The first steps of the duty of vigilance applied to climate litigation
Law no. 2017-399 of March 27, 2017, introduced, in France, a “duty of vigilance” (devoir de vigilance) imposed on the largest companies in environmental, social and corporate governance matters.
The legal framework, codified in Articles L. 225-102-4 and 5 of the French Commercial Code, requires companies with at least 5,000 employees in France – parent company and subsidiaries combined – or 10,000 employees worldwide, in particular, to draw up and implement a “vigilance plan” (plan de vigilance). Failure to comply with these obligations may result in liability for the companies concerned.
The European Union has drawn inspiration from this law in the development of a European directive on the duty of vigilance of companies with regard to sustainable development.[1] This directive is currently being negotiated between member states following the European Parliament’s adoption of the draft directive on June 1er 2023.[2] This duty of vigilance may provide support for climate actions, as the rise of climate litigation in France and around the world mobilizes civil society.
Alerion Climate Litigation Observatory analyzes the first decisions of the French jurisdiction on the duty of vigilance, which at this stage concern procedural and preliminary issues.
- Exclusive jurisdiction of the Paris Judiciary Tribunal
Until the adoption of Law no. 2021-1729 on December 22, 2021, which gave exclusive jurisdiction to the Paris Judiciary Tribunal (Tribunal judiciaire) for all actions relating to the duty of vigilance set under the new articles of the French Commercial Code, the jurisdiction of the judiciary tribunals conflicted with the jurisdiction of commercial tribunals, natural forum of business affairs.
In the TotalEnergies SE case, the Nanterre Judiciary Tribunal rightly ruled itself incompetent in favor of the Commercial Tribunal, on the grounds that establishing and implementing a vigilance plan is an integral part of the company’s management.[3] The Versailles Court of Appeal approved the approach adopted by the first judges and rejected the notion of a mixed act,[4] which would have allowed an option between civil and commercial jurisdictions. The Commercial Chamber of the French Court of Cassation (Cour de cassation) overturned this ruling, stating that “the non-commercial plaintiff who intends to act as such has, however, in this case, the choice of bringing the matter before the civil court or the commercial tribunal”. However, the Court confirmed the position of Nanterre judges, considering that “the establishment and implementation of such a plan have a direct link with the management of this company”.
The legislator has definitively settled the question of jurisdiction by granting exclusive jurisdiction to the Paris Judiciary Tribunal.[5]
- 2. The limits of summary proceedings
Article L. 225-102-4 of the French Commercial Code allows the plaintiff to bring either a summary action or an action on the merits to ensure that the company which fails to fulfill its obligations is ordered to comply with them.
In the Total-Uganda case, the summary judge of the Paris Judiciary Tribunal considered whether the summary action was suitable for controlling compliance of the obligation to establish a vigilance plan in the areas of human rights and fundamental freedoms, personal health and safety and the environment.[6]
After ruling that the plaintiffs were inadmissible for failure to issue a prior formal notice, the judge, in a welcomed obiter dictum, expressed reservations about the possibility for the summary jurisdiction to control the establishment of a vigilance plan. The judge specified that “the grievances and breaches of duty of vigilance alleged against TotalEnergies SE in the present case must be the subject of an in-depth examination of the facts of the case, which goes beyond the powers of the summary judge”.
This solution clarifies the procedural framework in which actions based on the duty of vigilance can be brought. It also reveals the difficulties that plaintiffs will face when bringing an action before the summary judge, when the subject of the dispute is the compliance of the vigilance plan, and not simply its publication by the given company. A commentator suggests that plaintiffs could, at the same time, bring a claim on the merits relating to the compliance of a company’s vigilance plan and an application for interim relief seeking to suspend the measures taken by the company.[7]
- 3. Requirement for formal notice
Article L. 225-102-4, II of the French Commercial Code provides that, before a case is referred to the courts, the company in question must be given formal notice to fulfill its vigilance obligations.
“II – Where a company served with formal notice to comply with the obligations set out in I fails to do so within three months of the formal notice being served, the competent court may, at the request of any person with an interest in the matter, order the company to comply, subject to a fine if necessary.”
In the absence of a decree specifying certain aspects of litigation relating to the duty of vigilance, the Paris Judiciary Tribunal has established requirements, set out below, on this formal notice in the Total-Uganda[8], Total-Climat[9], Suez[10] and EDF[11] cases.
- Mandatory prerequisite
Firstly, the formal notice is considered a mandatory prerequisite to any referral to the courts. In the absence of prior formal notice, the plaintiff’s request is inadmissible.
In the EDF case, the Preliminary Issues Judge (Juge de la mise en état) of the Paris Judiciary Tribunal specified that the purpose of this condition was to establish a dialogue between the plaintiffs and the target company, so that the latter could take account of the comments made on its vigilance plan and modify it accordingly.[12]
- Identical scope of the formal notice and the writ of summons
Secondly, the formal notice and the writ of summons must have the same subject matter. Thus, the writ of summons must address the same issues raised by the formal notice, and in particular target the same vigilance plan.
For example, in the Total-Uganda case[13] , the plaintiffs had referred in their writ of summons the most recent version of the vigilance plan of the year 2021, whereas the formal notices referred to an earlier version of the year 2019. This led the Preliminary Issues Judge to conclude that the defendant had not been put on formal notice with regard to the vigilance plans that were the subject-matter of the case.
- The completeness of the formal notice
Thirdly, the formal notice must be sufficiently specific as to the subject of the grievances raised against the company in question.
In the Total-Climat case[14] , the Preliminary Issues Judge considered that the formal notice sent by the plaintiffs was imprecise in that it required TotalEnergies to implement a list of measures “without prejudice to other measures that may be identified”. Thus, to comply, formal notices must be sufficiently precise as to the grievances in question to serve as a basis for discussion between the parties involved prior to referral to the tribunal.
- 4. The relationship between Article 1252 of the French Civil Code and Article L. 225-102-4 of the French Commercial Code
Article 1252 of the French Civil Code provides the possibility of requesting French jurisdictions to prescribe measures to prevent or stop damages to the environment. This gave rise to a question about the relationship between this text and Article L. 225-102-4 of the French Commercial Code, which enables a judge to order a company to comply with its obligations under the duty of vigilance.
In the Total-Climat case,[15] two claims were brought before the Judiciary Tribunal, one based on Article L. 225-102-4 of the French Commercial Code, seeking an injunction to require TotalEnergies to publish its vigilance plan, and the other based on Article 1252 of the French Civil Code, seeking to “publish and implement” actions to reduce greenhouse gas emissions.
TotalEnergies raised an incident regarding the admissibility of the claim based on Article 1252 of the French Civil Code. Taking up the defendant’s arguments, the Preliminary Issues Judge declared the claim inadmissible, considering that the two claims had the same object, and that by relying on Article 1252 of the Civil Code, the plaintiffs were attempting to bypass the formal notice requirement set out in Article L. 225-102-4 of the French Commercial Code. Categorizing the provisions of the Commercial Code as “special”, the judge noted that they deviate from the general provisions of the Civil Code.
This solution has been challenged by certain authors, who question the exclusive application of Article L. 225-102-4 of the French Commercial Code to the issue of duty of vigilance, particularly in view of the reference in Article L.225-102-5 of the same code to articles 1240 and 1241 of the French Civil Code concerning ecological loss.[16]
In any case, following the decision of the Preliminary Issues Judge in the TotalEnergies case, it is not possible to rely on article 1252 of the Civil Code to ensure compliance with the duty of vigilance.
- 5. Defendants’ standing
According to Article L. 225-102-4 of the French Commercial Code, the duty to establish the vigilance plan lies with the group’s parent company, while controlled subsidiaries as defined in Article L. 233-3 of the French Commercial Code are exempt from this obligation. Therefore, the obligation relies upon the parent company, even though subsidiaries may voluntarily establish a vigilance plan. As a result, only the parent company or a company having established a given vigilance plan can be sued.
In the Suez case,[17] the defendant, a subsidiary of the Suez group, alleged that it had not established the relevant vigilance plan and that it had been established by its sole shareholder. Having noted that the vigilance plan did not mention precisely which Suez group company had established it, the Preliminary Issues Judge ruled that “the [subsidiary’s] standing to defend (…) has not been established”.
As a result, there must be an identity between the company issuing the vigilance plan and the company being summoned.
- 6. Plaintiffs’ standing
The inadmissibility of claims on the grounds that the plaintiff associations and local authorities lack standing to bring the action has been raised on several occasions. While in some cases the judge did not rule to this ground, in the Total-Climat case,[18] the Preliminary Issues Judge of the Paris Judiciary Tribunal specified – again in an obiter dictum – that certain plaintiffs did not justify a standing.
The Parisian judge referred to article 1248 of the French Civil Code – specific to compensation for ecological loss – to interpret the terms “any person with a standing” provided in article L. 225-102-4 of the French Commercial Code.
Article 1248 of the French Civil Code sets out the categories of persons who may bring an action for compensation for ecological loss, namely: “the State, the French Biodiversity Office, local authorities and local communities whose territory is concerned, as well as public establishments and associations accredited or having been established for at least five years from the date the proceedings are brought, whose purpose is the protection of nature and the defense of the environment”.
The Preliminary Issues Judge thus declared inadmissible the claims of certain associations that had not been accredited or established for over five years. Similarly, he ruled inadmissible the claims of certain local authorities – including the cities of Paris and New York – on the grounds that they can only act “when their territory is affected by the ecological loss”.
***
These initial rulings on jurisdiction, requirement of prior formal notice, and parties’ standing, have provided welcome clarification of the conditions for bringing an action. These debates on formal issues highlight the complexity of the substantive questions that the judge will have to resolve.
MAIN CASES INVOLVING THE DUTY OF VIGILANCE
Judiciary decisions
Nanterre Judiciary Tribunal, order, January 30, 2020, no. 19/02833, TotalEnergies SE
Versailles, December 10, 2020, no. 20/01692, TotalEnergies SE
Cass. com., December 15, 2021, no. 21/11.882, TotalEnergies SE
Paris Judiciary Tribunal, November 30, 2021, no. 20/10246, EDF
Court of Appeals of Paris, March 17, 2023, n° 22/00749, EDF
Paris Judiciary Tribunal, 1er June 2023, no. 22/07100, SUEZ SA
Paris Judiciary Tribunal, February 28, 2023, no. 22/53942 and no. 22/53943, TotalEnergies SE (Total-Uganda)
Paris Judiciary Tribunal, July 6, 2023, no. 22/03403, TotalEnergies SE (Total-Climat)
Cases pending before the Paris Judiciary Tribunal
Paris Judiciary Tribunal, writ of summons dated March 23, 2022, YVES ROCHER
Paris Judiciary Tribunal, writ of summons dated December 22, 2021, GROUPE LA POSTE
Paris Judiciary Tribunal, writ of summons dated March 3, 2021, CASINO
Paris Judiciary Tribunal, writ of summons dated July 29, 2022, IDEMIA
Formal notices
TELEPERFORMANCE was served with a formal notice on July 18, 2019
XPO LOGISTICS was served with a formal notice on October 1, 2019
TOTALENERGIE was served with a formal notice on March 14, 2022
MCDONALD’S was served with formal notice on March 30, 2022
DANONE, AUCHAN, CARREFOUR, CASINO, LACTALIS, LES MOUSQUETAIRES, PICARD SURGELÉS, NESTLÉ FRANCE AND MCDONALD’S FRANCE were served with a formal notice on September 28, 2022
BNP PARIBAS was served with a formal notice on October 17, 2022
BNP PARIBAS was served with a formal notice on October 26, 2022
[1] Proposal for a Directive of the European Parliament and of the Council on corporate sustainability due diligence and amending Directive (EU) 2019/1937, February 23, 2022
[2] Amendments(1) of the European Parliament, adopted on 1 June 2023, to the proposal for a directive of the European Parliament and of the Council on corporate sustainability due diligence and amending Directive (EU) 2019/1937
[3] Nanterre Judiciary Tribunal, January 30, 2020, no. 19/02833, TotalEnergies SE
[4] R. Dumont, “Devoir de vigilance des sociétés mères et compétence des tribunaux: la Cour de cassation et le législateur rend rendent concomitamment deux solutions différentes”, Recueil Dalloz, Dalloz, 2022, p. 826
[5] Article L. 211-21 of the French Judicial Organization Code (Code de l’organisation judiciaire) stipulates that “the Paris Judiciary Tribunal hears actions relating to the duty of vigilance based on articles L. 225-102-4 and L. 225-102-5 of the French Commercial Code“
[6] Paris Judiciary Tribunal, February 28, 2023, no. 22/53942 and no. 22/53943, TotalEnergies SE (Total-Uganda)
[7] A. Lecourt, “Nouvelles précisions sur l’action en responsabilité découlant du manquement à la vigilance climatique”, RTD com, Dalloz, 2023, p. 369
[8] Paris Judiciary Tribunal, February 28, 2023, no. 22/53942 and no. 22/53943, TotalEnergies SE (Total-Uganda)
[9] Paris Judiciary Tribunal, July 6, 2023, no. 22/03403, TotalEnergies SE (Total-Climat).
[10] Paris Judiciary Tribunal, June 1er 2023, no. 22/07100, SUEZ SA
[11] Paris Judiciary Tribunal, November 30, 2021, no. 20/10246, EDF
[12] Paris Judiciary Tribunal, November 30, 2021, no. 20/10246, EDF
[13] Paris Judiciary Tribunal, February 28, 2023, no. 22/53942 and no. 22/53943, TotalEnergies SE (Total-Uganda)
[14] Paris Judiciary Tribunal, July 6, 2023, no. 22/03403, TotalEnergies SE (Total-Climat)
[15] Paris Judiciary Tribunal, July 6, 2023, no. 22/03403, TotalEnergies SE (Total-Climat)
[16] J.-B. Barbièri, “Devoir de vigilance, la porte se referme”, Dalloz actualité, Dalloz, July 13, 20233
[17] Paris Judiciary Tribunal, June 1er 2023, no. 22/07100, SUEZ SA
[18] Paris Judiciary Tribunal, July 6, 2023, no. 22/03403, TotalEnergies SE (Total-Climat)