Global warming and the duty of vigilance of companies

On Friday, the State of California filed a complaint against five oil majors, including Exxon Mobil and Shell, for downplaying the environmental risks associated with the exploitation of fossil fuels. The aim is to lead to the creation of a fund to cover future damage resulting from climate change (California having notably been the victim of extensive flooding and wildfires).

Under French law, the corporate duty of vigilance introduced into Article L. 225-102-4 of the Commercial Code by the ordinance of 12 July 2017 frames corporate social responsibility (CSR) by requiring companies to put in place a vigilance plan, made public, with measures to prevent and assess risks and means to remedy harm to human rights, the environment, health or safety. They are also required to set up mechanisms to monitor the effectiveness of these measures.

The duty of vigilance is more demanding than the previous CSR-related regulations, which impose a duty of transparency and reporting. Indeed, companies may incur civil and criminal liability in the event of a breach of the duty of vigilance.

The European Commission submitted a proposal for a directive in February 2022 to incorporate the concept into European Union law and thereby extend this duty to all companies within the European Union or operating on its territory.

On this basis, six associations brought summary proceedings against TotalEnergies SE on 29 October 2019 to enjoin it to comply with its obligations under its vigilance plan.

Nevertheless, by two judgments of 28 February 2023 (No. 22/53942 and No. 22/53943), the Paris Judicial Court declared the claims made by the claimant associations inadmissible.

“The Affair of the Century” (L'Affaire du siècle) also illustrates the mobilization in the fight against climate change. In December 2018, four NGOs including Greenpeace France decided to act in the name of the public interest by suing the State for inaction in the face of climate change.

By a judgment of 14 October 2021, the Paris Administrative Court enjoined the State to put an end to the breaches of its obligations, to remedy the consequences of its failure to act in combating climate change, and to make good the resulting moral and ecological harm.

Pending further clarification as to the effectiveness of the duty of vigilance, the actions brought by NGOs against the State will at least have made it possible to recognize the ecological harm linked to climate change.

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