08 Dec 2020
Legislation and cases

Significant developments occurred in France this year in regard to business and human rights regulation.

Indeed, three years after its adoption, the French Minister of Economic and Financial Affairs published in January 2020 the first study on the implementation of the French Law n° 2017-399, 27 March 2017, related to the duty of vigilance for parent and instructing companies (Duty of Vigilance Law). As a reminder, according to this law, parent and instructing companies must identify and prevent severe impacts on human rights and fundamental freedoms, health, safety and on the environment resulting from their activities as well as those of their controlled companies, subcontractors and suppliers. In addition, companies are required to publish their vigilance plan and to report how they effectively implement it in their management report. The vigilance plan must feature five measures:

  1. a risk mapping intended for the identification, analysis and prioritization of the risks;
  2. processes for the regular assessment of the situation of subsidiaries, subcontractors or suppliers with whom there is an established commercial relationship as identified by the risk mapping;
  3. tailored actions to mitigate risks or prevent severe impacts;
  4. an alert mechanism on the existence or materialization of these risks, established in cooperation with trade unions and;
  5. a system monitoring implementation measures and evaluating their effectiveness.

In case of failure to comply with the law, any interested person may give formal notice to the company to adopt and publish a vigilance plan and may file an injunction before the competent court for this purpose. In addition, in the event of fault resulting from failure to comply with these provisions, the company may be held liable under tort law.

We observed meaningful case law developments regarding the implementation of this Duty of Vigilance Law and the first decision Law has been delivered earlier this year. The Nanterre Judicial Court (Tribunal judiciaire) declared itself incompetent in favor of the Commercial Court (Tribunal de commerce) and this ruling has been confirmed by the Versailles Court of Appeal later this year (December 10th, 2020 RG n°20/01692). If this decision does not appreciate the company’s effective implementation of the Duty of Vigilance Law, it still is decisive as it allows us to determine which court ultimately has jurisdiction to judge the quality and effectiveness of a vigilance plan.

Furthermore, the Duty of Vigilance Law continues to be actively leveraged by different stakeholders, such as NGOs, labor unions and local authorities. To date, seven formal notices have been addressed to companies urging them to comply with the Duty of Vigilance Law. Two of these formal notices were issued in 2020 : (i) Suez received a formal notice in July 2020 from several Chilean and French NGOs alleging that the company did not take the appropriate measures to prevent risks and failures resulting to violations to the right to live in a healthy environment in regard to water supply in Chile; and (ii) Casino received a formal notice to comply with the Duty of Vigilance Law in September 2020 in which several US, Brazilian and French NGOs urged the company to adopt a new vigilance plan to appropriately address the risks of deforestation generated by Brazilian and Colombian farms supplying the company with meat products.

In total, three of the seven formal notices raised legal challenges before the courts including two companies being taken to court this year alone. For instance, several foreign NGOs seized the Judicial Court in October 2020 against EDF (Electricité de France) in relation to the inadequacy of the company’s vigilance plan regarding the rights of indigenous populations to a free, prior and informed consent in connection with a wind farm construction project in Mexico.

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Business practices

The obligations imposed by the Duty of Vigilance Law have generally led to an improvement in human rights reporting by companies, that mostly strengthened their human rights policies. The published vigilance plans demonstrate a better understanding of the requirements of the Duty of Vigilance Law and companies are starting to develop specific indicators for their vigilance plans. However, three years after the adoption of the Duty of Vigilance Law, several NGOs point out companies’ failure in properly identifying and assessing their human rights risks in a specific risk mapping as well as implementing precise and operational measures. In addition, stakeholders’ involvement in the design of vigilance plans seems to still be lacking. At a time when the French Duty of Vigilance Law might inspire the future European legislation, voices are being raised to improve its effectiveness by broadening its scope of application or creating a public administration responsible for its effective implementation.

What do you predict for 2021?

We anticipate further clarity relating to the scope and the effective implementation of vigilance plans due to the numerous court decisions expected on the Duty of Vigilance Law, as legal safety is much expected by companies and their stakeholders. In addition, we also expect greater involvement from companies and investors due to the awaited evolutions of the European legal framework.

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Christian Dargham
+33 1 56 59 52 92

Solene Sfoggia
+33 1 56 59 52 89