Protection

► Full Reference : Ph. Pétel, Procédures collectives (Insolvency Proceedings), 1st ed. 1996 – 11th ed., 2023, Dalloz, “Cours Dalloz-Série Droit privé” Series, 281 p. - ► General presentation of the book (written in French) : The 11th edition of this reference textbook, one of whose many merits is its controlled length (281 airy, easy-to-read pages), presents this very technical subject by distinguishing first the opening of insolvency proceedings and then describing their course. Once considered shameful under the name of « bankruptcy law », the law of « insolvency proceedings » (procédures collectives) has been, since 1967, a law protecting the enterprise, aimed at preventing its difficulties, at its safeguard and its recovery, its liquidation and its sale being only the last resort. This concern has been further strengthened by the influence of economic theory. This Course is up to date with the ordinances of 15 September 2021 reforming the law of security interests and transposing the so-called Restructuring directive. - 📚In the same collection, see the Courses directly related to it : 🕴️V. Magnier, 📕Droit des sociétés (Company Law) 🕴️J.-B. Seube, 📕Droit des sûretés (Law of Security Interests) 📚See the entire collection, Cours Dalloz – Droit privé, based on a concept proposed by Marie-Anne Frison-Roche in 1992, in which the book is published. -

Full reference: Frison-Roche, M.-A., Freedom&Media: when Italian Media Regulation's real "goal"​ is not Pluralism Protection, Freedom of Establishment prevails (CJEU, 3 Sept.2020,Vivendi), Newsletter MAFR – Law, Regulation, Compliance, 9th of September 2020 Read by freely subscribing other news of the Newsletter MAFR – Law, Regulation, Compliance   Summary of the news The media sector is organized on an equilibrium between the principle of competition and other concerns like information pluralism. Generally, competition Law by making market accessible to many competitors ensures information pluralism. But, this is not the case if an operator get an excessive market power, running risk not only for competition but also for information pluralism. It is the reason why the Italian legal system forbids the constitution of an operator gathering more than 40% of the total income generated by the media sector or more than 10% of the total income generated by the Italian communication sector.  In 2016, Vivendi, a French media group, got more than 28% of the Mediaset Group's actions and around 30% of its voting right. The Italian communication regulation authority sized by Mediaset demands in 2017 to Vivendi to ends its participations in the group Mediaset. Vivendi contested this decision before the regional administrative court which referred to the Court of Justice of the European Union in order to know if freedom of establishment can legitimately be discarded in favor of information pluralism in this concrete case. The Court of Justice answered, in a decision of 3rd of September 2020, that the restriction of the freedom of establishment can in principle be justified by a general interest objective such as information pluralism protection but that in this concrete case, this is not justified because the fact that a firm is committed in the transmission of contents does not necessarily give it the power to control the production of such contents. We can learn three lessons form this case: The Court precises that even if the principle is the freedom of establishment, it is possible to discard it to protect information pluralism protection under the condition that the concerned member State do not use this legitimate power to create a political monopoly, the burden of proof falling on the person attacking national legislation and not on the Member State. The Court distinguishes transmission of contents and production of contents and explains that if the State rejects this decision, the burden falling to it to prove the concrete links between these two activities. This case shows that the power to share the respective places of the "principle" and of the "exception" always comes back to the judges. 

Full reference: Frison-Roche, M.-A., Compliance by Design, a new weapon? Opinion of Facebook about Apple new technical dispositions on Personal Data protection, Newsletter MAFR – Law, Compliance, Regulation, 31st of August 2020 Read by freely subscribing other news of the Newsletter MAFR – Law, Compliance, Regulation   Summary of the news: Personal Data, as they are information, are Compliance Tools. They represent a precious resource for firms which must implement a vigilance plan in order to prevent corruption, money laundering or terrorism financing, for examples. It is the reason why personal data are the angular stone of "Compliance by design" systems. However, the use of these data cannot clear the firm of its simultaneous obligation to protect these same personal data, that is also a "monumental goal" of Compliance Law.  In order to be able to exploit these data in an objective of Compliance and protecting them in the same time, the digital firm Apple adopted for example new dispositions in order to the exploitation of the Identifier For Advertisers (IDFA) integrated in the iPad and in the iPhone and broadly used by targeted advertising firms, is conditioned to the consumer's consent. Facebook reacted to this new disposition explaining that such measures will restrict the access to data for advertisers who will suffer from that. Facebook suspects Apple to block the access to advertisers in order to develop its own advertising tool. Facebook guaranteed to advertisers who work with it that it will not take similar measures and that it will always favor consultation before decision making in order to concile sometimes divergent interests.  We can sleep and already make some remarks: GDPR imposing to companies that they guarantee a minimal level of protection for personal data does not apply in the United-States. It is then possible that Apple acted through Corporate Social Responsibility (CSR), more than through legal obligation.  The mode of regulation used here is the "conversational regulation" theorized by Julia Black. Indeed, regulators let the forces in presence discuss.  This "conversational regulation" does not seem to be very efficient in this case and an intervention of administrative authorities or of judges could be justified via Competition Law, Regulation Law or Compliance Law, knowing that Competition Law will favor access right to information and Regulation or Compliance Law private life right.  The whole paradox of Compliance Law rests in the equilibrium between circulation of information and secret. 

Full reference: Frison-Roche, M.-A., "Interregulation"​ between Payments System and Personal Data Protection: how to organize this "interplay"​?, Newsletter MAFR – Law, Compliance, Regulation, 27th of August 2020 Read by freely subscribing the other news of the Newsletter MAFR – Law, Compliance, Regulation   Summary of the news Regulation Law, in order to recognize and draw the consequences from the specificities of some objects, has been build, at the start, around the notion of "technical sector" although their delimitation is partially related to a political choice. But, in facts, there are multiple points of contacts between sectors, actors moving from one to another as objects. The regulatory solution is so to climb over some technical borders through the methodology of interregulation which is by the way the only one to enable the regulation of some phenomena going beyond the notion of sector and related to Compliance Law.  This news takes the exemple of companies furnishing new payment services. In order to they can provide these services, these firms needs to access to banking accounts of concerned people and so to very sensitive personal data. Regulation of such a configuration needs a cooperation between the banking regulator and the personal data regulator. Legislation being not sufficient to organize in Ex Ante this interregulation, the European Data Protection Board has published some guidelines on 17th of July 2020 about the way it conceives the articulation between the PSD2 (European directive about payment services) and GDPR and has announced that it intended to expand the circle of its interlocutors to do this interregulation. Such an initiative from EDPB can be justified by the uncertainty  about how interpreting both texts and articulating them.   

►   This working document was intended to serve as a support for a conference pronounced in French in the conference Droit et Ethique ( Law & Ethics) of May 31, 2018 in a symposium organized by the Court of Cassation and the Association Française de Philosophie du Droit.  French Association of Philosophy of Law on the general theme Law & Ethics. See a general presentation of this conference.  Rather, it has served as a support for the article to be published in the Archives de Philosophie du Droit (APD). This article is written in French.    ►   Summary: It is through the Law that the human being has acquired a unity in the West (I). What religion could have done, the Law also did by posing on each human being the indetachable notion of him of "person" (I.A). But this is what is challenged today, not the personality and the power that the human being has to express his freedom but the unity that implies in the disposition that we have of ourselves in repelling the desire that others have always had to dispose of us. Current law tends to "pulverize" human beings into data and transform into neutral legal services what was considered before as the devouring of others. The legal concept of "consent", ceasing to be proof of a free will but becoming an autonomous concept, would suffice (I.B.). To prevent the reigning of the "law of desires", which merely reflects the adjustment of forces, we must demand here and now the ethical sovereignty of Law, because Law can not be just just be just the interests adjustment (II). We can form this request if we do not want to live in an a-moral universe (II.A), if we see that the unity of the person is the legal invention that protects the weak human being (II.B.). If we admit this imperative, then we must finally ask who in the legal system will express and impose it, especially the legislator or the judge, because we seem to have lost the ability to recall this principle of the Person on which the West was so centered. But the principles that are no longer said disappear. There would then remain only the case-by-case adjustment of interests between human beings in the world field of particular forces. At this yardstick, Law would be more than a technique of securisation of particular adjustments. Law would be reduced at that and would have lost its link with Ethics. (II.C). .   

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