▸ Area 04
Human rights & business
Compliance law and the duty of vigilance place a new responsibility on companies toward human beings and the environment — meeting it requires understanding its mechanisms and anticipating exposure to liability.
The compliance movement has transformed the way large companies — and, increasingly, smaller organizations — approach their social and environmental responsibility. In France, the law on the duty of vigilance requires parent companies to establish a vigilance plan covering the risk of serious violations of human rights and the environment across their value chains. This is compounded by obligations arising from the anti-corruption framework, the whistleblower protection law, and European instruments currently being rolled out. These obligations generate two opposite but complementary needs: assistance in achieving compliance, on one hand, and defense in the event of an allegation of non-compliance, on the other.
The firm acts at both stages. Upstream, it assists companies in designing and implementing their vigilance plans, conducting internal investigations into internal reports or alerts (concerning integrity, harassment, discrimination, corruption), and negotiating or mediating with stakeholders. Downstream, it defends organizations facing allegations of an inadequate vigilance plan or a breach of their compliance obligations, whether the challenge is judicial or reputational.
The rhetorical dimension — the ability to persuade, both internally and before external stakeholders — is central to this practice, in keeping with what Marie-Anne Frison-Roche has described as the lawyer's role as a "porteur de conviction" (bearer of conviction) in the new compliance system (Marie-Anne Frison-Roche, "L'avocat, porteur de conviction dans le nouveau système de compliance," in Dalloz Avocat 2020, page 133).
Matters
- Vigilance plan — implementation, review, achieving compliance
- Internal investigations (reports, alerts, harassment, discrimination, integrity, corruption)
- Human rights in supply chains
- Corporate social and environmental responsibility (CSR)
- Whistleblower protection
- Anti-corruption framework
- Negotiation and mediation with stakeholders (employees, unions, NGOs, government bodies)
- Defense against judicial or reputational allegations of compliance or vigilance failures
- Duty-of-vigilance litigation
- Training and awareness-raising on due-process principles in internal investigations
Forums
- Tribunal judiciaire (duty-of-vigilance litigation)
- Court of Appeal
- Administrative courts (depending on the nature of the allegation)
- Mediation bodies (project mediation, mediation between stakeholders)
- Relevant independent administrative authorities (depending on the field: AMF, ACPR, AFA…)
- OECD National Contact Points (Guidelines for Multinational Enterprises)
- European courts and bodies (depending on the nature of the dispute)
Frequently asked questions
Above what size is a company subject to the duty of vigilance?
The French law on the duty of vigilance applies to companies that exceed certain employee thresholds, assessed in France and in the subsidiaries they control. These thresholds have evolved, and the European texts currently being transposed are likely to lower the applicable criteria. An initial conversation makes it possible to determine whether an organization falls within the scope of the obligations, and at what level.
How should an internal investigation be conducted so that it is legally sound?
An internal investigation that is legally sound respects several principles: impartiality of the investigator, prior information to interviewed persons about their rights, confidentiality of exchanges protected by professional secrecy, proportionality of the investigative measures, and traceability of the process. An investigation conducted without these safeguards exposes the organization to later challenges and can undermine the use of its findings before a court. Involving a lawyer from the design stage of the investigation is recommended.
What should be done if a whistleblower reports facts within the company?
Receiving an internal report triggers legal obligations: acknowledgment of receipt, handling within a reasonable time, and protection of the confidentiality of the whistleblower's identity. An inadequate response — whether inaction or measures perceived as retaliation — engages the organization's liability. It is advisable to establish reporting channels that comply with the applicable regulations and to define handling procedures in advance.
Can a company be sued for an inadequate vigilance plan?
Yes. The applicable French texts allow certain persons and organizations to give formal notice to a company to complete or implement its vigilance plan, and then to bring legal action in the event of continued non-compliance. Case law in this area is still developing, and the conditions for the admissibility of such actions remain the subject of debate. An initial conversation makes it possible to assess an organization's exposure to this type of allegation.