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In the conference cycle organized by the Journal of Regulation & Compliance (JoRC) on the topic of the Europe of Compliance, at the conference of May 30, 2018, Xavier Musca, Deputy Chief Executive Officer of the Crédit Agricole Group expressed how including a European company with a global dimension, whose activity is more specifically banking, integrates the new phenomenon of Compliance
This reflexion was in continuation of the more general presentation that Jean-Jacques Daigre had just made of the opportunity that Compliance represents, before Pierre Vimont took advantage of the remarks'Xavier Musca by questioning the aptitude of the European institutions to make such a project a reality.
Read below the presentation of Xavier Musca's lecture.
Thank you very much to Mr. Alexandre Kolher for taking notes that helped in the writing of this article.
Mr. Xavier Musca began his lecture with the souvenir of a conference in which his neighboring speaker Larry Summers said that "compliance" mechanisms are part of the phenomenon of economic stagnation. It appears in any case that compliance is not only a set of mechanisms now clearly perceived but still constitutes a subject in itself.
Xavier Musca attributes this novelty, paradoxical and producing an effect of "astonishment" because nothing is older than the obligation to respect the Law, to 6 fundamental elements, now united and convergent:
- Extraterritoriality, which because of the dollar playing for the moment only in favor of the United States;
- The paralysis of the Non bis in idem rule which leads to a combination of sanctions, the example of Deutsche Bank being particularly clear;
- The extent of the pecuniary sanctions, in a scale unknown until now and having an impact on the valuation of the companies;
- The new role given to banks of being public service auxiliaries, detecting and preventing crime, not only within them but also outside (for example about their clients), which forces them to restructuring to continually analyze incoming and outgoing flows;
- The major reputational risk now attached to the system, which may lead to break business relations or to give up investments to prefer to help the public authorities to enforce Law, an attitude that leads to impose more demanding and strict rules of behavior than those expressed by Law;
- The strain on the company to use its economic power to induce others to adopt virtuous behavior, the company leaving its core business to meet the expectations not only of public authorities but of society itself, its compliance policy then determining its CSR policy.
This perfectly clear presentation allowed the audience to ask the same question that Xavier Musca had immediately asked: if this is a fact and if it would be futile to deny it, what can Europe do, including with the help and action of companies?
With a method that everyone appreciated, because everyone gets lost in the technical dimension of compliance, which leads to get lost in highly technical considerations to the joy of experts, which was never the case in this lecture. Then the audience could have stopped there, faced with such a picture that showed the scale of the phenomenon and we could say that the battle is somehow lost : it remained for Europeans to become American, and rather American lawyer, without expecting anything from Europe, which was not the case either. Finally, this first description was very necessary because before building - for example a "Europe of Compliance", it is still necessary to measure the situation, iits weight and its obstacles, which avoids to be too optimist and to jump as a goat, because in terms of compliance it is sometimes also that ....
The audience was therefore prepared and attentive to listening to the way Xavier Musca views the European perspective with regard to European companies with a global dimension in terms of compliance.
With the same pragmatism and spirit of synthesis, Xavier Musca proceeded more by questions than by affirmation, which is wise when it is about the future to keep it open.
First of all, he wondered whether Europe can prevent third-party political and economic power from imposing through Compliance what actually constitutes its foreign policy. This is a point on which Pierre Vimont will return for a long time in his discussion.
For Xavier Musca, the question is of a political nature and no longer a legal one. Companies whose business is global can not do without the US market or without the dollar, the answer to such a question is not in his view of a legal nature. Companies are therefore neutralized, as soon as the United States and Europe no longer pursue the same interests ; compagnies are waiting for Europe to assert its own power.
Admittedly, the convergence of interests is strong enough that articulation is possible elsewhere and agreements can be found, for example, about the procedural mechanism of Non bis in idem.
Xavier Musca then pointed out that the compagnies' expected perspective is that of a corpus of compliance rules that is specific to Europe. This perspective is all the more credible as this corpus already exists solidly, for example for the protection of the consumer, the information of the investor, etc.
He felt that the weakness of Europe lies not in the content of this corpus but in the excessive margin left to the Member States in the transposition exercise, especially when they add constraints.
Xavier Musca then detailed at length the concern still little faced with a kind of "Soft Law" that develops worldwide and sometimes overwhelms the Compliance itself. The question itself is not in its content but in its authors. From non-EU States to Europe, from associations or entities that are sometimes not really identified, this discourse translates into behavioral demands on operators, which must, for example, abandon this or that investment.
These soft law speeches, built like those of the CSR of the company itself, particularly in its asset management activity, but emanating from these little known entities but sometimes relayed by public institutions, may diverge from the rules of Law or CSR policies, have in fact a major coercive power.
This results in erratic movements. As Europe must be an orderly system and CSR strategies must be comprehensive, well-reasoned and coherent, the European institutions need to think about these movements.
For precisely, and it is on this topic that Xavier Musca concludes his conference, Europe must bring out common visions in terms of CSR, and that in articulation with the mechanisms of Compliance.
Since other powers than Europe do not have the same political visions, for example about climate, or society, Europe by a convergence between CSR and Compliance, can articulate a coherent discourse.
Such a speech will then protect the companies, thus disposing of a body of rules emanating from the legitimate institutions to emit them.
This is why European companies with a global reach, including banks, see compliance as both a constraint and an opportunity, particularly through CSR, with which Compliance has contact points. Compliance is therefore a means of communicating with civil society, which has led, for example, Crédit Agricole to set the Compliance objective and the CSR objective as two priorities of the group, as two major instruments of quality.