Duty of care here and abroad: pre-trial tools to gather evidence
Jacques Bouyssou
The adoption by the European Parliament on 24 April of the Corporate Sustainability Due Diligence Directive (CSDDD) raises the question of the procedural tools available to stake holders wishing to ensure compliance with the obligations it will introduce.
For the time being, French Law No. 2017-399 of 27 March 2017 on the due diligence of parent and subsidiary companies, codified in Articles L. 225-102-4 and 5 of the French Commercial Code, notably requires companies with at least five thousand employees in France – in their own company and in their direct or indirect subsidiaries – or ten thousand employees worldwide to draw up and implment a compliance plan.
The French judiciary has had the opportunity to begin clarifying the application of the French due diligence law and the procedural aspects of the proceedings initiated by those wishing to compel companies to comply with the law.
In particular, in a judgment dated 1 December 2022 (No. 22/00643), the Versailles Court of Appeal ruled on the use of Article 145 of the French Code of Civil Procedure by Cameroonian individuals against a Cameroonian company, its parent company and the latter’s parents companies, including a major French company, in order to obtain evidence for future litigation concerning the deterioration of the claimants’ environment allegedly caused by the activities of the local company.
Article 145 of the Code of Civil Procedure provides that «if there is a legitimate reason for preserving or establishing, prior to any judicial proceedings, evidence of facts on which the outcome of a dispute may depend, legally admissible measures of inquiry may be ordered at the request of any interested party, on application or by summary procedure». It can be a highly effective tool in the hands of plaintiffs.
French courts may, under certain conditions, have jurisdiction over such a request if the action on the merits, which the evidence sought is intended to support, falls within their jurisdiction or if the measure is to be carried out within their jurisdiction.
In the abovementioned ruling of 1 December 2022, the Versailles Court of Appeal ordered two foreign companies, including the Cameroonian company, to produce various documents requested by Cameroonian citizens in order to establish the control exercised by the French company over them in the context of a future action for breach of duty of care.