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

Corporate Social Responsibility (CSR) must enable undertakings to make a positive contribution to sustainable development. Corporate action can take several forms: management of natural resources and waste, reduction of greenhouse gas emissions, eco-design, use of sustainable materials, protection of biodiversity, awareness-raising and team training. Under French law, environmental protection is g …

Positive contribution to sustainable development

Corporate Social Responsibility (CSR) must enable undertakings to make a positive contribution to sustainable development. Corporate action can take several forms: management of natural resources and waste, reduction of greenhouse gas emissions, eco-design, use of sustainable materials, protection of biodiversity, awareness-raising and team training. Under French law, environmental protection is guaranteed by a number of legal texts with which undertakings must comply as part of their CSR commitment, which requires them to abide by current legislation. The Charter of the Environment, adopted in 2004, which forms part of the French Constitution, enshrines the principle of environmental protection. Article 1 sets out the principle that everyone has the right to live in a balanced environment that respects their health. Article 2 states that everyone has a duty to participate in preserving and improving the environment. 

Since the Pacte Law of 2019, undertakings have been bound by two essential obligations in terms of corporate social responsibility, which underline the importance of evaluating the social and environmental consequences of decisions made by management bodies. Article 1833 of the Civil Code stipulates that undertakings must be managed in their corporate interests, taking into account the social and environmental implications of their activities . According to the Council of State (Conseil d'Etat), the preservation of social and environmental requirements constitutes an aim of general interest, as each individual is bound by an obligation of vigilance with regard to environmental damage that could result from his or her activity, under the terms of the Charter of the Environment, which has constitutional status . In view of its object, aims and scope, the obligation to take social and environmental issues into consideration does not infringe the constitutional objective of intelligibility of the law, or any other principle or rule of constitutional status . Article 1833 imposes a duty on undertakings not only to report on these issues, but also to take them into account on a day-to-day basis, with boards of directors and management boards acting as guarantors.

Article 1835 authorizes the inclusion of a “raison d'être” in the company's bylaws, comprising the principles which the undertaking has adopted and for which it intends to allocate resources in order to implement its activity. The raison d'être goes further than simply taking social and environmental issues into consideration. It dictates the conduct of the undertaking. In the absence of a legal definition, the ORSE-C3D  working group sees raison d'être as an expression of the undertaking's societal utility, which will be both a compass and a safeguard for the Board of Directors' and Management Board's judgments. Undertakings that choose to enshrine a raison d'être in their articles of association must comply with it, and the Board of Directors or Management Board must take it into account and, where appropriate, draw the necessary conclusions from it in their management decisions .

In addition, undertakings are required to comply with the provisions of the Environment Code which, as specified in Article L. 110-1-2, aims to prevent the use of resources, to promote careful and responsible consumption of resources based on eco-design, and then to ensure a hierarchy in the use of resources, giving priority to resources from recycling or renewable sources, then recyclable resources, then other resources, taking into account the overall balance of their life cycle. In application of the polluter-pays principle, the Environment Code sets out the rules applicable to the prevention and repair of environmental damage in Articles L. 160-1 et seq. The text covers damage caused by the activity of an operator, defined as any natural or legal person, public or private, who effectively exercises or controls, on a professional basis, a profit-making or non-profit-making economic activity (Art. L. 160-1 of the Environment Code). In addition, under Articles 1246 et seq. of the Civil Code, any person responsible for ecological harm, which consists of non-negligible damage to the elements or functions of ecosystems or to the collective benefits derived by man from the environment, is required to make reparation. Ecological harm is the direct or indirect damage to the environment resulting from an offense . The action for reparation of ecological harm is open to any person with standing and an interest in bringing an action, such as the State, the French Biodiversity Office, local authorities and their groupings whose territory is concerned, as well as public establishments and associations approved or created for at least five years on the date the proceedings are brought, whose purpose is the protection of nature and the defense of the environment . Thus, a municipality that has personally suffered harm to the environment as a result of pollution that has seriously undermined its raison d'être, which is to protect and, if possible, improve the well-being of its citizens, to which their natural environment contributes, is entitled to bring an action .

To take account of the growth of digital technology, its place in society and the risks it poses to the environment, the legislator passed, on 15 November 2021 , a law aimed at reducing the environmental footprint of digital technology. This involves limiting the number of terminals to be replaced, and reusing or re-using computer equipment. In particular, professionals offering new mobile terminal equipment for sale or hire are required to inform consumers of the availability of reconditioned mobile terminal equipment (Art. L. 122-25 Consumer Code). The text sets up an observatory on the environmental impacts of digital technology, which will analyze and quantify the direct and indirect impacts of digital technology on the environment, as well as the contribution made by digital technology, particularly artificial intelligence, to the ecological and solidarity-based transition. It is developing a definition of digital sobriety.

International instruments such as the OECD's Guiding Principles and the ISO26000 standard also provide a body of incentive rules for undertakings. The OECD Guidelines state that undertakings should take steps as quickly as possible to prevent serious and irreversible damage to the environment arising from their activities. They encourage them to play a leading role in improving the environmental performance of undertakings located in the countries in which they operate. They also suggest training and raising employee awareness of environmental issues. The environment chapter of the OECD Principles urges multinational undertakings to improve their environmental performance by improving their national environmental management and more rigorous contingency planning in the event of environmental damage. To comply with these guidelines, undertakings should:

- establish and implement an environmental management system appropriate to the undertaking, including the timely collection and evaluation of adequate information concerning the potential environmental effects of their activities, the setting of measurable and, where appropriate, specific objectives for the improvement of their environmental performance, and a periodic review of the relevance of these objectives, the regular monitoring and control of progress towards the achievement of general and specific environmental objectives ;

- establish and implement an environmental management system appropriate to the undertaking, including the timely collection and evaluation of adequate information relating to the potential environmental effects of their activities, the setting of measurable and, where appropriate, specific objectives for the improvement of their environmental performance, and a periodic review of the appropriateness of these objectives, the regular monitoring and control of progress towards the achievement of general and specific environmental objectives ;

- to provide the public and employees, having regard to cost considerations, business confidentiality and intellectual property rights, with adequate information relating to the potential environmental effects of their activities, which may include a review of progress made in improving environmental performance;

- enter into timely communication and consultation with communities directly affected by the undertaking's environmental policies and their implementation;

- evaluate and take into account, when making decisions, the foreseeable effects on the environment of the undertaking's processes, goods and services over their entire life cycle;

- not use lack of full scientific certainty as a reason for postponing cost-effective measures to prevent or reduce serious environmental damage;

- establish emergency plans to prevent, mitigate and control serious damage to the environment that may result from their activities, including accidents and emergencies, and set up mechanisms to alert the competent authorities immediately;

- constantly strive to improve their environmental performance, encouraging, where appropriate, activities such as the adoption, in all components of the undertaking, of technologies and operating procedures that reflect the environmental performance standards of the best-performing component of the undertaking, and the development and supply of products or services that do not have an undue impact on the environment, are safe to use for their intended purpose, are economical in terms of energy and natural resources, and can be reused, recycled or disposed of safely; making customers aware of the environmental consequences of using the undertaking's products and services; researching ways of improving the undertaking's environmental performance over the long term;

- provide employees with appropriate education and training on environmental issues, including the handling of hazardous materials and the prevention of accidents affecting the environment, as well as on more general aspects of environmental management, such as environmental impact assessment procedures, public relations and environmental technologies;

- contribute to the development of sound, cost-effective public environmental policy, for example, through partnerships or initiatives to improve environmental awareness and protection.

ISO 26000 has also established a list of principles to which undertakings must adhere in order to fulfill their environmental protection mission in their CSR program.

- Environmental responsibility: an organization should not only comply with legislation and regulations, but also take responsibility for the impact of its activities on the environment in rural and urban areas, and on the wider environment. Given ecological limits, it should act to improve its own performance as well as the performance of others within its sphere of influence.

- Precautionary principle: where there are threats of serious or irreversible damage to the environment or human health, lack of full scientific certainty cannot be used as a reason for postponing cost-effective measures to prevent environmental degradation or damage to human health. To assess the cost-effectiveness of a measure, an undertaking should consider - in addition to short-term costs - the long-term costs and benefits associated with the measure. According to the European Court of Human Rights, the precautionary principle is designed to ensure a high level of protection for the health and safety of consumers and the environment throughout the Union .

- Environmental risk management: undertakings should apply risk-informed and sustainable development programs to assess, avoid, limit and mitigate the environmental risks and impacts of their activities. It should also develop and implement awareness-raising activities and emergency response procedures to limit and mitigate the impact of accidents on the environment, health and safety, and pass on information concerning environmental incidents to the local authorities and communities concerned.

- Polluter pays principle: the undertaking must bear the cost of pollution caused by its activities, according to either the environmental impact on society and the corrective action required, or the level of pollution. It must also endeavor to bear the cost of pollution and quantify the economic and environmental benefits of pollution prevention rather than mitigation, in accordance with the polluter-pays principle.

Finally, the right to a healthy environment is a fundamental principle of human rights. As such, it is indirectly protected by the European Court of Human Rights on the basis of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms . The Court has held that Article 8 applies when the pollution generated by a factory's activities can cause a deterioration in the quality of life of local residents and, in particular, affect the well-being of the applicants and deprive them of the enjoyment of their homes in such a way as to interfere with their private and family life . Article 8 applies in environmental cases, whether the pollution is directly caused by the State or whether the State's responsibility stems from the failure to adequately regulate private sector activity .

Law No 2022-296 of 2 March 2022, aimed at democratizing sport in France, added cultural and sporting issues to the social and environmental challenges to be taken into account in the management of undertakings in accordance with their corporate interests, in Article L. 225-64 of the Commercial Code. The latter were removed from the article by Law No 2024-537 of 13 June 2024 aimed at increasing the financing of undertakings and the attractiveness of France.

ECHR, 3rd section , 27 January 2009, LawLex202400003215JBJ, which held that the violation of a prisoner's right to respect for his private life within the meaning of Article 8 of the Convention is characterized by the fact that the prison is located close to a landfill site which has not received the necessary authorizations either for its operation or for its closure, where the activity carried out is incompatible with environmental requirements and where people living nearby have to put up with significant olfactory disturbances

ECHR, 3rd section, 27 January 2009, LawLex202400003215JBJ.

ORSE-C3D guide, Pacte Law and Raison d'être.

Cass. crim., 25 September 2012, LawLex201400000335JBJ.

Cass. crim. 25 September 2012, LawLex201400000335JBJ.

Law No 2021-1485 of 15 November. 2021 aimed at reducing the environmental footprint of digital technology, JORF No. 0266 of 16 November 2021.

ECHR, 3rd section , 27 January 2009, LawLex202400003215JBJ.

Compliance

131. Positive contribution to sustainable development

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

131. Positive contribution to sustainable development

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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