Paris, 1 June 2023. “Our organisations, which represented the affected communities in the city of Osorno, have been deprived of any effective remedy against the Suez Group,” said José Aylwin, coordinator of the Observatorio Ciudadano’s Business and Human Rights programme and FIDH project officer. “The French Duty of Vigilance Law therefore remains ineffective in offering access to justice to affected communities across the world.”
The Paris Judicial Tribunal has ruled in favour of the defence. The court argued that Vigie Groupe SAS, formerly known as Suez Groupe SAS, could not be considered a defendant in the case, insofar as the contested vigilance plan did not mention which precise company within the Suez Group’s corporate structure was responsible for such a plan.
“Based on this interpretation, in the future it will be impossible for organisations to know which company to sue if the vigilance plan is not signed,” said Clémence Bectarte, coordinator of FIDH’s Litigation Action Group.
The judge also ruled that the plaintiff organisations were inadmissible as they had not summoned the company on the basis of the same vigilance plan as in their formal notice.
“This decision makes the Duty of Vigilance Law meaningless,” said Maddalena Neglia, Director of FIDH’s Globalisation and Human Rights desk. “Our organisations had taken the company to court, noting the failure of the dialogue with the company after the formal notice, precisely because the new plan did not at all take into consideration our original demands.”
This decision once again illustrates the reluctance of French judges to rule on the substance of this law, whose main goal is to protect human rights and the environment. Other previous cases, such as that of Total’s EACOP oil pipeline in East Africa have been declared inadmissible on similar controversial procedural grounds.
A legal action in response to a major health crisis
After a formal notice in July 2020, FIDH, Observatorio Ciudadano, Red Ambiental Ciudadana de Osorno and the Ligue des Droits de l’Homme (LDH) had taken Suez to court on 11 June 2021 on the basis of the French Duty of Vigilance Law. In July 2019, the residents of Osorno (Chile) were deprived of water for ten days and a health emergency was declared due to a contamination of the potable water network. The incident was the latest in a series of malfunctions and negligent behaviour imputable to ESSAL, a company controlled by Suez. The Chilean supervisory authorities had repeatedly pointed to them as “high risk”.
Suez argued that the organisations had not targeted the right company in their summons. It also defended that the summons were not based on the same vigilance plan as the formal notice.
The organisations ready to appeal
“We are going to appeal this decision as we are determined to see a full application of the Duty of Vigilance Law,” said Julie Février and Florian Curral-Stephen, lawyers for the plaintiffs. “More than four years after the law came into force, we regret that there has been no substantive ruling on the human rights violations at the heart of many cases.”
This decision is all the more important as it comes on the day that the European Parliament adopted its position on the proposal for an EU Corporate Sustainability Directive. While the European Union is moving towards the establishment of a European duty of vigilance, French jurisprudence seems to evolve in the opposite direction.