LEnvironmental issues expose companies that do not take them sufficiently into consideration to legal proceedings more than ever. Like the emblematic Dutch decision, handed down in May 2021, which ordered Shell to reduce its CO emissions2 by 45% by 2030, the specter of convictions hangs over their heads. At the origin of these disputes: Greenpeace, Our Business to All, Friends of the Earth, Sherpa… activist non-governmental organizations (NGOs) as comfortable with the communication tools as with the legal tools they serve their cause.
To meet these challenges, the courts are also mobilizing. The Paris Court of Appeal has created a new chamber within its economic division which will be intended solely for cases on the duty of vigilance of companies and their ecological responsibility. The theoretical risk for companies is all the more real as the range of legal bases to force them to adopt eco-responsible behavior is wide.
“Vigilance plan”
Symbol of a true renewal of corporate social responsibility, the duty of vigilance of companies, adopted in 2017 in France, requires them to take into account the risks of environmental damage linked to their activities. And this across their entire value chain. Failing to implement a “vigilance plan” precise and effective, the company is exposed to both injunctions and sentences to repair the damage caused by its lack of vigilance. Taken up by several States, such a mechanism has now been established by the European Union within the framework of the so-called “Corporate Sustainability Due Diligence Directive” (CSDDD).
But it’s the repression of greenwashing [écoblanchiment], that is to say the abusive use of the ecological argument with the sole aim of attracting consumers, which further increases the pressure on companies. Thus, subpoenas have been issued due to advertisements about “net zero” strategies. This risk could intensify as part of the transposition into French law of European directives on “environmental claims” (including one adopted on February 28), notably requiring companies to rigorously justify their claims and the use of labels.
Piercing the “social veil”
Greenwashing and non-compliance with environmental regulations can allow a company to take an unduly competitive advantage in a market, opening the way to compensation action on the basis of unfair competition. Finally, the strengthening of transparency obligations on social and environmental implications, resulting in particular from the transposition into French law of the CSRD directive [Corporate Sustainability Reporting Directive, directive sur la publication d’informations extra-financières des entreprises], exposes companies to the regulator. Indeed, if it turns out that this reporting contains “ false information addressed to the market »a practice punished as market abuse, then heavy administrative or criminal sanctions will be incurred.
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