Chile: In Wake of Osorno Health Crisis, Water Giant SUEZ Summoned on Basis of Duty of Vigilance Law

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On 2 June 2021, Suez was summoned under French ‘Duty of Vigilance’ legislation (loi sur le devoir de vigilance) before the judicial tribunal of Nanterre, following notice served by the four organisations – FIDH, LDH, Observatorio Ciudadano and Red Ambiental.

The facts

In July 2019, the city of Osorno suffered a health emergency, triggered by the release of 2,000 litres of oil at the Caipulli drinking-water plant run by a subsidiary of Suez. This led to the city’s entire drinking water supply being contaminated for more than ten days. The contamination also affected the city’s rivers – the Rahue and Damas. Poor lighting, defective infrastructure and staff shortages were among the many avoidable irregularities which the company had failed to deal with properly and which subsequently gave rise to the health emergency.

In view of the immediate risk involved, a public health warning was issued in a decree dated 12 July 2019. While the warning remained in force, the health emergency was exacerbated by ESSAL failing in its duty to install adequate, alternative water-supply points promptly. In addition, the water supplied was insufficient and of poor quality. Water-supply services were not fully restored by the company until 21 July 2019. The public health warning was extended until 31 August 2019 in an ongoing attempt to tackle the health emergency.

The resulting failure to respect the physical and mental integrity of the residents of Osorno, and thus their right to health, also violated their right to live in a healthy environment and their right to water.

Legal action

In accordance with the provisions of the French ‘Duty of Vigilance’ legislation, the community organisation Red Ambiental Ciudadano de Osorno, FIDH and its member organisations in Chile and France, the NGO Observatorio Ciudadano and the Ligue des droits de l’Homme (LDH), served notice on the parent company Suez on 7 July 2020 that it must comply with the law on corporate duty of care by taking the necessary measures to deal with the deficiencies and unlawful practices of the Osorno water-supply service to prevent another health emergency arising in the city, at any other ESSAL-operated subsidiary or at any other company controlled by the French group in Chile.

Following this formal notice, FIDH, LDH, Observatorio Ciudadano and Red Ambiental met for discussions with Suez on two occasions to try to secure changes to the company’s corporate duty of care strategy that would take account of their concerns and would thus avoid a repetition of any such health emergency in the future. The 2021 ‘Vigilance Plan’, published by Suez on 29 April 2021, did not meet the expectations voiced by the four organisations. They therefore summoned the company to appear before the civil court in Nanterre.

Our demands

Our organisations are demanding concrete outcomes from the legal action in the form of a court order instructing Suez to publish a new ‘Vigilance Plan’ with detailed, adequate measures to mitigate and prevent the risks of human rights violations, particularly relating to the rights to health, water and a healthy environment. The plan should also include a mechanism for effectively implementing these measures.

Timetable and next steps
The legal action was launched on 7 July 2021. A first hearing took place on 12 April 2023 at the Paris Judicial Tribunal to discuss the admissibility of the case. It focused on three key issues:
• Whether the case was brought against the right legal entity in Suez’s corporate structure;
• Whether the NGOs which submitted the case have legal standing based on their organisations’ mandate; and
• Whether the formal notice sent to Suez in 2019 and the current legal action should have referred to the same “Vigilance Plan” in order to consider the case admissible.

On 1 June 2023, the Tribunal declared the action inadmissible, ruling on the first and third points raised by the defence. The civil society organisations have appealed the decision. A hearing is scheduled for 5 March 2024 at the Paris Court of Appeal in a special "duty of vigilance" chamber.

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