FRANCE Trends and Developments Contributed by: Xavier Pernot, Pierre Linais and Ony Rajaona, Jeantet
Litigation in France: an Introduction France was a pioneer in its implementation of a duty of vigilance, with the French Corporate Duty of Vigilance Law (Law No 2017-399 of 27 March 2017) (“2017 Law”). The enactment of the 2017 Law was a leap forward, but many questions remained as to its concrete implementation. A number of proceedings involving companies in a wide range of sectors have been initiated by different actors for non-compliance with the duty of vigilance. In 2023, the Paris Judicial Court tried to clarify the concepts and requirements mentioned in the 2017 Law in a few procedural decisions. On 18 June 2024, the Paris Court of Appeal brought more clarity on the concrete implemen- tation of the 2017 Law in three decisions (see Key takeaways of the 2024 Court of Appeal rul- ings). If those decisions are undoubtedly the first of many to come, the Court of Appeal’s clarity has been long-awaited, since the duty of vigi- lance has a range of socio-economic and envi- ronmental implications beyond the simple legal aspect. In parallel, the duty of vigilance has finally entered its prime at the European level with the publication of the Corporate Sustainability Due Diligence Directive (EU) 2024/1760 (CSDDD) on 5 July 2024. Long-awaited, the CSDDD is most welcome as it will enable a harmonisation of the rules to which companies will be subject regard- ing the duty of vigilance across Europe. Key features of the duty of vigilance Before diving into the mechanisms and rulings based on the duty of vigilance, it is essential to remember the purpose behind the legislative creation of the duty of vigilance.
The 2017 Law provides that large companies are bound by a duty of vigilance regarding any infringements that their activities and those of their subsidiaries, subcontractors or suppliers may cause to the human rights, fundamental freedoms, health and safety of individuals or the environment, and are required to set up a due diligence plan designed to identify such risks and prevent serious violations. The law seeks to require companies to adopt tools to prevent risks arising from their own activities or from those of the companies in their supply chain. As an example of the growing importance of the duty of vigilance on the French legal scene, in January 2024 the Paris Court of Appeal created a chamber specifically dedicated to so-called “emerging litigation cases” including duty of vigilance cases, corporate sustainability report- ing, environmental liability, etc. Similarly, in July 2024 the Paris Judicial Court created a specific chamber to exclusively handle all litigation cases based on the provision of the 2017 Law as well as those related to social, economic and envi- ronmental matters. Duty of vigilance cases before the Paris Court of Appeal in 2024 In 2023, several rulings were rendered by the Paris Judicial Court on a procedural aspect, adopting a strict procedural approach to favour dialogue between stakeholders and companies. On 18 June 2024, the Paris Court of Appeal’s new specialised chamber for emerging litiga- tion handed down its first three rulings in cases based on the duty of vigilance, involving EDF, Total Energie, and Vigie, group (formerly Suez). In all three cases, the actions initiated had been declared inadmissible by the Paris Judi- cial Court; the Paris Court of Appeal had to rule again on the inadmissibility rulings rendered. In
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