In February 2022, several NGOs and local authorities took TotalEnergies to court to force it to adopt a new vigilance plan which would better identify the risks resulting from its activities, such as contribution to overall greenhouse gas emissions. They also sought the plan to include new measures such as a drastic reduction in its gas and oil production and the immediate cessation of exploration and exploitation of new hydrocarbon fields.
These requests are reminiscent of those made to BNP Paribas, which led to proceedings still pending before the same court (see our blog post).
Duty of vigilance
TotalEnergies raised the following preliminary objections before the pre-trial judge (“juge de la mise en état”):
- Disappearance of the subject-matter of the dispute due to the adoption of revised vigilance plans – TotalEnergies argued that the proceedings had become void in substance since four new vigilance plans had been adopted by the company since the one published in 2019 (which was the subject of the claim). The Court however dismissed this objection on the basis that the disappearance of the subject-matter of the dispute does not entail discontinuance of the proceedings;
- Inadmissibility of the claims based on the formal notice – The French duty of vigilance regime requires the plaintiff to send a formal notice to the defendant three months before initiating the proceedings. TotalEnergies argued that the notice sent to it (i) was not issued by all the plaintiffs in the present proceedings and (ii) was too succinct and did not set out all of the demands made in the writ of summons.
The Judge ruled that the legislator's intention was to impose a discussion between the parties prior to the filing of any legal proceedings. On this basis, it stated that:
- the parties to the proceedings must be the authors of the formal notice. Given that one of the NGOs and one of the local authorities were not the authors of the formal notice to TotalEnergies, the Judge decided that these two parties were inadmissible in their action;
- the claims in the formal notice must be the same as those raised in the writ of summons. The Judge considered that meetings between the parties – as had taken place in this case – are not sufficient and that a “solemn warning” is necessary.
The Judge also considered that the formal notice was imprecise – in particular, it requested the implementation of measures “without prejudice to other measures that may be identified”.
The Judge concluded that the notice sent by the plaintiffs was not sufficient and that the claims should therefore be inadmissible.
This is in line with the conclusions previously reached by the Paris Judicial Court in its first ruling on the duty of vigilance in relation to TotalEnergies’ oil project in Uganda and Tanzania (see our blog post).
Formal notice is thus proving to be the major practical obstacle for NGOs (and, in some cases, local authorities) in actions based on the duty of vigilance. Whilst companies can amend their vigilance plans after the formal notice has been served, plaintiffs will not be able to amend their claims to reflect the changes made to the vigilance plan.
Liability for environmental damage
The French Civil Code also provides for a liability regime for environmental damage (Articles 1246 et seq. of the French Civil Code). The action is open to any person with capacity and an interest in bringing the action, including local authorities “whose territory is concerned” and certain NGOs.
In this case, the plaintiffs raised their claims also based on this regime. TotalEnergies argued that these claims were the same as those they made on the basis of the duty of vigilance regime. The Judge upheld TotalEnergies’ arguments, noting that the claim based on the regime for environmental damage had “clearly been made with a view to circumventing the formal notice requirement” required by the duty of vigilance regime. The claim was therefore declared inadmissible.
In addition, and rather interestingly, the Judge pointed out that the liability regime for environmental damage is open to local authorities whose territory is affected. However, the environmental damage claimed in this case related not only to their territory but to the whole world. The Court noted that allowing these local authorities to bring their action “would mean that any local authority in the world could take a company to court on the grounds that its activity contributes to global warming”, which would make litigation on this ground “impossible to control”. On that basis, the Court concluded that only local authorities claiming specific damage affecting their territory, and only that territory, should be considered admissible. In practice, it could prove particularly difficult for local authorities to demonstrate, in the context of actions relating to climate change, how their territory is specifically and exclusively affected, since climate change is generally considered to have global causes and global effects.
Voluntary interventions by other parties
The cities of New York, Paris and Poitiers, as well as Amnesty International France, had voluntarily joined the proceedings. The Judge declared these interventions inadmissible on the following grounds:
- the City of New York’s capacity to act before a foreign court has not been established;
- the action against TotalEnergies did not fall within the scope of the activity of the City of Paris, which is limited to Paris territory;
- the actions of the City of Poitiers and Amnesty International France were "ancillary" to the action initiated by the initial plaintiffs, and that as the latter was inadmissible, the voluntary intervention should also be deemed inadmissible.
The Court declared each of the NGOs and local authorities inadmissible in their action and ordered them to pay TotalEnergies 100 euros each in legal costs. As the award of legal costs is purely discretionary under French law, the Judge's reasoning in this respect will remain unknown, but the amount seems sufficiently low not to discourage future claimants from bringing new actions based on the duty of vigilance.
Although the French law on the duty of vigilance came into force in 2017, the conditions of application and its interpretation remain uncertain. As the implementing decree provided for in the 2017 law has not been published yet, French courts are trying to fill these gaps. This decision further clarifies the procedural rules for the application of this regime. The first judgment on the merits of the duty of vigilance is expected on 5 December 2023 and should be the first to provide insight on the exact contents and requirements of the French duty of vigilance.
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