Les outils de la compliance, Marie-Anne FRISON-ROCHE

Marie-Anne Frison-Roche

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The result of a series of conferences organised by the Journal of Regulation & Compliance, this book brings together twenty-five contributions to understand tools that are still little studied, such as risk mapping or training. In addition, there are cross-sectional studies on better-known tools such as compliance programmes, sanctions, whistle-blowing and public interest litigation.

For the overall understanding of the book, a legal and economic vision of the tools is presented at the beginning. Marie-Anne Frison-Roche’s legal observation reveals that all means are good in the service of the "monumental goals" of compliance. Laurent Benzoni and Bruno Deffains then distinguish between "imposed" and "chosen"compliance in order to make the difference between binding compliance tools and those that depend on the goodwill of companies. When a compliance mechanism is imposed in one area of the law, it is likely to encroach on the resources allocated to areas of spontaneous development, such as compliance-competition.

Risk mapping is then studied. Thanks to Nicolas Guillaume, the reader gets a glimpse of the issues, limits and good practices of risk mapping. Risk mapping allows companies to draw attention to the points that are of particular concern to them, encouraging them to act to improve. When traditional law fails to establish rules, companies establish them on their own through compliance. A third chapter is therefore devoted to the place and handling of incentives in compliance systems. At the crossroads of law and behavioural economics, Lucien Rapp’s contribution articulates the theory of incentives and the governance of space activities. In turn, Marie-Anne Frison-Roche reverses the opposition between sanctions and incentives. Then, Marion Larouer explains how incentives manifest themselves, and Hubert Tardieu makes the connection between data sovereignty and compliance. He discusses the opportunity of a "common data model" to create synergies between European companies. Then, Laurence Calandri uses the audiovisual sector to study the place of incentives in the light of the introduction by the Conseil d’Etat of a jurisdictional control of flexible law acts. Still in its infancy in the French legal system, the incentive-compliance pairing will have to be "propelled" to reinforce the usefulness of compliance law.

While government incentives are of paramount importance for the proper provision of compliance tools, it is essential that the people who use them know how to use them. This shows the importance of training in compliance. Antoinette Gutierrez-Crespin explains to the reader the skills required to audit a compliance system, in order to detect deviations and measure gaps in relation to compliance requirements. Law firms also have a role to play in providing their ex ante and ex post expertise, since this teaching method is specific to their profession, as François Barrière and Sidne Koenigsberg point out. Thomas Amico presents the reader with the privileged position of the criminal lawyer, who is particularly knowledgeable aboutex post, and an excellent advisor inex ante via risk mapping or the evaluation of third parties.

Great attention must still be paid to the geographical dimension. Jean-Baptiste Racine reminds us that the tools of compliance are part of a global context. Mohamed Mahmoud Salah applied this study to the African context, endeavouring to identify the effectiveness of compliance. Maxime Galland follows up on this last subject by looking at it from the regulator’s point of view to assess effectiveness. As for Aurélie Banck, she takes the company’s point of view to examine the choice of the appropriate tool. The compliance officer must select the right tool not only for the company but also and above all for the person who will be using it. In addition to the choice of the tool, training is essential to help anchor the compliance culture in the company. Théo Thouret highlights the common point between compliance and training: the transmission of information. But Hervé Causse shows that it goes beyond classic legal training. Compliance programmes cannot be effective without training and, conversely, training makes it possible to anchor the legitimacy of the programmes in the minds of its recipients. It is therefore the "container and the content" according to Marie-Anne Frison-Roche.

Finally, Jean-Christophe Roda explained "compliance by design". This technique would reverse the trend and put algorithms and "machine learning" at the service of free competition. Thanks to a close collaboration between legal and operational experts, it would allow software designers to integrate competition parameters from the conceptualization stage, such as the notion of "special responsibility". However, certain obstacles hinder the emergence of this concept, such as the collaboration between lawyers and technicians, the attractiveness of such programs for companies seeking profitability by investing in these tools, or the difficulty of transcribing the nuances of the law at the time of coding. Samir Merabet thus seizes the opportunity to question the will of companies to pursue these objectives and thus to pursue "morality by design".

To conclude, Marie-Anne Frison-Roche devotes some time to subjective rights. They are now essential for the realisation of "monumental goals" and could even be considered as the primary tools of compliance.

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Author

  • University of Paris I Panthéon-Sorbonne

Quotation

Elina Wagenaar, Les outils de la compliance, Marie-Anne FRISON-ROCHE, September 2021, Concurrences N° 3-2021, Art. N° 101679, pp. 261-262

Publisher Dalloz

Date 1 April 2021

Number of pages 300

ISBN 978-2247198085

Visites 118

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