2023-12-10 18:02:23
La Croix: What does this judicial decision on La Poste change in the application of the French law on the duty of vigilance?
Aurélie Vucher-Bondet: None of the previous legal actions brought by associations, unions or victims to obtain a conviction against a company for breach of its duty of vigilance had been successful. They had either stopped at the formal notice stage, or because of a question of incompetence of the summary judge, as recently with TotalEnergies.
This is therefore the first decision on the merits rendered by a court, in application of the 2017 law which requires large companies to publish a vigilance plan on the human and environmental risks of their activities, including within their subsidiaries, suppliers or subcontractors.
French law had never had an implementing decree. It was therefore difficult for companies to fulfill their vigilance obligations, in the absence of details on concrete measures to be taken. In this case, La Poste considered that it had fulfilled its obligations. This was contested by the Sud-PTT union which assigned him. For the first time, a court, by analyzing La Poste’s risk mapping, found that it was not compliant, and therefore that the company was not fulfilling its obligations with regard to article L225-102 of the Commercial Code on the duty of vigilance.
What consequences could this decision have on French companies already subject to the duty of vigilance?
A. V-B : Companies affected by the application of the 2017 law will have to review their risk mapping to ensure that those linked to their activities are well identified, analyzed and prioritized, particularly at the level of subcontractors, with reporting mechanisms. .
The court in fact considered that the mapping established by La Poste was too general. It did not make it possible to measure whether the evaluation strategy was consistent with the seriousness of the breaches and actually covered the risks identified.
In this case, La Poste admitted that it was necessary to introduce self-assessment questionnaires for work authorizations for foreign workers, but its mapping did not highlight a risk linked to illegal work. The court ruled that none of this was consistent.
What are the consequences for La Poste?
A. V-B : La Poste was ordered to complete its vigilance plan, but not subject to a financial penalty. The union had requested a fine of €50,000 per day, but the court rejected it. The judge noted an evolution by comparing the vigilance plans established between 2020 and 2021, and therefore an improvement process. He therefore considered that La Poste had the desire to comply, and that there was no point in condemning it to a penalty.
Furthermore, the law provided that alert mechanisms for reports be established in consultation with trade union organizations. However, the Post Office had simply asked the union for its opinion, without having any real consultation. It will therefore have to complete its vigilance plan on this point after having consulted with the representative trade union organizations.
What is the significance of this decision in relation to what is happening at European level with the latest negotiations around the directive on the duty of vigilance?
A. V-B : The 2017 law concerned companies with more than 5,000 employees in France or 10,000 employees worldwide. With this decision, they will all have to review their risk mapping, so that it is accompanied by concrete measures. The European directive which should be passed in 2024 and transposed in France by 2026 provides for different threshold levels, since it concerns companies which employ more than 250 employees and achieve a global turnover greater than 40 million euros, or those of 500 employees whose global turnover reaches 150 million euros.
All of this logic is part of the desire to make transnational corporations responsible so that they are aware of their environmental and human impact. The fact that there is a conviction even before the vote on the directive reinforces the importance of the vigilance plan for companies. Companies will have to prepare in advance to better anticipate and manage these risks in order to avoid possible future problems linked to litigation or damage to their reputation.
(1) associate lawyer in health and commercial litigation at Cornet Vincent Ségurel law firm
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