In 2017, France became the first European Union Member State (MS) to adopt a duty of vigilance law (loi relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre) (referred to as ‘LDV’ or ‘the Law’) to address corporate human rights violations, with an extraterritorial effect. The Law aims to create legally binding obligations for French companies that fall under its scope. As EU Members States start to transpose the Corporate Sustainability Due Diligence Directive (CSDDD) which also aims to impose similar obligations on companies, an examination of the experience with the LDV is timely.

When the French Law was initially adopted, it was welcomed with much hope and excitement. However, the judicial enforcement of the Law has faced some procedural barriers, perhaps due to the Law’s shortness and imprecision resulting in a lot of judicial discretion. To this day, there has been only one case (the La Poste case) where the (first instance) court has decided on the merits. Against this brief backdrop, this blog post seeks to explore the procedural barriers faced by plaintiffs when launching a case against a French company based on the LDV.

The LDV provides two different routes for cases of noncompliance with the Law. First, the parties with a legitimate interest can: (i) send a formal notice, (ii) if the company does not comply within three months, the interested parties can request from a civil judge an injunctive relief with a potential periodic payment (article L.225-102-4 French Commercial Code). If noncompliance has resulted in damage that could have been prevented by due diligence, then a party with a legitimate interest can initiate legal proceedings for the liability of the company (article L.225-102-5 French Commercial Code). These liability claims are decided under articles 1240 and 1241 of Code Civil Français which are the provisions for ‘ordinary’ civil liability.

The LDV, so far, has resulted in at least 16 formal notices, some of which have been followed by injunction and liability claims (see for a list of the injunction and civil liability claims based on the LDV). However, the plaintiffs have faced several procedural impediments when bringing their cases before the courts. These procedural hurdles have prevented most cases from moving to the merits phase. In this regard, the four most prominent procedural barriers plaintiffs have faced are (i) the issue of the competent court, (ii) the formal notice requirement, (iii) the requirement of having the same demands in the formal notice and the writ of summons and, (iv) addressing the exact author of the vigilance plan. Each barrier is explained in turn below.

Competent courts

Initially, the question of whether the civil or commercial courts were competent to hear the LDV cases was hotly disputed (See Ilcheva). The fact that the LDV was inserted into the French Commercial Code created confusion as to the competent court and companies argued that commercial courts were competent, with the hope that they would prove more favourable to businesses.

Nevertheless, this issue has been settled now against the competence of commercial courts. The Paris Civil Court (Tribunal Judiciaire de Paris) has assumed exclusive jurisdiction over LDV cases. Furthermore, the Paris Court of Appeal (Cour d’Appel de Paris) has created a special chamber for disputes linked to the LDV.

Civil injunction claims must be preceded by a formal notice

The plain reading of article L.225-102-4 French Commercial Code does not make it clear whether the formal notice is a prerequisite for launching a civil injunction claim against a company but this issue has now been clarified. For the civil injunction claim to be admissible, it must be preceded by a formal notice. The first instance judge in the Total Climate Change and Total Uganda cases stated that the legislator’s true intention (Total Climate Change case, page 20) with the formal notice was to create a space for dialogue/discussion between the company and its stakeholders before initiating a case (Total Climate Change case, page 17; Total Uganda case, page 20).

This approach was approved in the recent Court of Appeals decisions of the Total Climate Change and EDF cases. The Court agreed that the formal notice was mandatory to bring an injunction claim before the courts (Total Climate Change Appeals Decision, page 10). However, while agreeing that the formal notice was a prerequisite, the first-instance court and the appeals court had different interpretations regarding the purpose of the formal notice.

The demands in the formal notice and the writ of summons must be the same

In several cases, the first instance court dismissed the claims on the basis that the demands in the formal notices were not the same as the allegations in the summons (Total Climate Change, Total Uganda, EDF & Suez). However, the text of the LDV does not require that the demands in the formal notice and the summons must be identical.

The first-instance judge in the Total Climate Change (page 17) and Total Uganda cases (pages 19-20) decided that the demands in the formal notice and the demands in the summons had to be identical, in order to create a space of discussion between the parties before bringing the case to the court. By importing the ‘encouragement’ in the Law for companies to draft their vigilance plans in collaboration with their stakeholders into the formal notice requirement, the judge interpreted the formal notice as a manifestation of the legislator’s true intention to create a dialogue between the company and its stakeholders (Total Uganda, page 19).

Similarly, in the EDF Mexico and Suez cases (page 7), the judge decided that, if the defendant published a new vigilance plan in the course of the proceedings, this new plan had to be subjected to a new formal notice. According to the judge, if the new plan were not subjected to a new formal notice, then, the summons would be issued without any prior discussion which would go against the legislator’s true intention to ensure that vigilance plans are developed in a spirit of consultation.

This approach showed a disconnect between the text of the Law and how the judges interpreted the intention of the legislators. It was considered a problematic interpretation of the Law by both non-governmental organisations (see Sherpa) and academics (see Ilcheva). These initial decisions reduced the formal notice to a space of dialogue, pursuing an ‘objective of legal certainty and the development of amicable resolution alternatives’ (see Ilcheva). Therefore, interpreting this obligation widely created a significant barrier to access to justice for the plaintiffs.

Fortunately, the recent judgements in June 2024 did not follow this line of reasoning. The Court of Appeals ruling in the Total Climate Change case (page 16) clarified that the formal notice and the ensuing 3-month period given to the company by the Law was meant for the company to improve its vigilance plan. It is a company’s last chance to remedy its vigilance plan before the case is brought to court.

Building on this, the Court stated that it was only logical that the company changes/updates its vigilance plan throughout the proceedings, especially after receiving the formal notice (Total Climate Change Court of Appeals case, page 16). Thus, the addition of new risk categories and relevant obligations to the summons can only affect the admissibility of those; it is up to the Court to decide whether the categories of risk, harm, and obligations in the formal notice and the summons are sufficiently linked to be admissible (Total Climate Change Court of Appeals case, page 16). It is the Court that is going to decide whether the changes to the previous vigilance plan comply with its obligations under the LDV (EDF Court of Appeals case, page 10). Consequently, publishing a new vigilance plan does not make the injunctive claim void.

The plaintiffs must address the exact author of the vigilance plan

The plaintiffs are also required to address the formal notice and the summons to the exact author of the vigilance plan. In the Suez case, the first instance court considered the claims inadmissible because the plaintiffs did not send the formal notice to the correct author of the vigilance plan (Suez case, pages 5-6). This decision was recently confirmed by the Court of Appeals of Paris. In the Court of Appeals decision, the Court decided that the mother company was the debtor of the vigilance obligation and was the company that had prepared and implemented the vigilance plan (Suez Court of Appeals case, pages 95-97). Thus, the subsidiary did not have standing to be sued (la qualité á defendre) in the case (see the blog post in this series written by Pasmantier, Neglia & Chatelain for more details).

Although it sounds fair that the notice and the summons should address the company that has prepared the plan, this requirement also places a heavy burden on the plaintiffs, considering it may not be easy to identify precisely which company in the corporate group has authored the plan. As noted by the representative of the complainant in the Suez case, due to this interpretation of the law, ‘… in the future it will be impossible for organizations to know which company to sue if the vigilance plan is not signed.’

Overall, LDV has been an inspirational law in Europe and beyond, a model for the introduction of mandatory human rights and environmental due diligence obligations for companies. The initial claims submitted have faced different procedural objections which have heavily delayed decisions on the merits. After 7 years of implementation of the Law, it has been now settled by the Court of Appeals of Paris that civil courts are competent to hear the cases, the formal notice is an admissibility criterion that serves the purpose of officially warning the company of its legal duties and the claims must be directed at the exact author of the vigilance plans. Overall, the experience with the LDV is crucial for the transposition of the CSDDD as it constitutes an important (counter-)example for the other MS in the drafting processes of their laws transposing the Directive. France will also have the opportunity to address some of the shortcomings of the LDV highlighted in this blog via its transposition of the CSDDD.