Six years ago, on 27 March 2017, the French legislator enacted the Duty of Vigilance Law (the "Law") creating an obligation for large corporates to define and implement a “plan of vigilance”, seeking to identify and prevent serious violations of humans rights and fundamental freedoms, the health and safety of individual and environments resulting from the corporates’ activities, as well as of those of its subcontractors and suppliers. The measures to be taken under the Law include in particular risk mapping and appropriate actions to mitigate risks or prevent serious harm.
TotalEnergies was among the first corporates to be sued by NGOs on the basis of the Law. After serving a mandatory formal notice (mise en demeure), and then a judicial writ of summons dated 2019, six NGOs requested the Paris First Instance Civil Court (the “Paris Court”) to order TotalEnergies to apply its duty of care under the Law and suspend works in relation to oil projects in Uganda and Tanzania due to their alleged negative impacts on the environment and local populations. The claims were launched in the context of interim proceedings (référé), which is supposed to be a fast-track procedure under French law (as opposed to proceedings on the merits).
The long-awaited decisions in this matter were eventually rendered on 28 February 2023 (the “Decision” - see here in French), after months of procedural debates questioning in particular the jurisdiction of the Paris Civil Court (as opposed to the Paris Commercial Court) and following an oral hearing last fall where various Law Professors were invited as amici curiae – quite unprecedently – by the Paris Court to provide insights on the scope of the Duty of Vigilance.
The claims were dismissed for procedural reasons. In particular, the Paris Court noted that:
- The requests made in the formal mandatory notice sent to TotalEnergies in June 2019 prior to the service of the judicial claim on the merits are substantially different to the requests eventually brought to the Paris Court on the day of the hearing.
In the formal mandatory notice, the requests were initially brought against the TotalEnergies plan of vigilance published in 2018, while the criticisms made by the NGOs on the date of the hearing concerned TotalEnergies’ plan of vigilance of 2021.
- The requests also fall within the jurisdiction of the Paris Court ruling on the merits, and not the court ruling in the context of interim proceedings.
According to the Paris Court, the court ruling in interim proceedings has jurisdiction only: (i) when the company has not drafted a vigilance plan; (ii) when the company has drafted a plan which is so light that it amounts to an inexistant plan; or (iii) when there is an obvious illegality.
Yet, in this case, considering in particular that (i) TotalEnergies has a plan of vigilance, (ii) many exhibits were filed with respect to specific operations of a vast complexity and (iii) that there is currently no standard on what amounts to a vigilant corporate, the NGOs’ claims fall within the jurisdiction of the court ruling on the merits. The court seized in the interim proceedings does not have the power to review a case on the merits which requires a thorough examination of the case. The court considers that the claims require a thorough examination due to the three points above.
In reaching these conclusions, the Paris Court also provided interesting insights on the Law itself, noting that:
- Lack of preciseness of the law: No Decree has been published by the French government to supplement the legal obligations under the Law, as initially provided by the Law. The Duty of Vigilance Law provides for general obligations, without precise limitations and reference to guiding principles or international norms. There is no independent control body or key performance indicators provided for either by the Law.
- “Monumental goals”: The Duty of Vigilance Law provides for “monumental goals” for corporates – a term inspired by the works of Law Professor Marie-Anne Frison Roche who had been invited as amici curiae to the hearing (Pr. Marie-Anne Frison-Roche, Les buts monumentaux de la Compliance, Ed. Dalloz, Sept. 2022).
- Collaborative process: The Duty of Vigilance Law requires the plan of vigilance to be developed through a collaborative process with the company’s stakeholders, to ensure its efficiency. And the formal notice must be “sufficiently firm and precise”.
The Decision can be appealed. According to various press reports (see for example the FT coverage), the claimants are “consulting with affected communities to determine the appropriate next steps”.
The decisions of the Paris Court in the TotalEnergies case were particularly awaited in the context of an increasing number of claims brought on the basis of the Duty of Vigilance Law and the discussions around the draft EU Directive on Corporate Sustainability Due Diligence (“CSDDD”) (see our previous blog post). The French Duty of Vigilance Law, as well as the German Supply Chain Due Diligence Act (see our client briefing), are precursors to the proposed EU Directive.