The First French Court Rulings on the Duty of Vigilance

March 05, 2024

Since 2017, French companies of a certain size have had to draw up a vigilance plan to identify the risks associated with their business and prevent serious violations of human rights and fundamental freedoms, the health and safety of individuals, and the environment. If such a plan is left incomplete, legal action can be taken for the company to complete it. The French courts are beginning to hand down rulings on this subject, and a company was convicted for the first time in December 2023.

France has long been a leader in corporate social responsibility (CSR). In fact, according to the Organisation for Economic Co-operation and Development, France is one of the top five countries in terms of CSR performance[1].

The Legal Obligation to Set Up a Vigilance Plan

One of the specificities of the French legal regime stems from the law of March 17, 2017[2], which created article L. 225-102-4 of the French Commercial Code and established a duty of vigilance for companies. This law was issued in a context of renewal of French law compliance rules, which also led to the adoption of the law of December 9, 2016, known as “Sapin 2.”[3]

This duty applies to French sociétés anonymes (a type of limited company which may or may not be listed) employing at least 5,000 employees in their group and headquartered in France, or at least 10,000 employees and headquartered outside of France[4].

The law requires companies exceeding these thresholds to "identify risks and prevent serious harm to human rights and fundamental freedoms, the health and safety of individuals and the environment, resulting from the activities of the company and those of the companies it controls. . . . as well as from the activities of subcontractors or suppliers with whom an established commercial relationship is maintained, when such activities are linked to this relationship."[5]

This obligation is materialized in a vigilance plan, which is drawn up in collaboration with the relevant stakeholders. It identifies the risks and serious breaches mentioned above and includes reasonable and proportionate measures to prevent them. The plan also serves as a transparent communication tool since it must be published by the company.

Until December 31, 2023, this corporate vigilance report was included in the extra-financial performance declaration Déclaration de Performance Extra-Financière (DPEF) provided for in Articles L. 225-100 and seq. of the French Commercial Code. However, since the transposition into French law[6] of the European Corporate Sustainability Reporting Directive (CSRD)[7], this vigilance report must be included in the "sustainability report" to be drawn up by all large companies from the 2024 fiscal year onwards.

Risks are analyzed at company level and group level in terms of activities, number of employees, and countries of operation. This is an extended duty, as the plan must also cover the operations of the company’s subcontractors and suppliers, as well as the risks and serious harm associated with their joint activities.

Possible Sanctions for Breaches of the Duty of Vigilance

If a company fails to comply with its vigilance obligations, it may be given formal notice to rectify the situation. If it fails to do so within three months of the receipt of the notice, it may be taken to court by any person or legal entity with an interest in the matter[8], including environmental protection associations[9].

It should be noted that prior formal notice is a condition of admissibility of the legal action. In the absence or non-conformity of such prior formal notice, the claim may be dismissed[10].

Therefore, the formal notice must relate to the vigilance plan referred to in the summons[11], be sufficiently precise, and present the same claims as the summons, which may not include any claims that were not contradictorily debated prior to the claim[12].

To ensure the effective enforcement of the duty of vigilance, the court can impose a legal penalty on a company that fails to meet its obligations, in accordance with article L. 225-102-4, II° of the French Commercial Code. However, a judge has been able to set aside the legal penalty when the company had already put in place a "dynamic improvement approach."[13]

The original text of the 2017 law provided for a civil fine in the event of failure to comply with the companies’ legal obligations or with the content of their own vigilance plan, but the French Constitutional Council declared this part of the text unconstitutional[14].

Since then, the text refers to civil liability under the ordinary law regime to prevent breaches and repair the damage caused by such breaches[15]. It should be noted that the Paris Judicial Court has exclusive jurisdiction over actions relating to the duty of vigilance[16].

The First Court Rulings on the Duty of Vigilance

The drafting of the first plans by companies concerned by the duty of vigilance was naturally followed by the first disputes on this matter.

In March 2023, Mexican citizens and the German association European Center for Constitutional and Human Rights brought an action against EDF Renewables (an Électricité de France subsidiary) to have the company's vigilance plan include infringements of Indigenous rights in the context of the development of a wind farm in Mexico. A judicial mediation was set up to enable EDF Renewables to adapt its vigilance plan accordingly[17].

Several similar actions were brought against Vigie Groupe, formerly Suez Group[18] and TotalEnergies[19] respectively. These actions were deemed inadmissible in view of the above-mentioned lack of formal notice.

To our knowledge, only one judicial claim has so far been declared admissible, brought by a French postal union Fédération des Syndicats Solidaires, Unitaires et Démocratiques des Activités Postales et de Télécommunications (SUD PTT) against La Poste. In a decision dated December 5, 2023, the Paris Judicial Court issued an injunction against La Poste, requiring it to supplement its vigilance plan with (1) a mapping of risks designed to identify, analyze, and prioritize risks; (2) processes for assessing subcontractors; (3) a mechanism for alerting and collecting reports after consulting the trade unions; and (4) to publish a concrete monitoring of vigilance measures, which goes beyond general statements[20].

On the other hand, the Judicial Court rejected the claims requesting the publication of an exhaustive list of all suppliers and subcontractors, as well as the introduction of measures to prevent illegal employment or psychological and safety risks requested by the SUD PTT union[21].

This decision lays down the first guidelines for the courts' expectations regarding the precision and consistency of a vigilance report.

As of today, there has been little litigation relating to vigilance plans, and uncertainty has persisted as to the precise obligations of companies since 2017 in the absence of clear guidelines published at a national level. However, the entry into force of the new European directive on corporate duty of vigilance starting from the 2024 fiscal year should put an end to many uncertainties for companies in the future[22]. In any case, at a national level, the first available rulings provide an insight into the expectations of the Judicial Court, pending the decisions of the Court of Appeal and then the French Cour de Cassation (the highest court).

In this respect, the Paris Court of Appeal, in a press release dated January 18, 2024, announced the creation of a chamber 5-12, specializing in the corporate duty of vigilance, the sustainability report created by the CSRD directive, and ecological responsibility[23], which will likely enable the harmonization of case law.

Law clerk Ines Chaudonneret contributed to this LawFlash.


If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following:

Allison Soilihi (London / Paris)
Xavier Haranger (Paris)

[1] MDE/EcoVadis survey, CSR Performance of French and European Companies—OECD and BICS comparison (2023).

[2] Law n° 2017-399 of March 27, 2017 on the duty of vigilance of parent companies and contracting companies.

[3] Law n° 2016-1691 of December 9, 2016 on transparency, the fight against corruption and the modernization of economic life.

[4] Article L. 225-102-4, I, paragraph one of the French Commercial Code, by reference to Articles L. 226-1 paragraph two and L. 227-1 paragraph three of the French Commercial Code; This duty of vigilance is extended to other types of companies: the sociétés par action simplifiée and the sociétés en commandite par action that meet the same criteria.

[5] Article L. 225-102-4, I, paragraph three of the French Commercial Code.

[6] Article L. 232-6-3 of the French Commercial Code, created by the ordinance n° 2023-1142 of December 6, 2023, coming into force on January 1, 2025, for reports relating to the fiscal year beginning in 2024.

[7] This directive strengthens and harmonizes reporting requirements at a European level by creating new standards, known as ESRS, and extending the scope of reporting obligations to more companies than before.

[8] Article L. 225-102-4, II, of the French Commercial Code.

[9] In two recent rulings by the Paris Judicial Court, TotalEnergies was sued by six different associations for failure to comply with its vigilance obligations: Paris Judicial Court, n° 22/53942 and 22/53943 (Feb. 28, 2023).

[10] Ibidem.

[11] Paris Judicial Court, n° 22/07100 (June 1, 2023).

[12] Paris Judicial Court, n° 22/03403 (July 6, 2023); and Paris Judicial Court, n° 22/53942 and 22/53943 (Feb. 28, 2023).

[13] Paris Judicial Court, n° 21/15827 (Dec. 5, 2023).

[14] Constitutional Council, decision n° 2017-750 DC.

[15] Article L. 225-102-5 paragraph 1 of the French Commercial Code.

[16] Article L. 211-21 of the French Judicial Organization Code.

[17] Paris Judicial Court, n° 20/10246 (Nov. 30, 2021); It should be noted that EDF Renewables lodged an appeal for excess of power against the order of a judicial mediation by the pre-trial judge, which was rejected by the Paris Court of Appeal, n° 22/00749 (March 17, 2023).

[18] Paris Judicial Court, n° 22/07100 (June 1, 2023).

[19] Paris Judicial Court, n° 22/03403 (July 6, 2023); and Paris Judicial Court, n° 22/53942 and 22/53943 (Feb. 28, 2023).

[20] Paris Judicial Court, n° 21/15827 (Dec. 5, 2023).

[21] Ibidem.

[22] Directive (EU) 2022/2464 of the European Parliament and of the Council of 14 December 2022 amending Regulation (EU) n° 537/2014, Directive 2004/109/EC, Directive 2006/43/EC and Directive 2013/34/EU, as regards corporate sustainability reporting.

[23] Création d’une Chambre des Contentieux Émergents—Devoir de Vigilance et Responsabilité Écologique à la CA de Paris.