Public company

► Full reference: M.-A. Frison-Roche, "L’usage des puissances privées par le droit de la compliance pour servir les droits de l’homme" (Use of private companies by Compliance Law to serve Human Rights) , in J. Andriantsimbazovina (dir.), Puissances privées et droits de l'Homme. Essai d'analyse juridique, Mare & Martin,  coll. "Horizons européens", 2024, pp. 279-295 - 🚧read the  Bilingual Working Paper on which this article is based, with more technical developments, references and hypertext links - ► English Summary of this article: Following the legal tradition, Law creates a link between power with a legitimate source, the State, public power being its prerogative, while private companies exercise their power only in the shadow of this public power exercised ex ante.  The triviality of Economic Law, of which Competition Law is at the heart, consisting of the activity of companies that use their power on markets, relegates the action of the State to the rank of an exception, admissible if the State, which claims to exercise this contrary power, justifies it.  The distribution of roles is thus reversed, in that the places are exchanged, but the model of opposition is shared. This model of opposition exhausts the forces of the organisations, which are relegated to being the exception. However, if we want to achieve great ambitions, for example to give concrete reality to human rights beyond the legal system within which the public authorities exercise their normative powers, we must rely on a new branch of Law, remarkable for its pragmatism and the scope of the ambitions, including humanist ambitions, that it embodies: Compliance Law. Compliance Law is thus the branch of Law which makes the concern for others, concretised by human rights, borne by the entities in a position to satisfy it, that is to say the systemic entities, of which the large companies are the direct subjects of law (I). The result is a new division between Public Authorities, legitimate to formulate the Monumental Goal of protecting human beings, and private organisations, which adjust to this according to the type of human rights and the means put in place to preserve them. Corporations are sought after because they are powerful, in that they are in a position to make human rights a reality, in their indifference to territory, in the centralisation of Information, technologies and economic, human, and financial means. This alliance is essential to ensure that the system does not lead to a transfer of political choices from Public Authorities to private companies; this alliance leads to systemic efficiency. The result is a new definition of sovereignty as we see it taking shape in the digital space, which is not a particular sector since it is the world that has been digitalised, the climate issue justifying the same new distribution of roles (II).  - 📝read the article (in French) - 🌐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

🌐 follow Marie-Anne Frison-Roche on LinkedIn 🌐 subscribe to the Newsletter MAFR Regulation, Compliance, Law  - ► Full Reference: M.-A. Frison-Roche, "Place et rôle des entreprises dans la création et l'effectivité du Droit de la Compliance en cas de crise" ("Place and rôle of Companies in the Creation and Effectiveness of Compliance Law in Crisis"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, pp. 339-352. - 📝read the article (in French)    - 🚧read the bilingual Working Paper which is the basis of this article, with additional developments, technical references, and hyperlinks - 📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation & Compliance): This article has a very topic: the place of private Companies, regarding the chapter's issue: "the ordeal of a crisis". The crisis constitutes a "test" it brings evidence. Let us take it as such. Indeed, during the health crisis, Companies have helped the Public Authorities to resist the shock, to endure and to get out of the Crisis. They did so by force, but they also took initiatives in this direction. From this too, we must learn lessons for the next crisis that will come. It is possible that this has already started in the form of another global and systemic crisis: the environmental crisis. In view of what we have been able to observe and the evolution of the Law, of the standards adopted by the Authorities but also by the new case law, what can we expect from Companies in the face of this next Crisis, willingly and strength? -

► Full Reference: A. Oumedjkane, A. Tehrani & P. Idoux, "Normes publiques et compliance en temps de crise : les buts monumentaux à l'épreuve. Éléments pour une problématique" ("Public Norms and Compliance in times of crisis: Monumental Goals tested. Elements for a problematic"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, pp. 275-295. - 📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published - ► Summary of the article (done by the Authors): In this paper, compliance refers to the fact that large private firms, through internal procedures designed to abide by public norms, participate in achieving the goals set out by public authorities, as the latter cannot reach those goals without help (proper functioning of financial markets, environment protection, fight against the corruption…). While in times outside a crisis period, the need to maintain a close link between public norms and compliance to achieve those “monumental goals” has been established, the validity of this analysis must be assessed during crisis periods. Indeed, to put an end to the turmoil as soon as possible, it is tempting to rely primarily on public authorities.  Should then be studied, in the light of the health crisis, the possibility that the link between public norms and compliance be altered in times of crisis. Not only is the normative reaction of public authorities very intense during the period, but some features of the compliance could lead one to think that compliance is in no way useful in a context of emergency and instability. This paper nevertheless suggests that to achieve monumental goals, it is necessary to maintain a close link between public norms and compliance. Such a link was maintained indeed, even at the height of the health crisis, and this should probably also be the case beyond this period, as breaking the link involves some risks which are not specific to the current health crisis. In other words, despite its shortcomings, compliance may not lose all its assets in times of crisis. -

Full reference: Sauvé, J. M., Les entreprises publiques, Introductive speech to the conference "les entretiens du Conseil d'État en Droit public économique" (Conseil d'État's colloquium in Economic Public Law), 10 juin 2016 Read the speech (in French)

At first glance, only areas are regulated and the State doesn't enter private enterprises. But the imperative is reversed when a company absorbs the entire area, or when a firm has the project to absorb the area, such as Google has. The firm becomes "crucial" and the State must enter the company and intervene.  It is necessary to give the definition of a "crucial firm". A firm is "crucial", in a negative sense, when its failures could cause the collapse of the system; a firm is positively "crucial" if through it the industry is facing the purpose to serve the future of the social group. The State is then legitimate to enter the company to make its voice heard, sometimes to exercise its decision-making powers. The competitive dynamism and power of property don't exclude the superimposition of the common concern for the future, which some call the general interest.

The expression "regulated company" may appear as an oxymoron : the State  regulates areas (markets, networks, etc.) because of their structural failures, but the State doesn't enter a company that develops its activities autonomously. But on reflection, it is sometimes necessary to "regulate a company" and this necessity is increasingly imposed. This is imperative if a company absorbs the entire area, because it is a monopoly or because it wants to become the heart of a crucial area, such as Google which has the project to become the future global brain. In a more general way, it is a necessity to  locate businesses which are "crucial", banks are only one example, and organize, beyond supervision, providing direct regulation of such firms. This regulatory power on critical firms must take the form of attendance of public power and policy within the company itself, so that the state interfere in decisions which social group suffers the consequences. The control can go beyond this "public presence" to take the form of "public authority", the state ruling as operator. Under such conditions of "cruciality", the neutralization of "public enterprise" by the competition law must cease, the public company must be better recognized as a regulatory instrument in distance with the simple game of competition.