On 18 June 2024, Chamber 5-12 of the Paris Court of Appeal, which was set up at the beginning of the year (see our newsletter of January 2024), issued three important decisions on the admissibility of the first actions brought by associations and local authorities in relation to duty of care against TotalEnergies, EDF and Vigie (Veolia).
In the most high-profile case involving TotalEnergies, associations, local authorities and public bodies had brought proceedings against the multinational company, claiming that its due diligence plan did not meet the requirements of Act 2017-399 of 27 March 2017 on the due diligence obligations of parent companies and ordering companies.
On 6 July 2023, the Pre-Trial Judge of the Paris Court of First Instance issued an order declaring that the plaintiffs’ action was inadmissible.
An appeal was then lodged.
In its decision, the Paris Court of Appeal overturned the order of 6 July 2023. In so doing, it structured its reasoning by addressing the admissibility of claims based on article L. 225-102-4 of the French Commercial Code (duty of care) and article 1252 of the French Civil Code (ecological damage), the admissibility of interim measures and, finally, the admissibility of voluntary interventions.
The first two issues will be addressed here.
- Admissibility of the duty of care claim
With regard to the admissibility of claims based on the duty of care, the Paris Court of Appeal first analysed the arguments raised by TotalEnergies concerning the lack of identity of the claims and signatories between the formal notice phase and the legal action.
As a reminder, Article L. 225-102-4 of the French Commercial Code provides, among other things, that “[w]here a company given formal notice to comply with the obligations set out in I fails to do so within a period of three months from the date of the formal notice, the competent court may, at the request of any person with an interest in bringing proceedings, enjoin it, where appropriate subject to a fine, to comply with those obligations“.
The Court of Appeal noted that a letter had been sent clearly summoning TotalEnergies to comply with its vigilance obligations with regard to greenhouse gas (GHG) emissions linked to its activities. This did indeed constitute a formal notice.
The Court of Appeal stated that, “[in] the absence of a specific provision in the law, it cannot be required as a condition of admissibility of the action for an injunction that the formal notice and the writ of summons refer to exactly the same due diligence plan in terms of date, the debtor of the obligation may have changed the plan in subsequent publications, without this having the effect of eliminating the non-compliance with the obligations set out in Article L225-102-4, I of the French Commercial Code and identified in the formal notice, which it is then up to the court hearing the case to verify“.
It therefore concluded that the injunction requests contained in the summons should not be identical to the measures referred to in the formal notice, but should be sufficiently related to them. In this case, this was the case.
It also stated that once the formal notice had been issued, “any person with an interest in bringing proceedings is entitled to bring proceedings for the same purposes”, so that “other claimants may be parties to the action for an injunction“.
On the question of standing, the Court noted that in the case of associations, the interests defended must fall within their statutory purpose. With regard to the municipalities, it declared them inadmissible after pointing out that: “the action undertaken has as its object a global public interest, which exceeds the mere local interest that the municipalities must justify in order to be admissible to act. The fact that the territories of the municipalities suffer the harmful effects of global warming indiscriminately is not sufficient to characterise a local interest in taking action; only the demonstration of a particular harm or repercussion of global warming on the territory of the municipality concerned makes it possible to characterise a local public interest and therefore to justify an interest in taking action for the local authorities“.
Admissibility of the action based on article 1252 of the Civil Code
The plaintiffs brought an additional claim under article 1252 of the Civil Code, seeking an order that TotalEnergies publish and implement measures to prevent environmental damage resulting from its activities.
In this respect, the Court of Appeal considered that “the two actions may be brought in a complementary manner, it being incumbent on the plaintiffs, if they are deemed admissible, to justify before the court the merits of their claims on the basis of the failings or faults specific to each action, one relating to the existence of ecological damage to be prevented or halted, the other to the inadequacy of the due diligence plan“.
TotalEnergies will therefore have to answer on the merits as to its liability on these two grounds. The defendant could then be enjoined, under penalty, to comply with the obligations relating to the due diligence plan and be ordered to take all reasonable measures to prevent or halt the alleged damage.
– The EDF and Vigie decisions
The two other decisions handed down on 18 June are also worth mentioning.
In the decision concerning EDF, the Court adopted a similar position with regard to the formal notice and reaffirmed the right of any person with an interest to bring an action before the courts after a formal notice has been issued, specifying that it did not matter that the person bringing the action was not the author of the formal notice.
In the Vigie case, the Paris Court of Appeal ruled on the question of standing to defend, confirming that the action against Vigie was inadmissible, as Vigie was a subsidiary of the parent company that had drawn up the due diligence plan. The summons to amend the plan was issued to SAS Vigie Groupe, even though the plan at issue had been drawn up and implemented by its parent company. In this respect, the Court considered that: “the head of the group is the natural and unconditional debtor of the obligation to publish and implement a due diligence plan” and that, as a subsidiary of a company that had drawn up such a plan, Vigie had no interest in defending it.
These three decisions provide a clearer picture of the procedural requirements placed on parties wishing to challenge the legality of due diligence plans issued by French companies in the context of a dialogue with the competent courts, which are now the Paris Court of First Instance and Chamber 5-12 of the Paris Court of Appeal.
Citation: : Paris Court of Appeal, Pole 5 – Ch. 12, 18 June 2024, No. 23/14348; Paris Court of Appeal, Pole 5 – Ch. 12, 18 June 2024, No. 23/22319; Paris Court of Appeal, Pole 5 – Ch. 12, 18 June 2024, No. 23/10583
