This is a link to a comprehensive report from the law firm, Mayer Brown, on one of the first judgements by a French court, in this case the Judicial Court of Paris, on a complaint under the “Duty of Vigilance Law”. It makes for interesting reading in view of the discussions in Brussels on the proposed Corporate Due Diligence Directive.
The case began back in 2019 when three NGOs accused the company concerned of ignoring its “duty of vigilance”. As the Mayer Brown reports notes:
Three years later, the Court has declared this action inadmissible. In a nutshell, the Court considered that an essential procedural requirement of the French Vigilance Law, namely that the plaintiff must issue a formal notice to the concerned company urging it to comply with its obligation of vigilance before summoning the concerned company before Court, had not been complied with. Indeed, even if the plaintiffs did issue such a formal notice back in 2019, the complaints and requests developed in that notice would have substantially changed when the Court was called to decide on the case. For the Court, the absence of a formal notice on the alleged breaches, therefore, rendered the action inadmissible.
As the Mayer Brown comment goes on to say, the judges were careful not to get involved in the substance of the issue, whether or not the company’s policies were right or wrong. That is not a matter for judges to rule on. It is not their job to second-guess management. It is not for courts to make normative judgements about company policies in these areas. They do not have the expertise to do so. It is their job to ensure that correct procedures, as set out in law were followed. This is something that Brussels lawmakers might usefully keep in mind when working on the Due Diligence Directive.
BEERG COMMENT:
The Due Diligence Directive, and other laws under consideration, should be clear about the procedures to be followed to achieve broadly defined objectives. It should be left to companies and relevant stakeholders to decide though dialogue how to achieve these objectives. Which also means that there should be clarity in the law as to who counts as relevant stakeholders. It should not be open to every self-proclaimed NGO to declare itself a stakeholder nor should trade unions with little or no members in a company have automatic consultation rights. There needs to be criteria to define stakeholders, otherwise the Directive will create a legal free-for-all.
