Responsibility

Full reference: Cour de Cassation, Chambre criminelle, 25th of November 2020 (18-86.955), Decision n°2333, société Iron mountain France SAS Read the decision (in French) Read the press release from the Cour de Cassation (in French) ​Read the explication note from the Cour de Cassation (in French) Read Julie Gallois' comment   Summary of the decision In this decision constituting a case law reversal, the Chambre criminelle of the Cour de Cassation decides that the firm which absorbs the one to which are imputable facts which can receive a penal qualification leading to penalties of fines has the aptitude to answer penally. The decision precises that this reversal is applicable only to future cases, to respect the principle of predicability, except if this merging was operated only to escape from criminal responsibility of moral persons.  This case is an example of the use of Criminal Liability Law as an incentive.     

Full reference: CEDH, 24th of October 2019, Carrefour France v. France, n°21488/14 Read the decision (in French) Read the press release (in French)   Summary of the decision In this decision, the ECHR convicts Carrefour France to a civil fine for practices restricting competition committed by the company Carrefour hypermarkets France, dissolved and absorbed by its sole shareholder Carrefour France after the facts.  

Full reference: M. Fabre-Magnan, "La responsabilité du fait du cocontractant. Une figure juridique pour la RSE", in Liber amicorum en hommage à Pierre Rodière. Droit social international et européen en mouvement, Coll. Mélanges, Lextenso – LGDJ, 2019, pp. 79-90. - 🦉This article is available in full text for those enrolled in Professor Marie-Anne Frison-Roche's courses. -

It is about a particular case that one can rephrase the general questions. If the case is hot, it is even more important to return to the general questions, which are always colder (more boring, too). Thus, Cambridge Analytica is a case of which everyone speaks a lot … It is at the same time particular and very burning. So we talk about it a lot, and with vehemence, and in a way often definitive, as well in attack as in defense. For the prosecution, there are many advocacies, gathered for example in the Guardian's files. For the defense, we find less. But one can read for example the article that has been published in early April 2018: Why (almost) everything reported about the Cambridge Analytica Facebook 'hacking' controversy is wrong. The number of comments, and their more or less inflamed nature, in any case always definitive, does not mean anything in itself. The regulators took the floor a little later, both in a more concrete way, the "group of 29" (bringing together all the European Regulators personal data) establishing the 11 April 2018 a working group on this subject and publishing April 10, 2018 new guidelines on the place that must be made to "consent". But for the moment, if we loof at the media, it looks like a trial, because everyone claims to be entirely right and pretends that the other is entirely wrong. Trial to break the truth and virtue, say the accusers. Trial in witchcraft, says Facebook. And it's always up to us. Because all this is probably due to the fact that we are no longer spectators: we are placed in the judge's position. The financial market was the first judge. It has already condemned. Without really trying to find out. This is because the public good of the financial markets is Trust, it is enough that one can even suspect the wife of Caesar, and so it is not really matter of truth of the facts and goof application of Rule of Law. For the public opinion that we are, this is something else, because we could wait to know more. And we should, since we seek to remain a little attached to the "truth " of the facts and respect for the Rule of Law. However, this case is complex and is above all a matter of judicial analysis which will come and which we cannot lead ourselves, both in terms of the facts-which are complex-as well as the rules of law to be applied which are equally so. What turns us into a court, an ordinary sociological phenomenon, is a new legal mechanism: the "whistleblower". By nature, it gives the bonus to the Attack This logic of the legal mechanism of the whistleblower, a movement of fact to throw facts as one throws a buoy outside but one could also say stones on the firm that the insider denounces, logic today encouraged and protected by the Law, allows a person who knows something, most often because he participated, to let everyone know, without a filter. To denounce it. For the public good.. The successive texts on the whistleblower are nrms of a Compliance Law¹Frison-Roche, M.-A., Compliance Law, 2016. which seek, in particular in French Law, to ensure a balance between this "monumental goal"²On this notion, Frison-Roche, M.-A., From Regulation Law to Compliance Law, 2017. which is the respect of the truth, the fight against corruption, the protection of human beings, etc., and the risks to be endured by the company thus denounced. The case is exemplary of this, since Facebook is  "denounced" only in second place, behind Cambridge Analytica, but the notoriety and power of the first makes that it is hit first. French law in the so-called "Sapin 2 Act " of 2016 has ensured to protect the company denounced, but British and American Law are more violent, probably because they encourage more the private enforcement. Temporality is therefore favorable to the attack. The time of the defense is always slower. It is usually the people in situations of weakness who suffer it: slowness of justice, justice outside courthouses, etc. With Compliance mechanisms, it is probably the very powerful who will live this. It is not a matter of rejoicing: the misfortune of some (here the difficulty of a company hasty  "judged") does not console in any way the misfortune of others (the difficulty of ordinary beings accused or having only the right to protect themselves to reach concretely a judge and really get a judgment executed, even as they are in their right). But if we go to general questions, since on the facts of this case we don't have the means to appreciate them, nor on the rules which apply to them, we cannot apply them in an adequate way until a court will have exercised its office? However, the general perspectives highlighted by this singular case are two orders: Probationary order (I) and Accountability order (II).     Read below.          

Among all the things that were important to remember, one of the things that struck me most in the extraordinary conference of the President of the Court of Justice of the European Union Koen Lenaerts on "Europe of the Compliance "held on March 2, 2018 was his ability to make" live Europe ". Not only to make it understand but also to make it "live". Here is the challenge: that compliance is not an accumulation of processes without reason and without flesh, but a living whole taking its meaning into consideration of the human being, a person whose judge is concerned. On 2 March 2018, Koen Lenaerts therefore came to an amphitheater at the University Panthéon-Assas (Paris 2) to inaugurate the series of conferences organized by the Journal of Regulation & Compliance (JoRC), a cycle that has the general title: Pour une Europe de la Compliance (For the Europe of Compliance). The School of Public Affairs of Sciences Po, the Department of Economics of Sciences Po, the Ecole doctorale de droit privé  (Doctoral School of Private Law) at the Université Panthéon-Assas- Paris 2 (Panthéon-Assas University – Paris 2) and the School of Law of the University Panthéon-Sorbonne (Paris I), are associated with this cycle. Many personalities will take the floor. Presented by Professor Thierry Bonneau, the conference made by President Koen Lenaerts was extremely rich and solid, perfectly constructed. Everyone had known the quality of the conference to be delivered by the President of the CJEU. The content of his demonstration will be found in the article he will give for the book that will be published in the Régulations & Compliance Series edited by Marie-Anne Frison-Roche at Éditions Dalloz. And the reader will find all the strength of this demonstration. This is necessary to venture into this area of "Compliance" : Koen Lenaerts recalled that we were still looking for the definition and a French term that would do justice to a satisfactory definition¹Frison-Roche, M.-A., Compliance Law, 2016.. This question was echoed by Antoine Garapon in his discussion. Embodying the firmness that must be shown when words are uncertain, President Koen Lenaerts emphasized that the European Union is based on "Rule of Law". This means that the behaviors must respect Law. For that, – and that is why it is necessary to take in the literal sense the English expression "to comply with", the enterprise must not be passive but to make sure that its behavior is actually respectful of legal prescriptions. In this, there is a general paradigm shift, which inverses the relation betwenn the operator and the rules, from the Ex Post to the Ex Ante²On this passage, which internalises the "Regulatory Law" in the company, c. not. Frison-Roche, M.-A., From Regulation Law to Compliance Law, 2017, and the book, Régulation, Supervision, Compliance (Regulation, Supervision, Compliance), 2017.  as the entreprise has to be itself active to secure the effectiveness of the rule of Law. This internalization of the rule by the company develops both a procedural culture and a behavioral culture, in which companies can express an ethical dimension and build a "Trust Pact" ³About this notion, s. Frison-Roche, M.-A., Compliance and Trust, 2017 ; Drawing the Circles of Compliance Law, 2017. with states and public authorities. This change has been brought about by globalization, since states no longer have the means to impose ethical norms of behavior on businesses through the Ex Post intervention of their jurisdiction, but States like companies are gaining the benefit of this internalisation of rules in compagnies because the Compliance is inseparable from the accountability by which the company is compelled to justify that it actually tends to achieve the overall goals assigned by the public authority. Thus, after exposing the general movement by which Europe opened up to this upheaval, President Koen Lenaerts took on three technical dimensions crossed by this new conception. The first is the Financial Markets Law. The second is Competition Law, about which the President has notably developed the Court's reflections on whether the adoption of a compliance program by an enterprise found to have violated Competition Law, in particular by "negligence" is neutral, or constitutes a mitigating circumstance or constitutes an aggravating circumstance. This question was taken up after the presentation in the discussion with the room. The third is that of personal data. Taking again as in a waltz with three times his remarks, the president of the Court of Justice found that the compliance, whereas it consists in transforming the Ex Post into Ex Ante becomes juridicalised and in this the Court of justice holds its not only in Europe but also in relation to the world, without however ever forgetting that it is the States that are drawing up the rules that are the foundation of Europe. We will find in the article that will be published all these precious elements and no doubt that the elegance of the pen will be equal to that of speech. But, written exercise requires, the reader will not find what we had the chance to attend: the story of two cases by the one I would prefer to name the "Professor Koen Lenaerts". Two famous cases, which we teachers, comment and remind in our courses, that students learn and recite, quote in their copies. But never that way. The first case is the Schrerms case, where the court said that Facebook could not transfer this person's personal data to the United States since he was opposed to it. To make it clear, the President revived it through the litigant, who was a student and for this reason he spoke directly to the students present in the amphitheater. He pointed out that the plaintiff at the origin of the case was a law student, like them. He detailed his situation in Austria, making some quotes in perfect German, pointing out that this student was now at the doctoral stage, inviting students to be brave, as he was. At each episode of the story, the speaker told the students, making some detours on his own student life because finally we were all in family … Alma Mater. But his hands were telling the story even more: they were thrown themselves into the story, they brewed the space, it seemed as if they themselves were no more grandiloquent than the speaker but found their place exactly , in a magisterial position. Yes, here is a president in front of which companies have a hard time hiding the truth, a president with such firm hands and whose torso does not move but turns to the left and right to talk to everyone. The second story was even more beautiful. The Google Spain case, I know it. I even know it by heart. I read it, commented on it, cited it a lot of times … But all of a sudden that's what happened to a small Spanish merchant: President Koen Lenaerts told us his story, and I rediscovered the case. A small Spanish shopkeeper, whose name the speaker uttered in perfect Spanish, obtained from the Court of Justice that his "right to be forgotten" was recognized. President underlined the apparent paradox of his  insistence for the appearance of his surname in the judgment by which this person had thus obtained the erasing of his surname! Yes, I did not notice … Why did he ask for the mention of his name in the right to have his name deleted? Because it's a matter of honor. This is what the speaker insisted: do not joke with honor. And if you do, even Google will lose. The merchant had been subject to a forced property sale procedure because of financial difficulty, which spanish newspapers had echoed. His honor was been trampled. Then, by a happy return of fortune, he had recovered his property, his prosperity, his reputation. But from that, the press had not talked about it. Some lines in a newspaper of legal announcements, but that it is nothing for the human soul. That's why he wanted these mechanical digital links to disappear, which always and for all end up with articles presenting him as a wretch without ever ending up with articles presenting him as a prosperous merchant (because of the non-existence of these second articles). The speaker emphasized this dimension very much. And we know that the General Regulations that will come into force in May 2018 on personal data, which intrigues so much the Americans, draws in the judgment Google Spain its main solution in the matter: this "right to be forgotten" , subjective right so strange. He emphasized this dimension very much. And we know that the General Regulations that will come into force in May 2018 on personal data, which intrigues so much the Americans, draws in the judgment Google Spain its main solution in the matter: this "right to be forgotten" , subjective right so strange. Listening to President Koen Lenaerts, how not to think of Carbonnier? to  his articles of it, especially on sociological rule : "small causes, great effects"? From this conference, it will remain a great article, but as in the theater, where the ephemeral is part of the beauty of this art, what were these two stories, told by the one who knew how to listen when it was necessary to decide the two cases, stories told with the two firm hands that danced inviting students to enter this round, even as the President of the Court of Justice had to leave immediately to Luxembourg to hold such heavy obligations, yes it was simply beautiful .    

Full reference: Com, 28th of February 2006, Etablissement français du sang, n°05-12.138 Read the decision (in French)   Summary of the decision In this judgment, the judge condemns the Etablissement français du sang (French blood establishment – ESF) for an abuse of a dominant position committed by the company Reims Bio, whose activities were subsequently recovered by ESF after its financial liquidation

► Full Reference: D. Bazin, "A Reading of the conception of man in Hans Jonas’ works: Between Nature and Responsibility. An Environmental Ethics Approach", Éthique et économique/Ethics and Economics, 2 (2), 2004 - ► Summary of the article (done by the Author): "We will study the conception of man in Jonas’ ideology through the lens of nature and of responsibility. He brandishes the specter of disaster (“heuristics of fear”) as a guard against technological excesses. He appeals to a prospective, universal and categorical responsibility to protect nature and to save future generations. Jonas considers responsibility as a method of anticipating the threat to that which is vulnerable, ephemeral, and perishable. Thus, the responsibility that Jonas decrees implies an ethics of conservation. Jonas’ writings aim to procure a new dimension of acting, which necessitates an ethics of foresight and responsibility." - 🦉This article is available in full text to those registered for Professor Marie-Anne Frison-Roche's courses -

Full reference: Conseil d'État, 22nd of November 2000, Société Crédit Agricole Indosuez Cheuvreux, n° 207697 Read the decision (in French) Read the analysis of the decision by the Conseil d'État   Summary of the decision In this judgment, the Conseil d'État condemns the company Crédit Agricole Indosuez Cheuvreux for a breach of its professional obligations committed by a negotiator at the arbitration table of the company Dynabourse, subsequently absorbed by the company Crédit Agricole Indosuez Cheuvreux.

► 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.   -