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

If a company fails to meet its due diligence obligations, the court may order it to do so, provided that it has been served with a formal notice to comply before being summoned. The aim of this pre-litigation phase is to establish an amicable discussion during which the company can, where appropriate, respond to criticisms levelled against its vigilance plan and make any necessary changes . Only if the company fails to respond satisfactorily within three months from the date of the formal notice may the competent court, at the request of any person with an interest in the case, compel the company to comply with the requirements, subject to a fine if necessary.

To be in conformity with the provisions of Article L. 225-102-4 of the Commercial Code, a formal notice must first be issued to a person authorized to represent the company . 

Secondly, as this is necessary as a prerequisite to the delivery of an injunction by the court , a simple summons cannot serve as a substitute . Similarly, mere preliminary meetings between the plaintiffs and the company bound by the duty of vigilance cannot constitute a solemn warning prior to the institution of proceedings . In the absence of a formal notice prior to referral to the summary proceedings court, the court must declare inadmissible claims seeking to enjoin the company from fulfilling its due diligence obligations . Associations may not circumvent the requirement for prior formal notice by submitting an ancillary claim based on article 1252 of the Civil Code relating to compensation for ecological harm, when the claim is for the same purpose as that raised under Article L. 225-102-4 .

Case law defines the absence of prior formal notice as a situation in which the claims formulated in the formal notice are distinct from those stipulated in the summons . The same applies when the summons includes claims that were not formulated in the prior formal notice letter . As the aim of the formal notice is to enable the debtor of the duty of vigilance to remedy any shortcomings in its plan, subsequent applications for injunctive relief submitted to the court must in substance cover the same obligations as those covered by the formal notice, and be sufficiently closely linked to them. This means that the same categories of risk, serious harm and obligations to be complied with must be referred to before the court . However, case law provides an important clarification, considering that, in the absence of legal precision, it cannot be required, as a condition of admissibility of the action for injunction, that the formal notice and the writ of summons refer to exactly the same vigilance plan in terms of date, since the debtor of the obligation may have modified it in subsequent publications, without in any way eliminating the aspects identified in the formal notice .

The formal notice letter must be sufficiently precise. However, the fact that it refers to the adoption of measures “which may be identified” is not enough to disqualify it, since it also refers to other specific measures, and the reference criticized is only likely to affect breaches not referred to . A letter entitled “Mise en demeure” , which clearly calls on the company to comply with its vigilance obligations with regard to greenhouse gas emissions linked to its business operations, both in terms of identifying the risks and the actions to be taken to limit the global warming caused, constitutes formal notice in due form . Similarly, a letter which identifies and explains various risks and infringements of human rights and a safe environment, describes the vigilance plan drawn up by the undertaking as insufficient, and asks it, on the basis of the law on the duty of vigilance, to carry out various actions to remedy the situation, contains adequate questioning constituting a formal notice within the meaning of Article L. 225-102-4, II .

CA Paris, 18 June 2024, LawLex202400004579JBJ, holding that even if, in practice, a letter of formal notice can be used as a tool for dialogue before the matter is referred to the courts, the law does not make it a prerequisite for the opening of negotiations between the undertaking concerned and the parties involved, but rather a summons issued by any party with an interest in bringing an action, under the terms of which a request for compliance is served within a period of three months.

CA Paris, 1 June 2023, LawLex202300008255JBJ

CA Paris, 18 June 2024, LawLex202400004578JBJ and LawLex202400004579JBJ.

CA Paris, 18 June 2024, LawLex202400004578JBJ, overturning TJ Paris, 6 July 2023, LawLex202300008996JBJ.

CA Paris, 18 June 2024, LawLex202400004578JBJ.

CA Paris, 18 June 2024, LawLex202400004579JBJ.

CA Paris, 18 June 2024, LawLex202400004579JBJ

CA Paris, 18 June 2024, LawLex202400004578JBJ

TJ Paris, 6 July 2023, LawLex202300008996JBJ; CA Paris, 1 June 2023, LawLex202300008255JBJ, holding that the prior formal notice required of the plaintiff in the action must pertain to the same version of the duty of vigilance plan as that which is the subject of the summons, and not to an earlier version.

TJ Paris, 6 July 2023, LawLex202300008996JBJ; 28 February 2023, LawLex202300003152JBJ.

119. Mandatory prerequisite