On 18 June 2024, a dedicated chamber in the Paris Court of Appeal released its first decisions in three cases on France’s duty of vigilance law.
None of the rulings were about the actual facts of the case yet but instead dealt with procedural matters. However, some interesting lessons can be drawn from the initial rulings.
The special chamber had been set up to handle duty of vigilance cases, in order to prevent “serious attacks on human rights and fundamental freedoms, health, and the safety of people as well as the environment”.
Three companies are the first to be accused of failing to meet their obligations under the duty of vigilance law: TotalEnergies, Electricité de France (EDF) and SUEZ. Hearings in all three cases were held in early March 2024.
Two Cases Deemed Admissible, One Inadmissible
In two out of three cases, the Paris Court of Appeal agreed that the claims were indeed admissible.
TotalEnergies
In the first case, brought by a group of organisations and local authorities against TotalEnergies, the court confirmed that for litigation under the duty of vigilance law to proceed, a formal notice has to be filed first. However, the grounds listed in the formal notice do not have to be identical to the grounds specified in the writ of summons. In fact, they do not even have to refer to the same duty of vigilance plans. A judge can determine at the merits stage whether the grounds are sufficiently connected. Moreover, the court established that for local authorities to bring claims, they need to demonstrate that harm occurred on the territory controlled by them.
Finally, the court also admitted a claim for the prevention of ecological damage (based on Article 1252 of the French Civil Code). Under Article 1252, companies are required to take measures to repair, prevent, or stop ecological damage resulting from their activities, which is a different obligation than imposed under the duty of vigilance law.
Electricité de France (EDF)
The second case concerns a lawsuit filed by representatives of the Zapotec community in Mexico, which claims that EDF’s risk map to establish the Gunaa Sicarú wind park in Mexico fails to identify specific risks. In this case too, at issue was whether the formal notice should refer to the same vigilance plan as the writ of summons. As was held in TotalEnergies, the court determined that this is not necessary.
Applicants in this case had also requested for the court to impose an interim injunction on the operation of the wind park. However, the court rejected this request, since the duty of vigilance challenge could only affect the vigilance plan itself, not the underlying project. The requested interim measure is therefore outside the scope of the duty of vigilance law.
SUEZ
A final case was held inadmissible by the Paris Court of Appeal and will not proceed to the merits stage. The case against water provider SUEZ concerned inhabitants of Osorno, Chile, who filed a lawsuit over water contamination. On two separate occasions, drinking water was contaminated with oil and other substances, allegedly due to malfunctions at SUEZ’s subsidiary, ESSAL.
The Court of Appeal maintains that under the duty of vigilance law, a parent company’s compliance with the vigilance plan obligation exempts its subsidiaries. The subsidiary will remain responsible if the parent company fails to comply. Under the original complaint, formal notice was sent to the CEO of ‘Groupe Suez’ without clearly specifying the responsible legal entity. This created confusion because ‘Groupe Suez’ is not a specific legal entity, and it became unclear whether the parent company or one of its subsidiaries should be held responsible for the vigilance plan.
The court found that the author of the existing vigilance plan was SA Suez, the parent company, rather than its subsidiary, SAS Vigie Groupe. As such, SAS Vigie Groupe was not required to fulfil the obligation to maintain a vigilant plan independently. This determination rendered the case against SAS Vigie Groupe inadmissible, as they did not have standing to defend the action.
What Is France’s Duty of Vigilance Law?
France’s Duty of Vigilance law is a legislative framework governing how large companies in France should manage environmental and human rights risks. It imbues the responsibility on corporates to ensure such risks are managed along their supply chain, but also that their subsidiaries and subcontractors comply.
Companies with over 5,000 employees in France (including subsidiaries) or over 10,000 employees globally (including subsidiaries) are within the scope of the duty of vigilance law. These companies must create and implement a publicly available ‘vigilance plan’, to identify the risks to human rights, fundamental freedoms, injuries, environmental damage, and health.
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