Regulatory law

► Full Reference: Frison-Roche, M.-A., coordination and moderation of the conference L'office du juge et les causes systémiques (""The Office of the Judge and systemic causes"), in Cycle of Conferences, Penser l'office du juge ("Thinking the Office of the Judge"), Grand Chamber of the Cour de cassation, Paris, May 9, 2021, 17h-19h. The conference is held in French. - ► General presentation of the conference: the conference is based on the intervention of three judges, Christophe Soulard, Fabien Raynaud, and François Ancel, who think and debate among themselves on a hypothesis: the existence of "systemic causes". The hypothesis is that beyond and through the diversity of disputes and cases that are submitted to the most diverse judges, there is a category of cases that are systemic, which means containing in what is submitted to the judge for resolution a system.  If such a category exists, which also raises the question of the diversity of systems and the difficulty arising from their submission to rules that are not legal (for example economic, biological, financial "laws", etc.) , then the judge should take this into account, both in the procedure and in the judgment they make on the case and in the way they formulate et restitute this judgment. - 📝read the presentation of this conference by the Cour de cassation (in French) 📝read the program of the cycle of conferences 2022 (in French) -  🎥see the conference video (in French)  🎥 see the synthesis video of the conference, made in situ by Marie-Anne Frison-Roche (in French)   - ​✏️read the notes taken during the conference to make the synthesis (in French) 📝read the article of Marie-Anne Frison-Roche restituting this conference, published in the Recueil Dalloz (in French) - ►read the works, basis of the two interventions of Marie-Anne Frison-Roche 🚧 L'hypothèse de la "cause systémique (made before the conference to prepare it), available en English 📝Synthese of the conference (made during the conference) -

► Full Reference: Frison-Roche, M.-A, Reinforce the judge and the lawyer to impose Compliance Law as a characteristic of the Rule of Law, Working Paper, August 2021. - 🎤 this working document has been made to prepare some elements of the opening intervention in the symposium Quels juges pour la Compliance) ? (Which judges for Compliance?), co-organized by the Journal of Regulation & Compliance and the Institut Droit Dauphine, held at the Paris Dauphine University on September 23, 2021, constituting the first part of the intervention. - 📝it has been also the basis for an article:  📕 published in its French version in the book La juridictionnalisation de la Compliance, in the collection📚Régulations & Compliance  📘published in its English version in the book Compliance Jurisdictionalisation, in the collection 📚Compliance & Regulation - ► Summary of the Working Paper: One can understand that the compliance mechanisms are presented with hostility because they seem designed to keep the judge away, whereas there is no Rule of Law without a judge. Solid arguments present compliance techniques as converging towards the uselessness of the judge (I). Certainly, we come across magistrates, and of all kinds, and powerful ones, but that would be a sign of imperfection: its ex-ante logic has been deployed in all its effectiveness, the judge would no longer be required… And the lawyer would disappear so with him… This perspective of a world without a judge, without a lawyer and ultimately without Law, where algorithms could organize through multiple processes in Ex Ante the obedience of everyone, the "conformity" of all our behaviors with all the regulatory mass that is applicable to us, supposes that this new branch of Law would be defined as the concentration of processes which gives full effectiveness to all the rules, regardless of their content. But supposing that this engineer's dream is even achievable, it is not possible in a democratic and free world to do without judges and lawyers. Therefore, it is imperative to recognize their contributions to Compliance Law, related and invaluable contributions (II). First of all, because a pure Ex Ante never existed and even in the time of the Chinese legists¹ L’empire chinois n’a semble-t-il jamais apprécié les juges, ne leur faisant place que sous la forme de serviteurs purs de l’Etat, qu’ils soient des enquêteurs, des punisseurs et de gardiens de l’ordre public. Sur cet aspect du Droit chinois, v. … ; sur cette période particulièrement sanglante des légistes, où le principe de « certitude » de la législation a été portée à ses nues, v. …, people were still needed to interpret the regulations because a legal order must always be interpreted Ex Post by who must in any case answer the questions posed by the subjects of law, as soon as the political system admits to attributing to them the right to make claims before the Judge. Secondly the Attorney, whose office, although articulated with the Judge's office, is distinct from the latter, both more restricted and broader since he must appear in all cases where the judicial figure puts himself in square, outside the courts. However, Compliance Law has multiplied this since not only, extending Regulatory Law, it entrusts numerous powers to the administrative authorities, but it also transforms companies into judges, in respect of which the attorneys must deal with. Even more so, Compliance Law only takes its sense from its Monumental Goals²🕴️Frison-Roche, M.-A. (ed.), 📘​Compliance Monumental Goals, 2022.. It is in this that this branch of the Law preserves the freedom of human beings, in the digital space where the techniques of compliance protect them from the power of companies by the way that the Compliance Law forces these companies to use their power to protect people. However, firstly, it is the Judges who, in their diversity³The topic of this study is general. For a more analytical perspective, s.. 🕴️Frison-Roche, M.-A., « The function of the Judge in Compliance Law », in 🕴️Frison-Roche, M.A. (ed.), 📘Compliance Jurisdictionalisation, 2023. , impose as a reference the protection of human beings, either as a limit to the power of compliance tools⁴🕴️Frison-Roche, M.-A. (ed.), 📘Compliance Tools, 2021.  or as their very purpose. Secondly, the Attorney, again distinguishing himself from the Judge, if necessary, reminds us that all the parties whose interests are involved must be taken into consideration. In an ever more flexible, soft and dialogical Law, everyone presenting himself as the "advocate" of such and such a monumental goal: the Attorney is legitimate to be the first to occupy this place. - 🔓read the Working Paper developments below⤵️

► 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®

► Compliance Law is essential for the future of Africa: this is also a lesson from the Juin 2021 G7 Summit in its Infrastructure Plan.  It emerges from the G7 summit which ends on June 13, 2021 in Carbis Bay in the United Kingdom, a common desire to increase infrastructures in Africa, in itself and because otherwise China will do it, and will do it differently. Compliance Law will be determinant in this common action for three reasons. First and because the issue is about infrastructures, the construction and the management of infrastructures falling more under Regulatory Law than Competition Law (📕Chevalier, J.-M., Frison-Roche, M.-A, Keppler, J.EPPLER, J.H. et Noumba, P. (ed.), Économie et droit de la régulation des infrastructures. Perspectives des pays en voie de développement, 2009). However, Compliance Law is not a simple process for the effectiveness of rules which are external to it, it is the extension in companies of Regulatory Law. Where companies must implement regulatory goals within themselves, they develop Compliance rules (➡️📝see Frison-Roche, M.A., From Regulation Law to Compliance Law, 2017.  Secondly and because the issue is about Africa, the Rule of Law is sometimes not very solid there. By internalizing Regulatory Law in companies (or even by associating Arbitration with it), Compliance Law makes it possible to get out of this dead end (➡️📝Salah, MM, Conception and Application of Compliance in Africa, in 📕 Frison-Roche, M.-A. (ed.), Compliance Tools, 2021. Thirdly and because the topic si about China, Compliance Law in its European conception has the Monumental Goal of defending individuals while in its Chinese conception it aims to obtain their obedience to the rules (➡️📝Frison-Roche, M.-A., In China, Compliance Law deploys without, and even against democracy, China seeing Compliance only as an "efficiency process"; in Europe, it deploys with and even for democracy, 2021). On construction sites and in the human management of infrastructures, this changes everything. G7 members share the first conception. They must now implement it by their companies and thanks to them, private sector being in alliance with the political authorities which just expressed. Because Compliance Law is an alliance between political authorities and crucial economic operators.   ► register to French Newsletter MaFR ComplianceTech®

Full reference: Luguri, J. and Strahilevitz, L. J., Shining a Light on Dark Patterns, Journal of Legal Analysis, Vol. 13, Issue 1, 2021, 67p.  Sciences Po's students can read this article via Sciences Po's Drive in the folder MAFR – Regulation & Compliance. 

Full reference: Frison-Roche, M.-A., Why do we regulate? If it is to prevent systemic risks, systemic "family offices" must be subject to it (Archegos case) (Pourquoi régule-t-on? Si c'est pour prévenir les risques systémiques, les "family offices" systémiques doivent y être soumis (cas Archegos)), Newsletter MAFR – Law, Compliance, Regulation, 30th of March 2021 Read by freely subscribing other news of the Newsletter MAFR – Law, Compliance, Regulation   Summary of the news:  Archegos was a wealth management company whose activity consisted mainly in managing funds that were not themselves from the financial markets (hence its title of "family office"). Obviously, Archegos was proving to be too fragile financially in view of the highly speculative commitments it made on the financial markets and systemic banks were particularly deeply affected by the liquidation of large amounts by Archegos to be able to respond to margin calls. As the mandate of the financial regulatory authorities is aimed almost exclusively at the protection of public savings, Archegos completely escaped the regulation and supervision of the Securities and Exchange Commission (SEC). However, Regulation Law also aims to prevent and manage systemic risks, which are often multi-sectoral and even trans-sectoral, and this in a teleological way. In view of this and the increasingly important place taken by speculative behavior in the financial markets, the financial regulatory authorities must give up the condition of using public savings in their consideration of operators which should be regulated because even an operator not handling public savings can threaten the existence of financial markets. From this perspective, "family offices", not handling public savings but having a systemic dimension, must come under the regulation and supervision of financial regulatory authorities.

Full reference: Bayrou, F., Electricité: le devoir de lucidité (Electricity: the duty of lucidity), note n°4 from the Haut-Commissariat au Plan (French government planification agency), 23rd of March 2021, 37 p.   Read the note (in French) Read the summary of the note done by the Haut-Commissariat au Plan on is official website (in French)

Full reference: Zittrain, J. L., "Gaining Power, Losing Control", Clare Hall Tanner Lecture 2020, 2020 See the intervention Read the intervention's report   This intervention is divided in two parts:  Between Abdication and Suffocation: Three Eras of Governing Digital Platforms  With Great Power Comes Great Ignorance: What’s Wrong When Machine Learning Gets It Right 

Full reference: Frison-Roche, M.-A., New SEC Report to Congress about Whistleblower Program: what is common between American and European conception, Newsletter MAFR – Law, Compliance, Regulation, 1st of December 2020 Read by freely subscribing other news of the Newsletter MAFR – Law, Compliance, Regulation   Summary of the news Like every year since the adoption of the Dodd-Frank Act, the Securities and Exchanges Commission (SEC) and especially its Office of the Whistleblowers (OWB) handed to the Congress of the United-States a report about the success of its program concerning whistleblowers, especially estimated with the amount of financial rewards granted to them during the year. This report especially presents the amount granted to whistleblowers, the quality of the collected information and the efficacy of SEC's whistleblowers' protection process. If Americans condition the effectiveness of whistleblowing to the remuneration of whistleblowers, Europeans oppose the "ethical whistleblower" who shares information for the love of Law to the "bounty hunter" uniquely motivated by financial reward and favor the former to the later, as it is proven in the French Law Sapin II of 2016 (which do not propose financial reward to whistleblowers) or the British Public Interest Disclosure of 1998 (which just propose a financial compensation of the whistleblower's losses linked to whistleblowing).  However, American and European conceptions are not so far from each other. As United-States, Europe has a real care for legal effectivity, even if, because of their different legal traditions, Americans favor effectivity of rights while European favor effectivity of Law. If it places effectivity at the center of its preoccupations, Europe should conceive with less aversion the possibility to financially incite whistleblowers. Moreover, United-States and Europe share the same common willingness to protect whistleblowers and if rewarding would enable a better protection, then Europe should not reject it, as shows the recent declarations of the French Defenders of Rights. It is not excluded that both systems converges in a close future. 

Full reference: Frison-Roche, M.-A., Facebook: Quand le Droit de la Compliance démontre sa capacité à protéger les personnes (Facebook: When Compliance Law proves its ability to protect people), interview with Olivia Dufour, Actu-juridiques Lextenso, 23rd of November 2020 Read the interview (in French) Read the news of the Newsletter MAFR – Law, Compliance, Regulation about this question

Full reference: CJEU, 1st chamber, 18th of November 2020, decision C‑519/19, Ryanair DAC vs DelayFix Read the decision   Summary of the decision This decision of the CJEU of 18th of November 2020 is about the jurisdiction clause for any dispute in air transport contracts, here those of Ryanair. This decision is especially interesting about the question to know whether the professional assignee (collection company) of a debt whose holder was a consumer may or may not avail itself of the consumer protection provisions, canceling the scope of this type of clause.  The Court takes back the criteria and the solution already used in 2019 about a credit contract: the protection applies by the criterion of the parties to the contract and not of the parties to the disputes. Such a clause is effective only if the integrality of the contract is transferred to the professional, and not only some of the stipulations. This Regulatory decision, through "private enforcement", incentivizes consumers to transfer their compensation claim (around 250 euros) to collection companies which, in turn, discipline airlines to stay on schedule.

Full reference: US Securities and Exchanges Commission, Whistleblower Program. 2020 Annual Report to Congress, 16th of November 2020 Read the report   Read, to go further on the question of whistleblowers: Frison-Roche, M.-A., The impossible unicity of the legal category of whistleblowers, working paper, 2019  

Full reference: Serious Fraud Office, Operational Handbook about Deferred Prosecution Agreements, October 2020 Read the Operational Handbook

Full reference: Frison-Roche, M.-A., Regulation, Compliance & Cinema: learning about Internet Regulation with the series "Criminals"​, Newsletter MAFR – Law, Compliance, Regulation, 21st of September 2020 Read by freely subscribing other news of the Newsletter MAFR – Law, Compliance, Regulation   Summary of the news:  Season 2 Episode 3 of the British version of the series "Criminals" features the character of Danielle. Danielle is a mother which has decided to hunt down pedophiles on social networks in order to trap them and show to the world their acts. Danielle insists on the efficiency of her action with regard to the police and justice that she finds unproductive. In the episode, Danielle is accused of defamation by the police. While policemen try to explain to Danielle the importance of using a regular procedure and to respect the Rule of Law aiming to prove its accusations, she makes efficiency her only principle. According to her, her methods get results (on the contrary of those used by the police which respect procedures) and those she accuses to be pedophiles do not deserve defense rights.  We can learn three lessons from Danielle's story:  If Compliance Law is just a process of application of mechanical rules, then Rule of Law is not salient face to the principle of efficiency. But, if Compliance Law is defined by its "monumental goals" and that the respect of Rule of Law is erected in "monumental goal", then efficiency and Rule of Law become compatible and congruent.  The digital space must be disciplined by crucial digital firms supervised by public authorities, like in France or Germany for hate speeches and disinformation.  Compliance Law, and Law in general, must be pedagogue towards individuals as Danielle which do not understand why their behaviors are reproachable. 

Full reference: Lamoureux, M., Droit de l'énergie, Collection "Précis Domat Droit public/Droit privé", Lextenso – LGDJ, 2020   Read the forth of cover (in French) Read the table of contents (in French)

Full reference: M.-A. Frison-Roche, Se tenir bien dans l'espace numérique, in Penser le droit de la pensée. Mélanges en l'honneur de Michel Vivant, Lexis Nexis and Dalloz, 2020, pp. 155-168. - 📝Read the article (in French) - 🚧Read the working paper, written in English, on which this article is based, with additional developments, technical references, and hyperlinks   English summary of the article: The digital space is one of the scarce spaces not framed by a specific branch of Law, Freedom also offering opportunity to its actors to not "behave well", that is to express and diffuse broadly and immediately hateful thoughts through Hate speechs, which remained before in private or limited circles. The intimacy of Law and of the legal notion of Person is broken: Digital permits to individuals or organizations to act as demultiplied and anonymous characters, digital depersonalized actors who carry behaviors that are hurtful to other's dignity.  Against that, Compliance Law offers an appropriate solution: internalizing in digital crucial operators the mission to disciplinary and substantially hold the digital space. The digital space has been structured by powerful firms able to maintain order. Because Law must not reduce digital space to be only a neutral market of digital prestations, these crucial operators, like social networks or search engines, must be forced to substantially control behaviors. It could be about an obligation of internet users to act with their face uncover, "real identity" policy controlled by firms, and to respect others' rights, privacy rights, dignity, intellectual property rights. In their Regulatory function, digital crucial firms must be supervised by public authorities.  Thus, Compliance law substantially defined is the protector of the person as "subject of law" in the digital space, by the respect that others must have, this space passing from the status of free space to the one of civilized space, in which everyone is obliged to behave well.  -   Read to go further:  Frison-Roche, M.-A., L'apport du Droit de la Compliance à la gouvernance d'Internet, 2019 Frison-Roche, M.-A. (dir.), Internet, un espace d'interrégulation, 2016 - 🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law