Articles in a legal collective publication

Full reference: Frison-Roche, M.-A., L'impossible unicité juridique de la catégorie des "lanceurs d'alertes" ("The impossible legal unicity of the category of "whistleblowers""), in Chacornac, J. (dir.), Lanceurs d'alertes, regards comparatistes, ("Whistleblowers, comparative perspectives"), Publications of the Centre français de droit comparé ("French Comparative Law Center"), May 2020, Volume 21, pp. 13-31.    Read the article (in French).    Read the general presentation of the collective book in which this article is published Read the bilingual working paper which had served of basis for this article.  Read the presentation of the conference "Les lanceurs d'alertes: glose" (Whistleblowers: glose") and especially the slides elabored for the colloquium organized by the Centre français de droit comparé ("French Comparative Law Center") on 23th of November 2018 under the direction of Jérôme Chacornac - Introduction of the article "Whistleblowers". This is a new expression. Which is a great success. Barely heard once, we hear it everywhere … A topic not of course or knowledge test, but rather a topic of daily conversation. Because it is spoken to us every day, in more or less gracious terms. For example President Donald Trump on October 1, 2019 declared to the press "want to question" the whistleblower who would have illegally denounced him and would not, according to him, have the right to conceal his identity, proof in this according to him of the lying character of his assertions against him, while his lawyer indicates on October 6, 2019 that he is not speaking on behalf of a single whistleblower thus taken to task but of a plurality of people who gave information against the President of the United States. Even the most imaginative screenwriters would not have written such brutal and rapid twists and turns. Spectators, we are waiting for the next episode, secretly hoping for the escalation. And precisely if we go to the cinema, it is still a whistleblower whose dedication and success, we are told about, even the drama, for the benefit of global society, and in particular democracy, since the secrets are fought for the benefit of the truth. The Secret Man designates Mark Felt as the first whistleblower. Returning to what we often present as being a more "serious" media¹On the more general fact that cinema is undoubtedly the medium which most seriously restores the state of the Law, c. Frison-Roche, M.-A., Au coeur du Droit, du cinéma et de la famille : la vie, 2016., we listen to France-Culture and here is another story told by a historian who worked as an archivist on events that political power would have liked to keep hidden by possibly destroying their traces but which its trade led to preserve: here it is expressly presented to the studious listeners like a "whistleblower" …. While the same radio tries to find the one who could well be, as in a kind of contest the "first whistleblower"²L'histoire du premier lanceur d'alerte, France Culture, septembre 2019. ? …. This rewriting of History can be defended because ultimately what did other Voltaire do for Calas, or Zola for Dreyfus? It is also a subject of legislative discussion since in the United States the Dodd-Frank law of 2010 inserted in the law of 1934 which established the Securities & Exchanges Commission a complete device of remuneration and remuneration of the whistleblowers, whereas after having developed flexible but guiding lines in this regard in 2012³European Commission, Guidelines on Whistleblowing, 6 of December 2012, SEC(2012) 679 final, updated on 23 of April 2018. , the European Commission published on November 20, 2018 the text of what will become a Directive intended to give a unified European status to the character, in the system gradually developed to protect the one who was presented in 2018 as that "cannot be punished for having done what is right". In Europe, the Directive first approved by a Resolution of the European Parliament on April 16, 2019 on the protection of persons denouncing breaches of Union Law and then adopted on October 7, 2019 (Directive of the European Parliament and of the Council of European Union on the Protection of Persons who Report Violations of European Union Law, different title, it should be noted, will have to be transposed into the laws of the Member States within the next two years. , since only "violations of Union Law" are targeted, but the character of the "whistleblower" is more generally targeted: he is "whole"⁴However, precisely the so common use of plurality ("whistleblowers") raises doubts about the uniqueness of the character. On this question, see. all the first part of the developments of this study, which leads to the conclusion rather than beyond the multitude of particular cases, there are rather two kinds of whistleblowers. V. infra I.. In short, the whistleblower is a star⁵The director of the film La fille de Brest says that she considers the whistleblower at the origin of the case of the Pick as a "movie character".. A sort of historical figure, covered in blows and glory, going from Voltaire to Snowden, both of whom find themselves embodied on the screens⁶Thus, the adventures of Snowden were brought to the screen by Oliver Stone in 2016, Snowden. On the question of knowing whether this film "faithfully reproduces" or not the case, Schetizer, P., Le film Snowden est-il à la hauteur de la réalité?, 2017. This article is favorable to the whistleblower, and to the film which tells us with emotion his case, in particular because (sic), it is easier than to read the Washington Post. …., Consecrated by law, which associates with it a legal regime of protection to such an extent that, like a Nessus tunic, it is this legal regime which will define the character and not the reverse. When we read the law of December 9, 2016 relating to transparency in the fight against corruption and the modernization of economic life, known as "Sapin 2", we notice that the Legislator makes much of this character, since 'he dedicates its chapter II to him⁷Underlined by us.: "From the protection of whistleblowers", and that it is by his very protection that he formally opens the door of Right to him. But why a plural? Admittedly when we read the recitals of the Community Directive of October 7, 2019 on the protection of whistleblowers⁸About this directive, v. the developments infra, it is only a list of all the subjects on which it is a good idea to protect them, which therefore prompts us to see in this plural only the index of this non-exhaustive list of subjects which it is good to tell us, a sign of the lack of definition of who should alert us. Reading the French law known as "Sapin 2" makes it less severe but more perplexing. Indeed, this plurality referred to by the title of the chapter devoted to "whistleblowers", there is no longer any question in the rest of the law, in the very definition which follows, article 6 which opens this chapter devoted to "whistleblowers" offering the reader immediately a singular since it begins as follows: "A⁹Underlined by us. whistleblower is a person …". No mention of diversity. The art of legislative writing would however have required that the qualifying article not only be singular but that it should not yet be undefined. Stendhal if he had still deigned to have the law for bedside book would have wanted to find at the beginning of chapter a sentence like: "The¹⁰Underlined by us. whistleblower is a person …". Thus seem to contradict themselves within the law "Sapin 2 the very title which presents the character, in that it uses a defined plural (the) while the defining article which presents it is in the undefined singular (one). … Here is a first reason not to advance any more but in a very careful way, in this "step by step" that constitutes a reading word for word: a gloss. This consists of taking the expression itself literally. The second reason for this technical choice is that the gloss is well suited to the introduction of a collective work, thus allowing more targeted developments to take place in other contributions, on the techniques, the difficulties and the limits of this protection, or on its history, or the reasons for the arrival in French law of these whistleblowers and the way they develop, or not, elsewhere. I am therefore going to content myself with taking this already legal expression to the letter: The (I) whistle (III). blowers (II).       

Full reference : Frison-Roche, M.-A., Avocat et Compliance – L'avenir du personnage et de son outil : Droit, Humanisme et Défense ("Attorney and Compliance – the future of the character and his tool: Law, Humanism and Defense),article of synthesis fo the collective publication "Compliance", Dalloz Avocat, March 2020, April 2020, June 2020, Dalloz Avocat, June 2020, pp. 321-324 Read the synthesis article (in French). Read the editorial of the March 2020 Issue, presenting the problematic : "The Attorney, Vector of Conviction in the New Compliance System".    -   Summary of the article: In the future, the place of lawyers in compliance mechanisms, including in Ex Ante, will develop for three reasons, which emerge from all of the contributions. First of all because Compliance is a matter of Law, a lawyer is a lawyer and in the future it is a matter of Law and not on technical terms that Compliance demands its meaning and legitimacy. Then because Conformity must be defined in relation to the person, the lawyer expresses the humanist conception of the rules and Compliance Law will only be tolerable in the future if it is for "monumental goal" of protection of the person. Finally, because Compliance with ordinary repression, that the lawyer in his heart defends and must be and remain at the center of Compliance Law. -

Référence générale : Frison-Roche, M.-A., L'avocat, porteur de conviction dans le nouveau système de Compliance, Dalloz Avocat, mars 2020. This editorial opens a thematic collective publication about Compliance. A synthetic article on all the contributions, published in May 2020, mirrors it: "Attorney and Compliance – The future of the character and his tool: Law, Humanism and Defense" - English Summary of the article (written in French) :  If we perceive Compliance Law as an aggression of the private company and a binding set of mechanisms that have no meaning and added value for it, then the attorney has a utility: to defend the business. It can do so not only during the sanctions phase, but also to prevent it. But this function is not central. He and she becomes so if we understand Compliance Law as being a body of substantial rules, pursuing a "monumental goal": the protection of the person, goal injected by political bodies and taken up by the operator. From this, the company must convince everyone to take it back, inside the company and outside. In a general and contradictory debate, the attorney carries this conviction, because he and shed is always convincing those who in the end judge (market, public opinion, etc.) that is their raison d'être.   Read the article   -     Read the Working Paper underlying this article, with the technical references and all the articles serving as the basis for all the assertions in this article          

Référence complète : Frison-Roche, M.-A., Le maniement de la propriété intellectuelle comme outil de régulation et de compliance, in Vivant, M. (dir.), Les Grands Arrêts de la propriété intellectuelle, 3ième éd., 2019, 9-11, pp. 43-53. This contribution is written in French. Summary:  Intellectual Property, which comes from the State and is incorporated into public policy, can be designed not to reward the creator a posteriori, but to encourage others to innovate. It is then an Ex Ante regulatory tool, an alternative to the subsidy. If private copying is an exception, it is not in relation to the principle of Competition but in an insertion into a system of incentives, starting from the costs borne by the creator of the first innovation: the rights holder is then protected , not only according to a balance of interests involved but in order not to discourage innovative potentials and the sector itself. (1st decision) ; The sectoral policy then permeates Intellectual Property, used to regulate a sector, for example that of the drug. While it is true that a laboratory wishing to market a generic drug did not wait for the expiration of the patent for the original drug to do so, it is however not relevant to sanction this anticipation by a few days because the investments made by the holder of the Intellectual Property right have been made profitable by this one and because the public authorities favor the generics in a concern of public health (2nd decision). Systemic interest prevails and therefore Internet service providers have to bear the costs of blocking access while they are irresponsible because of the texts. This obligation to pay is internalized by Compliance Law because they are in the digital system best able to put an end to the violation of Intellectual Property rights which the ecosystem requires to be effective. (3rd decision).   Read the contribution (in French).   Read the Working Paper written in English having served as a basis for this contribution and endowed with additional developments, technical references and hypertext links.  -

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

Full reference: Fabre-Magnan, M., Les fausses promesses des entreprises: RSE et droit commun des contrats, in Etudes en la mémoire de Philippe Neau-Leduc. Le juriste dans la cité, Coll. Mélanges, Lextenso – LGDJ, 2018, pp. 451-458 Sciences Po's students can read this article via Sciences Po's Drive in the folder MAFR – Régulation & Compliance

Complete reference : Antonmattei, P.-H., Retour sur la règlementation de droit privé : du règlement intérieur au règlement d'entreprise, in Études en l'honneur de Philippe Neau-Leduc, Le juriste dans la cité, coll. « Les mélanges », Lextenso – LGDJ,  2018, pp. 11-16.     Read a general presentation of the book where this article is published.

► Full Reference:  Frison-Roche, M.-A., Dessiner les cercles du Droit de la Compliance, in Études en l'honneur de Philippe Neau-Leduc, Le juriste dans la cité, coll. « Les mélanges », Lextenso – LGDJ,  2018, pp. 483-496. -   🚧this article  is based on a Working Paper, with footnotes, technical references and hypertext links.  This Working Paper is freely available : in French: Tracer les cercles du Droit de la Compliance. in English:  Drawing the circles of Compliance Law.  - ► English Summary of this article: Compliance Law has the same teleological functioning as the Economic Law to which it belongs, which consists in placing the normativity of rules, decisions and reasoning in the aims pursued. Once we know what the goals of compliance techniques are, then we know who should be responsible for them, who must be subject to them, who must activate the rules: compliance rules must be activated by those who are in the best position to achieve the outcome in order to achieve the goal sought by the authority which designed the compliance mechanism. The "circles" are thus plotted in a rational and pragmatic way. That, all of it ("useful effect"), but not beyond that. The notion of efficiency does not always imply balancing: on the contrary, it can involve drawing circles which designate those who are "placed" to carry the burden of the rules because they are capable of producing them the desired effects. Within these circles, the rules must apply without restriction and without compromise, but they must not apply beyond these circles. Drawing such circles requires defining the Law of Compliance itself, since on the one hand the choice of those who must implement the Compliance depends on the aims of the Compliance and on the other hand the definition of the Law of Compliance is itself teleological in nature. This is why, contrary to the assertion that the exercise of definition would be useless in these matters, which would be above all on a case-by-case basis, this effort to define and determine the purposes is, on the contrary, necessary in practice to show which enterprise must bear the obligations of compliance and which must not. But it is enough to have posed this to reveal the major difficulty of the Compliance, that explains resistances, and even gives the impression that one is confronted with an aporia. If, as a matter of principle, what is expected of the "users" of the Compliance mechanisms must be articulated to the aim that is affected by the authors of the compliance mechanisms to them, we must have a minimum correspondence between the aims of these authors (Legislators and Regulators) and the aims pursued by those who are responsible for implementing them: companies. However, this correspondence does not exist at first sight, because the compliance mechanisms are found to be uniquely based on "monumental goals" which the public authorities have a legitimate concern, whereas companies have for their own interest . The two circles do not match. The internationalization of concern for these aims in companies would therefore be only a mechanism of violence of which enterprises are the object, violence felt as such. (I). To resolve this violence, it is better to stop confusing the State and enterprises, whose goals are not the same, and draw the circle of subjects of law "eligible" for Compliance. It is highly legitimate to target certain entities, in particular this category of companies, which are the "crucial operators", in a binding way, as it is legitimate to govern companies that have expressed a desire to surpass their own interests. These circles of a different nature can overlap on a concrete operator: for example, if a bank – always a crucial operator that is structural because it is systemic – is also international – a crucial operator because of its activity – decides to worry about others by commitments verified by the authorities to overcome their own interest (social responsibility), but these different circles are not confused. In any case, companies may belong to only one circle, or even belong to none. In the latter case, they must therefore remain beyond the reach of the pressure and cost of Compliance Law, in particular because they are not objectively required to realize the "monumental goals" aimed at effectiveness and do not want it: in a liberal system, it is for the public authorities to aim at the general interest, the ordinary people indirectly participating in it by paying the tax. (II). It is by making these "Compliance Circles" of eligible subjects of this specific Law to implement the heavy but justified and controlled burden of Compliance with regard to the monumental goals that this new system  aims, that then opens a royal way in order to find a uniqueness and to increase the "monumental function" of the Compliance Law by a relation of Trust towards the global general interest, rather than the mechanical application of rules whose meaning is not understood and whose perception is no longer perceived than violence. -   📝read the article. -