Food for thoughts
June 15, 2021
Thesaurus : 05. CJCE - CJUE
Full reference: CJEU, Grand chamber, Judgment Facebook Ireland e.a. v. Gegevensbeschermingsautoriteit, C-645-19, June 15, 2021
Read the abstract of the judgment done by the Court
June 15, 2021
Compliance: at the moment
► Money Laundering, Cryptocurrency and the Art of Saying It: the Financial Conduct Authority (FCA) statement of June 3, 2021 and the Art of Saying It. Law is softer than ever.
The English have their way of saying things: thus the Financial Conduct Authority -FCA, the British financial market regulator, published on June 3, 2021 a press release whose expression is remarkable. Its subject matter is crypto-assets and, like in an essay plan à la française, it is built in two parts.
In the part I, it is just mentioned that the deadline for companies in this industry to obtain a registration, which was due to end soon, will be postponed to March 2022. Why? Because almost all of them have not been able to demonstrate their ability not to be resistant to money laundering and other criminal activities. This is in no way presented as a conviction, just the objective cause of a postponement of the date, the time for the Financial Regulatory Authority to better examine the files, themselves to be completed by applicants.
The part II concerns consumer protection. The Authority point out that the consumer can lose everything in an extremely risky products and underlines that it is unlikely that this ruined layman will even be able to access the ombudsman to obtain anything. It is purely informative.
This is how the English bodies formulate their opinion on cryptoasset.
It's elegant (the press is more direct).
This also makes it possible not to be covered with insults by the worshipers of these objects: are expressed just a technical delay granted and not a conviction that cryptoasset could be per se an instrument of criminality, just a probationary difficulty ; and just a regret on the non-access to the ombudsman for these cryptoassets consumers.
But if the evolution of the bubble leads these investors to ruine shows, the Regulator will have warned and expressed in advance the regrets he had of the lack of legal technique to protect them. And if the facts show that it is massively through cryptocurrency that the crime is whitewashed, the Regulator has shown everyone his prudence, the delay it will have take to examine the files and its kind foresight.
No one more than a British knows what Liability is.
_____
June 14, 2021
Compliance: at the moment
► Do Compliance and Democracy have a relationship? China replies: no. Europe responds and must respond: they are intimate. The definition of Compliance Law is therefore essential.
In an interview of great clarity given in French to the Newspaper Les Echos on June 2, 2021, about Brexit, China and Russia (➡️📝 "Brexit, Chine, Russie : les confidences de la diplomate Sylvie Bermann"), Sylvie Bermann reminds the evolution of China. She sums up the situation as follows: « La Chine ne veut pas dominer le monde, elle veut être la première et surtout qu'on ne puisse pas lui imposer un système, la démocratie » ("China does not want to dominate the world, it wants to be the first and above all that no one can impose on it a system, Democracy,").
This is reflected in China's conception of Compliance Law. If one defines Compliance Law only as a "method" for the effectiveness of rules, consisting of a kind of "Ex Ante enforcement process" leading to 100% effectiveness of regulations by subjects who must show to everyone the respect they have for these regulations and who are rewarded by this proof thus given, then China, in its current use of Law, illustrates exactly this definition: subjects, individuals and companies, prove their "obedience" to rules - whatever the rules" substantial content -, which is evaluated ("rating") and rewarded, in a mechanical reign of the Ex Ante, served by technologies. Democratic mechanisms are not required; they are even disturbed, because they interfere with the efficiency of the system. The technological and purely technocratic conception of Compliance ("Regulation by data", for example) uses the same definition of Compliance Law, which leads to choose algorithms’ efficiency.
Europe must keep going to make another choice: European Compliance was born out of the Court of Justice of the European Union’s case law, in the 2014 judgment, Google Spain (➡️📝CJEU, Google Spain, May 13, 2021), to protect the person by inventing a subjective right: the right to be forgotten, in a digital space with infinite memory. Based on the Rule of Law, Compliance Law is then defined by its Monumental Goals, which are the protection of people and puts the judge at the center. It is the reverse of Chinese mechanics.
Therefore, they are definitions that lead the world: about the definition of Compliance Law by "Monumental Goals", see ➡️📅 the 2021 cycle of colloquia co-organized by the Journal of Regulation & Compliance (JoRC) and its university partners on Monumental Goals; on the technical influence of this definition on "Compliance tools" ➡️📕see Frison-Roche, M.-A., Legal Approach to Compliance Tools: Building by Law the unity of Compliance Tools from the definition of Compliance Law by its "Monumental Goals", 2021.
June 3, 2021
Thesaurus : Doctrine
June 2, 2021
Publications
Full reference : Frison-Roche, M.-A., Incentives and Compliance, a promising couple to increase the Compliance Law utility, in Frison-Roche, M.-A. (ed.), Compliance Tools, series "Régulations & Compliance", Journal of Regulation & Compliance and Bruylant, 2021, p. 141-148
___
Summary of the article: The theory of incentives targets the mechanisms which do not use directly constraint (except to present sanctions themselves as incentives) but which leads nevertheless to expected behaviors. To appreciate the links which must or must not be done between incentives and Compliance, we should proceed in two times.
First, the association appears natural between incentive mechanisms and "Compliance Law" since the later is defined in a dynamic way. Indeed, if it is defined placing its legal normativity in its "monumental goals", as the end of corruption, the detection of money laundering in order to underlying criminality disappears, or as the effective protection of environment or the concrete care of human beings, then what matters is not the means in themselves but the effective tension towards these "monumental goals". In this perspective, what was related to public policies led by States, because they are definitively not able to do it, the charge is internalized in the firms which are able to tend towards this goals: "crucial operators" because they have the geographical, technological, informational and financial means.
In this perspective, the internalization of public willingness provoking a split with the concept of State linked to a territory which deprives Politics of its constraint power, incentive mechanisms appear as the most efficient mean to reach these monumental goals. They appear as this "natural" mean both negatively and positively defined. Negatively in which they do not need in Ex Ante institutional localizable sources and sanction power in Ex Post: it is enough to substitute the interest to obligation. Positively, incentives relay through operators' strategies what was the so critical and joked form of public action: the "plan". The duration is thus injected thanks to Compliance mechanisms, as we can see it through the development of it in the care for environment ("plan climat") or through the educational mechanism, which could be conceived only in duration.
However, the opposition seems radical between Compliance Law and Incentives. And this because of three convictions often developed and that we have to overcome. First, the idea that in a general way, there would be a Law only if there is a mechanism of immediate constraint which is associated to the norm. As long as the incentive is not based on obligation, then it will be nothing... Secondly, and as if that were a kind of consolation ..., Compliance would not be really Law either ... We so often say that it is only about a methodology, a range of processes without sense, procedures to follow without trying to understand, process that algorithms integrate in a mechanic without end and without sense or that on the contrary, Compliance would be full of sense by Ethics and Morality, which are far from Law. While incentives talk to the human spirit which calculate, Compliance would be so a process through which machines will be connected to other machines, so an extra soul, where calculation has no place... Thirdly, solutions would be to be find in Competition Law because it can do without States, submit them and approach what is a-sectorial, especially finance and digital, the world being financialized and digitalized. The violence of Competition Law which comes in Ex Ante thanks to "Compliance sanctions" applying for example to essential infrastructures Law, by continuing to deny the salience of the duration and taking care of the "market power" would be also not compatible with a marriage with incentive mechanisms which rely on duration and power of those to which it is applied, converging towards goals, which are set by what Competition Law ignores: the project. This project which pretends to build the future is the one of politics and of companies, which use their deployed power in time to concretize it. It is without any doubt there that the future of Europe is.
To overcome this triple difficulty, it is thus necessary, in a second time, to modify our conception of Law, especially thanks to Compliance Law, in which this new branch is autonomous from Competition Law, and even sometimes opposed to it, in order to the insertion of incentive mechanisms permit to unknown or against Competition Law organizations to reach "monumental goals" which are imperative to take into consideration. For example, the taking into consideration of climate challenges or the building of a sovereign identity of the data. This is expressly set by European Commission which supervises such initiatives, supervision being what is articulated with Compliance, in a couple that go beyond Regulation, and replaces in Ex Ante Competition Law, salient branch for Ex Post. All the texts which are in the process of expressing it are based on this reformed couple: Compliance and Incentive.
This couple supposes that we recognize as such the existence of companies as project carriers, project which is the creation of marketed wealth circulating on a market, which could be an industrial project specific to a geographical zone both economical and political. Regulation is deployed to go away from the notion of sector and to transform itself in supervision of crucial firms in the correspondance between the project and the action, what refers to the notion of "plan". In this, banking supervision is just the advanced bastion of all thematic, energetic, climatic and health plans, or more broadly industrial and technological that could by incentive be implemented, this conception of Compliance permitting to build zones which are not reduced to immediate market exchange. The incentive corresponds to the fact that Compliance Law relies on the power of the firm to reach its own political goals, for example fighting against disinformation in the digital space or obtaining a healthy environnement. This supposes that Compliance stops to be only conceived as a model of rules effectivity, for example of Competition Law, to be recognized as a substantial branch of Law. A branch which expresses political goals. A branch which is anchored in crucial firms whose it recognizes the autonomy with regards to markets. This makes it possible, in particular through the coupling with incentive mechanisms leading to long-term collaborative operations supervised by public authorities, not to be governed by simple Competition Law, inapt to bring projects to fruition.
____
Read a general presentation of the book in which the article has been published.
____
June 2, 2021
Thesaurus : Doctrine
Full reference : Granier, C., The Normative originality of Compliance by Design, in Frison-Roche, M.-A. (ed.), Compliance Tools, serie "Régulations & Compliance", Journal of Regulation & Compliance and Bruylant, 2021, p. 287-298.
Read a general presentation of the book in which the article has been published.
___
Summary of the article by Marie-Anne Frison-Roche: The author develops the idea that Compliance by design represents a "normative originality", in that it aims, through a complex relationship between the obligatory and the voluntary, to ensure the effectiveness of the "primary standards" contained in the "monumental goals" set by public authorities. The normativity of Compliance by design is original because these processes are situated since the implementation of technical processes, what is referred to by the expression "by design", which reinforces the Ex Ante dimension of Compliance Law, IT embedding this normativity in the structures themselves, by a marriage between technology and Compliance.
It results from that an "automatized" application of the norm, integrated in an IT program, which for example blocks the access to some data if the user has nor correctly expressed his or her consent, chain of events mechanically caused by the effect of previous events (or non-events) (as in smart-contracts), a whole functioning in total Ex Ante, outside any feared state sanction perspective, the constraint being reinstated in technical aptitude. This primacy of the technique asks the question of the interpretation of norms thus incorporated, question that the authors let opened because it could lead to machines which interpret themselves the norms.
This automatized application is presented as more "efficient", essential quality in the Compliance atmosphere since like that the norm does not depend on private actors and can benefit from their technical power. But we measure now the author of secondary technical norms inserts itself norms that should be only at the first level, the firm integrating its own practices and values, Compliance by design being related to auto regulation.
Moreover, the author shows that in the conception of the norm, in its design, the question is to designate the author of the norm's integration in the algorithm and the modalities of the integration. The author being intern to the firm, this would constitute a privatization of the norm, since the norm, even secondary, cannot be totally deprived of value's integration, Compliance overwhelming the organization of Law sources. In a situation that the author calls an "unknown", except that "jurists-coders" appear, the lawyer is disqualified by its technical inability because it is about a technological integration, the transfer of the legal toward the algorithm, by the translation in a coding and then by the integration in the IT architecture of the firm, transforming the legal rules. For example, through the choice of the severity of the mechanical sanction chosen at the secondary level to give effectivity to an interdiction educated at the primary level. The author shows thus that this effectivity control of primary level norms, effectivity control that is implemented at the second level, directly impacts primary level norms. For example, deciding to ask the authorization, or the expression of a consent, or forbidding the access, when a content has been reproved by a primary level norm which does not precise the mode of control of this reprobation that Compliance by design must associate to it. But Compliance by design being not an auto regulation, public authorities control its implementation, as did the CNIL (French Data Regulator) for Androïd. This type of control will be developed.
Read the summaries of the other articles of the book.
____
June 2, 2021
Compliance: at the moment
► The European Public Prosecutor's Office (EPPO), a major weapon for the Compliance Law.
The European Union's prosecutor comes out of its cradle : the "European Public Prosecutor's Office" starts its activities. Long to set up, this European judicial body is linked to delegated prosecutors in the Member States. It is not a simple emanation of national bodies networked; of autonomous competence, it is the organ in the name of which the action is carried out.
In addition to this institutional revolution, there is a substantial revolution: this European Public Prosecutor's Office can prosecute any attack to the "financial interests of the European Union". These "attacks on financial interests" are conceived broadly, including in particular acts of corruption or embezzlement.
First of all, Didier Reynders emphasizes that this puts the rule of Law at the center. It is no longer Europe supporting actions to be coordinated between States, the national prosecution having technical difficulties to cooperate effectively with each other, but the European Public Prosecutor's Office which will allow unified and effective European action between delegated prosecutors.
Secondly, it continues the string of effectiveness between Compliance, located in Ex Ante, Compliance Law consisting in "preventing" and "detecting" such behavior, and the Ex Post, because a judge is sometimes necessary so that the disregard of these Ex Ante obligations is sometimes sanctioned (➡️📝Frison-Roche, M.-A., Compliance and International Public Order: the French conception preserved by the Paris Cour of Appeal, 2021) but also a prosecution: the prosecutor is a major figure in Compliance Law. Indeed, being able to prosecute, the prosecutor can also not prosecute and change its decision to close the file in returns for commitments (Ex Ante) from the company: the "public interest judicial agreements" - CJIP. In fact, through the opportunity to prosecute, will such powerful flexibility be found at European level?
Thirdly, the prospect of prosecution by the European Public Prosecutor's Office will incent in Ex Ante companies to prevent, or to prosecute themselves (➡️🎤Frison-Roche, M.-A. et Roda, J.-C. (dir.), The firm instituted prosecutor and judge of itself by Compliance Law, Lyon, June 23, 2021) the perpetrators of fraud in the interests of the Union European.
At a time when the Union is engaging in direct loans to lend still more, this role of the company, sometimes qualified as "private prosecutor", linked to a prosecutor, now European, is necessary.
Are we moving towards the alliance of all prosecutors?
June 2, 2021
Publications
Full Reference: Frison-Roche, M.-A. (ed.), Compliance Tools, serie "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) & Bruylant, 2021.
This book in English is the first title of this collection integrally dedicated to Compliance Law, in that it is the extension of Regulation Law.
Read the titles of this series in English co-published by Bruylant.
This collection in English is articulated with a collection co-published between the Journal of Regulation & Compliance and Dalloz.
Thus, in parallel, a book in French, Les Outils de la Compliance is published.
Read the titles of the series in French co-published with Dalloz.
This book is published after a cycle of colloquiums organised by the Journal of Regulation & Compliance (JoRC) and Partners Universities.
___
General Presentation of the collective book
The political dimension of Compliance Law lies in the goals it aims to achieve. To achieve them, the concern for these goals is internalized in "crucial operators", which may be obliged to concretize "monumental goals" set by public authorities. These public bodies control the Ex Ante reorganization that this implies for these companies and sanction Ex Post the possible inadequacy of the companies, which have become transparent to this end. The effectiveness and efficiency of this internalization, without which the statement of these goals is worth nothing, is based on the Compliance tools that are deployed.
These appear to be very diverse but their substantial unity (topic which will be the subject of a forthcoming book) makes it possible to study the tools put in place from a unique perspective, by not isolating them in a particular branch of Law, Criminal law or International Law for example, but by measuring what is common to them, notably Anticipation, Trust, Commitment, Responsibility, Incentive, and so on. If the Compliance tools vary, it is rather not only according to the sectors, finance and banking appearing then as the advanced point of the general Compliance Law, for example in environmental matters, but also according to the countries and the cultures. It is in fact about them that legal cultures seem to oppose.
The book aims to understand these "tools" by going beyond the description of each instrument, for which we already have many monographs, for analyzing them through the issues of Risks, required Expertises, Training. Sovereignty claims, Incentives, mechanical aptitude of Technologies. It is through these themes that are analyzed by the authors, experts in the field, what we always want to understand better: Compliance Programs, Whistle blowing, Mapping, Sanctions, Extraterritoriality, etc.
____
Read the summary of the book.
Read the foreword, summarizing all the contributions.
Présentation of the book contributions:
-
Amico, Th., Compliance or the passage from ex post to ex ante: A Copernican revolution for the criminal lawyer?
-
Banck, A., The maturity of the Compliance tool’s user, first criterion of the choice of the salient tool
- Burlingame, Coppens R., Power, N, Lee, D.H., Anti-Corruption Compliance: Global Dimension of Enforcement and Risk Management
-
Calandri, L., Incentive(s) and Self-Regulation(s): which place for Compliance Law in the Audiovisual Sector?
-
Causse, H., Compliance Training: Through and Beyond Traditional Legal Training
- Frison-Roche, M.-A., Describing, designing and correlating Compliance Tools to have a better use of it
-
Frison-Roche, M.-A., Building by Law the Unicity of Compliance Tools from the Definition of Compliance Law by its "Monumental Goals"
- Frison-Roche, M.-A., Drawing up Risk Maps as an obligation and the paradox of the "Compliance risks"
- Frison-Roche, M.-A., Incentives and Compliance, a couple to propel
- Frison-Roche, M.-A., Resolving the contradiction between sanctions and incentives under the fire of Compliance Law
- Frison-Roche, M.-A., Rights, primary and natural Compliance tools
-
Frison-Roche, M.-A., Training: content and container of Compliance Law
-
Galland, M., The Regulator's Inspection of the Effectiveness of the Compliance Tools Implemented by the Company
- Granier, C., The Normative Originality of Compliance by Design
-
Guillaume, N., Compliance risk mapping: first insights of challenges, limits and good practices
-
Guttierez-Crespin, A., Audit of Compliance Systems
-
Koenigsberg, S. and Barrière, F., The Development of Attorney's Compliance Expertise
-
Larouer, M., The Manifestation of Incentives Mechanisms in French Compliance Law
-
Merabet, S., Morality by Design
-
Pailler, L., Technological Tools, Compliance by Design and GDPR: the Protection of Personal Data from Design
-
Racine, J.-B., Geographical dominance in the choice and the use of Compliance Tools. Introductory remarks
-
Rapp, L., Incentive Theory and Governance of Space Activities
-
Roda, J.-C., Compliance by design in antitrust: between innovation and illusion
-
Salah, M., Conception and Application of Compliance in Africa
-
Tardieu, H., Data Sovereignty and Compliance
-
Thouret, T., Training and Compliance, Two Correlated Information Transmission Tools
June 2, 2021
Publications
Full reference: Frison-Roche, M.-A., Describing, conceiving and correlating compliance tools, in order to use them adequately, in Frison-Roche, M.-A. (ed.), Compliance Tools, series Regulation & Compliance, Journal of Regulation & Compliance (JoRC) and Bruylant, 2021, p. 9-32.
____
Summary of the article: The article is the general introduction to the book on Compliance tools. In its first part it develops the overall problematic. In its second part, it presents each of the contributions, placed in the overall construction of the work.
____
Read a general presentation of the book in which this article has been published.
June 2, 2021
Publications
Full Reference: Frison-Roche, M.-A., Training: content and container of Compliance Law, in Frison-Roche, M.-A. (ed.), Compliance tools, series "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Bruylant, 2021, p. 245-264
___
Summary of the article
Firstly, as Training is a specific Compliance tool, it is supervised by Regulators. It becomes mandatory when it is contained in Compliance programs or sanction decisions. Since effectiveness and efficiency are legal requirements, what is the margin of companies to design them and how to measure the result?
Secondly, as long as each Compliance tool includes, more and more, an educational dimension, we can take each of them to identify this perspective. So even condemnations and prescriptions are so many lessons, lessons given, lessons to be followed. The question is then to know who, in this so pedagogical Compliance Law, are the "teachers"?
____
This article is based on a bilingual Working Paper, including additional technical developments, pop-up notes and hypertext links.
Consult an overview of the volume in which the article was published.
____
June 2, 2021
Thesaurus
Full Reference : Amico, Th., Compliance or the passage from ex post to ex ante: a Compernican revolution for the criminal lawyer?, in M.-A. (ed.), Compliance Tools, série "Régulations & Compliance", Journal of Regulation & Compliance and Bruylant, 2021, p. 165-172.
See the General Presentation of the book
___
Article Summary (done by Marie-Anne Frison-Roche)
After referring to various definitions of Compliance Law, the author insists on the usefulness of the criminal lawyer in that he, familiar with the Ex Post that constitutes the sanction, can be of good advice. in the Ex Ante in which new compliance mechanisms are being developed, such as risk mapping or third party assessment.
Addressing the punitive dimension of Compliance Law, the author shows that the criminal lawyer therefore naturally has a place there, whether it concerns the powers exercised by an administrative authority or the criminal law itself. In that he can "anticipate criminal proceedings", the criminal lawyer is therefore best able to ensure that the company does not expose itself to them, in particular in a good mastery of internal investigations, thus ruling out the criminal risk.
Read the other articles summaries.
____
June 2, 2021
Thesaurus : Doctrine
Full reference : Banck, A., The maturity of the Compliance tool’s user, first criterion of the choice of the salient tool, in Frison-Roche, M.-A. (ed.), Compliance Tools, serie "Régulations & Compliance", Journal of Regulation & Compliance and Bruylant, 2021, p. 225-228.
Read a general presentation of the book in which the article has been published.
___
Summary of the article (written by Marie-Anne Frison-Roche)
The author insists on the practical necessity for the firm to show immediately the documents attesting of the reality of Compliance mechanisms. IT tools helps companies to do that, but the crucial point is that everyone in the firm appropriates these tools.
To obtain it, it is necessary that the Compliance officer does not necessarily choose the tool which suits him or her best and pleases him or her the most but rather suits the one who will handle it, for example commercial teams on the ground, monitoring that the tool integrates the specificity of the sector and of the firm. The adjustment of the softwares must meet a maturity of its users in the firm, which must have a "culture of compliance" to take advantage of its tools. Thus more rudimental tools can be more efficient if the culture of Compliance is still weak, sophisticated tools could be unuseful if a prior minimum basis is not reach.
The author thus shows the link to be made between the maturity of the users and the technicality of the tools, the two having to progress together.
Read the summaries of the other articles of the book.
____
June 2, 2021
Thesaurus : Doctrine
Full reference : Galland, M., The Regulator's Inspection of the Effectiveness of the Compliance Tools Implemented by the Company, in Frison-Roche, M.-A. (ed.), Compliance Tools, serie "Régulations & Compliance", Journal of Regulation & Compliance and Bruylant, 2021, p. 211-224.
Read a general presentation of the book in which the article has been published.
___
Summary of the article (done by Marie-Anne Frison-Roche)
The author underlines the complexity of the measure of the effectivity of compliance tools because the measure of the risks cannot be mechanical, the exercise is a cost whose the advantage does not appear immediately, the essential is in the behaviors that the firm masters with difficulty while these are results that are evaluated, because Compliance tools must be effective and produce tangible results.
To do that, the regulator intervenes in Ex Ante in order to the applicable texts are understandable by the firm and in order to the tool is working. When a noncompliance occurs, the regulator must beyond the sanction build on this measure of ineffectiveness to lead operators to improve their systems. Thus, it is in terms of "Compliance effort" that the regulator's control works, especially through the observation of an "embodied exemplarity".
Read the summaries of the other articles of the book.
____
June 2, 2021
Editorial responsibilities : Direction of the collection Compliance & Regulation, JoRC and Bruylant
► Full Reference: Frison-Roche, M.-A. (ed.), Compliance Tools, series "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) & Bruylant, 2021.
This book in English is the first title of this collection integrally dedicated to Compliance Law, in that it is the extension of Regulation Law.
____
📚 Read the titles of this series in English co-published by Bruylant.
📚 This collection in English is articulated with a collection co-published between the Journal of Regulation & Compliance and Dalloz.
📕Thus, in parallel, a book in French, Les Outils de la Compliance is published.
___
📅 This book is published after a cycle of colloquiums organised by the Journal of Regulation & Compliance (JoRC) and Partners Universities.
___
► General Presentation of the collective book: The political dimension of Compliance Law lies in the goals it aims to achieve. To achieve them, the concern for these goals is internalized in "crucial operators", which may be obliged to concretize "monumental goals" set by public authorities. These public bodies control the Ex Ante reorganization that this implies for these companies and sanction Ex Post the possible inadequacy of the companies, which have become transparent to this end. The effectiveness and efficiency of this internalization, without which the statement of these goals is worth nothing, is based on the Compliance tools that are deployed.
These appear to be very diverse but their substantial unity (topic which will be the subject of a forthcoming book) makes it possible to study the tools put in place from a unique perspective, by not isolating them in a particular branch of Law, Criminal law or International Law for example, but by measuring what is common to them, notably Anticipation, Trust, Commitment, Responsibility, Incentive, and so on. If the Compliance tools vary, it is rather not only according to the sectors, finance and banking appearing then as the advanced point of the general Compliance Law, for example in environmental matters, but also according to the countries and the cultures. It is in fact about them that legal cultures seem to oppose.
The book aims to understand these "tools" by going beyond the description of each instrument, for which we already have many monographs, for analyzing them through the issues of Risks, required Expertises, Training. Sovereignty claims, Incentives, mechanical aptitude of Technologies. It is through these themes that are analyzed by the authors, experts in the field, what we always want to understand better: Compliance Programs, Whistle blowing, Mapping, Sanctions, Extraterritoriality, etc.
____
Read the summary of the book.
Read the foreword, summarizing all the contributions.
Présentation of the book contributions:
📝Amico, Th., Compliance or the passage from ex post to ex ante: A Copernican revolution for the criminal lawyer?
📝Banck, A., The maturity of the Compliance tool’s user, first criterion of the choice of the salient tool
📝Burlingame, Coppens R., Power, N, Lee, D.H., Anti-Corruption Compliance: Global Dimension of Enforcement and Risk Management
📝Calandri, L., Incentive(s) and Self-Regulation(s): which place for Compliance Law in the Audiovisual Sector?
📝Causse, H., Compliance Training: Through and Beyond Traditional Legal Training
📝Frison-Roche, M.-A., Describing, designing and correlating Compliance Tools to have a better use of it
📝Frison-Roche, M.-A., Building by Law the Unicity of Compliance Tools from the Definition of Compliance Law by its "Monumental Goals"
📝Frison-Roche, M.-A., Drawing up Risk Maps as an obligation and the paradox of the "Compliance risks"
📝 Frison-Roche, M.-A., Incentives and Compliance, a couple to propel
📝 Frison-Roche, M.-A., Resolving the contradiction between sanctions and incentives under the fire of Compliance Law
📝 Frison-Roche, M.-A., Rights, primary and natural Compliance tools
📝 Frison-Roche, M.-A., Training: content and container of Compliance Law
📝 Galland, M., The Regulator's Inspection of the Effectiveness of the Compliance Tools Implemented by the Company
📝 Granier, C., The Normative Originality of Compliance by Design
📝 Guillaume, N., Compliance risk mapping: first insights of challenges, limits and good practices
📝Guttierez-Crespin, A., Audit of Compliance Systems
📝 Koenigsberg, S. and Barrière, F., The Development of Attorney's Compliance Expertise
📝 Larouer, M., The Manifestation of Incentives Mechanisms in French Compliance Law
📝 Merabet, S., Morality by Design
📝 Pailler, L., Technological Tools, Compliance by Design and GDPR: the Protection of Personal Data from Design
📝 Racine, J.-B., Geographical dominance in the choice and the use of Compliance Tools. Introductory remarks
📝Rapp, L., Incentive Theory and Governance of Space Activities
📝 Roda, J.-C., Compliance by design in antitrust: between innovation and illusion
📝 Salah, M., Conception and Application of Compliance in Africa
📝 Tardieu, H., Data Sovereignty and Compliance
📝 Thouret, T., Training and Compliance, Two Correlated Information Transmission Tools
June 2, 2021
Publications
Full Reference : Frison-Roche, M.-A..,Rights, primary and natural Compliance Tools, in Frison-Roche, M.-A. (ed.), Compliance Tools, series "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Bruylant, 2021, p. 319-342
___
Article Summary: In the traditional conception of the architecture of the sectors regulated by Law, and in Compliance Law which extends the regulatory techniques, rights have little place. But this configuration no longer takes place; on the contrary, rights are at the center of Regulatory and Compliance systems, and will be more and more so. They are and will be the primary tools of Compliance Law because they constitute a very effective "tool" to ensure the entire functioning of a system whose goals are so difficult to achieve. Because every effort must be done to achieve these goals, the public authorities not only rely on the power of crucial operators, but also distribute prerogatives to people and organizations who, thus encouraged, activate the Compliance system and participate in the achievement of the "monumental goal". Rights can prove to be the most effective tools for actually achieving the goals set, so much so that they can be seen as "primary tools".
But it is pertinent to have more pretension and to conceive rights as the most "natural" tools of Compliance Law. Indeed because all the Monumental Goals by which Compliance Law is defined can be expressed by the protection of persons, that is to say to the effectiveness of their prerogatives, by a mirror effect between rights. given as tools by Law by to persons and rights which constitute the very goal of all Compliance Law, in particular the protection of all human beings, even if they are in a situation of great weakness, rights becoming a "natural tool" of Compliance Law.
We are only at the beginning of their deployment and it is undoubtedly on them that Digital space in which we now live would be regulated, so that we will not suffocated there and that it will constitute for people a civilized space.
____
Read the General Presentation of the book in which this article has been published
____
June 2, 2021
Publications
► Full reference : Frison-Roche, M.-A., Building by Law the Unicity of Compliance Tools from the Definition of Compliance Law by its "Monumental Goals", in Frison-Roche, M.-A. (ed.), Compliance Tools, serie "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Bruylant, 2021, pp. 35-46
Summary of the article : The "tools of Compliance" do not stack on top of each other. They form a system, thanks to a unity drawn from the goals that all these multiple and different tools serve: the "Monumental Goals" by which Compliance Law is defined.
All these tools are configured by these goals and for mastering all these techniques, it is essential to put them all in perspective of what Compliance Law is, which is designed teleologically with regard to its goals. Extension of Regulatory Law and like it, Compliance Law is built on a balance between the principle of competition and other concerns that public authorities claim to take care of. Compliance Law has moreover more "pretensions" in this respect, for example in environmental matters. All the means are then good, the violence of the tools marrying without difficulty with the voluntary commitments since it is the goals which govern this branch of Law.
As legal solutions adopted show, a common method of interpretation and common levels of constraint for all Compliance Tools result from this definition. Starting from the goals (in which legal normativity is housed), the interpretation of the different tools is thus unified. Moreover, the different degrees of constraint do not operate according to the consideration of sources (traditional legal criterion) but by the goals, according to the legal distinction between obligations of means and obligations of results which result from the articulation between tools, of which the establishment is an obligation of result, and the goal, of which the achievement is only an obligation of means.
____
📝 Read the bilingual working paper on which rely this article.
📝 Read a general presentation of the book in which this article has been published.
____
June 1, 2021
Compliance: at the moment
May 29, 2021
Compliance: at the moment
May 26, 2021
Thesaurus : 09. Juridictions étrangères
► Référence complète : Rechtbank Den Haag (Tribunal de La Haye), 26 mai 2021, aff. C/09/571932 / HA ZA 19-379, Vereniging Milieudefensie et a. c/ Royal Dutch Shell PLC.
____
____
🏛️lire la traduction française du jugement
____
📝commentaires de la décision :
- D. 2021, pp. 1968-1970, obs. A.-M. Ilcheva
- EEI, nov. 2021, n° 11, comm. 86, note F.-G. Trébulle
- JSS, 14 août 2021, n° 59, p. 14, tribune C. Lepage, V. Saintaman et B. Denis
- Gaz. Pal., 27 juillet 2021, n° 28, p. 24, art. n° 424w6, note M.-P. Maître
________
May 26, 2021
Thesaurus : Doctrine
May 17, 2021
Conferences
Référence complète: Frison-Roche, M.-A., La place des entreprises dans la création et l'effectivité du Droit de la Compliance en cas de crise in (dir.) Les normes publiques et la Compliance en temps de crise : les buts monumentaux à l'épreuve, colloque coorganisé par le Journal of Regulation & Compliance (JoRC) et la Faculté de droit de Montpellier, 17 mai 2021.
Consulter les slides sur lesquelles s'appuie cette conférence.
Regarder la vidéo de cette conférence.
Lire le programme général de ce colloque
Lire le document de travail sur la base duquel la conférence a été élaborée.
___
Ce colloque s'insère dans le cycle de colloques 2021 organisé par le Journal of Regulation & Compliance (JoRC) et ses partenaires autour des Buts monumentaux de la Compliance.
Les interventions serviront de première base à la réalisation d'un ouvrage dirigé par Marie-Anne Frison-Roche, dont la version française, Les Buts monumentaux de la Compliance, est co-éditée par le JoRC et Dalloz et dont la version anglaise, Compliance Monumental Goals, est co-éditée par le JoRC et Bruylant.
____
Résumé de la conférence : Il s'agit d'observer la façon dont les entreprises agissent lorsque la crise advient et l'impact produit sur les "Buts Monumentaux de la Compliance". Il apparaît que les entreprises ont aidé, soit sur l'ordre des Autorités publiques, soit de leur propre initiative. Toute "épreuve" étant une "preuve", la leçon à tirer de la preuve sanitaire est à retirer face à la crise environnementale dont nous sommes déjà informés.
La crise montre la place et le rôle des entreprises pour que tout d'abord survive l'effectivité du Droit de la Compliance par le souci maintenu de ses buts, grâce à l'aide requise ou spontanée des entreprises.
Mais plus encore l'on a pu observer des entreprises actives en raison de leur "position" pour des buts qui n'étaient pas les leurs, comme l'environnement. L'on retrouve alors la définition générale du Droit de la Compliance comme l'alliance en Ex Ante entre Autorités publiques et opérateurs privés cruciaux, pour maîtriser le futur. Ce sont les juges qui les assignent à cette alliance, ici et maintenant. La crise sanitaire en accélère la construction.
May 15, 2021
Publications
Full Reference: Frison-Roche, M.-A. Place and Role of Companies in the Creation and Effectiveness of Compliance Law in Crisis, Working Paper, May 2021.
____
This Working Paper has been elaborated as basis for a conference in the colloquium of Mai 17, 2021 (done in French: Normes publiques et Compliance en temps de crise : les buts monumentaux à l'épreuve.
This video is made with English substitutes.
It is also the basis for an article in the book Compliance Monumental Goals, the English version of which is co-published by the Journal of Regulation & Compliance (JoRC) and Bruylant.
Summary: This article has a very topic: the place of private Companies, with regard to the chapter's issue: "the ordeal of a crisis". The crisis constitutes a "test", that is to say, it brings evidence. Let us take it as such.
Indeed, during the health crisis, it appears that 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
Lire ci-dessous les développements.
May 12, 2021
Thesaurus : Doctrine
► Référence complète : D. Cabrelli, , "Cartographie du déficit de responsabilité des sociétés transnationales de la Common Law pour les violations des droits de l'homme et des normes du travail à l'étranger", in n° spéc. les Chaines de Valeur mondiales, Revue internationale de droit économique, 2021, t. XXXV(4),
____
🦉Cet article est accessible en texte intégral pour les personnes inscrites aux enseignements de la Professeure Marie-Anne Frison-Roche
________
May 12, 2021
Thesaurus : Doctrine
► Référence complète : A. Beckers, , "L’image juridique évolutive des chaînes de valeur mondiales", Introduction au numéro spéciale les Chaines de Valeur mondiales, Revue internationale de droit économique, 2021, t. XXXV(4), 5-18.
____
🦉Cet article est accessible en texte intégral pour les personnes inscrites aux enseignements de la Professeure Marie-Anne Frison-Roche
________
May 5, 2021
Thesaurus : 08. Juridictions du fond
Référence complète : Paris, 5 mai 2021, Carrefour
____
La société Carrefour Hypermarchés commande et achète des produits référencés par sa centrale de référencement, Carrefour Marchandises Internationales (CMI), notamment ceux de la la société I2C. Or, le responsable du référencement des produits de cette société s'était vu offrir des voyages par ce fournisseur (certes avant l'établissement de la Charte éthique).
Un audit avait révélé cela après l'adoption de la charte. Par conséquent, la société CMI a mis fin à sa relation commerciale avec ce fournisseur.
Contestée sur l'allégation du caractère brutal de la rupture des relations commerciale, la Cour estime que cela est justifié car la violation de la charte éthique pouvait fonder la rupture immédiate des relations commerciales, indépendamment de leur date en raison de leur gravité.
- Voir dans le même rattachement à l'obligation de vigilance sur les manquements du fournisseur, justifiant la cessation immédiate de toutes relations commerciales :
- Paris, 13 mars 2019, Monoprix , n°17/21477 ;
- Paris, 24 mars 201, Promod, n°19/15565
________