The recent news

On 2 March 2018, Koen Lenaerts came to an amphitheater at the University Panthéon-Assas (Paris 2) to inaugurate the series of conferences organized by the Journal of Regulation & Compliance (JoRC), a cycle that has the general title: Pour une Europe de la Compliance (For the Europe of Compliance). The School of Public Affairs of Sciences Po, the Department of Economics of Sciences Po, the Ecole doctorale de droit privé  (Doctoral School of Private Law) at the Université Panthéon-Assas- Paris 2 (Panthéon-Assas University - Paris 2) and the School of Law of the University Panthéon-Sorbonne (Paris I), are associated with this cycle. Many personalities will take the floor. They will give contributions for the book that will be published in the Régulations & Compliance Series edited by Marie-Anne Frison-Roche at Éditions Dalloz.

After an admirable lecture offered by Koen Lenaerts, Antoine Garaponfootnote-94, secrétaire générale de l'Institut des Hautes Études pour la Justice (Secretary General of the Institute of Higher Studies for Justice), reacted perfectly in "premier discutant", stressing as everyone his great interest in listening to the demonstration made by the President of the Court of Justice.

He felt that it was hardly possible to speak of "Compliance Law"!footnote-91, because it is above all a Law that ceases to be "prescriptive" to become "relational" ", companies organizing themselves to put goals that are reached in relation with the public authorities. Companies thus develop a "systemic Law" that develops on its own, with alert mechanisms put in place directly by companies that care before the continuity of their economic activities. The notion of third parties disappears, a sort of "direct government" takes the place of the "indirect government" represented by the "third party", the companies having integrated this third party into their own organization, which upsets their relation to time and puts in place a "metajuridic" system.

Antoine Garapon then asks the question of how such a "conversion" could take place, that is to say, this transition of control systeme from the Ex Post mode to the Ex Ante, resulting in companies internalize the task of effective rules!footnote-92. He believes that on the one hand, the system that advocates it has the "market power to impose it and, on the other hand, those who demand it in this system make a" vision of the world "explicit. Antoine Garapon adds the need for a "moral ambition".

However, Antoine Garapon pointed out the United States have met these three conditions.

In his discussion, Antoine Garapon, on the other hand, felt that Europe did not bring them together and that Europe "starts with a handicap", because it does not consider worlwide, because it has no vision of the world, because it has not operated on moral integration.

He insisted that the Court of Justice can carry these three conditions, especially with regard to personal data. Because this is about the digital that Europe has a market power. It is about personal data that the Court of Justice is the place where Europe is both a market and values!footnote-93.

This is why the Court of Justice of the European Union does have a central role for this construction.

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These very constructed, very instructive remarks of Antoine Garapon, thanks to him, perfectly showed, in mirror of the conference of the President of the Court of Justice, the stake: the future.

Beyond the disputatio around the definitions, it is indeed the question of whether or not Europe will build its own compliance mechanisms.

By finding a vocabulary of its own. Not only in French, because the Law is made of words, but also with new words, which leave us "translated-glued" and which will carry European ambitions, as it was the case for the "right to be forgotten" ", very often quoted in the discussion.

Of course, this presupposes "power". But we must already pretend. And the Law has always claimed to pretend. It is in this that it is an Order. This is probably why President Koen Lenaerts insisted on the "juridicization" of compliance, as does the hand of Law that arises on an object.

During the discussion that followed the inaugural conference for the Cycle Pour une Europe de la Compliance (For a Europe of Compliance) that Koen Lenaerts devoted to the role of the Court of Justice of the European Union in the construction of the Europe of Compliance, and after a first discussion led by Antoine Garapon, a problem has particularly emerged.

Indeed, President Koen Lenaerts has taken up the question of the influence of the adoption of a "compliance program" by a company when subsequently anticompetitive behavior is imputed to it.

Competition or regulatory authorities, as well as courts, have three possibilities: either to consider that the company had done what it could to prevent this behavior, to educate the persons in its charge, that this prevention not enough but must be taken into account in its "discharge" to lighten its sanction; on the contrary, to consider that the adoption of such a compliance program by the enterprise by which it expresses its express and pro-active desire to bear the efficiency of the standard itself while at the same time it disregards it constitutes an aggravating circumstance of its responsibility; consider that the fact must remain neutral in the judge's assessment of the behavior.

The Court of Justice stands by the third solution.

But everyone agrees that this is an essential question for which the arguments are well-founded, the European Commission, on the other hand, leaning towards the qualification of an aggravating fact.

During the discussion, it was emphasized in the opposite direction that in the perspective of Compliance as an incentive mechanism, not taking into account on the part of companies the adoption of such expensive programs is very discouraging for them. Moreover, this contradicts the definition of compliance as a "Trust pact" between the company and the public authority.

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QWhat can be done to remain from this discussion of a very great interest?

So it's a question that is still open, because the arguments are strong and we could say that "everyone is right", and companies that want to take note of their behavior, and authorities who can not be abused by what would be only a screen of behavior violating Law.

The question is maybe whether the choice of "neutrality" of the Court of Justice is a solution of waiting or a decision of non-choice, because one could never know if a company is "sincere" or not when it has adopted a Compliance Program.

It is probably here that a solution could be found: in probative mechanisms. Because in these matters, it is by technical processes by which the subject of law (that is to say the company) reveals that it has done everything to achieve the Compliance purpose (obligation of means strengthened). ).

It is probably by formulating probative requirements of this kind that the Court of Justice could move out of its position of neutrality. While it is true that the judge must be "impartial" in relation to the facts, the attitude of giving no "relevance" to a fact as important as the compliance programs is inherently annoying. It seems difficult to associate a substantive rule, nor is it desirable to practice casuistry. But, because Economic Law lends itself to it, a probationary system that the Court would make clear would perhaps be a good solution.

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Dans l'ouvrage qui paraîtra à la fin du cycle de conférences, un article sera inséré dans l'ouvrage sur cette question plus particulière de la portée des programmes de conformité sur l'appréciation du comportement de l'opérateur au regard des faits qui lui sont reprochés, question sur laquelle les différents régulateurs des différents systèmes juridiques divergent.

In the book that will be published at the end of the conference cycle, an article will be inserted in it  on this particular question of the effects of compliance programs on the appreciation of the behavior of the enterprises with regard to the facts that are reproached, an issue on which the different regulators of the different legal systems diverge. For the moment.