Overview of 2024: Environmental law & duty of vigilance

Over the past twelve months, the growing interest in environmental impacts, which transcends borders and reflects an increasing awareness of the need to protect our environment, has been demonstrated by the enactment of significant new obligations for companies through European legislation and the issuance of instructive decisions in the fields of environmental law and the corporate due diligence duty (hereinafter “duty of vigilance”).

Creation of a chamber dedicated to disputes regarding the duty of vigilance and environmental responsibility

The importance given to these issues was emphasized by the creation, in January 2024, within the economic division of the Paris Court of Appeal, of a chamber dedicated to disputes regarding the duty of vigilance and environmental responsibility. This chamber issued its first decisions regarding the duty of vigilance on 18 June 2024.

The adoption by the Government of an implementation directive transposing the Corporate Sustainability Reporting Directive

Regarding corporate obligations, at the end of 2023, France made a major step forward in sustainability with the adoption by the Government on 6 December 2023, of an implementation directive transposing the Corporate Sustainability Reporting Directive (hereinafter “CSRD”). This directive aims to replace the current “Déclaration de Performance Extra-Financière” with one that mandates the publication of sustainability information while simplifying and clarifying other corporate social responsibility (CSR) reporting requirements. French companies are now subject to new reporting obligations on sustainability issues, including environmental, social, and corporate governance concerns. Furthermore, a new certification regime has been established to ensure the compliance and quality of the reports produced, supervised by the High Authority for Audit (Haute Autorité de l’audit). This measure enhances transparency and the consideration of sustainability issues in corporate practices, marking a significant advance in the field.

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Case law has in the recent months further defined the application of these texts

Thus, on 8 December 2023, the Paris Court of Appeal of Paris confirmed the standing (intérêt à agir) of the NGO Notre Affaire à Tous against TotalEnergies, thereby affirming the admissibility of its lawsuit for deceptive commercial practices. This action was initiated in March 2022 with Greenpeace France and Friends of the Earth France, aiming to obtain a conviction of TotalEnergies after the company claimed to be committed to fighting climate change while continuing its fossil fuel activities. This decision confirms the 16 May 2023 first-instance decision, which had already established the NGO’s standing to sue companies for deceptive commercial practices. On appeal from TotalEnergies, the Court confirmed, that the NGO has standing to act in defense of consumers affected by the environmental protection and the defense of nature, as provided for in its statutes.

In the same vein, the dedicated chamber for disputes regarding duty of vigilance and environmental responsibility at the Paris Court of Appeal confirmed on 18 June 2024, the standing of several NGOs to act against TotalEnergies. This was justified by the NGOs’ statutes allowing them to litigate for environmental protection, thus substantiating their legal standing. On the contrary, the Court deemed territorial authorities—specifically the Centre Val de Loire region and the Est Ensemble Grand Paris Territorial Public Establishment—unable to bring such action, due to their failure to demonstrate specific, localized impacts of climate change affecting a particular territory, directly related to the entities’ objectives. In this ruling, the Court of Appeal of Paris also confirmed that the formal notice provided for in Article L225-102-4 II of the Commercial Code constitutes a mandatory prerequisite before bringing a case to court, thus a condition of admissibility of the action. However, it clarified in a ruling on the same day, involving EDF and several individuals as well as the European Center for Constitutional and Human Rights, that individuals who did not sign the formal notice are still able to act.

“Even though mediation may not be initially apparent in these disputes, it can be ordered.”

This formal notice serves a purpose in case of mediation as a basis for discussion between the parties. Indeed, even though mediation may not be initially apparent in these disputes, it can be ordered. This was illustrated by the decision of the Paris Judicial Court in September 2023, which directed Danone, ClientEarth, Surfrider Foundation Europe, and Zero Waste France to attempt to find a solution through mediation. This decision followed the legal action initiated by the NGOs against Danone on 9 January 2023, for failing in its duty of vigilance by not developing an effective new plan including a clear “deplastification” strategy, following a comprehensive assessment of its plastic usage.

For more information on the issue: Danone brought to court for non-compliance with its duty of vigilance law: a mediation procedure is now opened

A landmark decision regarding the duty of vigilance

In addition to these procedural details, a landmark substantive decision regarding the duty of vigilance was rendered on 5 December 2023, by the Paris Judicial Court, following a three-year procedure, in the case between the union SUD PTT vs. La Poste. This decision clarified the obligations of vigilance plans as outlined in the Commercial Code. These obligations apply not only to parent companies but also to their subsidiaries, subcontractors, and suppliers. In this instance, the Court ordered La Poste to strengthen its vigilance plan by including a precise risk mapping, mechanisms for subcontractor assessment, and a whistleblowing system in cooperation with representative trade unions. However, despite these clarifications, the Court’s decision not to impose penalties for non-compliance with its injunctions has drawn criticism regarding its effectiveness.

For more information on the issue: La Poste case: first decision on the substance of the duty of diligence

The incorporation of the Directive on environmental protection through criminal law into French law

Finally, in addition to the signing and validation of seven “environmental CJIP” (French DPAs) under Article 41-1-3 of the same code, the criminalization of environmental offenses is expected to gain further momentum in the coming months with the incorporation of the Directive on environmental protection through criminal law into French law, dated 13 March 2024.