Corporate duty of vigilance is being redefined in Brussels

Not a week goes by without action by civil society towards a multinational based in France. On Wednesday, May 31, TotalEnergies found itself before the Paris court, summoned by a coalition of six NGOs and sixteen communities demanding the suspension of exploration for new hydrocarbon deposits to respect the Paris climate agreement. The previous week, a Colombian association, Tierra Digna, had put the banks BNP Paribas, Crédit Agricole and BPCE on notice to stop financing the Swiss coal giant Glencore, accused of polluting their waters, lands and lungs.

Suez, EDF, Danone, Casino and even Yves Rocher are being prosecuted for alleged breaches of their duty of care. Since 2017, French companies with more than 5,000 employees have had an obligation to prevent and remedy human and environmental rights violations throughout their value chain, including for their subcontractors at the other end of the world. world. “The goal is not to punish them, but to push them to change their practices and their economic model, underlines Nayla Ajaltouni, from the Ethics on the Label collective. They are starting to improve, but much remains to be done. »

The European Commission drew inspiration from this in its proposal for a directive on the duty of vigilance of companies in terms of sustainability. The text amended by the European Parliament is examined this Wednesday in plenary, with a view to a vote on Thursday 1 June. “More detailed, more precise, the directive goes further than French law,” said MEP Manon Aubry, co-president of the Left group in the European Parliament. It describes what companies must do. It defines a clear right to reparation for victims. This is a huge step forward against the impunity of multinationals. It provides for financial penalties of up to 5% of turnover.

“In recent days, the business lobby has woken up to influence the vote of right-wing deputies, observes Juliette Renaud, Friends of the Earth, for France. If too many amendments from the European People’s Party (EPP) and Renew (Centre) are adopted, the text risks being weakened. “One of them proposes to raise the threshold of application to companies with more than 1,000 employees, while the compromise targets those of 250 employees and parent companies of 500 people from a certain figure of business. Others intend to restrict the definition of “value chain” or the possibilities of action in civil liability.

European employers make no secret of it: “To fight on an equal footing, we must strengthen our presence in Brussels. Companies have 500 lobbyists, against 5,000 for NGOs,” Patrick Martin, candidate for the presidency of Medef, recently confided to the press. In a recent joint statement, Business Europe and other European employers’ organisations, while supporting “the aims of the proposed directive”, urge the “co-legislators to work on a reasonable approach which is manageable for business in practice”.

Employers’ organizations warn against the risks of “legal uncertainty” and “fragmentation” which “would hinder a transition towards sustainability” of companies. They also call for taking into account the “complexity of value chains” by sticking to an obligation of means and not of results. “Companies should not be held liable for damages they did not intentionally cause,” they insist.

This point worries lawyer François de Cambiaire, who advises several NGOs. He sees in this a temptation for companies to exonerate themselves from their obligations by contenting themselves with setting up audits and vigilance plans in a simple logic of “regulatory obligation”. ” It’s not sufficient. The duty of vigilance implies an obligation to act to prevent, remedy and repair, he insists. The transposition of the directive should not restrict French law, which creates real civil liability for companies based on a broad definition of serious violations of human rights, health or the environment. »

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