Food for thoughts

Une dissertation juridique suit les règles de construction et de rédaction généralement requises pour les dissertations d'une façon générale mais présente certaines spécificités.

Le présent document a pour objet de donner quelques indications. Elles ne valent pas "règles d'or", mais un étudiant qui les suit ne peut se le voir reprocher. La correction des copies tiendra compte non seulement du fait que les étudiants ne sont pas juristes, ne sont pas habitués à faire des "dissertations juridiques", mais encore prendra en considération le présent document.

 

The procedural safeguards enjoyed by a person whose situation may be affected by a future judgment are principally the right to bring proceedings before the court, the rights of the defense and the benefit of the contradictory principle.

The legal action was for a long time considered as a "power", that is to say, a mechanism inserted in the organization of the judicial institution, since it was by this act of seizure, access by which the person enters the judicial machine, through the latter starts up.

But in particular since the work of René Cassin and Henri Motulsky, legal proceedings are considered as a subjective right, that is to say, a prerogative of any person to ask a judge to rule on the claim that the plaintiff articulates in an allegation, that is a story mixing the fact and the law in a building and on which he asks the judge to give an answer, such as the cancellation of an acte, or the award of damages, or the refusal to convict him (because the defense is also the exercise of this right of action).

The legal action is now recognized as a "right of action", the nature of which is independent of the application made to the court, a subjective procedural right which doubles the substantive subjective right (eg the right to reparation) and ensures the effectiveness of the latter but which is autonomous of it. This autonomy and this uniqueness in contrast with the variety of the sort of disputes (civil, criminal or administrative) makes the right of action a pillar of the "Procedural Law" on which a part of European and Constitutional Law are built. In fact, Constitutional Law in Europe is essentially constituted by procedural principles (rights of defense, impartiality, right of action), since the principle of non bis in idem is only an expression of the right of action. Non bis in idem is a prohibition of double judgment for the same fact which does not prohibit a double trigger of the action (and criminal, civil and administrative). This unified due process of Law has helped to diminish the once radical separation between criminal law, administrative law and even civil law, which are clearly separated from one another in the traditional construction of legal systems and which converge today in the Regulatory and Compliance Law.

Moreover, the subjective right of action is a human right and one of the most important. Indeed, it is "the right to the judge" because by its exercise the person obliges a judge to answer him, that is to say to listen to his claim (the contradictory resulting therefore from the exercise of the right of action ).

Thus the right of action appears to be the property of the person, of the litigant, of the "party". This is why the attribution by the law of the power for the Regulators to seize itself, which is understood by reason of the efficiency of the process, poses difficulty from the moment that this constitutes the regulatory body in "judge and party", since the Regulator is in criminal matters regarded as a court, and that the cumulation of the qualification of court and of the quality of party is a consubstantial infringement of the principle of impartiality. In the same way, the obligation that Compliance Law creates for operators to judge themselves obliges them to a similar duplication which poses many procedural difficulties, notably in internal investigations.

There is a classical distinction between public action, which is carried out by the public prosecutor, by which the public prosecutor calls for protection of the general interest and private action by a person or an enterprise, which seeks to satisfy its legitimate private interest. The existence of this legitimate interest is sufficient for the person to exercise his or her procedural right of action.

In the first place, the person could not claim the general interest because he or she was not an agent of the State and organizations such as associations or other non-governmental organizations pursued a collective interest, which could not be confused with the general interest. This procedural principle according to which "no one pleads by prosecutor" is today outdated. Indeed, and for the sake of efficiency, Law admits that persons act in order that the rule of law may apply to subjects who, without such action, would not be accountable. By this procedural use of the theory of incentives, because the one who acts is rewarded while and because he or she serves the general interest, concretizing the rule of law and contributing to produce a disciplinary effect on a sector and powerful operators, procedural law is transformed by the economic analysis of the law. The US mechanism of the class action was imported into France by a recent law of 2014 on "group action" (rather restrictive) but this "collective action" , on the Canadian model, continues not to be accepted in the European Union , Even if the European Commission is working to promote the mechanisms of private enforcement, participating in the same idea.

Secondly, it may happen that the law requires the person not only must have a "legitimate interest in acting" but also must have a special quality to act. This is particularly true of the various corporate officers within the operators. For the sake of efficiency, the legal system tends to distribute new "qualities to act" even though there is not necessarily an interest, for example in the new system of whistleblowers, which can act even there is no apparent interest.

Control is a concept so central in Regulation that, in the difficult exercise of translation, the English term of "Regulation" or the expression "Regulatory system" are often translated, for example in French,, by the French word "control" (contrôle). Indeed, the Regulator controls the sector for which he  is responsible. This control is carried out ex ante by the adoption of standards of behavior, whether the Regulator prohibits behavior or obliges the operators to do so. In addition, the Regulators exercises his control powers through the power to approve companies entering the sector or the power to certify certain types of products sold on the markets for which he is responsible. In addition, he continuously monitors the sectors for which he is responsible since his function is either to construct them to bring them to maturity or to remain in balance between the principle of competition and another concern, for example to ensure that they do not fall into a systemic crisis.

These ex ante controls radically distinguish the regulatory authority from the competition authority, which intervenes only ex post. Finally, the regulatory authority controls the sector in ex post: in this he works on a temporal continuum, sanctioning the failings he finds on the part of the operators to the prescriptions he has adopted himself. he often has the power to settle disputes if two operators compete in a dispute between them and bring it before him.

This control function specific of the regulatory authority, which it often shares with the traditional administration and which opposes it to the activity of the competition authority and the courts, is made difficult by its possible lack of independence. Indeed, because the Regulator is a State boddy, if the regulator has to control a public operator, it may risk being captured by the government, since the whole organization of the regulatory system must therefore ensure its independence not only statutory but also budgetary in relation to it. This risk of capture is permanent not only because of the government but also because of the sector. Secondly, control can be inefficient if the regulator lacks adequate, reliable and timely information, risk generated by information asymmetry.

To fight against this, according to the childish image of the stick and the carrot, we must at the same time give the regulator powers to extirpate information that the operators do not want to provide, the texts never ceasing to give regulators new powers, such as perquisitions power ou sanction ou settlemeent. Symmetrically, operators are encouraged to provide information to the market and the regulator, for example through leniency programs or the multiplication of information to be inserted in company documents. Finally, there is a difficult balance between the need to combat the capture of the regulator and the need to reduce the asymmetry of information since the best way for the latter to obtain information from the sector is by frequent attendance by operators: , This exchange that they accept very willingly is the open voice to the capture. It is therefore an art for the regulator to keep operators at a distance while obtaining from them information that only untended relationships allow him to obtain.

Moreover, the Compliance Law which is in the process of being put in place is intended to resolve this major difficulty, since the operator becomes the primary agent for the implementation of the Regulation Law, whose aims are internalized in the " crucial " and global operators perator, operator crucial and global, the Regulator ensuring the effective structural change of the operator to realize these goals of this Global Regulation Law.

 

 

Competition is the law of the market. It allows the emergence of the exact price, which is often referred to as "fair price". It means and requires that agents on the market are both mobile, that is to say free to exercise their will, and atomized, that is to say, not grouped together. This is true for those who offer a good or service, the offerers, as well as for those seeking to acquire them, the applicants: the bidders seek to attract the applicants so that they buy them the goods and services that they propose.  Bidders are in competition with each other.

In the competitive market, buyers are indulging in their natural infidelity: even if they have previously bought a product from an A supplier, they will be able to turn away from him in favor of a B supplier if the latter offers them a product more attractive in terms of quality or price. Price is the main signal and information provided by the suppliers on the market to excite this competitive mobility of the offerers. Thus, free competition accelerates market liquidity, the circulation of goods and services, raises the quality of products and services and lowers prices. It is therefore a moral and virtuous system, as Adam Smith wanted, a system which is the fruits of individual vices. That is why everything that will inject "viscosity" into the system will be countered by Competition Law as "non-virtuous": not only frontal coordination on prices but for example, exclusivity clauses, agreements by which companies delay their entry on the market or intellectual property rights which confer on the patentee a monopoly.

Admittedly, Competition Law can not be reduced to a presentation of such simplicity, since it admits economic organizations which deviate from this basic model, for example distribution networks or patent mechanisms on which, inter alia, is built the pharmaceutical sector. But the impact is probative: in the sphere of Competition Law, if one is in a pattern that is not part of the fundamental figure of the free confrontation of supply and demand, he has to demonstrate the legitimacy and efficiency of its organization, which is a heavy burden on the firm or the State concerned.

Thus, in the field of Regulation, if regulatory mechanis were to be regarded as an exception to competition, an exception admitted by the competition authorities, but which should be constantly demonstrated before them by its legitimacy and effectiveness in the light of the "competitive order", then public organizations and operators in regulated sectors would always face a heavy burden of proof. This is what the competition authorities consider.

But if we consider that regulated sectors have a completely different logic from competitive logic, both from an economic and a legal point of view, the Law of Regulation refers in particular to the notion of public service and having its own institutions, which are the regulatory authorities, then certain behaviors, in particular monopolies, are not illegitimate in themselves and do not have to justify themselves in relation to the competitive model, for they are not the exception ( Such as the public education or health service).

Sont ici répertoriés les sujets proposés chaque année,

- soit au titre du travail à faire en parallèle du cours, à remettre à la fin du semestre (le jour de l'examen étant la date limite de remise),

- soit les sujets à traiter sur table, sans documentation extérieure et sous surveillance le jour de l'examen final. 

 

Retourner sur la description générale du Cours de Droit de la Compliance, comprenant notamment des fiches méthodologiques. 

 

 

► Référence complète : P.-Y. Gautier, « Contre le droit illimité à la preuve devant les autorités administratives indépendantes », Mélanges en l'honneur du Professeur Claude Lucas de Leyssac, LexisNexis, 2018, p.181-193.

____

📘 Lire une présentation générale de l'ouvrage dans lequel l'article est publié

 

 

Legally, the State is a public law subject defined by territory, people and institutions. It acts in the international space and emits norms. Politically, it has the legitimacy required to express the will of the social body and to exercise the violence of which it deprives the other subjects of law. It is often recognizable by its power: its use of public force, its budgetary power, its jurisdictional power. These three powers, declining or being challenged by private, international and more satisfying mechanisms, some predicted the disappearance of the State, to deplore it or to dance on its corpse.

With such a background, in current theories of Regulation, primarily constructed by economic thought and at first sight one might say that the State is above all the enemy. And this for two main reasons. The first is theoretical and of a negative nature. The advocates of the theory of regulation deny the State the political qualities set out above. The State would not be a "person" but rather a group of individuals, civil servants, elected officials and other concrete human beings, expressing nothing but their particular interests, coming into conflict with other interests, and using their powers to serve the former rather than the latter as everyone else. The Regulation theory, adjoining the theory of the agency, is then aimed at controlling public agents and elected representatives in whom there is no reason to trust a priori.

The second reason is practical and positive. The State would not be a "person" but an organization. Here we find the same perspective as for the concept of enterprise, which classical lawyers conceive as a person or a group of people, while economists who conceive of the world through the market represent it as an organization. The state as an organization should be "efficient" or even "optimal". It is then the pragmatic function of the Regulation Law. When it is governed by traditional law, entangled by that it would be an almost religious illusions of the general interest, or even the social contract, it is suboptimal. The Regulation purpose is about making it more effective.

To this end, as an organization, the State is divided into independent regulatory agencies or independent administrative authorities that manage the subjects as close as possible, which is fortunate in reducing the asymmetry of information and in reviving trust in a direct link. The unitary, distant and arrogant State is abandoned for a flexible and pragmatic conception of a strategic state (without capital ...) that would finally have understood that it is an organization like any other ...

Competition law adopts this conception of the State, which it posed from the beginning that it was an economic operator like any other. This is how this conception which would be  more "neutral" of the world is often presented.

Successive crises, whether sanitary or financial, have produced a pendulum effect.

Now, the notions of general interest or common goods are credited of an autonomous value, and the necessity of surpassing immediate interests and of finding persons to bear superior interests or to take charge of the interests of others, even a non-immediate one, emerged.

Thus, the State or the public authority, reappears in the globalization. The Compliance Law or the Corporal Social Responsibility of the crucial companies are converging towards a consideration of the State, which can not be reduced to a pure and simple organization receptacle of externalities.

 

Complete reference : Archives de Philosophie du Droit (APD), Droit et économie, tome 37, ed. Sirey, 1992, 426 p. 

 

Read the table of contents.

Read the summaries of the articles in english. 

 

See the presentation of others volumes of Archives de Philosophie du Droit.

In Europe, Community Law prohibits States from providing aid to companies, which are analyzed as means for the benefit of their country which the State cares about (and sometimes wrongly)  having the effect and maybe the object of maintaining or constructing borders between peoples, thus contradicting the first European political project of a common area of peace and exchanges between the peoples of Europe. That is why this prohibition does not exist in the United States, since Antitrust Law is not intended to build such a space, which is already available to businesses and people.

This essential difference between the two zones changes industrial policies because the US federal Government can help sectors where Member States can not. The European prohibition of State Aid can not be called into question because it is associated with the political project of Europe. This seems to be an aporia since Europe is handicapped against the United States.

In any form it takes, Aid is prohibited because it distorts equality of opportunity in competition between  operators in the markets and constitutes a fundamental obstacle to the construction of a unified European internal market. On the basis of this simple principle, a branch of technical and specific law has developed, because States continue to support their entreprises and sectors, and many rules and cases divide this principe of prohibition into as many exceptions and nuances. Is built over the years a probation system related to it. Thus, the concept of a public enterprise was able to remain despite this principle of prohibition.

But if there is a crisis of such a nature or magnitude that the market does not succeed by its own forces to overcome and / or the European Union itself pursues a-competitive objectives, exogenous Regulation, which can then take the form of legitimate State Aid. Thus a sort of synonymy exists between State Aid and Regulation.

For this reason, the European institutions have asserted that State Aid becomes lawful when it intervenes either in strategic sectors, such as energy production in which the State must retain its power over assets, or the defense sector. Far from diminishing, this hypothesis is increasing. European Union Law also allows the State to intervene by lending to financial operators threatened with default or already failing, the State whose function is to fight systemic risk, directly or through its Central Bank. The aid can come from the European Central Bank itself helping States in issuing sovereign debt, the Court of Justice having admitted in 2015 the non-conventional monetary policy programs compliance with the treaties. In 2010, the European Commissioner for Competition stressed that public aid is essential tools for States to deal with crises, before regulations come to the fore in 2014 to lay the foundations of the European Banking Union.

"Liberalization" refers to the process of the legal end of a monopolistic organization of an economy, a sector or a market, in order to open it up to Competition.

Since it is rare for an economy to be entirely monopolistic (which presupposes an extreme concentration of political power), the phenomenon is more particularly characteristic of public sectors. Liberalization, if it is translated into Law only by a declaration of openness to Competition, is actually achieved only by a much slower implementation of the latter, since the incumbent operators have the power to check the entry of potential new entrants. This is why the process of liberalization is only effective if strong regulatory authorities are established to open up the market, weakening incumbent operators where necessary and offering benefits to new entrants through asymmetric regulation .

This Regulation aims to build Competition, now permitted by law.

This is why, in a process of Liberalization, Regulation aims to concretizeCcompetition by constructing it. This transitional regulation is intended to be withdrawn and the institutions set up to disappear, for example by becoming merely specialized chambers of the General Competition Authority, Regulation being temporary when linked to liberalization.

It is distinct from the Regulation of essential infrastructures which, as natural monopolies, must be definitively regulated. Quite often, in liberal economies, the State has asked public enterprises to manage such monopolies, particularly in the network industries, to which it has also entrusted the economic activity of the entire sector. By the liberalization phenomenon, most States have opted to retain the management of infrastructure for this operator, now an incumbent operator competing on the competing activities offered to consumers. In this respect, the Regulator forces it in two ways: in a transitional way to establish competition for the benefit of new entrants, in a definitive way insofar as it has been chosen by the State to manage the economic monopoly of infrastructure.

Even in the only relationship between competitors, Regulation has difficulty to retreat, and this often due to the Regulator. Max Weber's sociological rules  administration show about administration that the regulatory authorities, even in view of the purpose of competitive development, for example in the field of telecommunications, seek to remain, even though competition has actually been built. It does it by finding new purposes (in the above sector, the regulator could be the guardian of Net Neutralityt) or by affirming to practice a permanent "symmetric Regulation".

► Full Reference: B. Deffains, "Debt as the basis of the Compliance Obligation", in M.-A. Frison-Roche (ed.), Compliance Obligation, Journal of Regulation & Compliance (JoRC) and Bruylant, "Compliance & Regulation" Serie, to be published

____

📘read a general presentation of the book, Compliance Obligation, in which this article is published

____

► Summary of the article (done by the Journal of Regulation & Compliance - JoRC): The contribution builds on the definition of Compliance in that it requires large companies to contribute to the achievement of Monumental Goals, including the preservation of human rights and systems, e.g. climate system.  

This requirement is confronted with the notion of Debt as it results today from classic and new works available in economic science. In fact, in the primitive economy, debt refers not only to exchanges, but also to an ethical and social obligation leading back to the collective. The Economic Analysis of Law has highlighted this situation, where some of the entities involved in a situation benefit from positive externalities, or endure negative externalities on their own, thus creating a situation of debt: this generates an obligation to correct market failure through an obligation to manage risks, as expressed by Compliance Obligation. This implies that economic calculation can be used to quantify this debt, leading to new proposals for biodiversity accounting.

The author then highlights the recognition of Debt as the source of an Compliance Obligation. This can be expressed through the classical notion of natural obligation, which can be traced back to the French Civil Code, or through more solidarist or political conceptions of Law, linked to moral responsibility, with the overall moral equilibrium referring to civic duty, superimposed on the accounting equilibrium. The political dimension is very much present, as shown by Grotius and Kant, then Bourgeois (solidarism), Rawls and Sen (social justice), who link the deep commitment of each individual with the group. This sheds light on the essential role played by the State and public institutions in formalising and enforcing the Compliance Obligation, not only to ensure its effectiveness, but also to make everyone aware of its fairness dimension.

____

🦉This article is available in full text to those registered for Professor Marie-Anne Frison-Roche's courses

________

Référence complète : Response to the Study on Directors’ Duties and Sustainable Corporate Governance by Nordic Company Law Scholars, octobre 2020.

Lire le rapport

► Full Reference:  B. Sillaman, "Taking the Compliance U.S. Procedural Experience globally", in M.-A. Frison-Roche (ed.), Compliance Jurisdictionalisation, Journal of Regulation & Compliance (JoRC) and Bruylant, coll. "Compliance & Regulation", to be published. 

____

📘read a general presentation of the book, Compliance Jurisdictionalisation, in which this article is published

 

____

► Summary of the article (done by the Journal of Regulation & Compliance): The French legal system is evolving, organizing interaction between lawyers with regulators and prosecutors, specially in investigations about corruption or corporate misconduct, adopting U.S. negotiated resolutions such as the Convention judiciaire d'intérêt public, which encourages "collaboration" between them. 

The author describes the evolution of the U.S. DOJ doctrine and askes French to be inspired by the U.S. procedural experience, U.S. where this mechanism came from. Indeed, the DOJ released memoranda about what the "collaboration" means. At the end (2006 Memorandum), the DOJ has considered that the legal privilege must remain intact when the information is not only factual in order to maintain trust between prosecutors, regulators and lawyers.

French authorities do not follow this way. The author regrets it and thinks they should adopt the same reasoning as the American authority on the secret professionnel of the avocat, especially when he intervenes in the company internal investigation.

____

🦉This article is available in full text to those registered for Professor Marie-Anne Frison-Roche's courses

________

Le plan est  actualisé chaque semaine au fur et à mesure que les leçons se déroulent en amphi.

Il est disponible ci-dessous.

 

Retourner à la présentation générale du cours.

 

 

(Avant le début des enseignements de Droit de la Régulation bancaire et financière, un aperçu du plan général du Cours avait été mis à disposition.)

Banks are regulated because they do not engage in an ordinary economic activity, as their are likely to create systemic risk. In the real economy indeed, banks play the role of providing credit to entrepreneurs who operate on the markets for goods and services. These credits are mainly financed through deposits made by depositors and, to a lesser extent, by shareholders (i.e., capitalists). That is how liberalism and capitalism are bound up. However, banks also have the power to create money by the book entries they make when they grant loans ('book money'). As such, the banks share with the State this extraordinary power to exercise monetary authority, which some describe as sovereign power. It is possible that the digital eventually calls this power into question, since the Regulation currently hesitates to seize control over new instruments that are called "virtual currency" and that are used as proper "currency" or as an ordinary instrument for cooperative relation.

Banks' prominent sovereign character justifies, first and foremost, that the State is granted the power to choose the institutions which benefit from the privilege of creating book money- in this regard, the banking industry has always been a monopoly. Hence, Banking Regulation is first an ex ante control to enter the profession, and also a careful monitor of the people and institutions that claim they are in.

In addition, banks and credit institutions lend more money than their own funds can allow: the whole banking system is necessarily based on the trust that each creditors place within the bank, including depositaries who leave their funds at the banks' disposal for it to use them. That is where Bank Regulation intervenes to establish what is called 'prudential ratios', i.e., ratios that ensure the soundness of the institution by determining the amount of money that banks can lend based on the equity and quasi-equity they actually have.

Moreover, banks are constantly monitored by their supervisory Regulator, the Central Bank (in France, the Banque de France) that ensures the safety of the whole system by setting the State as the lender of last resort. This can, however, incentivize a large financial institution to take excessive risks based on its reliance on the fact that the State will save it eventually- that is what the 'moral hazard' theory systematized. All monetary and financial systems are built on these central banks that are independent from governments, which are far too reliant on political strategies and which cannot generate the same trust that a Central Bank inspires. Since the missions of central banks have increased over the years, and since the notions of Regulation and Supervision have come together, we tend to consider that Central Banks are now fully fledged Regulators.

Besides, Banking Regulation has become all the more central since banking is no longer primarily about loaning but rather about financial intermediation.  Banking Regulation and Financial Regulation are mixing. In Europe , European Central Bank is in the center.

Référence complète : Marcou, G., L'ordre public économique aujourd'hui. Un essai de redéfinition, in, Revet, TH. et Vidal, L. Annales de la régulation, IRJS, 2009, p.79 et s.

Référence : Grenoble, 5 nov. 2020, I.D. c/ Société Corin France

Lire l'arrêt. 

Sont ici répertoriés les sujets proposés chaque année, soit au titre du travail à faire en parallèle du cours, à remettre à la fin du semestre (le jour de l'examen étant la date limite de remise), soit les sujets à traiter sur table, sans documentation extérieure et sous surveillance le jour de l'examen final. 

A partir de 2019, en raison du règlement administratif de la scolarité, l'examen final ne peut plus se dérouler en dehors du cours.

Les étudiants cessent donc de bénéficier d'une durée de 4 heures pour réaliser l'examen.

Le contrôle final est donc nécessairement réalisé pendant la durée de 2 heures du dernier cours de l'enseignement, supprimé pour être remplacé par ce contrôle sur table. Les sujets sont désormais choisis en considération de ce format. 

 

Retourner sur la description générale du Cours de Droit commun de la Régulation, comprenant notamment des fiches méthodologiques. 

► Référence complète : D. Esty et M. Hautereau-Boutonnet, "Derrière les procès climatiques français et américains : des systèmes politique, juridique et judiciaire en opposition", D.2022, p.1606 et s.

____
 

Le plan est  actualisé chaque semaine au fur et à mesure que les leçons se déroulent en amphi.

Il est disponible ci-dessous.

 

 

Retourner à la présentation générale du cours, tel qu'il était bâti et proposé en 2018.

 

 

 

 

 

The economic theory of incentives implicitly assumes that an operator can not be compelled to act against his will, or at least that it is more efficient to offer him advantages in such a way that he does what he wants . In this, this conception is opposed to the traditional conception of Law, which posits, on the contrary, that subjects obey the order dictated by the legal norm.

But in globalized markets, operators have the tools to disobey and the asymmetry of information diminishes the power of control of the Regulators, which raises doubts as to the effectiveness of the legal constraint: it is not enough that the Law orders. In these circumstances, texts, regulators and judges must produce conditions that encourage agents to adopt behaviors that are consistent with the aims sought by the Regulators because the operators themselves have an interest in them.

Thus, whilst regulatory systems in any sector become increasingly repressive, even in liberal economies, it is not so much to punish the perpetrator but to incite others who are tempted to commit crimes, To abandon them. It is the system of exemplarity. This thought prior to Beccaria participates in the re-feoadization of the Law, demonstrated by Pierre Legendre, associated with the decline of the State and to which the Regulation fully participates. Judgeshave little inclination to handle repression in this way, which creates a clash between Criminal Law and Regulatory Law, which nevertheless puts repression at its center.

In the same way, Regulatory Systems must inject positive incentives, for example rewards for communication of information, which encourages delation, or incentives done by the regulator for the network manager make investments in the maintenance of it, against the immediate interest of its shareholder. Finally, all patent law and economics are now thought of as an incentive to inn/en/article/innovation/ovate. But, some incentives have proven perverse such as stock-options or bonuses. As a result, new texts seek to regulate these.

► Référence complète : A.-M. Ilcheva, "Condamnation de Shell aux Pays-Bas : la responsabilité climatique des entreprises pétrolières se dessine", D. 2021, pp. 1968-1970

____

► Résumé de l'article : Après une brève description de l'affaire en cause au principal, l'auteure explicite dans un premier les fondements du jugement dit "Shell". Elle explique que l'action engagée était fondée sur le droit de la responsabilité civile délictuelle néerlandais, plus précisément le "duty of care" de l'article 6:162 du code civil néerlandais, lequel amène le juge, afin d'établir le fait générateur, à apprécier le comportement de l'entreprise défenderesse au regard du standard de comportement de la personne prudente et raisonnable. Sont également mobilisés par le juge des travaux scientifiques (rapport du GIEC), des normes de droit international (CEDH) et des normes de droit souple (Principes directeurs de l'ONU), afin de caractériser tant le fait générateur que le dommage (notamment futur). Dans un second temps, l'auteure envisage la portée de ce jugement, frappé d'appel au moment de la rédaction de son article. Elle souligne que le juge s'est appuyé sur la notion d'entreprise, permettant ainsi de contourner l'obstacle traditionnel lié à la personnalité morale, et qu'il a retenu ici une responsabilité préventive, tournée vers le futur. Elle termine en mettant en avant les conditions nécessaires pour que ce jugement soit effectif et constate que l'effort demandé à l'entreprise est plus important que celui préconisé par les rapports d'experts.

____

🦉Cet article est accessible en texte intégral pour les personnes inscrites aux enseignements de la Professeure Marie-Anne Frison-Roche

________

► Référence complète : A. Oumedjkane, "Le devoir de vigilance est-il soluble dans le droit des contrats publics ?", in M.-A. Frison-Roche (dir.), Compliance et contrat, Journal of Regulation & Compliance (JoRC) et Dalloz, coll. "Régulations & Compliance", à paraître

____

► Résumé de l'article (fair par le Journal of Regulation & Compliance - JoRC) : Il analyse le devoir de vigilance, lequel constitue la pointe avancée du Droit de la Compliance dans la commande publique.

Cela est contrintuitif, puisque le devoir de vigilance est légal et que la loi donne compétence au juge judiciaire. Mais l'auteur souligne que les lois récentes, notamment les lois "résilience et climat" et "finance verte" visent expressément le devoir de vigilance pour constituer des causes d'exclusion de l'entreprise qui manque à son obligation de vigilance des commandes publiques.

L'auteur regrette que les textes à ce propos aient fait l'objet d'une rédaction approximative et variant de texte en texte, alors qu'il s'agit de régir la même situation : celle de l'exclusion d'une entreprise du champ de la commande publique parce qu'elle n'a pas rempli son obligation de vigilance; ce qui suppose des obligations pleinement réalisées, ou de n'avoir pas établi un plan de vigilance, ce qui n'est pas la même chose et manifeste moins d'exigence.

Il souligne également la question du contrôle qualitatif du plan de vigilance, contrôle approfondi ou au contraire obligation purement formelle. Là encore, il pense, comme la majorité de la doctrine, qu'il est raisonnable de se rapporter à une interprétation minimale, même si la loi sur le devoir de vigilance marque plus d'ambition.

Il estime que si le juge administratif était en effet confronté à un contrôle substantiel, en raison de la compétence, qu'il estime exclusive, du Tribunal judiciaire de Paris, il faudrait former des questions préjudicielles...

Dans ces conditions d'interprétation minimale, seule une absence de plan ou un plan formellement défaillant serait sanctionné dans le cadre de la commande publique... Mais cette interprétation est la moins adaptée à l’objectif de la législation elle-même, et que l'on pourrait en arriver que ce qu'une entreprise qui aurait été condamnée par le Tribunal judiciaire pourrait n'être pourtant pas exclue d'un marché public...

L'auteur estime enfin que cette nouvelle démarche incitative montre en réalité l'impuissance du Droit des contrats publics à produire par lui-même les effets recherchés sur les entreprises.

________

► Référence complète : M. M. Mohamed Salah, "Conclusions", in J. Andriantsimbazovina (dir.), Puissances privées et droits de l'Homme. Essai d'analyse juridique, Mare Martin, coll. "Horizons européens", 2024, pp. 297-314

____

► Résumé de l'article :

____

🦉Cet article est accessible en texte intégral pour les personnes inscrites aux enseignements de la Professeure Marie-Anne Frison-Roche

________