Introduction

Scope of application

Compliance program

Protection of whistleblowers

Audit and sanctions

Rules arising from the Sapin II Law

EU law

French law

Rules derived from competition law

Sapin II Law/Competition

Scope ratione personae

Scope ratione materiae

Scope

Development of plan

Measures included in plan

Inclusion in management report

Vigilance plan

Injunctions

Civil liability

Sanctions

Duty of vigilance (devoir de vigilance)

CSR programs

Reporting

Communication

Reporting and communication

Judicial sanctions

Risk to reputation, strategy and stability

Corporate Social Responsability (CSR)

Middlenext Code

IFA Corpus

AFEP - MEDEF Code

Types

Principles of governance

Principles incorporating CSR values

Principles

Comply or explain

Binding force

Private codes of conduct

Compliance

Article L. 225-102-5 of the Commercial Code stipulates that, as an alternative to the injunctive measures provided for in Article L. 225-102-4, any failure by an undertaking to meet its duty of vigilance gives rise to liability under the conditions set out in Articles 1240 and 1241 of the Civil Code. The legislator has thus made undertakings liable for breaches of the duty of vigilance under the s …

General civil liability law

Article L. 225-102-5 of the Commercial Code stipulates that, as an alternative to the injunctive measures provided for in Article L. 225-102-4, any failure by an undertaking to meet its duty of vigilance gives rise to liability under the conditions set out in Articles 1240 and 1241 of the Civil Code. The legislator has thus made undertakings liable for breaches of the duty of vigilance under the same conditions as under ordinary French civil law, without introducing a system of vicarious liability  which is contrary to the principle of personal liability.

What exactly is meant by a breach of the duty of vigilance? As things stand at present, it would appear that a failure to comply requires proof either that the vigilance plan has not been drawn up at all, or has been drawn up incompletely, or that it has not been published and/or has not been effectively implemented .

In addition, the legislation only requires compensation for harm that could have been avoided by compliance with the vigilance obligations. Does this mean that the legislator is instituting a liability system based on loss of opportunity?

Liability claims may be brought before the competent court by any person with an interest in the matter. In this respect, the Constitutional Council considers that the provisions of article L. 225-102-5 do not allow a person to bring an action on behalf of the victim .

With regard to the harm that can be compensated, some legal scholars consider that all the harmful consequences, both financial and non-financial, of infringements of the rights covered by the duty of vigilance must be taken into consideration. Lastly, the legislator provides that the court may order the publication, distribution or posting of its judgment or an extract of it, according to the terms it specifies. Costs are borne by the losing party.

The CS3D  directive leaves it up to the Member States to lay down the rules on penalties at European level for breaches of the national provisions adopted, and to take all necessary measures to ensure that they are implemented. These penalties must be effective, proportionate and dissuasive. In deciding whether to impose sanctions and, if so, in determining their nature and appropriate level, due account must be taken of the efforts made by the undertaking to comply with any remedial measures imposed on it by a supervisory authority, any investments made and targeted support provided, as well as collaboration with other entities to address negative impacts in its value chains, as appropriate. Where financial penalties are imposed, they must be based on the undertaking's turnover. Any decisions by the supervisory authorities involving penalties for breaches of the provisions of the directive must be made public.

The directive also establishes a civil liability mechanism. In effect, it requires Member States to ensure that undertakings are held liable for damage caused if they have failed to comply with the obligations to prevent potential adverse impacts and to eliminate actual adverse impacts, and to assess whether, as a result of this failure, an adverse impact has occurred which should have been identified, avoided, mitigated, eliminated or minimized by the appropriate measures provided for, and which has led to damage.

Where an undertaking has taken appropriate measures, it should not be held liable for damage caused by an adverse impact resulting from the activities of an indirect partner with whom it has a well-established business relationship, unless it was unreasonable, given the circumstances of the case, to expect that the measures actually taken would be sufficient to prevent, mitigate, eliminate or minimize the adverse impact. In assessing the existence and extent of liability, due account must be taken of the efforts made by the undertaking, insofar as they are directly related to the damage in question, to comply with any corrective measures imposed on it by a supervisory authority, of any investments implemented and targeted support provided, and of any collaboration with other entities to remedy negative impacts in its value chains. The undertaking's civil liability is without prejudice to the civil liability of its subsidiaries or any direct and indirect business partners in the value chain. These rules are also without prejudice to EU or national rules on civil liability relating to adverse impacts on human rights or adverse impacts on the environment which provide for liability in situations not covered by the directive, or for liability stricter than the directive.

Cons. constit., 23 March 2017, LawLex202200001718JBJ.

Cons. constit., 23 March 2017, LawLex202200001718JBJ, above.

Directive No 2024/1760 of 13 June 2024 on corporate sustainability due diligence and amending Directive No (EU) 2019/1937 and Regulation No (EU) 2023/2859, OJ L of 5 July 2024.

Compliance

122. General civil liability law

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

122. General civil liability law

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise