A Parisian interim judge dismissed a claim brought by several non-governmental organizations against one of the first companies—Total Energies—to be sued for alleged violation of the French duty of vigilance law.

BACKGROUND

The recent French law on the duty of vigilance of parent companies and ordering companies (the Law) [1] imposes to large companies to effectively implement a plan of vigilance, seeking to identify risks and prevent serious damages to human rights, fundamental freedoms, people’s health and security, as well as to the environment, resulting from companies’ activities and their subsidiaries, subcontractors, and suppliers.

On June 24, 2019, two French non-governmental organizations (NGOs), [2] together with four Ugandan NGOs [3] gave formal notice to the oil company Total Energies for “failing to comply with its legal obligations to prevent human rights abuses and environmental damage in the context of its Tilenga oil mega-project in Uganda.” [4] The NGOs claimed that Total Energies’ oil project involved the expropriation of thousands of people who lost their homes and farmland in exchange for inadequate compensation. Further, the NGOs claimed the project would pose significant biodiversity and climate risks.

The six NGOs brought their claim to the interim judge on October 23, 2019, hoping to stop the project and aiming at ensuring a “fair acknowledgment of the real content of the new duty of vigilance that this law imposes on multinationals.” [5] According to the NGOs, the plan of vigilance should mention specific indicators assessing the effectiveness of measures to mitigate or prevent serious violations of human rights and fundamental rights. [6] A long battle on jurisdiction issues followed (which went up to the French supreme court).

The decision on the substance of the matter was highly anticipated, as Total Energies was one of the first companies to be sued for violating the Law. On February 28, 2023, the Parisian interim judge dismissed the claim brought by the NGOs for procedural reasons.

REASONS FOR DISMISSAL

First, the judge considered that the claim as filed in 2019 and the claim as it existed at the day of the hearing were substantially different, so a new mandatory formal notice should have been sent to Total Energies by the NGOs.

More precisely, the 2019 summons addressed Total Energies’ plan of vigilance for the year 2018. However, following that formal notice, Total Energies took numerous measures for the years 2019, 2020, and 2021, so that at the date of the hearing, the claim no longer focused on the 2018 plan of vigilance, but only on the plan dated 2021.

The judge insisted on the importance of the formal notice for legal security reasons and as a mandatory first step before any court action.

The purpose of the formal notice is to create a mandatory phase of dialogue during which the company can reply to the criticisms made on its plan of vigilance and make the necessary changes.

Second, the NGOs’ request did not fall under the jurisdiction of the interim judge, but under the jurisdiction of the civil court ruling on the merits.

Indeed, if it is within the powers of the interim judge to issue an injunction when the company had not drawn up a plan of vigilance, it does not have the jurisdiction to assess the reasonableness of the measures adopted by the plan when its assessment requires an in-depth examination of the elements of the case. Such assessment falls under the jurisdiction of the judge ruling on the merits.

However, the interim judge’s decision provides interesting insights on the duty of vigilance, as the judge:

• considered that the Law assigns “monumental goals” [7] to companies in the human rights and environmental fields;
• underlined the imprecision of the Law, which does not refer to any guiding principle or international standard, but only contains general measures, recalling that the French government did not publish any decree that could provide details on the content of the Law. The tribunal was largely inspired by the reflections made by professors invited at the hearing as amici curiae; and
• insisted on the fact that the plan of vigilance must be established in a collaborative process, concretized by the mandatory formal notice, which aims at initiating a discussion between companies and the stakeholders to comply with the objectives of the Law.

WHAT COMES NEXT?

After the ruling, Total Energies stated that it was “consulting with affected communities to determine the appropriate next steps” [8] and that a detailed plan of vigilance in force was published.

According to the reactions issued after the decision, the plaintiffs are reserving their rights on a possible appeal of this ruling. [9]

In the meantime, several of the French NGOs announced on February 23, 2023 that they brought a claim against BNP Paribas before the

French civil court for not having complied with its duty of vigilance, especially regarding the environment, within the three-month timeframe from the formal notice delivered on October 22, 2022. In this case, the Paris civil court will rule on the merits, [10] making the BNP Paribas’ case the first climate-related litigation against a bank.

Law clerk Louis Bavouzet contributed to this LawFlash.

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