<\/p>\n
PROLEGOMENA<\/span>: SEEING A BRANCH OF LAW EMERGE ACROSS LEGAL SYSTEMS<\/em><\/span><\/strong><\/p>\n <\/p>\n <\/p>\n 1<\/strong><\/span>.<\/strong> <\/span>The depth and immediacy of the branches of Law<\/strong><\/em><\/span>\ud83c\udf3f For those who want to understand Law, this ancient and profound matter, there is the joy of circulating in the shelves of the libraries where so much knowledge has been deposited by the great masters. Let us also pay attention to what anyone can say to the student who is afraid of collapsing when the time approaches for the first exam of their first year of study. What advice does their student receive, regardless of the title or qualifications of the person helping them?<\/p>\n On the one hand, the scholar opens volumes, still fashioned in paper, perusing, for example, Professor Jean Gaudemet<\/strong><\/span>'s French magnificent book, Les naissances du droit. Le temps, le pouvoir et la science au service du droit<\/em> (("The births of Law. Time, Power and Science at the service of Law<\/em>") \ud83d\udcce!<\/strong>1<\/a><\/sup>J. Gaudemet, ..., 3ième éd., 2001 ; reprise dans la collection Anthologie du Droit,...<\/em><\/span>1<\/a><\/sup>J. Gaudemet, ..., 3ième éd., 2001 ; reprise dans la collection Anthologie du Droit,...<\/em><\/span><\/em>, or Professor Norbert Rouland<\/strong><\/span>'s\ud83d\udcce2<\/a><\/sup>N. Rouland, ...<\/span>,s Introduction historique du Droit ("Historical Introduction of Law")<\/em>, whose Introduction is entitled "Naissance d'une matière<\/em>" ("Birth of a subject"), or Professor Louis Vogel<\/strong><\/span>'s reference work Droit européen de la concurrence <\/em>("European Competition Law)<\/em>\ud83d\udcce3<\/a><\/sup>\ud83d\udd74\ufe0f<\/span>L. Vogel, \ud83d\udcd7<\/span>Droit européen des affaires<\/em>, Dalloz, "Précis" Serie, 2nd ed., 2019, 1041 p.<\/span> <\/em>, which discusses "the origins of Competition Law in the European Union".<\/p>\n On the other hand, a student who is just starting his or her studies and hopes to get an average grade on the exam will no doubt take a couple of clicks to find a digital page where the person presenting himself or herself as a 'trainer' explains, on the aideauxtd.com website for example, the first thing he or she needs to know about Law: its architecture through the different branches of Law. In a continental legal way of presenting Law, t is explained that the first two 'branches of Law' are Public Law and Private Law, although the trainer also points out that there are 'mixed branches' such as Criminal Law. This appears to be Private Law but, as a first piece, it is actually Public Law… The student thinks to himself or herself that all this is not clear… Fortunately, the site doesn't mention Economic Law, which is so difficult to get into this distinction and classify in the legal system..<\/p>\n Before getting lost, the student can click on a video, which is offered as a good support for those 'who are lazy' (sic) to read the few lines previously made available about the architecture of the branches of Law. If the subject is of interest, the visitor can unfortunately go no further, unless he or she subscribes to a document entitled: "guide to raising my grades in exchange for my email and other information". <\/p>\n Rather than plunging into the legal question of the effectiveness of such consent and entering into Digital Law, which no one knows whether it is part of Public or Private Law, we might as well go back to thinking about what a branch of Law is and how it came into being through Jean Gaudemet's Roman Law, Norbert Rouland's anthropology of Law and Louis Vogel's Competition Law. For perhaps today's student will be tomorrow's library stroller. <\/p>\n <\/p>\n 2<\/strong><\/span>.<\/strong> <\/span> Birth of Economic Law: little concern for the <\/span><\/strong><\/em>summa divisio<\/span><\/strong> "Public Law\/Private Law"<\/span><\/strong><\/em>\ud83c\udf3f Reading the reflections on the sources of Competition Law, one realises that the difficulty is even greater since some would see this branch attached to the disciplinary trunk of Economics and not Law, whether one disapproves of it as Alain Supiot <\/span><\/strong>does\ud83d\udcce4<\/a><\/sup>\ud83d\udd74\ufe0f<\/span>A. Supiot, \ud83d\udcd7<\/span>L'Homo juridicus. Essai sur la fonction anthropologique du Droit<\/em><\/a>, 2005, republished in 2009 ; \ud83d\udcd7<\/span>La gouvernance par les nombres<\/em><\/a>, 2015.<\/span> or approves of it as Nicolas Petit does\ud83d\udcce5<\/a><\/sup>\ud83d\udd74\ufe0f<\/span>N. Petit, \ud83d\udcd7<\/span>Droit européen de la concurrence<\/em><\/a>, 2020.<\/span>. Louis Vogel <\/strong><\/span>shows in his thesis that merger control can only be mastered by a reciprocal respect for the two disciplines\ud83d\udcce6<\/a><\/sup>\ud83d\udd74\ufe0f<\/span>L. Vogel, \ud83d\udcd7<\/span>Droit de la concurrence et concentration économique. Étude comparative<\/em><\/a>, 1990.<\/span>, as practised by Professor Philippe Aghion<\/strong><\/span>\ud83d\udcce7<\/a><\/sup>Ph. Aghion, Innovations économiques face aux défis climatiques, in <\/em>Innovations économiques et innovations juridiques face aux défis climatiques, 2024.<\/span>..<\/p>\n Even if we can thus measure that a branch of Law that applies to the Economy, has great difficulty in being classified in the legal system, as Professor Georges Vedel<\/strong><\/span>\ud83d\udcce8<\/a><\/sup>G. Vedel, ....<\/span> pointed out, if Public Law and Private Law were two branches so massive that nothing seems able to escape them, the distinction suffocates the bodies of law that cannot slip into it, not so much because they would be too small and would be lost like a needle in the mass, but because on the contrary their bodies of law would be too voluminous. So Environmental Law and Climate Law also suffer the martyrdom of the Procrustean bed, a perverse and cunning bed on which the arms and legs of the sleeping guest are crushed for having stepped out of a bed that is too small in its conception. Yes, today the distinction is far too 'small' to embrace reality and the ambition that can be developed in relation to it.<\/p>\n It is therefore difficult to place a 'branch of Law' in the legal system; It can only be said to be 'mixed' because we do not know how to place it entirely in Private Law or entirely in Public Law, but we do not want to call into question this summa divisio<\/em> which we do not want to do away with, no doubt also because we would then have to redo the teaching programmes in universities and reconsider the way in which university professors are recruited, since they would either be professors of Public Law or professors of Public Law, notably in the French system of Agrégation de Droit <\/em>which is Agrégation de droit public <\/em>or Agrégation de droit privé <\/em>to become full professor, or even rework the duality of the orders of jurisdiction adopted in many Continental Law countries\ud83d\udcce9<\/a><\/sup>R. Drago et Mafr, ..., in Archives de Philosophie du Droit (APD), ....<\/em><\/span>. The weaving together of the unity of Law has not yet led to such a sacrifice, although Professor Roland Drago<\/strong><\/span> asked for it\ud83d\udcce10<\/a><\/sup>Les Mélanges qui furent réalisés pour rendre hommage au grand professeur Roland Drago en sont le reflet : .... ; v. aussi par ailleurs et par exemple, R. Drago et M.-A. Frison-Roche, La dualité des ordres de juridictions et la distinction du ...,<\/span>. <\/p>\n <\/p>\n 3<\/strong><\/span>.<\/strong> <\/span>The multiplication of branches of Law which do not take account of practices, because of absence of an appropriate conception in the legal system<\/strong><\/em><\/span>\ud83c\udf3fBut at the very least it is accepted that Competition Law, of which Louis Vogel is a master, or Environmental Law, or Economic Law exist. At a time when there was still some doubt about this, Vedel explained that there is such a thing as Economic Law: it is not enough for there to be rules that apply to a specific subject, as there are rules that apply to horses, but that does not mean that there is a branch of Law that would be called "Horse Law"\ud83d\udcce11<\/a><\/sup>G. Vedel, ....<\/span>… For a branch of Law to exist, abstraction is required. It is because the Economy has been thought of and that this abstraction has been received by the legal system, that this has occurred in a way that is autonomous from the branches of Law that form the architecture of the legal system that a branch of Law has been born. Here, it is Economic Law, and there, Competition Law. Teaching has a part to play in the 'birth of a branch of Law', since the teacher, when presenting a body of rules and decisions, has to go block by block, grouping similar and different headings under titles, sections and subsections, and creating a plan that makes the whole digestible for those learning. Professor Geneviève Viney<\/strong><\/span> has shown that Tort Law was born at a time when professors had to teach it\ud83d\udcce12<\/a><\/sup>G. Viney, Responsabilité, in Archives de philosophie du Droit, Vocabulaire fondamental du droit<\/em>, ...Ar<\/span>. Today, we are witnessing the birth of a new branch of Law: Compliance Law. <\/p>\n <\/p>\n 4<\/strong><\/span>.<\/strong><\/span> The stir of seeing a branch of Law emerge in several ways: the emergence of Compliance Law. How does it relate to Competition Law? Outline and structure of this study<\/strong><\/em><\/span>\ud83c\udf3fToday, we are witnessing the emergence of a new branch of Law: Compliance Law\ud83d\udcce13<\/a><\/sup>\ud83d\udd74\ufe0f<\/span><\/span>M.-A. Frison-Roche<\/a> & \ud83d\udd74\ufe0f<\/span>Fabien Raynaud, \ud83c\udfa5<\/span>La Compliance<\/em> (Compliance Law)<\/a>, in <\/em>\ud83c\udfdb\ufe0f<\/span>Cour de cassation<\/em> (French Court of cassation), \ud83e\uddee<\/span>La nuit du Droit 2023<\/em>, 2023 ; \ud83d\udd74\ufe0f<\/span>M.-A. Frison-Roche, \ud83d\udea7<\/span>Compliance Law<\/a>, 2016 ; \ud83d\udea7<\/span>Compliance Law loses the ties of Regulation Law but it retains its principles: consequences for companies<\/a>, 2018.<\/span>. This is causing quite a stir, all the more so as the Vigilance mechanism, which is its leading edge, is provoking almost emotional reactions, with some seeing it as progress for Humanity and others as a weapon of destruction designed against European firms\ud83d\udcce14<\/a><\/sup>On this perception, and its consequences, notably their European ones, s. v. \ud83d\udd74\ufe0f<\/span><\/span>M.-A. Frison-Roche<\/a>, \ud83d\udcdd<\/span>Devoir de vigilance : progresser<\/a>, in <\/em>\ud83d\udd74\ufe0f<\/span><\/span>A. Brès & \ud83d\udd74\ufe0f<\/span>C. Maubernard (dir.), \ud83d\udcd7<\/span>Le devoir de vigilance des entreprises : l'âge de la maturité ?<\/em>, 2024.<\/span>. The excesses of conception and language that can be found are undoubtedly due to the over-reaction that always accompanies a creation. It is true that it is difficult to distinguish this branch of law if we confuse what identifies it with the fact of behaving "in conformity" with the applicable rules, which is still very often done, a confusion with profound practical consequences (I<\/strong><\/span>). This confusion is also fuelled by the uncertainties surrounding what gave birth to Compliance Law, not the concern for the rules' effectiveness, a concern that has existed for as long as the legal rules have existed, but two disasters, one in the United States and the other in Europe, of a different nature, explaining the difference between the 2 Compliance Laws (II<\/strong><\/span>). The repercussions can be seen in the relationship between Competition Law and Compliance. Compliance is often presented as a "conformity" mechanism which makes the competitive system more efficient and enables firms to avoid being sanctioned because they follow the rules (III<\/strong><\/span>). But Compliance Law was born: it is not just what makes one branch of Law more effective, Competition Law no more than another: the relationships between these two autonomous branches of Law must be conceived and articulated (IV<\/strong><\/span>).<\/p>\n <\/p>\n <\/p>\n I. REJECTING A DEFINITION FROM WHICH SO LITTLE SPRINGS NOT BEING CONTENT WITH A DEFINITION OF "CONFORMITY" AS THE ROUTE TO EFFICACICY OF THE RULES<\/strong><\/span><\/p>\n <\/p>\n 5<\/strong><\/span>.<\/strong> <\/span>Compliance Law is not the "conformity" that firms must have with all the regulations applicable to them <\/strong><\/em><\/span>\ud83c\udf3f"Conformity" is still often confused with Compliance Law\ud83d\udcce"15<\/a><\/sup>\ud83d\udd74\ufe0f<\/span><\/span>M.-A. Frison-Roche<\/a>, \ud83d\udea7<\/span>Compliance and conformity: distinguishing them to articulate them<\/a>, 2024.<\/span>. To "conform" refers to the general idea that every subject of law must obey legal rules. Whether we are happy to do so, which refers back to Rousseau's conjecture of "love of the law""16<\/a><\/sup>mafr, "l'amour de la loi"",...<\/span>, <\/strong>or whether we are not, which refers the subject of law back to his status as a submissive, including when they contract, everyone must comply with the Law and his\/her legal commitments, unless he\/she is held accountable before the courts.<\/p>\n This is not peculiar to any one branch of Law, since every rule of law is designed to be applied. This is the hallmark of the legal system and to any legal instrument that is made to be effectively applied. Thus, those who attach importance to legal rules designed to ensure the competitive functioning of markets\ud83d\udcce17<\/a><\/sup>la question de savoir si le marché est d'abord une construction juridique ou une construction économique relevant de la poule et l'oeuf. Par inclinaison, les économistes y voient un phénomène économique, adossé à de la réglementation et à des institutions, tandis que les juristes y voient une construction juridique permettant des échanges sécurisés et prévisibles. Dans ce dernier sens, minoritaire puisque la voie des juristes a souvent du mal à porter, voir par ex., F. Zénati, ..., in <\/em>Archives de philoosphie du Droit, Droit et Economie, ... ; <\/em>M. Torre-Schraub, (sa thèse)....<\/span> assert that what ensures effective compliance with Competition Law, apart from any sanction for them, is therefore called "Compliance Law". But this definition is both too weak, because it is not asking much to comply with the law since it is already by nature what the law requires, and too vague, because it is what is already required for all rules of law. And what would specialists in Property Law or Family Law say, for example, that the rules that make up these branches do not deserve to be applied effectively?<\/p>\n <\/p>\n 6<\/strong><\/span>.<\/strong> <\/span>Compliance is not just about greater regulatory efficacy <\/strong><\/em><\/span>\ud83c\udf3fThe Competition Authorities believe that the rules for which they are responsible are so important and so valuable that everything must be done on their side to ensure that they are applied as much as possible. Ideally, it is not necessary to wait for the rules to be breached before they are enforced: the use of the criminal term "infringement" clearly illustrates the opinion that non-compliance with Competition Law is serious, whereas this term should be reserved for Criminal Law. Competition Law is so precious and exceptional that it cannot wait for the diversions that is the violation and then the restoration of the rule by the objective sanction, the fine that restores legality. But patent offices, municipalities in their town planning function, and even contractors who believe that an obligation should be performed rather than its breach sanctioned Ex Post want to reason in this way.<\/p>\n <\/p>\n 7<\/strong><\/span>.<\/strong> <\/span>Compliance Law as an autonomous branch of law: where does it stand? <\/strong><\/em><\/span>Unless Compliance Law is merely a means of enforcement that moves from Ex Post to Ex Ante in the interests of even greater effectiveness, there is no particular reason why it should not be linked to any particular branch of Law. However, if it is argued that Compliance Law constitutes an autonomous branch of Law, in particular one that is autonomous from Competition Law, even if it subsequently maintains relations with the latter, then it is necessary to investigate how Compliance Law came into being, what its origins are, since it was not born out of Competition Law. And if this is the case, it necessarily makes its relationship with Competition Law difficult, as it ceases to be self-evident.<\/p>\n <\/p>\n <\/p>\n <\/p>\n II. UNRAVELLING THE ENIGMA OF THE BIRTHS OF COMPLIANCE LAW<\/span><\/strong><\/p>\n <\/p>\n 8<\/strong><\/span>.<\/strong> <\/span>The first birth of Compliance Law – the fact: the 1929 crisis in the United States; the consequence: "never again a systemic collapse"<\/strong><\/em><\/span> \ud83c\udf3f Compliance Law was first born in the United States as a result of the 1929 crisis. This led to the collapse of the banking and financial system, then the economy, then society, bringing the country to a situation verging on civil war. The origin of the crisis lay in the internal behaviour of firms operating on the stock markets, and because Roosevelt claimed that he would pass a law at federal level to prevent such a catastrophe from happening again, the Securities and Exchange Commission (SEC) was set up. Regulatory and Compliance Law were born, delving into private firms controlling behaviour, controlling risks ex ante, taking on the widest possible geographical scope, while banking regulation remained state-run. It was therefore the experience of the systemic crisis that gave birth to American Compliance Law and its response: "never again"\ud83d\udcce18<\/a><\/sup>For further information, \ud83d\udd74\ufe0f<\/span><\/span>M.-A. Frison-Roche<\/a>, \ud83d\udea7<\/span>Compliance: before, now, after<\/a>, 2018.<\/span>. <\/p>\n <\/p>\n 9<\/strong><\/span>.<\/strong> <\/span> A second birth of Compliance Law – the fact: nominative files in Europe; the consequence: "no more crushed individuals"<\/strong><\/em><\/span> \ud83c\udf3f In Europe, the source of Compliance Law is quite different. The peoples that make it up have kept the memory of the files that, based on information about religion and race, precipitated millions of people towards systematic death, a catastrophe that no one could have imagined. In 1978, in Germany as in France, laws were passed to regulate the new powers that information technology gave governments to create files that could infringe on freedoms, by collecting what was later known as "personal data". The RGPD of 2016 generalised this, but the French legislator took care to keep the law title Informatique et libertés<\/em>, to keep track of this birth, the Europe new rules being only integrated in this law.<\/p>\n