Negotiation

► Full reference : S-M.. Cabon, « Théorie et pratique de la négociation dans la justice pénale » (Theory and Practice of Negotiation in Criminal Justice), in M.-A. Frison-Roche & M. Boissavy (dir.), Compliance et Droits de la défense – Enquête interne, CIIP, CRPC, Journal of Regulation & Compliance (JoRC) et Dalloz, coll. “Régulations & Compliance“, 2024, pp. 241-252. - ► English Summary of this article (made by the Journal of Regulation & Compliance – JoRC) : The author defines the technique of “negotiation” as the one by which “each party will attempt to reconcile [interests] through a process of cooperation and mutual concessions”. French criminal justice uses it not so much because of the attraction of the American model, but in an attempt to resolve the difficulties caused by the flow of litigation, the process having been extended to punitive litigation, notably before administrative regulatory authorities. Its principle is therefore the cooperation of the offender. The author highlights the “practical” satisfactions claimed, since cases are resolved and sanctions are accepted, and the “theoretical” concerns, since fundamental principles, such as the rights of the defence, seem to be set aside, the claim being made that the practical advantages and the fact that nothing obliges companies to accept CJIPs and CRPCs justify not dwelling on these “theoretical” considerations. The article is therefore built on the confrontation between “the Useful” and “the Just”, because this is how the system is presented, utility and consent being emphasised in particular in the guidelines of the public authorities. Against this background, the author examines how the texts continue, or not, to protect the person who risks being sanctioned in fine, notably in inquiries and investigations; the fact that this person consents to waive this protection, in particular by providing the evidence that will form the basis of the finding of guilt, while the public authority does not at the same time waive prosecution, is problematic with regard to “the Just”. The second part of the article is therefore devoted to “the Useful compelled to be Just”. In this respect, the author considers that the independence of the public prosecutor should be stronger, on the model of the European Public Prosecutor’s Office, and that the review by the judicial courts should be deeper, since the current procedure for validating CJIPs seems governed by the principle that the parties control the proceedings, a principle ill-suited to criminal justice.

► Full reference : P. Goossens, « Quand se justifie et quand s’arrête la collaboration ? À propos de la CJIP » (When Is Cooperation Justified and When Does It End? On the CJIP), in M.-A. Frison-Roche and M. Boissavy (eds.), Compliance et droits de la défense. Enquête interne – CJIP – CRPC, Journal of Regulation & Compliance (JoRC) and Dalloz, coll. “Régulations & Compliance“, 2024, pp. 309-315. - ► English Summary of this article (made by the Journal of Regulation & Compliance – JoRC) : The author explains that, in the classical legal system, the lawyer engages in a “defence by opposition”. The so-called “Sapin 2” law adds to it a “defence by cooperation”, which fits more or less well with the former. The article lists both the advantages and the drawbacks of the logic of cooperation that the lawyer must take on. With pragmatism, the lawyer must handle both, in particular so that the rights of the defence of the company and its interests find their place in the CJIP mechanism.

► Full Reference: A. Bavitot, “Le façonnage de l’entreprise par les accords de justice pénale négociée” (“Shaping the company through negotiated Criminal Justice Agreements”), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. “Régulations & Compliance“, Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, pp. 187-198. - 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 author): Negotiated justice is “the situation in which the criminal conflict is the object of a trade in the etymological sense of the term negotio, i.e. a debate between the parties to reach an agreement”. Thus, the French legislator has succumbed to globalized mimicry by creating the Convention judiciaire d’intérêt public (Public Interest Judicial Agreement), first in matters of probity and then in environmental matters. What is the nature of this deal of justice? Validated by a judge’s order, it does not entail any declaration of guilt, has neither the nature nor the effects of a judgment of conviction and is not registered in the judicial record. Possible at the investigation stage as well as at the pre-trial stage, the Public Interest Judicial Agreement is original in that it makes it possible to avoid either the prosecutor’s proceedings or the judge’s wrath. A detailed study of the agreements signed shows that in order to negotiate in the best possible way, the company can and must shape itself. The company will shape the facts of its agreement, shape its charge and, finally, shape its sentence. The article offers a concrete analysis of these three dimensions of corporate shaping to better approach understanding the legal nature of negotiated criminal justice agreements. -

► Compliance Law and Competition: for building, is it necessary to legislate ? Example of quasi-public interest judicial agreement: the French Competition Authority's Statement of June 3, 2021 on Facebook   The French law so-called "Sapin 2" of 2016, organized the "convention judiciaire d’intérêt public – CJIP" (Public Interest Judicial Agreement) which allows the prosecutor to undertake not to prosecute a company in returns for this company's commitments for the future. Is this mechanism reserved for this law, which only concerns corruption and bribery? The answer is often positive. Is it so obvious? Since the entity having the power to prosecute therefore always has the power not to prosecute. As the company always has the freedom to make commitments for the future. And everything stops. News in Competition Law illustrate this. On June 9, 2021, as part of a transaction, the Autorité de la concurrence (French Competition Authority) sanctions Google (➡️📝 Communiqué of the Autorité de la Concurrence , translated in English by the French Competition Authority) , which has not contested the facts, for abuse of dominant position for having privileged its services in the online advertising services. Similar facts were alleged against Facebook. But on June 3, 2021, the Autorité de la concurrence (French Competition Authority) published a "communiqué de presse" (➡️📝statement translated in English by the French Competition Authority) saying that Facebook has, during the investigation, proposed commitments regarding its future behavior. It is remarkable that this statement on Facebook is published as an “acte de régulation” (regulatory act). Yes, it is indeed an regulatory act about the future and structuring the online advertising area, internalized in this company which engages itself in its future behavior. With its statement, the Competition Authority invites the “acteurs du secteur” (actors of this sector) to make observations, for the development of what will be a sort of compliance program. In these negotiations which are akin to a game table, where everyone calculates without knowing if they enter into a negotiation or a confrontation, the first game assuming that one shows more cards than in the second, it is indeed towards a kind of Public Interest Judicial Agreement that they are going with a Competition Authority which is both Judge and Prosecutor, concludes the agreement and, through a later decision, gives it force. Under the various legal qualifications, it is indeed the same general mechanism of Compliance Law, well beyond the specific French law known as Sapin 2. Managed in this way, Compliance Law being an Ex Ante corpus, transforms the Competition Authority, an Ex Post Authority, into an Ex Ante Authority, openly taking "acte de régulation" (Regulatory Act), and allows it to rely on the power of companies, thus “committed”, to structure markets, which are however not regulated. Like advertising or retailing areas (➡️📝see Frison-Roche, M.-A., From Competition Law to Compliance Law: Example of French Competition Authority's decision on central purchasing body in mass distribution, 2020). Thus Compliance Law has achieved the autonomy of Regulatory Law with regards to the notion, which nevertheless seemed intimate to it, of "sector".   ► register to the French Newsletter MaFR ComplianceTech®

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.