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Full reference: Frison-Roche, M.-A., Interregulation: way of "cooperation protocol"​ between Regulatory Bodies. Example between French Financial Markets Authority and Anticorruption Agency, Newsletter MAFR - Law, Compliance, Regulation, 22nd of September 2020

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Summary of the news: 

Although Regulation Law was born from the notion "sector", constant interferences between sectors and frequent interactions between some sectors and more general questions common to different sectors, make interregulation necessary. Compliance Law being the extension of Regulation Law, this interregulation mechanism is also necessary in Compliance Law. 

This interregulation can take many legal paths like letters exchanges between regulators, the creation of a network of regulators and supervisors at the world level or about some specific question or the adoption of a "cooperation protocol" as the AMF (French Financial Market Regulator) and the AFA (French Anticorruption Agency) did on 16th of September 2020 to reinforce their respective fight against corruption, against market abuses and for the protection of investors. 

This cooperation protocol between the AFA and the AMF has the following subjects:

• A more efficient methodology concerning the research and the analysis of corruption and market abuses.
• A more efficient prevention of corruption and market abuses.
• A better capacity to give recommendations of new regulations to the Legislator.
• A more rigorous monitoring of international works on the topic. 
• A more coherent information for the public.

Are regulators the new teachers? 

The theme of the relationship between regulation and innovation finds every day new illustrations. The example of the drone is particularly noteworthy.

Indeed, the drone is a technical object that moves in the air without being driven in an immediate way by the hand of man.

The legal mechanism of qualification brought the drone in the category of "aircraft" and submit it to the regulatory power of the civil aviation regulator.

The regulation of civil aviation is primarily a safety regulation, not a regulation of the sector's economic deployment.

This is why regulators have taken restrictive positions on drones used for commercial purposes, to the extent that the presence of human beings, most the pilots, are the condition for the safety of people. The fact that the drones fly with "no one" led to consider as a danger a prior, which led regulators to take restrictive measures on flying drones for commercial purposes, restricton consistent with the regulator's intervention criteria, without taking into account external rules, such as the protection of privacy.

But whatever the sector, regulators see themselves increasingly as economic regulators. If we adopt this perspective, a restrictive approach appears to be nonsense.

In the interests of balance in both approaches, the safety of people and the economic development through innovation, the US civil aviation regulator, the Federal Aviation Administration is developing new rules.

February 11, 2015, Federal Aviation Administration raised the need for a legal framework for commercial drones. The reason for this is economic. As it writes: "It is anticipated that this activity will result in significant economic benefits".  Indeed, Article 333 of the 2012 ACT of modernization and reform  imposes registration procedure for every commercial unmanned flying object in the sky!footnote-28. But this hinders business development, and therefore the incentive to technical innovation drone.

It was necessary to find a balance between security of persons and lifting of barriers to economic development. This is why the FAA will distinguish between "small" and other drones. The former are particularly useful in agriculture. To the extent that the former do not constitute danger to persons, an exemption from this procedure (Article 333 exemption) may be given concerning them.

One can analyze this evolution of air Regulation in two ways. First, it is for air regulator to take into account fundamental innovation of flying machines with "no one": innovation will be the base of a huge market for which strict regulatory rules could have been the troublemaker. The consideration of the safety of people remains since only drones "small" are allowed. In addition, they will have to remain at low level and away from airports and housing.

Second, the Regulator reacts by pragmatism. The ban on commercial flight drones hasn't prevented investment in this area. So far, the regulator had instead chosen not to react to the open violations of the standards, from the moment that the safety of the people wasn't in danger. The idea of the new conception is to promote this new market by putting the rules protecting the physical safety of people.

Full reference: Frison-Roche, M.-A., Conditions for the legality of a platform managed by an American company hosting European health data​: French Conseil d'Etat decision, Newsletter MAFR - Law, Compliance, Regulation, 19th of October 2020

Read by freely subscribing the other news of the Newsletter MAFR - Law, Compliance, Regulation

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News Summary: In its ordinance of 13th of October 2020, Conseil national du logiciel libre (called Health Data Hub), the Conseil d'Etat (French Administrative Supreme Court) has determined the legal rules governing the possibility to give the management of sensitive data on a platform to a non-europeans firm, through the specific case of the decree and of the contract by which the management of the platform centralizing health data to fight against Covid-19 has been given to the Irish subsidiary of an American firm, Microsoft. 

The Conseil d'Etat used firstly CJEU case law, especially the decision of 16th of July 2020, called Schrems 2, in the light of which it was interpreted and French Law and the contract linking GIP and

The Conseil d'Etat concluded that it was not possible to transfer this data to United-Sates, that the contract could be only interpreted like this and that decree and contract's modifications secured this. But it observed that the risk of obtention by American public authorities was remaining. 

Because public order requires the maintenance of this platform and that it does not exist for the moment other technical solution, the Conseil d'Etat maintained the principle of its management by Microsoft, until a European operator is found. During this, the control by the CNIL (French Data Regulator), whose the observations has been taken into consideration, will be operated. 

We can retain three lessons from this great decision:

• There is a perfect continuum between Ex Ante and Ex Post, because by a referred, the Conseil d'Etat succeed in obtaining an update of the decree, a modification of the contractual clauses by Microsoft and of the words of the Minister in order to, as soon as possible, the platform is managed by an European operator. Thus, because it is Compliance Law, the relevant time of the judge is the future. 
• The Conseil d'Etat put the protection of people at the heart of its reasoning, what is compliant to the definition of Compliance Law. It succeeded to solve the dilemma: either protecting people thanks to the person to fight against the virus, or protecting people by preventing the centralization of data and their captation by American public authorities. Through a "political" decision, that is an action for the future, the Conseil found a provisional solution to protect people against the disease and against the dispossession of their data, requiring that an European solution is found. 
• The Conseil d'Etat emphasized the Court of Justice of The European Union as the alpha and omega of Compliance Law. By interpreting the contract between a GIP (Public interest Group) and an Irish subsidy of an American group only with regards to the case law of the Court of Justice of European Union, the Conseil d'Etat shows that sovereign Europe of Data can be built. And that courts are at the heart of this. 

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Read the interview given on this Ordinance Health Data Hub

 

To go further about the question of Compliance Law concerning health data protection, read the news of 25th of August 2020: The always in expansion "Right to be Forgotten"​: a legitimate Oxymore in Compliance Law built on Information. Example of​ Cancer Survivors Protection 

 

The original spirit of the Common Agricultural Policy (CAP) was to think of agriculture as a sector unfolding in time, subject to natural hazards, including actors, both farmers and the population that is fed, having interests on which national states shall ensure.

The spirit of the new Common Agricultural Policy is different, even opposite, which explains the length of its gestation. Indeed, competition becomes the principle guarantor of innovation, fair prices for consumers and competitiveness of the European agricultural industry facing global competition, which leads to assist agricultural enterprises, to worry about products quality, away from the subtraction of these products of the principle of competition.

The political agreement was reached in 2013, the basic technical texts were completed in 2013 for the new apparatus be applicable to January 1, 2014, including a Regulation of 17 December 2013 establishing a common organisation of the markets in argricultural products (CMO).

It points out that the agricultural sector is subject to competition law only if the Community legislature didn't stipulate differently!footnote-16. The Regulation almost affirms the opposite principle: "It should be provided that the rules on competition relating to the agreements, decisions and practices referred to in Article 101 TFEU and to abuse of a dominant position apply to the production of, and the trade in, agricultural products, provided that their application does not jeopardise the attainment of the objectives of the CAP.". The Regulation  details: A special approach should be allowed in the case of farmers' or producer organisations or their associations, the objective of which is the joint production or marketing of agricultural products or the use of joint facilities, unless such joint action excludes competition or jeopardises the attainment of the objectives of Article 39 TFEU.

On 15 January 2015 the European Commission launches a consultation on the "joint salling of olive oil, beef and veal livestock and arable crops, cases covered by the Regulation.

How the new balance will be between competition and regulation?!footnote-20

It is likely that future guidelines will be the place of expression of this balance.

Full reference: Frison-Roche, M.-A., Being obliged by Law to unlock telephone is not equivalent to self-incrimination: Cour de cassation, Criminal Chamber, Dec. 19, 2019, Newsletter MAFR - Law, Compliance, Regulation, 21st of August 2020

Read by freely subscribing the other news of the Newsletter MAFR - Law, Compliance, Regulation

 

Summary of the news

The Cour de Cassation (French Supreme Judicial Court) made a decision on 19th of December 2019 about a case concerning a refusal to communicate his mobile phone's unlock code to the police while the police found him with a significant quantity of narcotic and a lot of cash and that there was a certain probability that this mobile phone get proofs of culpability of its owner. The individual was indicted not for narcotic trafficking but for not having communicate its unlock code which constitute an offense to article 434-15-2 of code pénal, from the loi du 3 juin 2018 renforçant la lutte contre la criminalité organisée, et le terrorisme et leur financement (law reinforcing organized crime, terrorisme and their financing).

The accused invokes before the court its right to not incriminate oneself. Indeed, the configuration face to policemen was such that if he refused to communicate its unlock code, he will be punished because of this obligation to communicate his code and that if he accepted, he will also be sanctioned because of the proofs contained into the mobile phone. Such a configuration therefore offered him no alternative to confessing, which is contrary to the European Convention on Human Rights and to European and national jurisprudence.

Face to such a case, the Cour de Cassation chose to segment the information and proposed the following solution: if the researched information cannot be obtained regardless of the suspect willingness, it is not possible to constraint this person to communicate this information without violating its procedural rights, but if the information can be obtained regardless of the suspect willingness then the individual is obliged to communicate his code. In the current case, as it was possible for policemen to obtain information contained in the phone by technical means, longer but existent, then the refuse of communication of the unlock code by the suspect constitute an obstruction that should be sanctioned. 

Such a decision is an exemple of the conciliation by the judge of two fundamental but contradictory "monumental goals" of Compliance Law: transparency of information towards public authorities and very sensible personal data protection. 

​To go further, read Marie-Anne Frison-Roche's working paper: Rethinking the world from the notion of data

 

 

Full reference: Frison-Roche, M.-A., Due process and Personal Data Compliance Law: same rules, one Goal (CJEU, Order, October 29, 2020, Facebook Ireland Ltd v/ E.C.), Newsletter MAFR - Law, Compliance, Regulation, 1st of November 2020

Read by freely subscribing other news of the Newsletter MAFR - Law, Compliance, Regulation

Read Marie-Anne Frison-Roche's interview in Actu-juridiques about this decision (in French)

 

Summary of the news: 

As part of a procedure initiated for anti-competitive behaviors, the European Commission has three times requested, between the 13th of March and the 11th of November 2019, from Facebook the communication of information, reitarated in a decision in May 2020.  

Facebook contests it alleging that the requested documents would contain sensitive personal information that a transmission to the Commission would make accessible to a too broad number of observers, while "the documents requested under the contested decision were identified on the basis of wideranging search terms, (...) there is strong likelihood that many of those documents will not be necessary for the purposes of the Commission’s investigation". 

The contestation therefore evokes the violation of the principles of necessity and proportionality but also of due process because these probatory elements are collected without any protection and used afterwards. Moreover, Facebook invokes what would be the violation of a right to the respect of personal data of its employees whose the emails are transferred. 

The court reminds that the office of the judge is here constraint by the condition of emergency to adopt a temporary measure, acceptable by the way only if there is an imminent and irreversible damage. It underlines that public authorities benefit of a presumption of legality when they act and can obtain and use personal data since this is necessary to their function of public interest. Many allegations of Facebook are rejected as being hypothetical. 

But the Court analyzes the integrality of the evoked principles with regards with the very concrete case. But, crossing these principles and rights in question, the Court estimates that the European Commission did not respect the principle of necessity and proportionality concerning employees' very sensitive data, these demands broadening the circle of information without necessity and in a disproportionate way, since the information is very sensitive (like employees' health, political opinions of third parties, etc.). 

It is therefore appropriate to distinguish among the mass of required documents, for which the same guarantee must be given in a technique of communication than in a technic of inspection, those which are transferable without additional precaution and those which must be subject to an "alternative procedure" because of their nature of very sensitive personal data. 

This "alternative procedure" will take the shape of an examination of documents considered by Facebook as very sensitive and that it will communicate on a separate electronic support, by European Commission's agents, that we cannot a priori suspect to hijack law. This examination will take place in a "virtual data room" with Facebook's attorneys. In case of disagreement between Facebook and the investigators, the dispute could be solved by the director of information, communication and medias of the Directorate-General for Competition of the European Commission. 

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We can draw three lessons from this ordinance: 

1. This decision shows that Procedural Law and Compliance Law are not opposed. Some often say that Compliance guarantees the efficacy and that Procedure guarantees fundamental rights, the protection of the one must result in the diminution of the guarantee of the other. It is false. As this decision shows it, through the key notion of sensitive personal data protection (heart of Compliance Law) and the care for procedure (equivalence between communication and inspection procedures; contradictory organization of the examination of sensitive personal data), we see once again that two branches of Law express the same care, have the same objective: protecting people. 
2. The judge is able to immediately find an operational solution, proposing "an alternative procedure" axed around the principle of contradictory and conciliating Commision's and Facebook's interests has shown that it was able to bring alternative solutions to the one it suspends the execution, appropriate solution to the situation and which equilibrate the interest of both parties. 
3. The best Ex Ante is the one which anticipate the Ex Post by the pre-constitution of evidence. Thus the firm must be able to prove later the concern that it had for human rights, here of employees, to not being exposed to sanctioning pubic authorities. This Ex Ante probatory culture is required not only from firms but also from public authorities which also have to give justification of their action. 

 

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The cycle of conferences Les outils de la Compliance (The Compliance tools) began in November 2019 and runs until June 2020. It is organized by The Journal of Regulation & Compliance and all of its partner universities. It includes a conference more particularly devoted to the theme of "Measuring the effectiveness of Compliance Tools (Mesurer l'effectivité des outils de la Compliance)".

 

See the other thematics, others dates and other particular manifestations,  builting the complete cycle

 

Conference and Debate 

  March, 5, 2020, 18h30-20h

in the Amphitheater of Panthéon-Assas (Paris 2) University, 

391, rue de Vaugirard 75015 Paris

 

General presentation of the Conference

After having examined various specific tools, such as Risk mapping or Incentives, and before tackling others such as those falling under a "Compliance by Design", it also deserves to be examined with some distance in its claim to be the solution to any compliance issue, it is worth looking at how we measure the effectiveness of all these Compliance Tools. Indeed, since all techniques are "tools", they only take on meaning with regard to a purpose that they must effectively achieve. This effectiveness must be measured, and this immediately in Ex Ante, the company constantly having to show the effectiveness of the performance of the Compliance tools.

But at the same time as the standards proliferate, the discourses multiply, the commitments are made, the techniques for measuring the effectiveness of the whole seem quite weak. The subjects of law obliged by Compliance obligations or freely wishing to achieve the systemic or common good goals targeted by Compliance do wish to have these measurement instruments. But they seem still little built, often declarative or discursive, or too mechanical. Therefore, is it starting from the goal of Compliance  that we must measure the effectiveness of the Compliance tools, without by this way transforming the tasks weighing (willingly or by force) on operators in obligation to result? Or is it by staying upstream, by a single "conformity" to what is asked of them, as behavior and as structural organization, that companies show that they have effectively fulfilled their task, without worrying about the effects products about the reality, this reality that those who designed the Compliance norms and standards had in mind?

This question has major implications in terms of burden of proof and responsibility, involving organizations which place Trust, the heart of Compliance, rather in technological instruments - only but so efficiency connecting data - or rather in people with a sense of common good. This question is now open.

 

Inscription : anouk.leguillou@mafr.fr

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Under the scientific direction of Marie-Anne Frison-Roche, full professof de Regulatory & Compliance Law at Sciences Po (Paris).

 

Articulate the instruments for measuring Effectiveness with the purposes of the Compliance tools (Articuler les instruments de mesure de l'effectivité avec les finalités des outils de la compliance)

Laurent Benzoni, full professor of Economics at Panthéon-Assas University (Paris 2) Paris Center for Law & Economics, president of TERA Consultants.

 

Freedom and constraints of the company in its implementation of measures of the effectiveness of compliance tools (Liberté et contraintes de l’entreprise dans sa mise en place des mesures de l’effectivité des outils de compliance)

Bertrand Bréhier, deputy head, Banking and Finaical Regulation Departement, Société Générale Group, associate professor Paris I University, Groupe Société Générale

 

Control by the Regulator of the effectiveness of compliance instruments implemented by the company (The contrôle par le Régulateur de l’effectivité des instruments de compliance mis en place par l’entreprise)

Maxime Galland, Director - Legal and International Cooperation at the Autorité des Marchés financiers - AMF (French Financial Markets Authority)

 

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Read the registration procedure  for this conference.

Consult the calendar of precedent and upcoming events.

Consult the presentation of the book to be published: Compliance Tools.

 

Go back to general presentation of the Conferences' cycle "Compliance Tools".

 

Inscription : anouk.leguillou@mafr.fr

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The cycle of conferences Les outils de la Compliance (The Compliance tools) began in November 2019 and runs until June 2020. It is organized by The Journal of Regulation & Compliance (JoRC) and all of its partner universities. It includes a conference more particularly devoted to the theme of "Les expertises requises dans l'Ex Ante de la Compliance" ("The expertises required in the Ex Ante of Compliance").

See the other thematics, other dates and other particular manifestations,  building the complete cycle

 

Conference – Debate

 Wednesday, January 29, 2020, 18h30-20h

 in the amphitheater of the Paris Chamber of Commerce and Industry 

Friedland Avenue, 27, 75008 Paris

 

General Presentation

After examining various specific tools, such as Risk mapping or Incentives, these showing that the tools only have their efficiency through their use designed and carried out by human beings, endowed themselves with the required expertise. But it is often because it is very difficult to identify and define these "skills" that operators subject to the Ex Ante Compliance obligations end up entrusting this observance to machines, via Compliance by Design ...

The mass of what should actually be observed leads to favoring massification expertise, as the "Regtech" handle it. But the rules being a living thing, Company Law adjoins Governance and one must know both. In the same way as the mastery of Ex Ante supposes that one always thinks of Ex Post (sanction for failure in the Ex Ante), so that this Ex Post does not appear, under its unwelcome face of Repressive Law which therefore must be anticipated and therefore present in Ex Ante.

In the same way, Tax Compliance presupposes that the State must be present in the good technical conception of Compliance. Compliance being the means by which States internalize their "monumental goals", or even confront each other under the mask of companies, it is then international policies in question, and this political expertise is required in Ex Ante.

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under the scientific direction of Marie-Anne Frison-Roche, professor fo Regulatory Law Compliance Law at Sciences Po.

 

with  :

-  -  Antoinette Gutierrez-Crespin, partner, department  Forensic & Integrity Services EY France.

- François Barrière and Sidne Koenigsberg, Skadden

- Pierre Vimont, Senior Fellow, Carnegie Europe

-  Benjamin Jean, president of Open Law

-  Thomas Amico, Linklaters

 

 

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• Read the registration procedure  for this conference.

  Consult the general calendar of upcoming events.

  Consult the presentation of the book to be published "Compliance Tools".

   

  Go back to general presentation of the Conferences' cycle "Compliance Tools".

   

  Inscription : anouk.leguillou@mafr.fr

•  

 

 

The cycle of conferences Les outils de la Compliance (The Compliance tools) began in November 2019 and runs until June 2020. It is organized by The Journal of Regulation & Compliance and all of its partner universities. It includes a conference more particularly devoted to the theme of "La prégnance géographique dans le choix et l'usage des outils de la Compliance" ("Geographic significance in the choice and use of Compliance tools").

See the other thematics, others dates and other particular manifestations,  builting the complete cycle

 

Conference and Debate  (in French)

 Thuesday, February 4, 2020, 16h30– 19h30

 Law & Political Sciences School

Doyen Louis Trotabas Avenue, 06050 Nice Cedex.

Amphithéâtre Bonnecarrère, Villa Passiflore,

 

General Presentation: 

Compliance is a global phenomenon. In this, it illustrates the problematic of a Global Law. However, it should not be inferred that Compliance is applied in the same way everywhere in the world. Like any legal institution, it is integrated into a preexisting legal framework, shaped by culture and history.

The aim of the conference is to explore geographic significance in Compliance Tools, that is to say the potentially different way in which these tools are chosen and used depending on the geographic area concerned. The three geographic areas studied will mainly be Europe, the United States and Africa. Opportunity will thus be given to highlight the convergences and divergences in the implementation of Compliance Tools in a geographic vision of the institution.

 

Under the scientific direction of Jean-Baptiste Racine, professor at the University Côté d'Azur (Law & Political Sciences School of Nice), GREDEG-CREDECO, CNRS UMR 7321

With the interventions of:

- Jean-Baptiste Racine, professor at the University Côté d'Azur , Nice

- Mahmoud Mohammed Salah, Law professor at the University of Nouakchott, Mauritany

- Karen Coppens, Dechert LLP

- Mads Andenas, Law professor at the University of Oslo, Norway

- Marie-Anne Frison-Roche, Law professor at Sciences Po, Paris

 

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Read the registration procedure  for this conference.

Consult the gele calendar of upcoming events.

Consult the presentation of the book to be published "Compliance Tools".

 

Go back to general presentation of the Conferences' cycle "Compliance Tools".

 

Inscription : anouk.leguillou@mafr.fr

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La régulation des marchés agricoles, devenus fortement spéculatifs, est un enjeu technique et politique. Le 17 septembre 2012, le Président français, entouré de ses ministres, a reçu le directeur général du F.A.O. Ils ont insisté sur la nécessité de réguler non seulement le prix des matières premières agricoles, mais encore de constituer des réserves et de faciliter des réformes structurelles dans certains pays, notamment autour de la zone du Sahel. En tout cas, il est acquis que le mécanisme de l'offre et de la demande ne peut être laissé à lui-même.