Duty of vigilance: First decisions of Chamber 5-12 in matters of corporate vigilance

By Marine Vanhoucke, associated.

The new chamber of the Paris Court of Appeal specializing in the duty of vigilance has just rendered its long-awaited decisions in the TotalEnergies, EDF and Suez cases, thus providing significant clarification regarding the environmental responsibility of companies.

Seven years after the adoption of the pioneering law on the duty of vigilance (no. 2017-399) and 1 month after the validation of the CSDDD directive by the European Council, the stakes are high since it involves build an almost non-existent case law.

As a reminder, the law requires companies exceeding certain thresholds to establish and publish a vigilance plan including “reasonable vigilance measures to identify risks and prevent serious attacks on human rights and fundamental freedoms, the health and safety of individuals and the environment”. In the event of a breach, the company may be given notice to regularize it and then, failing to comply, be taken to court by any person with an interest in taking action.

Until now, only La Poste has been condemned on the merits by the Paris Judicial Court due to the inadequacies of its vigilance plan, which notably noted too imprecise risk mapping. 

The creation announced last January, of this room 5-12^rd within the economic center of the Paris Court of Appeal opened the way to the judicialization of the subject in order to meet the expectations of jurisprudential predictability. 

It has national jurisdiction to rule on appeal on all decisions relating to the duty of vigilance and it is within this framework that its first hearings concerning appeals against decisions of the Tribunal were held last March. court of Paris in the TotalEnergies, EDF and Suez cases. 

In the first case, TotalEnergies is accused of inadequacies in its vigilance plan providing for the continuation of certain hydrocarbon deposit exploration projects in Africa that do not comply with the requirements of the Paris Agreement. In the second case, EDF is accused of not having consulted indigenous populations as part of a wind farm project in Mexico. In the third case, Suez is accused of repeated failures in one of its factories in Chile, which resulted in the local drinking water network becoming unfit.

At first instance, these actions brought by non-governmental organizations and local authorities were all declared inadmissible. Before even being able to rule on the merits, the issue at stake in the Court of Appeal's decision was therefore admissibility. 

If the decision rendered on June 18 confirms the inadmissibility in the Suez affair (the subsidiary having been summoned and not the parent company author of the vigilance plan), it declares certain applicants admissible in the EDF and TotalEnergies files and could therefore allow a analysis of the files on the merits by the Paris Judicial Court and the long-awaited clarification of the contours of the duty of vigilance.

Furthermore, this decision already offers procedural clarifications concerning the incurring of a company's liability on the basis of the duty of vigilance. Indeed, it recalls that the prior formal notice constitutes a condition for the admissibility of the action and that it must include sufficiently clear grievances to allow the company to comply. On the other hand, it specifies that it is not necessary for the summons and the formal notice to target the same vigilance plan in terms of dates provided that they both target the same obligations.

The Court of Appeal also provides details concerning the interest in action of the plaintiffs, in particular of local authorities who cannot simply invoke an attack affecting the entire planet and must justify a specific attack linked to the territories. that they administer.

Subject to an appeal to the Court of Cassation, the Judicial Court should therefore soon be able to rule in the EDF and TotalEnergies cases. At the same time, several other disputes are underway at first instance and the specialized chamber of the Paris Court of Appeal will soon hear the appeal in the La Poste case. The contours of corporate social and environmental responsibility should therefore gradually become clearer. To be continued…