Jurisprudence

► Full reference : M.-A. Frison-Roche, "De l'obligation de compliance à l'obligation de vigilance : le rôle du juge (From the obligation of compliance to the obligation of vigilance: the role of the judge)", in Round table De la compliance au devoir de vigilance. Une nouvelle responsabilité des entreprises (From Compliance to the Vigilance duty. A new responsibility for businesses," Lettre des juristes d'affaires, Oct. 2025. - 📝read the article reproducing the entire discussion (in French) - ► Summary of my contribution:  In this debate, the terms of which have been reproduced in the journal, I was asked to explain how the legal system had evolved, first by establishing Compliance Law, built on systemic ambitions to prevent sectoral disasters (banking, finance, energy), ambitions that constitute "Monumental Negative Goals", and then evolving on the one hand "Monumental Positive Goals", namely the protection of human beings involved willingly or unwillingly in these systems, on the other hand, outside even sectors with clearly defined boundaries, such as environmental or digital ambitions. The duty of vigilance extends this regulatory law and gives concrete form to the "compliance obligation" to which companies are subject. It is important to maintain a sense of proportion in the conception of the responsibility attached to it so as not to lose everything. Companies are bound by the goals but must remain free in their choice of means, and in particular be encouraged to use contractual techniques. This measure is entrusted to the judge because, due to the Compliance Jurisdictionalisation, it is at the heart of this new branch of Law, which is developing independently of fluctuations in the regulations. During the discussion, I was asked for my opinion on the ruling handed down by the Paris Court of Appeal on 17 June 2025, known as La Poste case. I pointed out that the comments had often focused only on the developments regarding risk mapping, whereas this ruling first establishes the principle that the vigilance plan is the work of the company's decision-making bodies and is not co-constructed, as consultation is a process of discussion and taking in consideration, which is not the same thing, with the judge himself pointing out that they must not interfere in management. In the discussion, I emphasised that if we were to highlight the essence of what would be a "new responsibility", it would primarily concern a new probative dimension that the company must implement in Ex Ante. The implementation of the CSRD, even if it has been excessively standardised, is in line with this, and this probative culture must be developed. - ⛏️Further reading on the subject : 🕴️M.-A. Frison-Roche (ed.), 📘Compliance Obligation, 2026 🕴️M.-A. Frison-Roche, 📝Vigilance, the front line and integral part of the compliance obligation, 2025 🕴️M.-A. Frison-Roche, 📝Compliance, Vigilance and Civil Liability: put in Order and keep the sense of Reason, 2025 🕴️M.-A. Frison-Roche (ed.), 📘Compliance Jurisdictionalisation, 2024 -   -   - ► Article summary : The  - 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 Overhang Subscribe to the Newsletter MaFR Law & Art

► Full Reference: M.-A. Frison-Roche, ""Juge modeste" ou "check and balance" :alternative aux Etats-Unis, alternative en France" ("modest judge" or "check and balance": alternative in the United States, alternative in France), Newsletter MAFR Law, Compliance, Regulation, 6 October 2025.. - 📧Read by free subscription other news from the MAFR Newsletter – Law, Compliance, Regulation - ► Summary of this article: Recent, if not forthcoming, decisions by the US Supreme Court show that the American political system that was based on the unwritten principle of Check and Balance, requiring the Justices to constitute one Power facing the other two could be replaced by a political system based on the principle of a "modest Justice" enforcing decisions made by the Federal Executive. They would then have a new Constitution. In Western Europe and especially in France, it is possible that the letter of the Constitution, which states that judges are not an autonomous power vis-à-vis the other two powers, will be abandoned and that, in the name of an unwritten principle, the Rule of Law, its transformation into an autonomous Power facing the executive in its own right will be adopted. The path would be exactly the opposite. We would then have changed the Constitution. That's conceivable, and there are many arguments in favour of it. We have to say so. And draw all the consequences. - 📧read below the article published the 6 October dans the Newsletter MAFR – Law, Compliance, Regulation ⤵️ - 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 subscribe to the Newsletter MaFR Droit & Art

► Full Reference : M.-A. Frison-Roche, Le "Grand Arrêt" de la Cour d'appel de Paris du 7 mai 2025, Dalloz et al. c/Forseti, D. 2025, p. - 📝reread the article (in French) - ► Ench presentation of this article: The first part of the article describes the Paris Court of Appeal's ruling against the company that created a Legaltech platform under the trade name 'Doctrine', which offers a large number of court rulings, particularly from lower courts. Sued for unfair competition by a group of publishers offering a similar service, they were not convicted at first instance, but were convicted by the Court of Appeal because it appeared that they had fraudulently obtained thousands of judgments, which, under Civil Law, constitutes unfair competition to the detriment of the plaintiffs. The second part of the article draws 6 lessons from this. The power of general law. On the benefits that the perpetrator has derived from the slowness of justice.  On the importance of Open Data. On the fact that the law is not mastered by accumulating data but by putting it into perspective through the thinking of authors and publishers. On the indifference for this of the financiers who built and resold the "Doctrine" website. On the very nature of a 'Grand Arrêt', such as this one.   -    

► Full Reference: M.-A. Frison-Roche, "GPA : "L’interdiction de la GPA posée par le Code civil n’existe plus" ("The French Civil Code ban on surrogacy no longer exists"), interview with Olivia Dufour, Actu-Juridique, 26 November 2024 - 💬read the interview (in French) - ► Presentation of the interview by the journal: "Un simple arrêt de section rendu par la première civile de la Cour de cassation le 14 novembre 2024 peut-il donner plein effet à une "pure convention de GPA" ? Telle est la question que l’on peut se poser à la suite de cette décision. Éléments de réponse avec le professeur Marie-Anne Frison-Roche. ". - 🕴️M.-A. Frison-Roche, 📕GPA : dire Oui ou dire Non, 2018 - ► Questions posées, réponses apportées :  Actu-Juridique. Question : Un arrêt de section de la première chambre civile de la Cour de cassation rendu le 14 novembre dernier en matière de gestation pour autrui (GPA) a suscité l’émotion. Est-il exact de dire qu’en pratique, suite à cette décision, la prohibition en France de la GPA n’existe plus ?   Marie-Anne Frison-Roche. Réponse. :    A.J. Q. : Quels étaient les faits de l’espèce et en quoi diffèrent-ils des autres affaires ? MaFR. R. : O A.J. Q. : L’Europe avait-elle déjà pris position sur la GPA et si oui, par quels textes et dans quel sens ? MaFR. R. : En Europe, c'est la jurisprudence de la CEDH qui en 2014 (arrêts Mennesson) est venu briser la jurisprudence française pour imposer que la filiation de l'enfant né d'une GPA réalisée à l'étranger dans un pays où la GPA est licite puisse être établie à l'égard du père dont les gamètes avaient été utilisées. Il ne restait plus alors qu'à procéder à l'adoption par le conjoint de celui-ci. La législation interne ne fût pas pour autant modifiée mais le fonctionnement de l'état-civil permet de rendre inefficace la prohibition. Mais c'était à la fois dire Non et Oui… L'enjeu fût donc de modifier les textes, soit pour exclure la GPA plus fortement, soit pour l'admettre plus ouvertement.   A.J. Q. : En quoi la technique juridique utilisée pour faire reconnaître cette GPA en France était-elle différente de ce que l’on connait usuellement ? MaFR. R. : C   A.J. Q. : Quelle est la portée de cet arrêt ? MaFR. R. : I   A.J. Q. : Qu’en est-il du rapport avec l’adoption ? MaFR. R. : S   A.J. Q. : Le rapporteur n’a-t-il pas évoqué une possibilité de déguiser une adoption illicite à l’étranger sous une GPA ? MaFR. R. : S - 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 Newsletter Surplomb, par MAFR

► Full reference : M.-A. Frison-Roche, The invention of the 'right to a child'. The consequences of contractual practice as a source of filiation, working document, Sept. 2024 – Oct. 2025. - 🎤This working document forms the basis of a presentation entitled, "Le "droit à l'enfant" est-il concevable, pourquoi et avec quelles conséquences" (Is the 'right to a child' conceivable, why and with what consequences", in Les nouvelles filiations. Diifférentes perspectives (New parentage. Different perspectives." held at the Paris Court of Appeal on 12 September 2024. - 📝Revised, this working document forms the basis of the article published in the dossier "Les nouvelles filiations. Regards croisés" (New parentage. Different perspectives), Act. jur. Dalloz Droit de la famille (in French). - ► Summary of this working document  :  Every legal system is built on concepts that form its pillars. Filiation is one such concept. A cas-law solution, presented as pragmatic and casuistic, can overturn this concept. Whether one agrees with it or not, it must first be acknowledged and assessed. Through a series of rulings on surrogacy, notably a ruling by its First Civil Chamber granting exequatur to a judgment recognising the filiation established by surrogacy between a child and persons with no biological link to the child and without recourse to adoption, the French Cour de Cassation has introduced the possibility of creating parentage by contract. This not only changes the concept of filiation but also changes the very structure of the French legal system, which is based on the distinction between persons and things. One may agree or disagree with this, but it must be said. Since the judge gives force to such a contract establishing filiation, with the foreign judge simply recognising it and the French judge ensuring only that the contract is balanced, the prospect opens up of a society in which individuals will be able to contractually create institutions at their disposal, within the private normative space of the contract, with the State's only function being to give effect to their right to legal recognition of their unique "project". Parentage is only a first example. Thus constructed on what was "inconceivable", i.e. a "right to a child", thanks to the contractual power to which the State should lend its force a posteriori, the judge makes parentage resulting from a contract technically "admissible" and opens up a contractually governed society. - 🔓read the working document 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 Overhang Subscribe to the Newsletter MaFR Law & Art

► Full Reference: C. Granier, "Reflections on the existence of companies’ jurisprudence through Compliance matters", in M.-A. Frison-Roche (ed.), Compliance Jurisdictionalisation, Journal of Regulation & Compliance (JoRC) and Bruylant, "Compliance & Regulation" Serie, 2024, pp. 95-107 - 📘read a general presentation of the book, Compliance Jurisdictionalisation, in which this article is published - ► Summary of the article (done par the author): Because Compliance shakes up established frameworks, Compliance forces to look at certain concepts in a new light, which until then seemed to be well tamed. This is particularly the case with the notion of "Jurisprudence". Recent developments in Compliance indeed raise questions about the possible existence of "jurisprudence" (case law) that would be produced by companies during the implementation of compliance procedures. At first glance, the concept of "business jurisprudence" may appear unnatural because case law is traditionally understood as the fruit of the office of the Judge and, more particularly, of the State Judge. However, the observation that the company can position itself as a Judge with regard to itself and others in the context of the implementation of Compliance legitimately raises the question of the possibility for the latter. to produce case law. The example of Facebook's supervisory board and the first decisions rendered by this body increases the legitimacy of this crucial question. Thinking about the concept of "Jurisprudence of companies" implies to compare the process of emergence of the case law standard emanating from the Judge with the process of emergence of a "Jurisprudence" that would be produced by companies during their "jurisdictional functions". On the material level, an analogy between State case law and company case law seems conceivable. It then remains to overcome an obstacle of an organic nature: can an institution other than the judge be understood as producing case law? In view of contemporary developments in Law and the practical interest that exists in designing business case law, it seems appropriate to adopt a broader view of case law, which is detached from the traditional organic criterion. It therefore seems that it is possible but above all that it is necessary to think about the concept of "business case law" in order to highlight a new facet of the normative power of companies in the context of compliance, in particular with a view to its supervision. -   🦉This article is available in full text to those registered for Professor Marie-Anne Frison-Roche's courses -

► Full Reference: O. Douvreleur, "Compliance et juge du droit" ("Compliance and Judge ruling only on points of Law"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, pp. 465-471.  - 📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation & Compliance): Compliance maintains with the judge complex relations, and even more with the judge ruling only on points of Law  (in France, the Court de Cassation in the judicial order, the one who, in principle, does not know the facts that he leaves to the sovereign appreciation of the judges ruling on the substance of the disputes. At first glance, compliance is a technique internalised in companies and the place occupied by negotiated justice techniques leave little room for intervention by the judge ruling only on points of Law However, his role is intended to develop, in particular with regard to the duty of vigilance or in the articulation between the different branches of Law when compliance meets Labor Law, or even in the adjustment between American Law and the other legal systems, especially French legal system. The way in which the principle of Proportionality will take place in Compliance Law is also a major issue for the judge ruling only on points of Law. -

► Full Reference: E. Wennerström, "Quelques réflexions sur la Compliance et la Cour européenne des droits de l'homme" ("Some Reflections on Compliance and the European Court of Human Rights"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, pp. 479-489. - 📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation & Compliance): The development of the European Court of Human Rights case law, contributing to European integration, has incorporated the substantial concept of ​​"compliance" which goes beyond the idea of ​​legality with respect to which companies remain passive, and promotes legal orders as systems in interaction with another.  The author develops the spirit and scope of Protocol 15 by which both the principle of subsidiarity and the margins of appreciation the signatory States are organized, mechanisms governed by the principle of proportionality. Subsidiarity means that the States are in the best position to design the most adequate application of the Convention, the close links between the States allowing its effective application. In addition, the new opinion procedure which allows a national court to have during a case the non-binding opinion of the ECHR ensures better compliance with the objectives of the Convention. The case-law of the Court takes up this substantial requirement through its doctrine, in particular identified in the Bosphorus case, by stressing that the accession of a State to the European Union presumes its compliance when implementing EU law with the obligations arising from the ECHR, even if this presumption can be refuted if the protection is manifestly lacking, which was admitted in several cases, in particular concerning the right to an impartial tribunal in matters of economic regulation. The different legal orders are thus articulated.  The author concludes that the European Court of Human Rights, like the Court of Justice of the Union, contributes to the construction of Compliance Law in Europe, from an Ex Ante perspective favoring opinions rather than Ex Post sanctions and creating, in particular through the Bosphorus doctrine, elements of security and confidence for European integration around common values. -

► Law is slow, but firm. By its judgment of June 15, 2021, Facebook , the European Union Court of Justice widely interprets the powers of National Authorities, since they serve the people protection in the digital space (➡️📝(CJEU, June 15, 2021, Facebook).    Law is slow. The reproach is so often made. But the bottom line is that, in the noise of changing regulations, it establishes clear and firm principles, letting everyone know what to stand for. The more the world is changing, the more Law is required. When Law degenerates into regulations, then it is up to the Judge to make Law. "Supreme Courts" appear, de jure as in the United States, de facto as in the European Union by the Court of Justice of the European Union which lays down the principles, before everyone else, as it did for the "right to be forgotten" in 2014 (➡️📝CJEU, Google Spain, May 13, 2014), and then with the impossibility of transferring data to third countries without the consent of the people concerned (➡️📝CJEU, Schrems, October 6, 2015). Facebook litigation is kind of a novel. The company knows that it is above all to the Courts that it speaks. In Europe, it is doing it behind the walls of the Irish legal space, from which it would like to be able not to leave before better dominating the global digital space, while national regulatory authorities want to take it to protect citizens. There is therefore a technical question of "jurisdictional competence". The texts have provided for this, but Law is clumsy because it was designed for a world still anchored in the ground: the GDPR of 2016 therefore organizes cooperation between national regulatory authorities through a "one-stop-shop", forcing the authorities to relinquish jurisdiction so that the case is only handled by the "lead" National Authority. This avoids splintering and contradiction. But before the adoption of the GDPR, the Belgian data protection regulator had opened a procedure against Facebook concerning cookies. The "one-stop-shop" mechanism, introduced in 2016, is therefore only mentioned before the Brussels Court of Appeal, which is asked to relinquish jurisdiction in favor of the Irish Regulatory Authority, since the company has in Europe its head office in this country. The Court of Appeal referred to the CJEU for a preliminary ruling. By its judgment of June 15, 2021 (➡️📝CJUE, Facebook, June 15, 2021), it follows the conclusions of its Advocate General and maintains the jurisdiction of the Belgian National Regulator because, even after the GDPR, the case still undergoes national treatment. In this decision, the most important is its reasoning and the principle adopted. The Court notes that the "one-stop-shop" rule is not absolute and that the national regulatory authority has the power to maintain its jurisdiction, in particular if cooperation between national authorities is difficult. Even more, will it not one day have to adjust Law more radically? We need to consider the fact that the digital space is not bound by borders and that the ambition of "cross-border cooperation" is ill-suited. It is of course on this observation of inefficiency, consubstantial with the digital space, that the European Public Prosecutor's Office (EPPO) was designed and set up, which is not a cooperation, nor a "one-stop shop", but a body of the Union, acting locally for the Union, directly linked to Compliance concerns (➡️📝Frison-Roche, M.-A. "The European Public Prosecutor's Office is a considerable contribution to Compliance Law", 2021 and ., European Public Prosecutor's Office comes on stage: the company having itself become a private prosecutor, are we going towards an alliance of all prosecutors ?, 2021). So that's what we should be inspired by.

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.  -

Complete reference : Andriantsimbazovina, J., La « confiance du public » dans la jurisprudence de la cour européenne des droits de l'homme, in  Mélanges en l'honneur de Frédéric Sudre, Les droits de l'homme à la croisée des droits, LexisNexis, 2018, pp. 11-19. Read a general presentation in which the article is published.     Students can consult the article via the Sciences-Po Drive, "MAFR-Régulation & Compliance" folder.  

► Full Reference: M.-A. Frison-Roche, in collaboration with Serge Bories, "La jurisprudence massive" ("The Massive Jurisprudence"), D. 1993, chron., pp. 287-330 - 📝read the article (in French) - ► English Summary of the article: The term "jurisprudence" is likely to have several meanings: on the one hand, jurisprudence stricto sensu, that emanating from the High Courts; on the other hand, "massive jurisprudence", designating all legal decisions rendered by the courts. This study of "mass case law" is divided into two parts: the first sets out the advantages of analysing mass judgments (I.), and the second develops the method that should be used to study these judgments (II.). The analysis of massive jurisprudence is of threefold interest: educational, scientific and practical. Educational, in that it provides a more concrete, comprehensive and detailed view of the subject being taught. Scientific, in that it provides a global perspective, making it possible to take a closer look at reality and thus analyse the phenomena of pluralism in case law and anticipate 'elite case law' or legislative developments. And lastly, it is practical, in that it enables legislators to learn as quickly as possible about the practical application of the law and its consequences, so that they can potentially react to counter any perverse effects and/or use this information to adapt their legal policy decisions. The analysis method involves 3 stages. Firstly, a prior qualitative analysis of the banal judgment must be carried out, based on the extraction of key words and concepts contained in the decision, in order to transform the raw information into data. Next, categories of analysis need to be established, based on the structure of the data collected and the research hypotheses, in order to process the mass of refined data collected. It is also essential to have access to all the data used to adopt the decision. In the final stage, complementary methods, such as studying the case file or interviewing magistrates, should be added to the textual analysis. - 🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law