<\/p>\n
1. <\/strong>Substantial Definition of Compliance Law by its negative and positive Monumental Goals<\/strong><\/em><\/span>\ud83d\udd87Compliance Law is an « Adventure»1<\/a><\/sup>On the conception of Compliance as a common adventure, \ud83d\udd74\ufe0f\u200bM.-A. Frison-Roche<\/a>, \ud83d\udea7The adventure of Compliance Law<\/em><\/a>, 2020.<\/span> that brings together those who have a common ambition: to act systemically on the future, either to avoid a collapse (negative monumental goals) or to deploy a system better than the one in which some human beings live (positive monumental goals)2<\/a><\/sup>S. in general, \ud83d\udd74\ufe0f\u200bM.-A. Frison-Roche<\/a>, \ud83d\udea7Compliance Law<\/a><\/em>, 2016 ; \ud83d\udd74\ufe0f\u200bM.-A. Frison-Roche (ed.), \ud83d\udcd8Compliance Monumental Goals<\/em><\/a>, 2023.<\/em><\/span>. Compliance Law is therefore not just about "obeying" in "conformity" with applicable rules. Indeed, "conformity" is only one tool among others of this branch of Law whose contours are narrower than our general and common obligation to respect the legal rules.<\/p>\n <\/p>\n 2. <\/strong>Compliance, a systemic branch of Law, conceived and deployed teleologically<\/strong><\/em><\/span>\ud83d\udd87More narrow in the rules targeted, Compliance Law is much more ambitious since its object is to safeguard systems (banking, financial, informational, energy, climate, etc.), or even to improve them so that the human beings who live in them can remain there, or even flourish3<\/a><\/sup>That's why people's rights have a central place, not only to become effective - this effectiveness being a "systemic Monumental Goals" - but also as Compliance Tools. S.\ud83d\udd74\ufe0f\u200bM.-A. Frison-Roche<\/a>, \ud83d\udcddRights, primary and natural Compliance Tools<\/a>, in<\/em> \ud83d\udd74\ufe0fM.-A. Frison-Roche (ed.), \ud83d\udcd8Compliance Tools<\/em><\/a>, 2021.<\/span>. By its very nature Compliance Law therefore develops in a teleological manner, its legal instruments being created, developed and interpreted on the basis of these goals, which give it unity, predictability, and simplicity4<\/a><\/sup>\ud83d\udd74\ufe0f\u200bM.-A. Frison-Roche<\/a>, \ud83d\udcddBuilding by Law the Unicity of Compliance Tools from the Definition of Compliance Law by its "Monumental Goals"<\/a>, in<\/em> \ud83d\udd74\ufe0fM.-A. Frison-Roche (ed.), \ud83d\udcd8Compliance Tools<\/em><\/a>, 2021.<\/span>.<\/p>\n <\/p>\n 3. <\/strong><\/span>Implication of immediate and continuous actions, of which Vigilance is the advanced manifestation<\/span> <\/strong><\/em>\ud83d\udd87In this Law whose the object is the future, immediate actions are required, notably structural actions, for example the adoption of plans, to generate long-term effects and cultural changes, reflecting the political nature of a branch that extends Regulatory Law. The Vigilance mechanism is therefore neither particular nor isolated. It can only be understood as the "leading edge" of Compliance Law as a whole5<\/a><\/sup>\ud83d\udd74\ufe0fM.-A. Frison-Roche<\/a>, \ud83d\udea7\u200bThinking and using Vigilance through its Compliance Monumental Goals<\/a><\/em>, 2023.<\/span>.<\/p>\n <\/p>\n 4. <\/strong>Need to articulate the available forces, through legal instruments and their authors: laws, contracts and judgments<\/strong><\/em><\/span>\ud83d\udd87These negative ambitions (to avoid disasters, especially climatic ones6<\/a><\/sup>\ud83d\udd74\ufe0fM.-A. Frison-Roche<\/a>, \ud83d\udea7Compliance Law and Climate. To prevent Climate Risk and build Climate Balance<\/em><\/a>, 2022.<\/span> or in the digital space7<\/a><\/sup>\ud83d\udd74\ufe0fR.-O. Maistre, \ud83d\udcddWhat are the Monumental Goals for the Regulator in a Rapidly Changing Audiovisual and Digital Landscape?<\/a>, in <\/em>\ud83d\udd74\ufe0fM.-A. Frison-Roche<\/a> (ed.), \ud83d\udcd8Compliance Monumental Goals<\/em><\/a>, 2023.<\/em><\/span>) and positive ones (improving the situation of human beings who are too "invisible", including for the Law8<\/a><\/sup>\ud83d\udd74\ufe0fC. Peicuti et \ud83d\udd74\ufe0fJ. Beyssade, \ud83d\udcddFeminisation of Positions of Responsibility in the Workplace as a Goal of Compliance. Example of the Banking Sector<\/a>, in <\/em>\ud83d\udd74\ufe0fM.-A. Frison-Roche<\/a> (ed.), \ud83d\udcd8Compliance Monumental Goals<\/em><\/a>, 2023.<\/em><\/span> (especially in companies or supply chains) are of such a magnitude that it is necessary to situate the actors: legislator, companies and stakeholders, judges. This makes it possible to articulate them in relation to each other. This articulation can be conceived in two ways: either in the sense of obedience, a traditional conception that organises a reign of regulation that all would serve, or in the sense of an alliance, where all forces converge towards the same monumental goals.<\/p>\n <\/p>\n 5. <\/strong>Traditional hierarchical conception of the regulations giving orders, the actors only showing their obedience<\/strong><\/em><\/span>\ud83d\udd87In this conception of regulatory efficiency, the order is issued by texts, most often takes the form of prohibitions produced by Criminal Law9<\/a><\/sup>On the complex articulation between Compliance Law and Criminal Law, s. \ud83d\udd74\ufe0fJ.-Cl. Marin, \ud83d\udcddQuels outils pour la construction du Droit de la Compliance en Europe ?<\/a><\/em>, in <\/em>\ud83d\udd74\ufe0fM.-A. Frison-Roche<\/a> (ed.), <\/em>\ud83d\udcd5Pour une Europe de la Compliance<\/a><\/em>, 2019 ; <\/em>\ud83d\udd74\ufe0fG. Beaussonie, \ud83d\udcddDo Criminal Law and Compliance form a system?<\/a> and \ud83d\udd74\ufe0fCh. André, \ud83d\udcddState Sovereingty, Sovereingty of the People: What Social Contract for Compliance?<\/a>, in <\/em>\ud83d\udd74\ufe0fM.-A. Frison-Roche (ed.), \ud83d\udcd8Compliance Monumental Goals<\/em><\/a>, 2023.<\/em><\/span>,, for example the prohibition of bribery and money laundering. The judge intervenes to punish the one who has violated the prohibition. This judge who always punishes is above all, first and foremost, the criminal judge. The powers of the public prosecutor are increasing10<\/a><\/sup>The Judicial Public Interest Agreement is a Compliance Tool that is both well studied and very much in its infancy. <\/p>\n 6. <\/strong>Obedience of the company that applies the compliance regulation within itself by punishing itself <\/strong><\/em><\/span>\ud83d\udd87This declination of obedience reaches the company more directly when it prosecutes itself through internal investigations, denounces itself13<\/a><\/sup>\ud83d\udd74\ufe0f\u200bM.-A. Frison-Roche<\/a>, \ud83d\udcddThe Judge-Judged. Articulating words and things in the face of the challenging conflict of interest<\/a> and <\/span>\ud83d\udd74\ufe0fJ. Heymann, \ud83d\udcddThe legal nature of the "Supreme Court" of Facebook<\/a>, in <\/em>\ud83d\udd74\ufe0f<\/span>M.-A. Frison-Roche (ed.), \ud83d\udcd8Compliance jurisdictionalisation<\/em><\/a>, 2023.<\/span> and ends up accepting its sanction, for which it has provided the means to the public authority. However, the rights of the defence in internal investigations are being erased14<\/a><\/sup>On the internal investigations, \ud83d\udd74\ufe0fJ.-M. Darrois, \ud83d\udcddLa loi Sapin 2 : un défi pour les avocats<\/a><\/em>, <\/em>in <\/em>\ud83d\udd74\ufe0f\u200bM.-A. Frison-Roche<\/a> (ed.), \ud83d\udcd5Régulation, Supervision, Compliance<\/em><\/a>, 2017 ; \ud83d\udd74\ufe0f\u200bM.-A. Frison-Roche, \ud83d\udcddThe Judge-Judged. Articulating words and things in the face of the challenging conflict of interest<\/a>, in <\/em>\ud83d\udd74\ufe0f<\/span>M.-A. Frison-Roche (ed.), \ud83d\udcd8Compliance jurisdictionalisation<\/em><\/a>, 2023 <\/em>; <\/em>\ud83d\udd74\ufe0f\u200bM.-A. Frison-Roche et M. Boissavy (ed.), \ud83d\udcd5Compliance et droits de la défense <\/em>(Compliance and rights of the defense<\/em>), 2024.<\/span> as the Regulator and the Prosecutor require the transmission of information according to a principle of collaboration. However, the company has judged its employees and is putting them at risk of being sanctioned. This trend shows that things are out of place when one thinks only in terms of the obedience of actors and the effectiveness of regulations, and that the Rule of Law principle can be compromised. To defend the Rule of Law, it is important to be careful not to use legal concepts as images, in particular the vocabulary of 'contract' too easily.<\/p>\n <\/p>\n 7. <\/strong>In obedience to the Law through sanction, the "contract" may be no more than a metaphor<\/strong><\/em><\/span>\ud83d\udd87For the regulations to be effectively obeyed, arrangements, commitments and acceptances of all kinds are in fact favoured under Compliance. This can be accepted, but in a legal system every must always know the exact correspondance between words and facts to understand where one stands. Thus what is referred to as the "contractualisation of criminal trials"15<\/a><\/sup>Cour de cassation<\/em> (French Court of Cassation), \ud83c\udfa5La contractualisation du procès pénal<\/a><\/em>, symposium of 13 March 2023.<\/span> is only a metaphor: the Deferred Prosecution Agreement (DPA) or the Convention judiciaire d'intérêt public (CJIP) <\/em>are not contracts and the seriousness of the Law should exclude that one speaks by image because any margin left to the company to negotiate does not mean "contract": a contract is based above all on contractual freedom implying the freedom not to say yes, which a company cannot do once the process has been initiated and the information transmitted.<\/p>\n <\/p>\n <\/p>\n 8. The use of contracts to fulfil its legal compliance obligation<\/em><\/strong><\/span>\ud83d\udd87. On the other hand, companies have developed a properly contractual practice, which has nothing to do with these previously described techniques. Without the need for a specific law, companies, subjects of Compliance Law, can choose any effective means to give concrete form to their legal compliance obligation, they can use all the means at their disposal: unilateral commitments, soft law, pedagogy, ethics, sanctions, but also contracts. Through their practice, they will show that they respect their legal compliance obligation. The contract is then the means by which the company concretises its legal compliance obligation, a contract by which the regulation is propagated. The contractual tool is greatly appreciated, as it is more easily indifferent to borders, espouses the space and duration of value chains\ud83d\udcce16<\/a><\/sup>That's why compliance stipulations are particularly used to ensure the effectiveness of of the legal obligation of vigilance and will be used more and more. S. the developments in<\/em> \ud83d\udd74\ufe0fM.-A. Frison-Roche<\/a>, \ud83d\udea7\u200bThinking and using Vigilance through its Compliance Monumental Goals<\/a><\/em>, 2023.<\/span>, etc.<\/p>\n <\/p>\n 9. The use of the contract as a compliance service regarding the regulations: the "compliance contract"<\/em><\/strong><\/span>\ud83d\udd87 Let us imagine, as a textbook hypothesis, that a company does not like the legal constraints of compliance that weigh on it. It does not want to mobilise its internal resources but nevertheless wants to comply with the regulations (for many reasons). It will then outsource this task, most often regulatory block by regulatory block, entrusting a service provider with the task of ensuring its compliance with the Europe GDPR, another with the task of setting up its whistleblowing system, another with the task of monitoring the sustainability due diligences plan, etc. From these contracts17<\/a><\/sup>\ud83d\udd74\ufe0fM.-A. Frison-Roche<\/a>, \ud83d\udea7Compliance contract, compliance stipulations<\/a><\/em>, 2022.<\/span> which correspond to a demand, born of these legal requirements, was born the "compliance market" which is growing at an exponential rate. It remains to write the regime of this "special contract", of which compliance is the very object.<\/p>\n <\/p>\n 10. Contracts with a different purpose but involving or justifying the insertion of "compliance clauses"<\/em><\/strong><\/span>\ud83d\udd87 In addition, in contracts reflecting the economic activity of the company, for example in supply contracts, a clause will be inserted whereby the company that supplies the material undertakes to ensure that the manufacturing conditions comply with the Code of Compliance and Ethics of the buyer who will use it to make the finished product and sell it to the final consumer. Similarly, a clause in the framework distribution contract will stipulate that the distributor must submit a compliance audit to its partner each year, particularly in terms of an effective fighting against corruption, and the latter may come at any time to check the accuracy of this commitment.<\/p>\n <\/p>\n 11. The development of compliance clauses and contracts regarding monumental goals through the autonomous will of the company: obliging itself beyond the regulatory constraint<\/em><\/strong><\/span>\ud83d\udd87 In the first type of clauses and contracts, the company, being in a relationship of obedience to the regulations, imagines modalities of its own to fulfil its own "compliance obligation" that the Law has drawn up. But the company is a legal person that not only carries out the order given to it by the Law but can also express its own goals18<\/a><\/sup>The company is encouraged in this by the legislator, by the insertion of the "raison d'être<\/em>" by the French so-called "Pacte law". <\/p>\n 12. The natural presence of the judge as an agent of effectiveness of the parties' will<\/em><\/strong><\/span>\ud83d\udd87 Since there is a contract – and not just a "contractualisation" – the judge naturally intervenes, whether he is a specialised judge or a judge of general law, the claim that algorithms and smart contracts able eliminate judges being an illusion19<\/a><\/sup>\ud83d\udd74\ufe0fM.-A. Frison-Roche<\/a>, \ud83d\udcdd<\/span>Reinforce the Judge and the Attorney to impose Compliance Law as a characteristic of the Rule of Law<\/a>, in<\/em> \ud83d\udd74\ufe0f\u200bM.-A. Frison-Roche (ed.), \ud83d\udcd8Compliance jurisdictionalisation<\/em><\/a>, 2023.<\/span>. Cases of contractual inexécution, breach, etc., will be submitted to the judge, who will have to interpret the contracts and the applicable texts, with reference to the Compliance system that the contractual instrument activates.<\/p>\n <\/p>\n 13. The natural action of the judge to help companies to move from the contractual tool of conformity to the contractual tool of Compliance<\/em><\/strong><\/span>. The judge, who is virtually present in every contract, ensures that the purpose of the contract and its compliance stipulations are put into practice. Firstly, the judge must consider his office at the level of the 'conformity' tool alone. Indeed, if we consider that the company must "comply with the regulations", the judge's office, in transparency of the contract, will be to verify the adequacy of the parties' contractual behaviour to what is prescribed by the regulations, which is interpreted teleologically in relation to these goals20<\/a><\/sup>S. supra<\/em><\/span>. Secondly, the judge must interpret the contract or clause as a 'compliance tool', favouring the effective interpretation for the monumental goals of the compliance system, in which the parties wanted to participate. His office then shifts from Ex Post<\/em> to Ex Ante<\/em>20<\/a><\/sup>
\r\n\r\nSee for instance \ud83d\udd74\ufe0fA. Gallois, \ud83d\udcddLa convention judiciaire d'intérêt public<\/a><\/em>, in<\/em> \ud83d\udd74\ufe0fJ.-M. Brigant (ed.), \ud83d\udcd7Le risque de corruption<\/em><\/a>, 2018; \ud83d\udd74\ufe0fM. Galli, \ud83d\udcddUne justice pénale propre aux personnes morales : Réflexions sur la convention judiciaire d'intérêt public<\/a><\/em>, 2018; \ud83d\udd74\ufe0fTh. Amico, \ud83d\udcddLa convention judiciaire d'intérêt public ou la compliance comme moyen de lutte contre la récidive<\/a><\/em>, in <\/em>\ud83d\udd74\ufe0fN. Borga, \ud83d\udd74\ufe0fJ.-Cl. Marin and \ud83d\udd74\ufe0fJ.-Ch. Roda (ed.), \ud83d\udcd5Compliance : l'entreprise, le régulateur et le juge<\/a><\/em>, 2018;\ud83d\udd74\ufe0fA. Bavitot, \ud83d\udcddShaping the company through negotiated Criminal Justice Agreements. French Perspective<\/a>, in <\/em>\ud83d\udd74\ufe0f\u200bM.-A. Frison-Roche<\/a> (ed.), \ud83d\udcd8Compliance jurisdictionalisation<\/em><\/a>, <\/em>2023.<\/span> such as the Competition Authority, the Anti-Corruption Agency or the Financial Markets Authority11<\/a><\/sup>S. for instance \ud83d\udd74\ufe0fS. Schiller, \ud83d\udcddA single judge in the event of an international breach of compliance obligations?<\/a>, in <\/em>\ud83d\udd74\ufe0f\u200bM.-A. Frison-Roche<\/a> (ed.), \ud83d\udcd8Compliance jurisdictionalisation<\/em><\/a>, 2023 ; \ud83d\udd74\ufe0fN. Ida, \ud83c\udfa4Les re\u0301gulateurs bancaire et financier face aux contrats de compliance dans leur office juridictionnel, in <\/em>\ud83e\uddeeLe juge face aux clauses et aux contrats de compliance<\/em><\/a> (The Judge facing clauses and contracts of Compliance<\/em>), 2023.<\/span>, comme l'Autorité de concurrence, l'Agence française anticorruption ou l'Autorité des marchés financiers. The movement referred to as Compliance Jurisdictionalisation<\/em>\ud83d\udcce<\/span>12<\/a><\/sup>\ud83d\udd74\ufe0fM.-A. Frison-Roche (ed.), \ud83d\udcd8Compliance jurisdictionalisation<\/em><\/a>, 2023.<\/span><\/em> <\/strong>describes the simple obedience to the Law, with the sanctioning of violations aimed at the effectiveness of the rule. It is to be hoped that prosecutors, criminal courts, and sanction commissions in the Regulatory bodies do not forget their functional nature as judges: even when it is only a question of making the regulation effective, they continue to act within the processual framework consubstantial to any trial, in particular the adversarial process and the rights of the defence.<\/p>\n
\r\n\r\nThe evolution of Corporate Law is intertwined with Compliance Law (s. for instance \ud83d\udd74\ufe0fA.- V. Le Fur, \ud83d\udcddInterest and “raison d’être<\/em>” of the company: how do they fit with the Compliance Monumental Goals?<\/a>, in <\/em>\ud83d\udd74\ufe0fM.-A. Frison-Roche<\/a> (ed.), \ud83d\udcd8Compliance Monumental Goals<\/em><\/a>, 2022.<\/em>
\r\n\r\n\r\nThis is evident in the legislative development of the vigilance obligation, which in European Union Law is based on Corporate Law, whether it is a question of Corporate Sustainability Due Diligence or of the new non-financial information obligations and the "sustainability report" which should be presented. S. Haut Conseil du Commissariat aux Comptes<\/em> (H3C), \ud83c\udfa4Réalités et défis de la CSRD - Perspectives du devoir de vigilance<\/a>, <\/em>2023.
\r\n\r\nThis link between Compliance and "raison d'être<\/em>" is established in relation to all crucial structures. It therefore concerns not only companies in the generic sense of the term, but also the "professions" that are in a position to act to achieve the Monumental Goals of compliance. See for example \ud83d\udd74\ufe0fM.-A. Frison-Roche, \ud83c\udfa5Régulation et Compliance, expression des missions d'un Ordre<\/a><\/em> (Regulatory Law and Compliance, expression of the Professional Order missions) ; \ud83c\udfa5La compliance, perspective dynamique pour exprimer la raison d'être des commissaires de justice<\/a> <\/em>(Compliance, dynamic perspective to express the "raison d'être<\/em>" of the Commissaires de justice<\/em>), 2022.<\/span>. These will reinforce those of the legislator. Because the general Goals of Compliance Law benefit from them, these contracts, often corresponding to incentives, must be interpreted broadly by the judge, since they serve the principle of compliance.<\/p>\n