Legal certainty

► Full Reference: M.-A. Frison-Roche, "Instaurer l'insécurité juridique comme principe, outil de prévention des crises systémiques catastrophiques totales" ("Establishing legal uncertainty as a principle and a tool for preventing total catastrophic systemic crises"), in G. Gerqueira, H. Fulchiron et N. Nord (eds.), Insécurité juridique : l'émergence d'une notion ?, Société de législation comparée, coll. "Colloques", vol. 53, 2023, pp. 153-167.  - 📝read the article (in French) - 🚧read the bilingual Working Papier which is the basis of the conference and this article - 🎤watch the conference of March 22, 2021 that took place in the Cour de cassation (French Court de cassation) and for which this reflection was globally led - ► English Summary of the article: "whatever it takes". In 2015, Mario Draghi used this formula to aim for the defence of the European currency, when the Euro was in danger of collapsing under the dance of the speculators who would be enriched by its collapse. Rarely has a formula been more violently political and more strongly prescriptive. It contributed to his being dubbed "Super Mario", as in the video game. The formula was used again in 2020 by the Président de la République Française (President of the French Republic) in the face of the financial turmoil caused by the health crisis that led to similar calculations. It goes beyond the mere "financial cost". With this formula, the President of the European Central Bank stated that the economic crisis in Europe was such that the institution would do everything in its power to put an end to it, without any limits; that all those who, by their behaviour, even supported by their legal prerogatives, in this case the speculators, because they were destroying the economic and financial system, would come up against this and would themselves be swept away by the Central Bank because the latter's mission, in that it is absolutely to safeguard the Euro itself, would prevail "quoi qu'il en coûte" ("whatever the cost"). At one point, the master stood up. If the royal position is the seated position, when he listens and judges, it is by rising that he shows his acceptance of also being the master, because he is in charge of more and will use everything to win. More broadly, we might consider drawing up a positive concept of legal uncertainty (which is bound to please the Hegelians), increasing legal certainty: this would make it possible to associate a clearer legal regime with the hypotheses of legal uncertainty. Indeed, rather than sweeping Law under the carpet, which explains many of the tensions between the Conseil constitutionnel (French Constitutional Council) and the Conseil d'État (Council of State) on the one hand, and the legislator and the government on the other, concerning the "État d'urgence" ("State of emergency"), we could set out the conditions in which legal uncertainty makes it possible to set aside or limit rules. The idea proposed is therefore that in "extraordinary situations", legal uncertainty would be a dimension, or even a principle which would be admissible. And developing this first point, it is proposed that the hypothesis of an "economic crisis" justifies a dimension, or even a principle of "legal uncertainty". But this first assertion needs to be tested. Is an economic crisis, a concept that needs to be defined, if it is to have such a major reversal effect, such an extraordinary 'situation'? Furthermore, to deal with this extraordinary situation constituted by an 'economic crisis', how much legal uncertainty would be legally acceptable, or even legally claimed? Could we even conceive of a reversal of principle that would bring applicable Law to an economic crisis under the aegis of legal uncertainty? In such a case, the question that then arises is to determine the conditions and criteria for emerging from the economic crisis, or even to determine the elements of perspective of an economic crisis, which could justify in advance the admission of an injection of legal uncertainty. Above all, Law has control over the future. The economic crisis should therefore be legally defined as an exceptional situation, before stressing that Regulation and Compliance Law, because on the one hand we move from crisis to crisis and on the other hand the whole system aims to avoid and manage the future crisis in advance or to exclude it; this is particularly true of health and climate issues (the way the health crisis was managed was to 'decree' that the State should initiate an economic crisis), which means that legal insecurity is no longer seen as a distant exception, a failure to be combated, but as a lever that can be used to influence the future. - 🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

► Full Reference: Le Fur, A.-V., Ch.,  "Interest and “raison d’être” of the company: how do they fit with the Compliance Monumental Goals?, in Frison-Roche, M.-A. (ed.), Compliance Monumental Goals, series "Compliance & Regulation", Journal of Regulation & Compliance (JoRC) and Bruylant, to be published. - ► Article Summary (done by the Author):  Companies would have a soul. The legislator thinks so, since the French law called "loi Pacte"  of 22 May 2019 obliges managers to act in the Corporate Interest and allows companies to formulate themselves a « raison d'être ». Compliance Law does the same, relying on companies to save the world from corruption, slavery, terrorism and global warming, thus achieving Monumental goals. At first glance, the contours of Corporate Interest and « raison d’être » of the company are not far removed from the notion of Compliance Monumental Goals. This is not surprising, since the objective that presided over their introduction into the French Civil Code is the same as that underlying Compliance Law : to rethink the place of the company in the global Society, by affirming long-term values or concerns. This is a reason to use these corporate law concepts in the context of an X-ray of the concept of Monumental Goals. However, a comparative approach is disappointing. The divergences between corporate notions and compliance lead to the conclusion that Company Law is not intended to impose anything other than a corporate public order. These notions being more philosophical than legal, Corporate Interest and « raison d'être » are assigned functions that limit their scope. Consequence of the previous description, the imperative nature of corporate rules cannot be compared with the nature of compliance: uncertain, they are also relative compared with the "violence" of compliance rules. The impact of the notions of Interest and « raison d'être » remains thus mainly internal to the company. According to a second approach, it cannot be ruled out that Corporate Interest and « raison d'être » allow for a better understanding of higher and universal values by Company Law. Corporate Interest may incorporate Compliance Monumental Goals while the « raison d'être » may constitute a perspective for the realization of these goals. The stakes are high : when the interest of the company, as a legal person and autonomous economic agent, joins the Monumental Goals, the means of achieving the latter are multiplied by internalizing them in all companies, not just the largest ones. However, despite all good intentions, a company is only governable if the compass does not become an elusive and indecisive vane; in other words, if legal certainty is respected. This is why a legal ordering of the concepts is necessary, which ultimately leads to a suggestion of their domain, content and scope.  -     📝 go to the general presentation of the book, 📘 Compliance Monumental Goals, in which this article is published.   -

Full reference: Frison-Roche, M.-A., Compliance & Regulatory Soft Law, legal Certainty and Cooperation: example of the U.S. Financial Crimes Enforcement Network new Guidelines on AML/FT, Newsletter MAFR – Law, Compliance, Regulation, 2nd of September 2020 Read by freely subscribing other news of the Newsletter MAFR – Law, Compliance, Regulation   Summary of the news The Financial Crimes Enforcement Network (FinCEN) is an organ, depending on the American Treasury, in charge of fighting against financial criminality and especially against money laundering and terrorism financing. For this, it has large control and sanction powers.  In August 2020, the FinCEN published a document untitled "Statement on Enforcement" which aimed to explicit its control and sanction methods. It reveals what firms risk in case of offense (from the simple warning letter to criminal pursuits passing through financial fines) and the different criteria on which FinCEN is based to use one sanction rather than another. Among these criteria, we find for examples the nature and the seriousness of committed violations or the firm's history but also the implementation of compliance program or the quality and the spread of the cooperation with FinCEN durning the investigation.  One of the objectives of the publication of such an information document is to obtain the cooperation of firms by creating a confidence relationship between the regulator and the regulated firm. However, it is very difficult to ask to the firms to cooperate and to furnish information if they can fear that this same information can be used later as proof against them by the FinCEN.  Another objective is to reinforce legal security and transparency. However, the FinCEN's declaration does not seem to commit it, because it is not presented as a chart but as a simple declaration. Indeed, the list of the possible sanctions and the criteria used by the FinCEN are far from being exhaustive and can be completed in concreto by the FinCEN without any justification.

► Full reference : J. Carbonnier, "Toute loi est-elle un mal ? (Is every law a bad thing?), in Essais sur les lois (Essays on Legisation), 2nd ed., Répertoire du notariat Defrénois, 1992, pp. 317-334. - ► Summary :  Jean Carbonnier takes as his starting point the coincidence in time between the announcement of Christ’s birth and the proclamation of the census by Caesar Augustus’s edict, and goes on to ask whether, in legal matters as in religious ones, the advent of the new law might be good news. It is accepted that many new laws were bad, but is the new law bad ‘in itself’? The author does not wish to let the distinction between favourable and unfavourable laws (a sociological criterion of interest) or the distinction between old and new laws (a psychological criterion of the clash between novelty and habit) interfere, so as to address the subject as neutrally as possible: is the law an evil in itself? This pits the law against case law, custom or equity, which might be superior, but then again the author takes a broader view and prefers to contrast law with non-law and pose the question even more radically: is law in itself an evil?   To begin with, Carbonnier demonstrates the necessity, the advantages and the beneficial effects of the law, which was particularly revered by the French Revolution and, above all, by the people because of the ‘benevolence of the law’. France remains steeped in this favourable legalistic prejudice. This stems from the sense of security it affords the people, because it is clear, precise and uncompromising, permanent, and because it serves as a means of communication between people. In the second part of the article, Carbonnier refers to Lacan, who, in relation to the law, invoked the figure of the father and predicted a future society without a father. Carbonnier wonders whether a lawless society is not about to emerge, or whether psychoanalysis, seeing castration in the law, still identifies it as an evil.  In any case, he sees in this an opposition to freedom and liberalism, the rejection of the law being associated with the rejection of the state. Quoting Maurice Barrès and his 1892 work, L'ennemi des lois, he shows that for Barrès, all law is an evil, because the world must organise itself spontaneously.  For liberalism, which is less romantic, every law is an evil because it hinders the spontaneous emergence of the general interest of the social group. Thus, to take Hayek as an example, the individual knows his own interest better than the law, and the sum of these interests gives rise to the general interest. Moreover, not only is the law pernicious, but, according to liberalism, it corrupts human nature, atrophies the will and diminishes responsibility, in a perverse pedagogy. In the third part of the article, Dean Carbonnier goes on to argue that the law acts more as a safeguard and is therefore a good thing, provided the legislator remains modest. He believes that the law is necessary because man is a sinner (in a nation of righteous people, the law would be unnecessary), citing Luther and Saint Augustine. The law is therefore indispensable insofar as it wields the sword. Indeed, the law must strike because the world is inhabited by evil. The Dean states: “It is in this sense that the law appears as an evil: not because it causes harm or does harm, but because it is linked to the existence of evil. It is the revealer of sin…”. He concludes: "Knowing that the law was given to curb evil, lawyers will use it without hesitation. Knowing that it is a source of evil, they will use it with restraint." It is in this self-imposed limitation that lawlessness emerges.   -