Food for thoughts

The goal for which a mechanism, a solution an institution or a rule is adopted, instituted or elaborated, is in principle external to them. Knowledge of this goal is a tool to better understand them and is only that.

On the contrary, in Regulation Law, the goal is the heart itself. By definition, Regulation Law is a set of instruments that articulate to take their meaning in relation to a goal. Moreover, these instruments are legitimate to represent a constraint only because they realize a goal which is itself legitimate. The interpretation of Regulation Law is based on the aims pursued: the reasoning is teleological.

This teleological nature explains that efficiency is no longer merely a concern - as for ordinary legal mechanisms, but rather a principle of Regulation Law. It explains the welcome, especially through the European Union Law of the theory of the useful effect. This link between rules, which are only means, and aims, refers to the principle of proportionality, which requires that constraints and exceptions be applied only when they are necessary, proportionality being the form off the classic principle of necessity.

Because the aim is the center, it must be expressed by the author of the Regulation standards, and this is all the more so if they are of a political nature, being not limited to mitigating technical failures of markets. This goal can be varied: the management of systemic risks, but also the consideration of the fundamental rights of people, the preservation of the environment, public health, civilization, education, etc. The silence of the legislature, which limits itself to the making of rules whereas these are merely instruments, without explicating the goal whereas the latter is a political decision, is a fault in the legislative art.

Moreover, in order that the person who applies the Regulation norm, in particular the Regulator and the Judge, has no excessive margin for interpretation and does not substitute for political power, the author of the Regulation norm needs to aim specifically for one goal : in this way, the one who applies the norm will be constrained. Or, if the author targets several purposes, then he must articulate them in relation to each other, by hierarchizing them for example. If he fails to do so, the institution which applies the regulatory standards will itself have to choose the purpose and exercise a power which he does not possess.

This express designation of purpose has been made for the European Banking Union,  this Regulation and Supervision construction, whose primary aim is to prevent systemic risks and resolve crises. Similarly, the purpose of the Regulation of essentiel infrastructures is to provide third parties access to the network. Similarly, in the case of a transitional regulation introduced following liberalization, the aim is to establish competition, the principle of which has been declared by the liberalization law. When this is not clearly stated, there is a lapse in the legislative art.

► Full Reference: F. Raynaud, "The administrative judge and compliance", in M.-A. Frison-Roche (ed.), Compliance Jurisdictionalisation, coll. "Compliance & Regulation", Journal of Regulation & Compliance (JoRC) and Bruylant, 2023, p. 

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

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► Summary of the article:

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Retourner à la présentation générale du Cours.

Cette bibliographie générale rassemble quelques références générales, qui se superposent ou croisent les bibliographies plus spécifiques sur :

• Doctrine (par ordre alphabétique), la présentation distinguant quelques ouvrages généraux avant de répertorie des études pertinentes pour comprendre le "Droit commun de la Régulation"

• Textes de droit international, textes de systèmes juridiques étrangers,textes de l'Union européennes, textes de droit français

• Littérature grise

The procedural guarantees enjoyed by a person whose situation may be affected by a forthcoming judgment are mainly the right of action, the rights of defense and the benefit of the adversarial principle.

The rights of the defense have constitutional value and constitute human rights, benefiting everyone, including legal persons. The mission of positive Law is to give effect to them in good time, that is to say from the moment of the investigation or custody, which is manifested for example by the right to the assistance of a lawyer or the right to remain silent or the right to lie. Thus the rights of the defense are not intended to help the manifestation of the truth, do not help the judge or the effectiveness of repression - which is what the principle of adversarial law does - they are pure rights, subjective for the benefit of people, including even especially people who may be perfectly guilty, and seriously guilty.

The rights of the defense are therefore an anthology of prerogatives which are offered to the person implicated or likely to be or likely to be affected. It does not matter if it possibly affects the efficiency. These are human rights. This is why their most natural holder is the person prosecuted in criminal proceedings or facing a system of repression. This is why the triggering of the power of a tribunal or a judge offers them in a consubstantial way to the one who is by this sole fact - and legitimately - threatened by this legitimate violence (one of the definitions of the State ).

The rights of the defense therefore begin even before the trial because the "useful time" begins from the investigation phase, from the searches, even from the controls, and continues on the occasion of appeals against the decision adversely affecting the decision. The legal action being a means of being a party, that is to say of making arguments in its favor, and therefore of defending its case, shows that the plaintiff in the proceedings also holds legal defense rights since he is not only plaintiff in the proceedings but he also plaintiff and defendant to the allegations which are exchanged during the procedure: he alleged to the allegation of his opponent is not correct.

They take many forms and do not need to be expressly provided for in texts, since they are principled and constitutionally benefit from a broad interpretation (ad favorem interpretation). This is the right to be a party (for example the right of intervention, the right of action - which some distinguish from the rights of the defense - the right to be questioned, such as the right to be brought into question (or examination), right to be assisted by a lawyer, right to remain silent, right not to incriminate oneself, right of access to the file, right to intervene in the debate (the rights of the defense thus crossing the adversarial principle), right to appeal, etc.

It is essential to qualify an organ as a tribunal because this triggers for the benefit of the person concerned the procedural guarantees, including the rights of the defense, which on the basis of Article 6 of the European Convention on Human Rights man was made about the Regulators yet formally organized in Independent Administrative Authorities (AAI). This contributed to the general movement of jurisdictionalization of Regulation.

Le légicentrisme exprime avant tout une bataille de normes, puisque cette doctrine pose que la loi est la seule et unique expression de la souveraineté de la Nation. En cela, la loi dispose d'une autorité indépassable et c'est elle qui fonde l'État légal.

Ainsi, si l'on devait donner une figure au système juridique, ce serait un cercle avec en son cœur d'une façon unique la loi souveraine, à la fois autosuffisante dans son fondement (souveraineté) et dans sa production (principe de légalité).

Cette conception moniste (unité de la loi) a pour principale source la philosophie politique de Jean-Jacques Rousseau, c'est encore sur celui-ci que la France conserve le principe de souveraineté parlementaire (le Gouvernement est responsable devant le Parlement) et de souveraineté de la loi. Mais depuis la Révolution française, les esprits et les faits ont changé.

Ainsi, s'est construite une doctrine inverse : le "pluralisme juridique" qui pose en contradiction que le droit vient de nombreuses sources, comme la coutume, les pratiques, les jugements, etc. Il n'est pas étonnant que les auteurs qui affirment le pluralisme juridique ne viennent pas de la philosophie politique mais davantage de la sociologie comme Gurvitch ou Carbonnier.

En outre, les frontières nationales ont perdu de leur consistance, de fait et de droit. C'est pourquoi un auteur comme Mireille Delmas-Marty s'appuie sur le fait même de la construction de l'Europe des droits de l'homme d'une part et de la globalisation d'autre part pour affirmer que le légicentrisme a fait place à un pluralisme juridique généralisé.

Cependant, en droit positif les textes restent les mêmes. C'est ainsi que l'article 6 de la Déclaration des droits de l'homme et du citoyen de 1789, qui fait partie du bloc de constitutionnalité, dispose de la loi que "la loi est l'expression de la volonté générale".

De la même façon, l'article 5 du Code civil continue d'interdire au juge de rendre des jugements contraignants pour d'autres cas que celui particulier sur lequel il se prononce.

Cette permanence des textes les plus gradés, à savoir l'article 5 du Code civil et l'article 6 de la déclaration pose de nombreux problèmes aux juges. En effet, depuis l'arrêt du Tribunal des conflits Blanco, le droit administratif n'est plus lié par ce qui est posé par le Code civil et sans doute la puissance normative du Conseil d'Etat s'exprime plus ouvertement que celle de la Cour de cassation, qui feint de ne rendre que des arrêts de principe pour pouvoir affirmer qu'elle ne rend pas d'arrêt de règlement.

D'une façon plus complexe, le Conseil constitutionnel rappelle régulièrement que certes il est le gardien de la norme constitutionnelle supérieure à la loi mais quand le même temps, seul le législateur, puisque celui est le souverain, peut exprimer la volonté générale, ce à quoi le Conseil constitutionnel ne peut se substituer.

Mais le Droit de l'Union européenne, qui constitue un Ordre juridique à la fois autonome et dont les normes sont pourtant intégrées dans les ordres juridiques des Etats-membres, rend difficilement soutenable la conception du légicentrisme. Y a succédée une hiérarchie des normes complexes. Mais les fondements politiques de l'idée de légicentrisme alimente en grande partie l'hostilité à l'égard de l'Europe, aussi bien celle de l'Union que celle de la CEDH.

In principle, the very mechanism of the market is governed by freedom, the freedoms of the agents themselves - the freedom to undertake and contract - and the competitive freedom that marks the market itself, the convergence of these freedoms allowing the self-regulated functioning of The "market law", namely the massive encounter of offers and demands that generates the right price ("fair price").

A monopoly refers to the power of a person to remove from a good its utility by excluding others. The monopoly refers to a situation on the market, the monopolist being the sole operator in the market. Lawyers are accustomed to the monopoly conferred by Law, for example the one that was the monopoly for the national public enterprise for electricity. In this case, what is done may be defeated, and the legislature may withdraw that privilege especially if the author of this norm is better placed in the hierarchy of norms than the previous author. For example, the European Union legislature withdrew the legal monopolies by means of directives from most of the operators holding them in the regulated sectors in order to liberalize them.

But the monopoly can have an economic source. Indeed, it may happen that a first operator constructs a structure, for example a wired telecommunications transport network. Because he is alone, agents on the market must resort to him to carry their communications, his business will be profitable. But from there, if a second operator built such an infrastructure, it would inevitably be in deficit for insufficient applicants. This is why no rational economic agent will build a second network. Thus, this network will remain unique. It is then an economically acquired monopoly that the legislative will can not change its nature. That is why it is called "natural".

Since what is can not be changed, Community law has taken note of the monopolistic nature of the majority of networks and the correlated power of their owner or manager, but has correlatively provided for their supervision by a regulator who not only Ex post to resolve possible differences between the infrastructure manager, the natural essential facility, and the one who wants to access it, but also, through an Ex ante power, to negotiate with that manager the return on his capital, his commitments investment in the network, etc., or even more directly by imposing on it the way in which it fixes access tariffs and so on.

These economically natural monopolies are therefore more powerful than legal monopolies, which States and lawyers have taken a long time to understand, but this also explains the reverse tendency of economists to write laws, The texts must handle this type of notions, its writers caring little about the political order and legal notions. The fact that the laws and regulations on regulated situations and supervised operators have long been elaborated solely from the point of view of lawyers, particularly of the public service, which was regrettable, does not justify this passage from one extreme to the other.

In an ordinary market of goods and services, access to the market is open to everyone, whether it is the one who offers the good or service (potential supplier) or who wants to own it (potential applicant ). Freedom of competition presupposes that these new entrants can, at their will, become effective agents on the market, the potential supplier if its entrepreneurial dynamism drives him there, and the potential applicant if he has the desire and the tools to do it(money, Information and proximity, in particular ; but first of all, money). The absence of barriers to entry is presumed; a barrier resulting from anti-competitive behavior will be penalized ex post by the competition authority.

The barrier is therefore what undermines the principle of access to the market. This is why the World Trade Organization (WTO), in that it fights against barriers to ensure global free trade, can be regarded as a forerunner of a sort of World Competition Authority.

But it may happen that it is necessary to organize by the force of Law the market access in a first situation, when there has been a liberalization decision of a previously monopolistic sector, access can not be exercised solely by the strength of demand and the power of potential new entrants, notably prevented by the de facto power of the formerly monopolistic enterprises. The Regulatory Authority will build access to sectoral markets whose sole principle of Competition has been declared by Law. Secondly this necessity can also result from phenomena that definitely impede this ideal competitive functioning of the sector, such as natural monopolies or asymmetries of information: Law will make this access concrete by distributing rights of access to the interested operators.

This is the case in network industries for operators' access rights to essential infrastructure networks. Even if this act is carried out by contract, this contract merely crystallizes a right of access conferred by the Legislator to the operator in order this one can penetrate the market. This is particularly true in the energy and telecommunications sectors.

In a more political way and not directly related to a desire to set up competition or to compensate for a market failure, this access organization may still be required because there is a political decision to provide everyone with access to common goods. The decision then goes hand in hand with the notion of a "fundamental right", such as the fundamental right of access to the healthcare system or vital medicines, or the fundamental right of access to the digital system, which the Regulator becomes the guardian in Ex Ante but also in Ex Post.

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

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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.)

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. 

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► Full Reference: M.-A. Frison-Roche, "Concevoir l'Obligation de Compliance : faire usage de sa position pour participer à la réalisation des Buts Monumentaux de la Compliance" ("Conceiving the Compliance Obligation: Using its Position to take part in achieving the Compliance Monumental Goals"), in M.-A. Frison-Roche (ed.), L'Obligation de Compliance, Journal of Regulation & Compliance (JoRC) and Dalloz, "Régulations & Compliance" Serie, 2024, to be published

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📝read the article (in French)

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🚧read the bilingual Working Paper on the basis this contribution has been built, with  more developments, technical references and hyperlinks. 

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📕read a general presentation of the book, L'Obligation de Compliance, in which this article is published 

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► English summary of this contribution: Rather than getting bogged down in definitional disputes, given that Compliance Law is itself a incipient branch of Law, the idea of this contribution is to take as a starting point the different regimes of so many different compliance obligations to which laws and regulations subject large companies: sometimes they must apply them to the letter and sometimes they are only penalised in the event of fault or negligence. This brings us back to the distinction between obligations of result and obligations of means.

Although it might be risky to transpose the expression and regime of contractual obligations to legal obligations, starting from this observation in the Compliance Evidentiary System of a plurality of obligations of means and of result, depending on whether we are dealing with this or that technical compliance obligation, we must first classify them. It would appear that this plurality does not constitute a definitive obstacle to the creation of a single definition of the Compliance Obligation. On the contrary, it makes it possible to clarify the situation, to trace the paths through what is so often described as a legal jumble, an unmanageable mass of regulations.

Indeed, insofar as the company obliged under Compliance Law participates in the achievement of the Monumental Goals on which this branch of Law is normatively based, a legal obligation which may be relayed by contract or even by ethics, it can only be an obligation of means, by virtue of this very teleological nature and the scale of the goals targeted, for example the happy outcome of the climate crisis which is beginning or the desired effective equality between human beings. This established principle leaves room for the fact that the behaviour required is marked out by processes put in place by structured tools, most often legally described, for example the establishment of a vigilance plan or regularly organised training courses (effectiveness), are obligations of result, while the positive effects produced by this plan or these training courses (efficacy) are obligations of means. This is even more the case when the aim is to transform the system as a whole, i.e. to ensure that the system is solidly based, that there is a culture of equality, and that everyone respects everyone else - all of which come under the heading of efficiency.

The Compliance Obligation thus appears unified because, gradually, and whatever the various compliance obligations in question, their intensity or their sector, its structural process prerequisites are first and foremost structures to be established which the Law, through the Judge in particular, will require to be put in place but will not require anything more, whereas striving towards the achievement of the aforementioned Monumental Goals will be an obligation of means, which may seem lighter, but corresponds to an immeasurable ambition, linked with these Goals. Moreover, because these structures (warning platforms, training, audits, contracts and clauses, etc.) only have meaning in order to produce effects and behaviour leading to changes converging towards the Monumental Goals, it is the obligations of means that are most important and not the obligations of result. The judge must also take this into account.

Finally, the Compliance Obligation, which therefore consists of this interweaving of multiple compliance obligations of result and means of using the Entreprise's position, ultimately aims at system efficiency, in Europe at system civilisation, for which companies must show not so much that they have followed the processes correctly (result) but that this has produced effects that converge with the Goals sought by the legislator (effects produced according to a credible trajectory). This is how a crucial economic operator, responsible Ex Ante, should organise itself and behave.

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Référence complète : Lagarde, Ch., A regulatory Approch to FinTech, mai 2018. 

Lire l'article. 

► Full Reference: B. Deffains, "La dette comme fondement de l'obligation de compliance" ("From the Debt to the Compliance Obligation"), in M.-A. Frison-Roche (ed.), L'Obligation de Compliance, Journal of Regulation & Compliance (JoRC) and Dalloz, "Régulations & Compliance" Serie, 2024, to be published

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📕read the general presentation of the book, L'Obligation de Compliance, in which this contribution is published

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► Summary of this contribution  (done by the Journal  of Regulation  & Compliance):  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.

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

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The telecommunications sector was the first sector to be liberalized in Europe, not so much by political will but because technological progress had in fact already brought competition into the sector and it was better to organize it rather than to To allow competition to settle in disorder.

Référence complète : Gibert, M., Faire la morale aux robots. Une introduction à l'éthique des algorithmes, Flammarion, 2021, 168 p.

Lire le commentaire de l'ouvrage sur le site NonFiction. 

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This general bibliography brings together some general references, which overlap or cross over the more specific bibliographies on Compliance, through different subjects or branches of Law, in French Law or in foreign and supra-national Law having a direct influence, so that one can understand what results in nation law.

It is composed of doctrinal documents (books and articles), legislative or regulatory texts applicable in France and other countries (and, where applicable, draft laws or regulations), as well as documents of gray literature .

It may be relevant to cross this bibliography with the broader Bibliography on the General Regulation Law, or with the more focused Bibliography on the Law of Banking and Financial Regulation.

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.

The Federal Communications Commission (FCC) is the independent regulatory authority in the United States that regulates at the federal level both the container and the content of telecommunications.

In this, the United States differs from the European Union, a legal space in which most often the regulatory institutions of the container and the content are distinct (for example in France ARCEP / CSA / CNIL) and in which the regulations of communications remain substantially at the level of the Member States of the Union.

Like other audiovisual regulators, it ensures pluralism of information by limiting the concentration of capital - and therefore of power - in the television and radio sector. We can thus see that the American system is not in principle different from the European system.

In addition, the FCC is characterized first of all by a very great power, imposing at the same time substantial principles on the operators, like that of the "decency", going in the name of this principle until sanctioning television channels which had let show a bare breast of a woman. The control is therefore more substantial than in Europe, this control weighing against the constitutional freedom of expression which is more powerful in the United States than in Europe. It is true that today the leading digital companies tend to formulate for us what is beautiful, good and decent, in place of public authorities.

The FCC continued to develop the major principles of the public communication system, as in 2015 that of the Open Internet (Open Internet) or to formulate the principle of "digital neutrality", adopted by a federal law, this principle having considerable economic and political implications.

But at the same time, a general mark of American law, the judge moderates this power, according to the principle of Check and Balance. Thus the Supreme Court of the United States in FCC v. Pacifica Foundation in 1978 this power of direct control of the content but also operates the control of the control.

The election in 2016 of a new president who is, among other things, totally hostile to the very idea of ​​Regulation is a test in the probative sense of the term. In January 2017, he appointed a new president of the FCC, hostile to any regulation and in particular to the principle of neutrality. The question which arises is to know if technically a regulation already established on these principles can resist, how and for how long, a political will violently and expressly contrary. And what will the judges do.

Référence complète : Salah, M., La mondialisation vue de l'Islam, in Archives de Philosophie du Droit, La mondialisation entre illusion et utopie, tome 47, Dalloz, 2003, 27-54.

La mondialisation apparaît comme une occidentalisation des cultures et du droit. L'Islam qui prend forme juridique devrait se l'approprier sans se dénaturer. La réussite d'un tel processus difficile dépendra de la qualité de la régulation qui sera mise en place.

Lire une présentation générale de l'ouvrage dans lequel l'article a été publié.

Les étudiants de Sciences po peuvent via le drive lire l'article dans le dossier "MAFR - Régulation".

► 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. 

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

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► 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.

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

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

Lire le rapport

The State's traditional view is that it serves the general interest through its public services, either directly (by its administrations, or even by public enterprises), or by delegation (eg through the concession mechanism). Public service is generally defined in a functional way, ie through public service missions that the organization must perform, such as providing public transport or caring for the population whatever (Eg in France by the public firm the SNCF). The liberalization of those public sectors, the primary reference to the market as a means of achieving the general interest, the primary reference to competition and the play of the European Law has destroyed this intimacy between public service, general interest, public enterprise and State.

Today, in a dialectical game, the Regulation keeps this concern for public service missions in balance with the competition, in a competitive context and under the control of a Regulator. The system is more complex and challenging because it creates new difficulties, such as information asymmetry or less easy integration of long-term planning, but it is better suited to an open and globalized economy.

► Full Reference: J.-S. Borghetti, "The Relation between Tort Law and Compliance Obligation", in M.-A. Frison-Roche (ed.), Compliance Obligation, Journal of Regulation & Compliance (JoRC) and Bruylant, "Compliance & Regulation" Serie, to be published

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

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► Summary of the article (done by the Journal of Regulation & Compliance - JoRC): The Author points out that in order to establish civil liability, it is first necessary to find fault, i.e. a deviation from an obligation, which will trigger a secondary obligation, that of reparation. But it can also be argued that it is from liability that this primary obligation arises, civil liability then revealing an obligation which existed only implicitly. That establishes a two-way relationship between liability and obligation. The Compliance Obligation illustrates this, in particular through the Obligation of Vigilance conceived by the French law of 2017.

The author therefore devotes the first part of his contribution to civil liability as a result of an Compliance Obligation, especially the Obligation of Vigilance. issued of the French law of 2017. After discussing whether the constraints generated by compliance should be classified as 'obligations', since there is no creditor, which therefore opens the way to liability in tort, he examines the conditions for incurring such liability, which are difficult, particularly with regard to the burden of proof and the demonstration of the causal link. The requirement concerning the latter may evolve in French law towards the admission of proportional causality, as is now accepted in certain cases in German case law.

In the second part of his contribution, the author deals with the hypothesis of civil liability as an indicator of a Compliance Obligation. He points out that the claims made, particularly in the cases of TotalOuganda (France) and Milieudefensie v. Shell (Netherlands) seek to obtain from the judge a such "revelation".

The author considers that it is not possible to draw from the  French 2017 law which refers to article 1240 of the French Civil Code on the liability because this article is referred to only in order to organise the consequences of a breach of article L.225-102-4 of the French Commercial Code organising the Obligation of Vigilance (article 1240 being therefore under the secondary obligation described above) and not to feed what this article L.225-102-4 requires under the primary obligation (defined above). 

On the other hand, the Shell judgment derives directly from civil liability an obligation to act. This is understandable if one takes the perspective and the measure of the future challenges posed, in this case in the area of climate change. But the author considers that it is up to the legislator to decide on such a development in Liability Law. 

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► Full Reference: M.-A. Frison-Roche, "Will, Heart and Calculation, the three marks surrounding the Compliance Obligation", in M.-A. Frison-Roche (ed.), Compliance Obligation, Journal of Regulation & Compliance (JoRC) and Bruylant, "Compliance & Regulation" Serie, to be published

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📝read the article

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🚧read the bilingual Working Paper which is the basis of this article, with additional developments, technical references and hyperlinks

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

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► Summary of the article (done by the Journal of Regulation & Compliance - JoRC): There is often a dispute over the pertinent definition of Compliance Law, but the scale and force of the resulting obligation for the companies subject to it is clear.  It remains difficult to define. First, we must not to be overwhelmed by the many obligations through which the Compliance Obligation takes shape, such as the obligation to map, to investigate, to be vigilant, to sanction, to educate, to collaborate, and so on. Not only this obligations list is very long, it is also open-ended, with companies themselves and judges adding to it as and when companies, sectors and cases require. 

Nor should we be led astray by the distance that can be drawn between the contours of this Compliance Obligation, which can be as much a matter of will, a generous feeling for a close or distant other in space or time, or the result of a calculation. This plurality does not pose a problem if we do not concentrate all our efforts on distinguishing these secondary obligations from one another but on measuring what they are the implementation of, this Compliance Obligation which ensures that entities, companies, stakeholders and public authorities, contribute to achieving the Goals targeted by Compliance Law, Monumental Goals which give unity to the Compliance Obligation.  Thus unified by the same spirit, the implementation of all these secondary obligations, which seem at once disparate, innumerable and often mechanical, find unity in their regime and the way in which Regulators and Judges must control, sanction and extend them, since the Compliance Obligation breathes a common spirit into them.

 In the same way that the multiplicity of compliance techniques must not mask the uniqueness of the Compliance Obligation, the multiplicity of sources must not produce a similar screen. Indeed, the Legislator has often issued a prescription, an order with which companies must comply, Compliance then often being perceived as required obedience. But the company itself expresses a will that is autonomous from that of the Legislator, the vocabulary of self-regulation and/or ethics being used in this perspective, because it affirms that it devotes forces to taking into consideration the situation of others when it would not be compelled to do so, but that it does so nonetheless because it cares about them. However, the management of reputational risks and the value of bonds of trust, or a suspicious reading of managerial choices, lead us to say that all this is merely a calculation.

Thus, the first part of the contribution sets out to identify the Compliance Obligation by recognising the role of all these different sources. The second part emphasises that, in monitoring the proper performance of technical compliance obligations by Managers, Regulators and Judges, insofar as they implement the Compliance Obligation, it is pointless to limit oneself to a single source or to rank them abruptly in order of importance. The Compliance Obligation is part of the very definition of Compliance Law, built on the political ambition to achieve these Monumental Goals of preserving systems - banking, financial, energy, digital, etc. - in the future, so that human beings who cannot but depend on them are not crushed by them, or even benefit from them. This is the teleological yardstick by which the Compliance Obligation is measured, and with it all the secondary obligations that give it concrete form, whatever their source and whatever the reason why the initial standard was adopted.

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