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25 Mar 2021

Lucie Chatelain, Advocacy and Litigation Officer at Sherpa

First court decision in the climate litigation against Total: a promising interpretation of the French Duty of Vigilance Law

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In an order issued on 11 February 2021 in the climate litigation against Total, the Nanterre civil court dismissed the jurisdictional objection raised by the oil company, which requested that the dispute be brought before a commercial court.

Although the judge did not rule on the merits of the case, this decision could be decisive for the interpretation and application of the French Duty of Vigilance Law of 27 March 2017 in current and future litigation cases. On the occasion of the 4th anniversary of this law, we look back at the content of this order and its consequences for future developments.

A first victory for civil society

The first two legal proceedings based on the French Duty of Vigilance Law have been brought against Total.

The first one, filed in summary proceedings by French and Ugandan organisations with respect to Total's oil projects in Uganda, resulted in a decision of lack of jurisdiction in January 2020. The judges approved the reasoning developed by Total and held that the obligation to draw up and implement a vigilance plan had a direct link with the management of a company and that it was therefore a dispute "relating to commercial companies" within the meaning of the French Commercial Code, which governs the jurisdiction of commercial courts. This decision, which caused concern among civil society, was confirmed by the Versailles Court of Appeal in December 2020.

In the second litigation, 14 local authorities and 5 associations (including Notre Affaire à Tous and Sherpa) took Total to court because of its major contribution to climate change and the inadequacy of the measures taken by the company to prevent the resulting human rights, health and safety, and environmental damage. The claimants rely on the Duty of Vigilance Law, but also on the judge's power to order measures to stop or prevent environmental damage under Article 1252 of the Civil Code.

In an order issued on 11 February 2021, the judge this time confirmed the jurisdiction of the civil court. This is a first victory in this first climate litigation against a French company.

The content of the duty of vigilance and its impact on the company

In the absence of any precision concerning the competent judge in the Duty of Vigilance Law, the judge began by recalling the general principle applying here: civil courts are competent over all civil and commercial cases for which jurisdiction is not attributed, due to the nature of the claim, to another court.

The judge recalled that the jurisdiction of commercial courts can only be based on one of the three hypotheses contemplated in Article L. 721-3 of the Commercial Code. With regard to the second hypothesis (disputes "relating to commercial companies"), the judge relied on the criterion of a "direct link with the management of a commercial company" on which the two decisions handed down in the Total Uganda case were based.

He took a broad view of this criterion, which led him to conclude that the duty of vigilance does indeed have a direct link with the management of the company. His interpretation of the content and consequences of the duty of vigilance is noteworthy:

"The development and implementation of the vigilance plan directly and significantly affect the activity of Total SE and therefore its management by requiring it (...) to take action to mitigate or prevent risks previously mapped out, which have a direct impact on the strategic choices of Total SE, which can no longer be made according to a strict economic logic but by integrating elements previously conceived as exogenous: (...), it must integrate into its strategic orientations the risks of human rights and environmental violations, and, in fact, in view of the nature of its activity, proceed to substantial abandonment or reorientation.”

The Uber case law

However, he specified that this link with a company’s management does not exhaust the question of jurisdiction.

In this respect, the organisations and local authorities were relying on the Uber judgment, rendered by the Court of Cassation on 18 November 2020. In this case, which pitted 911 taxi drivers and their unions against the company Uber, the Court of Cassation confirmed that, when the claimants are not business persons, they always have the choice of bringing the case before a civil court - even if there is a link with a company’s management.

The judge rejected Total's attempt to argue that this solution could not be transposed to the case at stake. He recalled that the basis for such an option is in fact "the nature of the commercial court and the spirit that underpinned its creation": it was a question of creating "a justice of merchants, rendered by the merchants, for the merchants." Even today, the composition of commercial courts in France (i.e. former companies’ directors) bears witness to this idea.

The nature and purpose of the duty of vigilance

Recalling the parliamentary debates on the Duty of Vigilance Law, and in particular the statements made by its rapporteur Dominique Potier, the judge found that "although the vigilance plan undoubtedly affects the operations of Total SE, its purpose and the risks it is intended to prevent go far beyond the strict framework of the management of a commercial company".

In so doing, he recalled the nature of the duty of vigilance, and the legislator's intention to allow "society as a whole" to control, via judicial review, the vigilance measures implemented by companies:

"The letter of Article L 225-102-4 of the Commercial Code reveals that the preservation of human rights and Nature in general cannot be satisfied with the market-based regulation (...) that the presentation of the vigilance plan at the shareholders' meeting brings about, but requires judicial control. And this can only be achieved through strong social control made possible by the publicity of the vigilance plan and by a broad definition of legal standing.”

He concluded that, because of the nature and objectives of the duty of vigilance, the jurisdiction of the commercial court could not be exclusive despite a link with a company’s management. Total's jurisdictional objection was dismissed.

A promising decision

In view of the clarity of this reasoning, based on the recent case law of the Court of Cassation, this order calls into question the previous decisions on jurisdiction in the Uganda case.

More fundamentally, the interpretation of the duty of vigilance adopted by the judge, which is in line with the letter of the provisions and the legislator’s intention, appears promising for all the actors mobilised for corporate accountability in social and environmental matters.

While many companies currently interpret the duty of vigilance restrictively, as a compliance exercise limited to the implementation of internal risk management processes, the forthcoming decisions in the various litigations underway will be decisive as to the actual content of these requirements, which are now inspiring the European legislator.

Total has already announced in the press that it will appeal the order.

For further information, see also BHRRC case profiles on the lawsuits against Total (re climate change and re failure to respect duty of vigilance law in operations in Uganda) in our Lawsuits Database.

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