The recent news

As the previous cycles devoted to the general theme of Compliance and aiming to build a "Compliance Law", this cycle takes a particular aspect of this branch of the Law being built and developed, which was applied even before being conceived. Since pragmatism preceded or even prevailed, the theme chosen this year is: Les outils de la Compliance (Compliance Tools).

These conferences will be in French

These tools are very diverse, not only among themselves but according to the sectors in which they are deployed or according to the geographical areas in which they are applied. It is necessary to apprehend them by going beyond the description of the instrument literally shown, as the texts or the promoters show it, without immediately going up to too large  generalities. For this reason, some conferences will focus on specific, well-identified mechanisms, such as risk mapping or alert. They may also consider how Compliance Law uses more general tools to achieve its goals, such as lawsuits, incentives or new technologies. This will make it possible to problematize more clearly perceptible difficulties in Compliance  Law, such as the adequacy or inadequacy of the constraint in relation to the aims, the consideration or not of the legal and political geography, the articulation or not of the tools between them.

These various conferences will take place in several places, according to the part taken by the different university structures that this year contribute to the Journal of Regulation & Compliance (JoRC) for the realization of the cycle. The result will be two books, one in French: Les outils de la Compliance, the other in English: Compliance Tools.

This cycle of conferences about Compliance tools will begin in November 2019 and will last until June 2020.

• First conference: 28 November 2019, La cartographie des risques (Risk Mapping), Sciences po. This conference will be in French. Its publication will be in French and in English.

• Conditions of inscription (in French). 

• Calendar of the entire conferences.

Le Journal of Regulation & Compliance (JoRC) works with : 

• The School of Public Affairs of Sciences Po,
• The Department of Economics of Sciences po,
• The  École de Droit of the Panthéon-Sorbonne University (Paris I),
• The École doctorale de Droit privé of Panthéon-Assas University (Paris 2),
• The Centre Perelman of l'Université Libre de Bruxelles,
• The GREDEG of the Sophia-Antipolis University (Nice),
• The Centre Louis Josserand of the Faculté Lyon III.
• The Faculté de Droit of Toulouse,
• TheFaculté de Droit of Clermont-Ferrand.

This cycle of conferences is supported by :

• The Chambre de Commerce et d'Industrie de Paris.
• The Ecole de Formation du Barreau de Paris. 

Compliance Law, like Regulatory Law, of which it is an extension, is an Ex Ante Law.

It translates into a set of obligations that companies must perform to ensure that harmful behavior does not occur, such as bribery, money laundering, pollution, etc.

This results in "structural" obligations, such as the establishment of a risk map, a third-party vigilance system, internal controls, the adoption of codes.

The practical question that arises is whether to punish a company, it is necessary but it is sufficient that the company has not adopted these structural measures, or if it is also necessary that within it or through the persons whom it must be accountable (through the corporate officers and the employees, but also the suppliers, the sub-contractors, the financed operators, etc.) there were behaviors that Compliance Law prohibits, for example corruption, money laundering, pollution, safety-related accident, etc.

The question is probative. Its practical stake is considerable.

Because to obtain the conviction the prosecuting authority will have to demonstrate not only a failure in the structural device but also a behavioral failure.

Si l'on considère que le Droit de la Compliance est à la fois sur l'Ex Ante et sur l'Ex Post, alors l'autorité de poursuite qui requiert une sanction doit démontrer qu'il y a un comportement reprochable (Ex Post) et qu'à cela correspond une défaillance structurelle (par exemple le compte bancaire anormal n'a pas été signalé) ; si l'on considère que le Droit de la Compliance est purement en Ex Ante, alors même s'il n'y a pas de comportement reprochable en Ex Post, la seule défaillance structurelle suffit pour que l'entreprise qui doit l'organiser en son sein soit sanctionné.

If we consider that Compliance Law is both on the Ex Ante and the Ex Post, then the prosecuting authority that requires a sanction must show that there is a reprehensible behavior (Ex Post ) and that this corresponds to a structural failure (for example the abnormal bank account has not been reported); if we consider that Compliance Law is purely Ex Ante, then even if there is no reprehensible behavior in Ex Post, the only structural failure is enough for the company to be sanctioned, even if it does its best efforts, even if no prohibited behavior will have accured in Ex Post.  

The second system, which is much more repressive and places a considerable burden on companies, even if there is no proven illicit behavior, is that of French Law, probably because of a tendency towards Ex Ante organization. ..

Mais il faut garder mesure. Et cette mesure est probatoire.

But we must keep measure. And this measure is probative.

This is what the Commission des Sanctions of the Agence Française Anticorruption -AFA (French Anti-Corruption Agency's Sanctions Committee) has just said, in its decision of 4 July 2019, SAS S. et Madame C.,(written in French) contradicting the position of its director, who acted as the prosecuting authority. This is yet another general proof of the autonomy of the Sanctions Committee vis-à-vis to the Administrative Authority of which it is a part, and in relation to its director, who nevertheless governs it. But, jurisdictional model obliges, he has here the status of prosecuting authority, is subject to the regime of this one and not to the regime of head of the entity. Demonstration of the "functional autonomy" of the sanctioning bodies within the administrative regulatory and compliance authorities.

Indeed, this important decision expresses with precision and reason the distribution of the "burden of the allegation" and the "burden of proof" on the prosecuting body and on the company pursued, as well as the role of presumption that the recommendations issued by the French Anti-corruption Authority can play.

Read the analysis below.