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

The undertaking must also put in place a mechanism for complaints and receipt of notifications relating to the existence or realization of risks, drawn up in consultation with representative trade associations. The law is silent on the details of this consultation. Case law has therefore stressed that the parent undertaking must demonstrate that it has endeavored to build a warning and reporting mechanism adapted to the various stages of its value chain, in cooperation with representative trade union organizations, and not that it has merely sought their opinion on a system that has already been finalized .

In its report on the implementation of the 2017 law , the Conseil général de l'économie  states that the complaint system must guarantee confidentiality and the national anonymity of the whistleblower. The United Nations also draws up a list of criteria that should apply to whistleblowing mechanisms . They must be:

- legitimate, in the sense that they are trusted by the stakeholder groups for which they are intended;

- accessible, i.e. communicated to all the stakeholder groups for whom they are intended, with sufficient assistance for those who face particular barriers to access;

- predictable, by setting out a clear procedure with an indicative timetable for each stage and a precise description of the types of procedures and outcomes available, and the means of monitoring their implementation;

- transparent, keeping claimants informed of the course of the procedure and providing sufficient information on the mechanism's ability to generate confidence in its effectiveness and to address all the public interests at stake;

In addition, the French anti-corruption agency (the AFA) has drawn up guidelines  that can be applied to the duty of vigilance, subject to adapting the various measures to the objectives pursued by the obligation. The AFA recommends setting up a formal procedure, with the appointment of a contact person, designated to receive and/or deal with notifications, and to set up a committee, made up of qualified people subject to reinforced confidentiality obligations, to ensure collegial decision-making on the action to be taken on the notifications received. The whistle-blowing procedure must be integrated into the code of conduct and distributed to all staff, even those who have just joined the organization, by all means and without delay, as part of awareness-raising initiatives. The guide also recommends that staff involved in the collection, management and processing of reports should receive training in confidentiality and the absence of conflicts of interest, and that controls on the national whistleblowing procedure and indicators to assess the quality and effectiveness of the whistleblowing system should be put in place and reported to the governing body. The AFA also stresses that the national whistleblowing system must be secure, with access rights restricted to personnel authorized to receive and process alerts. While it may be possible to subcontract its management to a third party, confidentiality must be guaranteed and the services provided within this framework must be subject to regular review.

The European CS3D directive  also provides for a complaints procedure. Undertakings must allow individuals and certain organizations to lodge complaints with them when they have legitimate concerns about actual or potential adverse impacts on human rights and adverse impacts on the environment in relation to their own activities, the activities of their subsidiaries and their value chains. In concrete terms, the mechanism must be open to people who are affected or who have reasonable grounds for believing that they could be affected by an adverse impact, to trade unions and other workers' representatives representing people working in the value chain concerned, and to civil undertaking organizations active in areas related to the value chain concerned. Undertakings must establish a procedure for handling complaints, including a procedure for cases where they consider them to be unfounded, and inform the workers and workers' unions concerned of their existence. Where the complaint is founded, the negative impact complained of must be deemed to have been identified. Member States must also ensure that complainants are able to request appropriate follow-up from the undertaking and to meet with its representatives at an appropriate level to discuss the potential or actual serious adverse effects which are the subject of the complaint.

TJ Paris, 5 December 2023, LawLex202300014265JBJ.

Created by Decree No 2009-64 of 16 January 2009 under the name of Conseil général de l'industrie, de l'énergie et des technologies, the Conseil général de l'économie (CGE) is the result of the merger of the former Conseil général des mines and Conseil général des technologies de l'information, and takes over their roles.

Assessment of the implementation of Law 2017-399 of 27 March 2017 relating to the duty of vigilance of parent companies and sub-contracting companies.

UN, Human Rights Council, Guiding principles on business and human rights: implementing the “protect, respect and remedy” framework, 2011.

AFA recommendations to help public and private legal entities prevent and detect corruption, bribery (influence peddling), misappropriation of public funds and favoritism of 4 December 2020, published in the JORF of 4 January 2021.

Directive No 2024/1760 of 13 June 2024 of 13 June 2024 on corporate sustainability due diligence and amending Directive No 2019/1937 and Regulation No 2023/2859.

114. Procedure for implementation