The French devoir de vigilance law is also known as the ‘Rana Plaza law’ owing to its impetus and political will arising from the Rana Plaza disaster. This was the first adopted law on human rights and environmental due diligence with a general scope. The proposal for the law states that the motivation for the law is to make transnational corporations responsible for the tragedies they cause. It goes on to state that:

On 24 April 2013, a building housing several textile factories collapsed in Bangladesh: 1,138 people were killed. Thousands more find themselves disabled for life and unable to work again. In the rubble, labels were found of major European and French clothing brands for which these Bangladeshi subcontractors worked. (…)

Beyond this tragic event, there is no shortage of examples – recent or not – to make us sound the alarm. (…)

The Rana Plaza example keeps coming back in the legislative debate throughout its discussion for adoption. Given their prominence in the marketing of the law, one might expect that the law would also make the Rana Plaza workers in transnational supply chains play a central role as stakeholders in business decisions of the French corporations concerned. I will demonstrate in this blog post that this is not so, and while there is some hope, the law does seem at first view to entrench their marginalisation.

The legislative text

The only mention of stakeholders in the law is in the corporate obligation of drawing up of the vigilance plan. The text of the law mentions that:

The [vigilance] plan is meant to be drawn up in conjunction with the stakeholders of the company, where appropriate as part of multi-stakeholder initiatives within sectors or at territorial level.

The Vigilance Plans Reference Guidance of Sherpa, an NGO which has been a leading advocate of the law, states that ‘stakeholders engagement, although not mandatory, is nevertheless necessary and even inevitable.’ Sherpa refers to the Constitutional Council’s position that ‘the [stakeholder] provision had an “incentive” effect.’ (citing Cons. Court, Decision No. 2017-750 DC of 23 March 2017, cons. 22). In other words, even though stakeholder engagement may not be strictly mandatory, Sherpa underlines that it is hard to imagine how an effective vigilance plan could be drawn out without having involved affected stakeholders.

The question is, would an otherwise compliant vigilance plan fail on the grounds that no stakeholder consultation had taken place in drawing it up? It seems unlikely to be the case based on the text of the law, but what does the interpretation of the French courts say?

Judicial interpretation

The judicial interpretation of the law has changed from case to case. First came the interpretation provided by the Paris Tribunal in the Total case from 2023 (para. 18), which stated that:

[R]especting the plurality of stakeholder points of view and involving them in the development of the plan (…) is likely to ensure a better definition of the perimeter of vigilance and, on the other hand, to considerably reduce the risk of litigation calling into question the relevance of the plan (…).

Stakeholder consultation, like we saw in the legislative text, is not viewed as strictly mandatory but as increasing the likelihood of a company adopting a vigilance plan that is effective. Consequently, it reduces the risk of litigation arising from the vigilance plan’s (in)adequacy.

Interesting to note is that the subsequent 2023 La Poste judgment of the Paris Tribunal clarifies that the fact that stakeholders did not participate in the formation process of the vigilance plan or did not object to specific elements of the plan, does not diminish their right to send a notice demanding the company comply with the law, even if arising from those specific aspects of the plan that remained unchallenged during the risk mapping process (p. 19). This notice process is the one provided in the French law whereby a party can send a notice of non-compliance to a company pointing out how their vigilance plan is inadequate under the law. This gives the company a three-month period to rectify their vigilance plan before a lawsuit can be filed in French courts by the party sending the notice.

What none of these judgments say is that any vigilance plan would be non-compliant with the devoir de vigilance law because there is absence of stakeholder engagement. The Rana Plaza victims are quite marginal to the Rana Plaza law.

The La Poste judgment, to be fair, does clarify that stakeholders are to be consulted in the risk mapping process stating that the ‘role of stakeholders is essential in contributing to the development of relevant measures.’ (p. 19) A careful reading of the La Poste judgment however tempers expectations from the judgment in that it declared La Poste’s vigilance plan invalid for inadequate risk mapping, not for failing to meaningfully engage with stakeholders. Granted, the former is a consequence of the latter, but as the text and previous interpretation of the French law suggests – good risk mapping carried out through other means, e.g., by expert consultation, may result in a compliant vigilance plan without stakeholder engagement.

So what about the Rana Plaza workers?

For the French law to make a difference, the marginal role of stakeholders is a hindrance. This hindrance may or may not be overcome by further judicial interpretation or the advocacy and work done by NGOs to make sure victims can fully utilise the law or that companies comply with the spirit of the law. In any case, the vigilance plan process is a business-driven process – the business defines who the stakeholders are for their businesses, the business defines how engagement will take place, and the business defines and formulates the risk as per their own expertise, with input from stakeholders. However, it would be incorrect to state that this agenda-setting power is absolute for the businesses since there is social scrutiny from NGOs and, upon challenge, judicial scrutiny from courts. Even in that context, it would still be incorrect to state that this process is one where businesses and stakeholders participate on an equal footing. In contrast to a law that may procedurally guarantee stakeholder engagement, NGOs may have to cherry-pick impactful cases where resistance is worth their limited resources. This lacuna turns stakeholder engagement into an ex-post exercise rather than the ex-ante safeguard it was meant to be.

What is amply clear though, from the Total case and its appeal judgment, is that the company must be given the opportunity to consult with the aggrieved stakeholders for the stakeholders to be allowed to file any action under the duty of vigilance law (p. 15, appeals judgment, p. 19 Paris judicial court judgment). In some odd way, it is the company which seems to have a right to consultation enforceable against the stakeholders (through this mandatory notice provision), while the stakeholders do not have any right to consultation enforceable against the company. This design element of the law is the crucial aspect that needs to be highlighted to visualise how marginalisation of the intended beneficiaries takes place through the law rather than their emancipation. This position is contrary to the concept of human rights due diligence outlined in the UN Guiding Principles, where the intention was to treat the ‘outsiders’ of business as having similar weight as its executive board.

However, given that La Poste’s vigilance plan was, ultimately, deemed to be non-compliant with the law upon a challenge mounted by NGOs, there is more hope than it may seem for the law to be guided towards strengthening stakeholder engagement rather than reinforcing their marginalisation. How much of despair on the marginalisation of the Rana Plaza people turns into hope remains to be seen in future interventions of the French courts since La Poste is now an exception in the seven years of the implementation of the law. Interpretive tensions between business interests and civil society interests pull the law in various directions, moving it between apology and utopia, as we saw in the shift from Total to La Poste. Even though the law does entrench this marginalisation, recent developments are slowly chipping away at this entrenchment.