. On the scale of goals which are "monumental"¹On this notion of "Monumental Goal", see Frison-Roche, M-A., Compliance Law, 2016 ; From Regulation Law to Compliance Law, 2017., in that they are global, in that they seem unattainable, such as the fight against child labor, such as the end of corruption or the sale of human beings, all legal instruments become interchangeable, from the Constitution to the contract, from the hard law to the soft law. The only criterion becomes efficiency to achieve the goal. We then reach the efficiency, criterion of the Regulation Law. New laws, such as in France in 2016 the Sapin 2 law or in 2017 the law establishing a "duty of vigilance" with uncertain contours, may use the contract only as a vehicle for legal obligations to be performed by the company²For a whole demonstration, see Frison-Roche, M.-A.,From Regulation Law to Compliance Law, 2017.. The contract becomes an instrument of the Compliance Law, chosen as the optimal instrument of the Internalized Regulation Law in the company. But the contract can also be chosen as an instrument by the company in that it pursues the same goals of general interest, becoming global³On this notion of "global general interest", and maybe of "global public service", see Frison-Roche, M.A., From Regulation Law to Compliance Law, 2017 .. The contract is then chosen as an Ex Ante tool, which will be refined to the specificity of the company, exceeded the generality of the law and which will be able to resolve the diversity of national laws by more comprehensive contractual relations. Moreover, the contract can integrate active Ex Post mechanisms, such as the warning launcher or the controller, audits, or even form an ecosystem by training clauses to disseminate a CSR culture. By these contractual provisions, the contract operates the mixing of times, the Ex-Ante and the Ex Post, which the legislation can not do, refines it to what the particular enterprise is . In this, the contract converges towards what is being constructed: a Compliance Law.

Through the Open Culture website, it is possible to listen to Hayao Miyazaki who, in March 2017, claimed that video games whose drawings are made on Artificial Intelligence basis are "insults to life". Read below the history, the words that the Master has held, his conception of what is creation and "truly human" work, which is echoed by the definitions given by Alain Supiot, who also reflected on what robots do. This brings us back to the very notion of "creation" and creative work.   - Read below

Translated Summaries In The Journal of Regulation the summaries’ translation are done by the Editors and not by the authors ENGLISH While financial regulation aims at achieving market stability, regulating markets can sometimes take an ironic turn when regulations end up having consequences that differ from their original regulatory purpose. The article provides such an example of regulation’s irony: how a regulatory change in Germany led Moody’s to downgrade 12 banks, therefore weakening such institutions and consequently enhancing the current issues of market volatility and credit cost.   FRENCH Bien que la réglementation financière vise à assurer la stabilité du marché, la régulation des marchés peut parfois prendre une tournure ironique quand la régulation finit par avoir des conséquences qui diffèrent de son objectif de régulation d’origine. L’article fournit un exemple de l’ironie de la régulation : comment un changement de réglementation en Allemagne a conduit Moody’s à déclasser 12 banques allemandes,, donc à affaiblir ces institutions et par conséquent à accroître les problèmes actuels de la volatilité du marché et le coût du crédit. ITALIAN Quando la regolazione è volta ad ottenere la stabilità del mercato, l’evoluzione di questi mercati oggetto di tale regolazione può essere particolarmente ironica quando la regolazione ha delle conseguenze ben differenti da quelle originariamente prepostesi. Questo articolo cerca quindi di mettere in evidenza un esempio di questa ironia: in effetti, un cambio di regolatore in Germania ha portato Moody’s a tagliare il rating di 12 banche, indebolendo ancora di più tali istituzioni ed aumentando si conseguenza le questioni relative alla volatilità del mercato e del costo del credito. ………………….. Other translations forthcoming

Translated Summaries In The Journal of Regulation the summaries’ translation are done by the Editors and not by the authors ENGLISH : In order to establish a competitive energy market, the distribution infrastructure, as a monopolistic segment of energy networks, should be demonopolized. Instruments of economic regulation, which are often attributed ex ante character, are put in place to open the market and enable competitive forces. Unbundling is specific for it may also represent an ex post measure of a structural nature, exerted by competition protection authorities.   FRENCH Afin d’établir un marché énergétique compétitif, l’infrastructure de distribution, en tant qu’il est un segment monopolistique des réseaux d’énergie, devrait être libéralisé. Les instruments de régulation économique, qui sont souvent attribués d’une façon ex ante, sont mises en place pour ouvrir le marché et rendent possibles les forces concurrentielles. Le dégroupage est spécifique, car il peut aussi représenter une mesure ex post de nature structurelle, exercée par les autorités de protection de la concurrence. ITALIAN Per costruire un mercato concorrenziale dell’energia, le infrastrutture di distribuzione, in quanto segmento monopolistico delle reti di energia, dovrebbero essere liberalizzate. A tal fine, sono applicati dei meccanismi di regolazione economica, spesso previsti ex ante, per aprire il mercato e permettere le forze concorrenziali. L’unbundling è particolare, in quanto potrebbe anche costituire un provvedimento ex post di natura strutturale, utilizzato dalle autorità di tutela della libera concorrenza. ……………….. Other translations forthcoming.

Translated Summaries ENGLISH The subject of neutrality brings to my mind a certain number of preliminary ideas and reminiscences. First of all, the image of Buddha comes to mind, because it alone expresses the extent to which neutrality is an endless subject, since by thinking about the fact that he isn’t thinking about anything, Buddha is still thinking about something. It also makes me think of contemporary music’s constant attempts to attain a form of neutrality: yet this goal remains unattainable, because it is evident that the search for the neutral, in a sound or a timbre, can probably never be found.   FRENCH Tout d’abord, la figure du Bouddha, qui exprime à elle seule combien la question de la neutralité est un thème sans fin, car en pensant qu’il ne pense à rien, le Bouddha pense malgré tout à quelque chose. Il me fait penser aussi à la musique contemporaine, à son souci constant d’atteindre une forme de neutralité ; préoccupation à jamais déçue lorsqu’elle reconnaît ultimement que le neutre, en ayant toujours une qualité – un son, un timbre – est probablement introuvable.   SPANISH El principio de los estándares de la neutralidad (el ejemplo de estándares de contabilidad) El tema de la neutralidad trae a luz un cierto número de ideas preliminares. Para comenzar, la figura de Buda viene a mente, porque él sólo expresa la naturaleza interminable que es el tema de la neutralidad, ya que al pensar en el hecho de que él no piensa en absolutamente nada, Buda aún así piensa en algo. También me hace pensar el intento constante de la música contemporánea de alcanzar una forma de neutralidad: pero este objetivo permanece inalcanzable, porque es evidente que la búsqueda de lo neutral, en un sonido o un timbre, probablemente nunca se podrá encontrar. ………………… Other translations forthcoming.

Translated Summaries ENGLISH Article: Neutralization in economically regulated industries using procedural law techniques In itself, regulation does not necessary require judicial review of regulators’ acts, whether the regulator is a ministry or an independent authority. In short, regulators could have the “last word” in all circumstances. However, because of an equal concern for democratic legitimacy and care to respect its international commitments, the French Parliament is convinced that judicial review over regulators’ actions is necessary. - FRENCH Article : La neutralisation dans les secteurs économiques régulés par les techniques procédurales En soi, la régulation n’appelle pas nécessairement un contrôle juridictionnel du régulateur, qu’il soit une administration ou une autorité indépendante. Ce régulateur, sommes toutes, pourrait avoir en toutes circonstances « le dernier mot ». Pourtant, moitié par conviction démocratique, moitié par prudence en raison de ses engagements internationaux, le législateur français s’est convaincu qu’un tel contrôle était indispensable. - SPANISH Artículo: Neutralización en industrias económicamente reguladas usando técnicas del derecho procesal. En sí mismo, la regulación no requiere de revisión judicial de las acciones del regulador, ya sea que el regulador es un ministerio o una autoridad independiente. Para resumir, los reguladores podrían tener la “última palabra” en todas las circunstancias. No obstante, una preocupación por la legitimidad democrática y deseo de respetar sus compromisos internacionales, el Parlamente francés está convencido que una revisión judicial sobre las acciones de los reguladores es necesaria. -   ………………… Other translations forthcoming.

At first glance, associating the terms regulation and neutrality seems to be an oxymoron, to cite Marie-Anne Frison-Roche’s expression*. Before […]

Translated Summaries ENGLISH Two and a half years after having been established by the LME, the French Competition Authority has uncontestably acquired its “place in the sun” amongst the competition authorities of other countries, as demonstrated by multiple indicators.   ITALIAN Articolo: L’Autorità garante della concorrenza tra “regolazione” e politica in materia di concorrenza Due anni e mezzo dopo l’instaurazione da parte del LME, l’Autorità francese garante della libera concorrenza ha trovato il suo posto tra le diverse autorità degli altri paesi, così come è stato dimostrato da diversi indicatori. SPANISH Artículo: La Autoridad de la competencia, entre “regulación” y política competitiva.   Después de dos años y medio de haber sido establecido por el LME, la Autoridad francesa de la competencia ha incontestablemente adquirido su “lugar bajo el sol” entre las autoridades de la competencia de otros países, como demostrado por varios indicadores. ………………… Other translations forthcoming.