FRANCE Trends and Developments Contributed by: Xavier Pernot, Pierre Linais and Ony Rajaona, Jeantet
Paris Judicial Court that the purpose of the for- mal notice procedure and the associated three- month time limit was to enable a preliminary phase of dialogue between the company and its stakeholders. Namely, it states that “even if, in practice, the formal notice may be used as a tool for dialogue prior to referring the matter to the courts, the law does not make it a prerequisite for the opening of negotiations between the company in question and its stakeholders” (Paris Court of Appeal, 18 June 2024, No 21/22319). Requirements for the formal notice and writ of summons The Paris Court of Appeal considered that it was not necessary for the claims in the formal notice and the writ of summons to be “exactly and precisely the same” if a sufficient link was established between the “risks, serious harm and obligations to be respected” respectively referred to in the formal notice and the writ of summons (Paris Court of Appeal, 18 June 2024, No 23/14348). Precisions on the vigilance plan targeted In addition, the Paris Court of Appeal specified that the formal notice and the summons could not be required to “target exactly the same due diligence plan in terms of dates” (ibid), thus showing more flexibility by taking into account that vigilance plans might evolve over time. In this respect, it is presumed that the elements of the vigilance plan will be assessed in the context of the debate on the merits and not at the admis - sibility stage. By asserting the contrary, the lower court rulings had offered an easy way out to companies. The Paris Court of Appeal rulings should therefore be fully endorsed, since companies will no longer
be able to modify their plans at the margins to avoid litigation proceedings. Identification of the parties involved in the proceedings In the EDF and Total Energie, cases, the ques- tion also arose as to the identities of the formal notices’ signatories and the parties to the writ of summons. The Paris Court of Appeal specified that the law does not limit the right to bring such action to the signatories of the formal notice. Therefore, bringing this action is open to “any person who can justify having an interest in bringing an action” ( intérêt à agir ) (Court of Appeal, 18 June 2024, No 21/22319 and Court of Appeal, 18 June 2024, No 23/14348). On the possibility to combine legal grounds In the Total Energie, case, Total was sued on a dual legal basis under the duty of vigilance and Article 1252 of the French Civil Code regarding ecological damages. In fact, Article 1252 pro- vides for the possibility of requesting reasonable measures to prevent or stop ecological damage (Court of Appeal, 18 June 2024, No 23/14348). The Paris Court of Appeal had to rule on the possibility of invoking another legal ground in addition to the duty of vigilance. While the Paris Judicial Court’s ruling on this matter stated that the requests based on both legal bases were ultimately the same (ie, to modify Total Energies’ climate strategy), the Court of Appeal overturned this decision. The Paris Court of Appeal stated that, although the measures requested were similar, the legal bases were distinct and autonomous, and dif- ferent in their objectives. It further added that the 2017 Law did not create a special liability
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