France was the first country to enact a due diligence law with its Law on the Duty of Vigilance. While the Law has faced challenges in implementation, outlined in a previous blog post, it brought companies’ lack of vigilance to the attention of the courts. However, all claims so far have been delayed or rejected on procedural grounds. This blog post will discuss several procedural issues that have hindered the effectiveness of the Law on the Duty of Vigilance, in addition to the existing issues surrounding implementation, discussed in Part I of this blog.

Procedural issues slowing down judicial enforcement

The Law on the Duty of Vigilance has resulted in at least 16 formal notices, some of which have been followed by summons to court and liability claims. Because of the Law’s broad normative scope, the claims filed thus far have covered a wide range of adverse human rights and environmental impacts including climate change, labour rights violations, deforestation, and plastic pollution.

TotalEnergies, a French multinational energy and petroleum company, was the first company to face enforcement claims in 2019 for the climate change impact of its activities, as well as human rights violations and environmental damage resulting from a mega oil project in Tanzania and Uganda. Although the Law on the Duty of Vigilance has made it possible to bring the issue of companies’ lack of vigilance to the attention of the courts, all claims have been delayed or rejected on procedural grounds to date.

The first claims brought under the Law on the Duty of Vigilance were delayed while courts debated whether civil or commercial courts were competent to hear claims based on the Law. Following two years of legal proceedings, the Court of Cassation ruled that claimants could bring claims before civil courts, and the legislator then granted the Paris Judicial Court exclusive jurisdiction.

In several cases, plaintiffs have also encountered a procedural barrier regarding the relationship between the formal notice against the company and the legal action before the Paris Judicial Court.

They ruled that any legal action based on non-compliance with the obligations imposed by the Law on the Duty of Vigilance must be preceded by a formal notice, or it will be inadmissible. As a result, the grievances stated in the formal notice must be the same as those stated in the summons. This means that the vigilance plan mentioned in both the formal notice and the summons must be the same, otherwise the legal action is deemed inadmissible (this was the case in the claims against Électricité de France and TotalEnergies). However, the Law on the Duty of Vigilance makes no explicit requirement that the formal notice and summons be related to the same vigilance plan. This requirement is problematic because the content of the vigilance plan is likely to change as between the time of the formal notice and the summons. If plaintiffs are not allowed to adapt their claims to the most recent vigilance plan, their complaints may become obsolete. To remedy this, the French judge suggested that the plaintiffs provide a new formal notice for each new vigilance plan. However, this imposes a significant procedural burden on plaintiffs.

In addition, the judge ruled that each grievance raised in the formal notice must be discussed between the parties before legal action is taken. The company must be formally warned prior to legal action, and ‘mere meetings between the parties cannot constitute a formal warning’. The judge was strict on this criterion, in particular because the Law on the Duty of Vigilance does not require a ‘discussion’ or ‘conciliation’ phase between the formal notice and the legal action.

Finally, plaintiffs must address the formal notice and summons to the exact author of the vigilance plan, even if it is unclear which company within a corporate group subject to the Law effectively drafted the plan (see the Vigie/Suez case). According to FIDH, one of the claimant NGOs in the Vigie/Suez case, ‘based on this interpretation, in the future it will be impossible for organisations to know which company to sue if the vigilance plan is not signed’.

Conclusion

The French experience demonstrates that in the absence of well-designed due diligence obligations and enforcement mechanisms, and clear procedural standards, affected rightsholders will face significant hurdles when attempting to compel companies to comply with their due diligence obligations or seeking to obtain remedies. This undermines the purpose of due diligence, which is to prevent and mitigate business-related human rights and environmental abuses, rendering any mandatory due diligence initiative a paper tiger.

Want to Learn More?:

• Read: France’s Ambitious Business and Human Rights Law to be Tested: the Yemen LNG case
• Read: Business and Human Rights: A Tale of Two Duties
• Read: Lessons from the French Vigilance Law for the EU’s Corporate Sustainability Due Diligence Directive
• Read: Giving Voice to the Vulnerable: How Advisory Opinions have the Potential to Advance Climate Justice through International Courts

Learn more about the EU’s corporate sustainability due diligence revolution
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