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

By virtue of Article L. 225-102-4 of the Commercial Code, the competent court may, at the request of any person with an interest in the matter, enjoin the undertaking to comply with its duty of vigilance, which may be subject to a fine. The law does not specify how this penalty is to be enforced. As in civil and commercial matters, the court is free to determine the amount, frequency and terms of  …

Sovereign authority of court

By virtue of Article L. 225-102-4 of the Commercial Code, the competent court may, at the request of any person with an interest in the matter, enjoin the undertaking to comply with its duty of vigilance, which may be subject to a fine. The law does not specify how this penalty is to be enforced. As in civil and commercial matters, the court is free to determine the amount, frequency and terms of payment. According to case law, when a parent company demonstrates significant progress as part of a dynamic approach to improving its corporate vigilance plan, it is not necessary to impose a penalty on the injunctions issued against it .

With regard to the scope of the court's powers, it is recognized that it does not fall within the remit of the interim applications judge (juge des référés) to assess the reasonableness of the measures adopted by the vigilance plan, when such an assessment implies an in-depth examination of the elements of the case falling within the remit of the court ruling solely on the merits . Nor can the court be asked by the plaintiffs to take the place of the company and its stakeholders in enjoining the undertaking to adopt very specific and concrete measures in relation to subcontracting, psycho-social risks or harassment . In addition, a request for interim precautionary measure does not fall within the jurisdiction of the judicial court under Articles L. 225-102-4 and L. 225-102-5 of the Commercial Code, especially when it relates not to the vigilance plan, but to a specific company project .

On the other hand, if the company has not drawn up a sufficiently precise risk map, procedures for assessing the situation of its partners on the basis of identified risks, a mechanism for reporting and collecting complaints drawn up in conjunction with employee organizations, concrete measures for mitigating risks and preventing serious harm, and a system for effectively measuring the effectiveness of the measures taken, it may be ordered to revise and supplement its vigilance plan .

As part of his review, the court will have to rely on the “ reasonable character ” of the due diligence measures (vigilance in the French wording)  contained in the undertaking's duty of vigilance plan. Due diligence (or 'vigilance') has been defined by the Interpretative Guide to the UN Guiding Principles , as “a measure of prudence, action, diligence, which is properly expected of, and generally applied by, a prudent and reasonable [person] in particular circumstances, which is not evaluated by any absolute standard, but depends on facts relative to the specific case”. In the context of the Guiding Principles, human rights due diligence includes the implementation of a continuous management procedure, which a reasonable and prudent undertaking must implement, in the light of the circumstances (i.e. sector, operating context, size and similar factors) to meet its responsibility to respect human rights.

In addition, the European CS3D directive  requires Member States to ensure that supervisory authorities have the powers and resources necessary to carry out the tasks assigned to them, including the power to request information and carry out investigations in relation to compliance with the stated obligations. A supervisory authority must be able to initiate an investigation on its own initiative or following substantiated reports of concerns which have been communicated to it when it considers that it has sufficient information indicating a possible failure by an undertaking to comply with the obligations laid down. Inspections carried out by the supervisory authorities must comply with the national law of the Member State in which the inspection is carried out. In particular, the undertaking must be notified in advance, unless prior notification is likely to undermine the effectiveness of the inspection. Where, as part of its investigation, a supervisory authority wishes to carry out an inspection on the territory of a Member State other than its own, it may request the assistance of the supervisory authority of that Member State. If a supervisory authority finds that the obligations laid down in the directive have not been complied with, it must grant the undertaking in question an appropriate time-limit within which to take corrective measures, if such measures are possible. However, the adoption of corrective measures does not preclude the imposition of administrative sanctions or the commitment of civil liability in the event of damage.

In carrying out their duties, supervisory authorities must have at least the following powers:

- to order the company to cease infringements of national provisions adopted under the directive, to order the company to refrain from repeating the relevant conduct and, where appropriate, to take corrective measures proportionate to the infringement committed and necessary to bring it to an end ;

- to adopt interim measures to avoid the risk of serious and irreparable harm.

Finally, Member States must ensure that any natural or legal person has an effective judicial remedy against a legally binding decision by a supervisory authority.

TJ Paris, 5 December 2023, LawLex202300014265JBJ.

TJ Paris, 28 February 2023, LawLex202300003285JBJ and LawLex202300003152JBJ.

TJ Paris, 5 December 2023, LawLex202300014265JBJ, above.

CA Paris, 18 June 2024, LawLex202400004579JBJ.

Interpretative guide entitled “ Corporate responsibility to respect human rights ”, published by the Office of the United Nations High Commissioner for Human Rights.

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

121. Sovereign authority of court

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

121. Sovereign authority of court

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise