In rulings issued on 18 June 2024, the Paris Court of Appeal deemed admissible the actions brought by several non-governmental organizations (NGOs) against the French multinationals TotalEnergy and EDF on the basis of the France’s Corporate Duty of Vigilance Law (the ‘Vigilance Law’). While the Court of Appeal deemed the action initiated in 2021 against VIGIE Group inadmissible, the decisions against TotalEnergy and EDF concerning climate and human rights matters open the door to examining similar cases on their merits, which could have an impact on the way corporations manage their due diligence obligations related to human rights and climate change.

By overturning the first-instance decisions of the Paris Civil Court of 2023, the Court of Appeal provided important clarifications on injunction requests and opened the door to a potential complementary claim based on the prevention of ecological damage. Without aiming to provide an exhaustive analysis, this post highlights two developments arising from this decision.

Brief Background and Applications under the Vigilance Law

Adopted by the French Parliament on 27 March 2017, the Vigilance Law, which imposes due diligence obligations for large corporations headquartered in France, is codified under article L 225-102-4 of the French Commercial Code. This article requires corporations to establish and implement a ‘Vigilance Plan’ sufficient to identify relevant risks and prevent serious human rights violations and environmental damage resulting from the companies’ operations, as well as that of their subcontractors and suppliers. Moreover, the Law specifies that in cases where corporations fail to comply with their duties, any person with a ‘legitimate interest’ can send a formal notice to the company in question demanding that it respect its obligations. If the corporation does not comply within three months, the interested party can then file an injunction request with the Paris Civil Court.

A Flexible Approach to Injunction 

An important development arising from the Court of Appeal’s decisions relates to the way it redefines the function of the above-mentioned formal notice. In fact, in the TotalEnergy and EDF decisions, the Paris Civil Court had dismissed the claimant’s injunction request, notably because they did not engage in a collaborative process and dialogue with the companies. This requirement of dialogue is not explicit in the text of the ‘Vigilance Law’ and, according to the doctrine, mandating this dialogue within the formal notice was a questionable interpretation of the law. Such a strict interpretation would also have favoured ‘asymmetric’ negotiations and a significant disparity in resources between companies and stakeholders in the process of the formal notice.

In its decisions, the Court of Appeal simply applied the literal text of Article L 225-102-4, rather than embarking to infer the legislator’s intent as the Paris Civil Court did. In doing so, the Court of Appeal established that this ‘collaborative dialogue’ is not a prerequisite for an action [see e.g. EDF decision, p 18].

Possibility of Complementary Claim

The Court of Appeal of Paris accepted the claim based on the prevention of ecological damage. During the TotalEnergy trial at the Paris Civil Court in 2023, the NGOs in question initiated, in addition to their injunction request based on article L 225-102-4, another request based on the prevention of ecological damage under article 1252 of the French Civil Code. However, the trial judge held that a formal notice was a prerequisite to file a claim under article 1252, as it is under article L 225-102-4.

Last June, the Court of Appeal rejected this reasoning and upheld the NGOs’ claim based on the ground of ecological damage. In fact, the Court held that the Vigilance Law does not exclude civil liability based on ecological damage [see TotalEnergy decision, p 31]: the request made on the basis of article 1252 is not subject to the requirements of article L 225-102-4. In this way, the Court confirmed that it was possible to invoke the two actions in a complementary manner.

Ultimately, these two decisions by the Court of Appeal put an end to the restrictive interpretation of the Vigilance Law, paving the way toward better access to justice for victims of human rights and environmental violations. Moreover, we can also expect that the recent adoption by the European Council of the Corporate Sustainability Due Diligence Directive (CSDD) will probably lead to the reinforcement and efficiency of civil liability under the ‘Vigilance Law’. Indeed, the civil liability regime of the CSDD overlays existing Member State due diligence law. This interplay with existing French ‘Vigilance Law’ is expected to provide an additional and broader means of recourse against French companies and will also guarantee that member state courts provide conditions under which NGO can bring a claim [see CSDD, p 13].

Read more:

• Lessons from the French Vigilance Law for the EU’s Corporate Sustainability Due Diligence Directive.
• Is Mandatory Human Rights and Environmental Due Diligence a Paper Tiger? Lessons from the French Experience.
• Beyond State Responsibility: The Trafigura Case and Corporate Accountability in Africa.
• Should There Be A Human Rights Approach for Environmental Protection?