🚧Duty of vigilance: the way forward

1. The European entrée 🎯 In 2017 in France, the so-called Vigilance law📎!footnote-3662 expressed great ambition. So did the draft directive📎!footnote-3661. But in 2024 the European institutions moderated this ambition by increasing neither the type of companies subject to it nor the constraints to which the duty of vigilance is associated. Essentially, the directive has halted what was for some the "march of progress"📎!footnote-3550. Does the driving ambition no longer exist? Does the future lie in an extension of the duty of vigilance philosophy, i.e. companies that should always be more concerned about others? This would undoubtedly lead to the "age of maturity", where others see the age of madness, because it would be a contradiction in terms to ask a company to be concerned about anything other than its own development.

 

2. Construction of the study 🎯 It is therefore appropriate to consider this very hypothesis of an "age of maturity" as being an ambition maintained despite a directive which, in its adopted version, is weakened, whiles opposition are intact (I). First of all, it must be admitted that the notion of "maturity" most often conceals a value judgement when applied to a legal concept (I.A.) and that this is blatantly obvious with regard to the duty of vigilance which is considered by some, by nature,  as a good and by others as an evil (I.B.). 

 

In order not to remain in what appears to be trench warfare, we must not become excessively locked into the reference French legislation of 2017 and what appears to be a European stutter in 2024, arguing so loudly that we can hear them reasoning in print, by paying attention to less visible and now more promising avenues for progress (II). Indeed, the duty of vigilance can progress simply by the passage of time (II.A), by a better definition of the vocabulary (II.B), by the consolidation of the principles of Responsibility, Sustainability and Dialogue (II.C), by the uniqueness of the jurisdictional route (II.D).

This last perspective of progress, which will be made possible by the uniqueness of the judicial route, leads to a final avenue of progress. By their very nature, laws are jolts, all the more violent for being disputed. At the moment, if progress is to be made, these two other sources - contracts and the courts - must be encouraged (III). The directive is rightly concerned with access to the courts and takes a measured view of the effectiveness of contracts as a means of making the duty of vigilance effective, with the courts having to ensure that the contract does not destroy the spirit of the system. This is what the law already knows about the relationship between the contract, the judge and the general duty of compliance (III.A). What is new in 2024 is the introduction of a Supervisory Body, reinforcing the link between Regulation, Compliance and Supervision (III.B). Here again, Vigilance is the "cutting edge" of Compliance Law, as it is an extension of Regulatory Law.

From this overall study, it is clear that it is the judge who, through the interpretation of texts, the handling of principles, the control of contracts and the recognition of practices, maintains and will maintain the balance of the duty of vigilance.

 

 

I. ENVISAGING THE "AGE OF MATURITY" : AN AMBITION MAINTAINED DESTPITE A WEAKENED EUROPEAN DIRECTIVE AND INTACT OPPOSITION

3. The ideal of maturity 🎯  It is difficult to measure the "maturity" of a legal mechanism (A). The difficulty is compounded here because this assessment of maturity includes an element of value judgment, which applies here to a notion of vigilance that for some is in itself beneficial and for others in itself harmful (B).

 

A. THE CONCEPT OF "MATURITY" APPLIED TO A LEGAL MECHANISM: THE INPLICIT NOTION OF "PROGRESS" 

 

4. From decade to decade, to each law a candle 🎯 Like the one of maturity📎!footnote-3502, the image of age is usually wielded for laws, from the "old tax📎"! !footnote-3202, adequate because old, to the "young law", suspected of imperfection because recent📎!footnote-3203, perhaps due to the fact that the Law, always conservative📎!footnote-3204, has the reputation of preferring the established to the new📎!footnote-3653. By dint of celebrating the anniversaries of laws and institutions, let us bet that 2027 will be favourable to multiple more or less scientific events, of the 10 years of the French 2017 law known as "Vigilance", because we are moreover parameterized in decimals📎!footnote-3205.

 

5. The prospect of maturity through consensus on the concept and the system of vigilance: for the time being remote 🎯If we leave imagery, how can we define the maturity of a legal concept, since we are invited to do so here, with a question mark? Consulting the dictionaries📎!footnote-3206 leads to references made to both a fullness of development and a balance in what has resulted from it, as well as to the correctness of the assessment. There is "maturity" of a concept or a system when few people question the concept, the system and their effects, in particular because they have all understood and assimilated them📎!footnote-3552.

For example, if it turns out that few question the mechanism as such or in its conception, then the mechanism is mature unless one wants to operate a "revolution", often called "Copernican" since this then amounts to changing the world, as Copernicus did with the new description he made of the cosmos, which no one subsequently contested, the description of a system in which the Earth revolves around the Sun therefore being a mature description. Kuhn📎!footnote-3210 described this for systems that were more detached from reality, which could thus concern legal notions. Numerous studies have focused on this phenomenon, which destroys certainties that can then crumble and disappear, or give rise to battles, the trick always being to present oneself as the "modern" and to describe the other as "old", or even, if we leave legal academic publications for more turbulent forums, to describe them as "reactionary". This is why Gérald Bronner is right to assert in the social sciences that there are truths📎!footnote-3460. It also happens in Law📎!footnote-3209. In the same way, in art and as René Sève📎!footnote-3207 shows, a new notion and/or practice becomes mature when it is taken as a reference. For example, when perspective was adopted in Western painting, for which we can consider that it appeared in the Renaissance, it reached maturity in its practice and conception when everyone found it ordinary to proceed in this way. Then came Marcel Duchamp, who lowered a staircase in 1912. 

Reading the ones et the others, we can only conclude that the legal concept of Vigilance is still a long way from reaching the "age of maturity", if one wants to express his/her satisfaction by this expression. No, the child is not yet standing upright.

 

6. The prospect of maturity so that the concept of vigilance and the vigilance system constitute a sufficiently solid foundation for reinforcing other systems: a distant prospect for the moment 🎯 Another way of testing maturity, which is also all about images, is to measure its "solidity", i.e. the point at which it ceases to be vague and can only be grasped by lengthy developments, and can be captured in a few words. This is often linked to the earlier phenomenon of consensus, because a concept is all the more solid when everyone, or almost everyone, understands the same thing under the same word. But here it means that Vigilance becomes a "standard"📎!footnote-3461. This is possible if we proceed backwards: insofar as the duty of Vigilance is the advanced point of the Obligation of Compliance📎!footnote-3484, which is the extension of the Regulatory Law📎!footnote-3485, Vigilance irrigates regulated systems.

But it is remarkable that, depending on the different regulated systems, the obligation of vigilance does not have the same intensity, depending on whether it concerns, for example, the financial system📎!footnote-3551,, the banking system📎!footnote-3463, the financial system, the digital system📎!footnote-3464  or the energy system📎!footnote-3462 .

This foundation is strengthened if we consider that Vigilance techniques are now being deployed beyond sectors by Compliance Law, via Vigilance, which incorporates all the compliance techniques, including risk mapping📎!footnote-3466, internal investigation📎!footnote-3554 and whistleblowing📎!footnote-3467. 

But the link between Compliance and Vigilance is contested by authors who fail to see the identity of the techniques used, and reduce Compliance Law to the mechanical obedience of conformity,📎!footnote-3468, seeing Vigilance as the "extra soul" that Compliance would lack (which would be sustainable if Compliance Law were confused with conformity techniques). In the same way, the link between Vigilance and the liability system has been the subject of verbal and written confrontations, of which this very book is a trace, and which the adoption of the European directive (CS3D) will not have calmed down, with some wanting to go further and others pointing out that the text refers to the general conditions of liability, i.e. a generator event, damage and a causal link between the two.

 

B. THE DIFFICULTY OF MEASURING THE "AGE OF MATURITY" OF THE DUTY OF VIGILANCE, BECAUSE CONSIDERED BY SOME AS A GOOD THING AND BY OTHERS AS A BAD ONE

 

7. Thinking in terms of "Maturity" is often a matter of giving satisfaction 🎯 Taking as  topic The Duty of Vigilance: the age of maturity? is an appropriate but singular way of posing the subject, since it presupposes knowing what the "maturity" of a notion, or a technique, or a corpus, is in Law. The book's first and most general instruction is to take as the criterion for assessing the duty of vigilance what must therefore be its ideal level of maturity, thus making it possible to give its level of maturity, a maturity more or less attained. The title of the book links this state of maturity to age, referring to the biological image of that which is born, grows, and then undoubtedly disappears. To designate by image is a figure of speech, an eloquence of which Law, lover of dry precision, is wary.

The expression is certainly often used in academic doctrine📎!footnote-3215, but it then refers more to satisfaction with the state of a law or corpus than to a precise state of what the expression is attached to: reading the works, sometimes between their lines, the author seems to consider a legal mechanism "mature" when he/she is satisfied with it, whereas he/she will say it is "immature" when he/she has criticisms to make of it and wants changes to be made. The idea of progress is therefore implied, either because it has been achieved and the "age of maturity" has thus been reached, or because it remains to be achieved because the author is dissatisfied with the current state of affairs. Just as it was said in the 19th century that there were "savage" and "pre-logical" societies, because we disapproved of them, which the French book Tristes tropiques📎!footnote-3493 in particular cast doubt on. None of this, then, is self-evident📎!footnote-3451 ; il will merit prior explicitation📎!footnote-3452.

 

8. The value judgment of progress supposedly achieved by the adoption of France's so-called Vigilance law in 2017🎯 Indeed, the statement of such a title, "The Duty of vigilance, the age of maturity?", contains the underlying idea of progress, a technical notion but also a political one. A progress that would have already been made by what would be the "birth" of the device, undoubtedly by the French law of March 27, 2017  sur le devoir de vigilance des sociétés-mères et des entreprises donneuses d'ordre ("on the duty of vigilance of parent companies and ordering companies"), even if we find, as with any "new law"📎!footnote-3442, lineaments of the notion before the adoption of this law📎!footnote-3211.  We therefore assume that in 2017 this law was itself the bearer of progress, either bringing it or translating it, notably in the new conception of the company and its corporate social responsibility📎!footnote-3212.

This, however, is disputed by those who see the adoption of this law as weakening the competitive position of French companies subject to it in relation to those, foreign, that are not📎!footnote-3216. The competitive perspective was indeed one of the justifications for the proposal of the European directive and its extraterritorial effect. One of the questions posed today is whether the very difficult adoption of this directive and its weak scope, since so much had to be trimmed to get it through, reinvigorates this criticism. 

It is possible that it was these differences, which have not been resolved - the adoption of the notion of "Vigilance" and its transformation into a "Duty" constituting for some a "burden" and for others "progress" -, that almost cost this directive its return to limbo and only saved it in tatters, since the banking and financial sector is excluded, only very large companies are subject to it, the climate transition plan is no longer accompanied by specific sanctions and the considerations on contracts had already been acquired elsewhere. So it could be said that what remains of the directive is the 2017 law, just put up to a European level which through its reference to the value chain has an extraterritorial scope. The issue that remains is mainly that of the creation of a national supervisory authority, which the national Legislator could have created by his own will and for the configuration of which his margins are important📎!footnote-3477.

But it is fair to say that the so-called Vigilance Law is all the more "progress" in that it constitutes the "advanced edge of the Compliance Obligation"📎!footnote-3443. Indeed, Compliance Law is normatively anchored in its Monumental Goals📎!footnote-3217, in that the preservation of human beings in the face of and within systems, for example the climate system, is the very object of this new branch of Law📎!footnote-3218. The 2017 law illustrates this, with the duty of vigilance being the "leading edge" of the Compliance system, since the introduction in 2017 of the duty of vigilance mechanism on the one hand made the general Compliance system, which did not yet appear to all in its uniqueness and strength, more clearly visible, and on the other spread this Compliance mechanism throughout the value chains, vigilance thus constituting and in this a double advance: advance in visibility and substantial advance📎!footnote-3219. 

Relying on this explicit formulation explicit of "maturity" and implicit of "progress", a value judgment that pays homage to this new French 2017 law which is methodically assumed to therefore constitute progress in relation to the old law, referring moreover to the more general methodological postulate of transitional Law which posits that the new law is progress in relation to the old law since it has been adopted📎!footnote-3213, we can in a second step measure the progress made since then. And if we leave it at that, we can lament the a minima adoption of the CS3D directive, which, in order not to be rejected in its very adoption and for example, now targets only large companies. Some, who would have liked a text equivalent to the GDPR in its scope in that it affects all companies, will lament.

 

9. The value judgement of progress supposedly thwarted by the adoption of a European CS3D directive of limited scope 🎯 What hasn't been said about this draft directive.... To praise it, to criticize it. Now adopted with a limited scope, since the change in relation to French law was to extend the scheme to ITOs and SMEs, to extend it to the banking and financial sector, and to adopt stronger sanctions, which had to be abandoned unless adopted, the change will come rather from the evolution of Contract Law and Tort Law, which is more in the hands of the judges, whose case law is in the process of being built up.

This no doubt explains why authors write numerous articles on current cases, to explain to judges what they should do. When it comes to the European directive, authors may be positioning themselves as if after a battle, some lamenting their broken spears, others counting their reported banners, all of them anticipating their victory in the next legislative confrontation. This may be the somewhat hypothetical stage resulting from the Commission's report to the European Parliament on the prospect of applying the scheme to the banking and financial sector.

Above all, this is the national moment of transposition, with discussions destined to focus primarily on the institutional stakes of the Supervisory Authority and on the possible substantive stakes of interference with the jurisprudential construction that has begun📎!footnote-3478. For whether a battle has been lost, or won, each will no doubt claim to have won it, each will no doubt and alas assert that the war continues, and so on. Indeed, warlike imagery is very much in vogue when it comes to Compliance, as in the frequent reference to the "war" between the Civil Law and Common Law systems. Another figure of speech.

If we remain within the perspective of the age of maturity, those hostile to adoption and satisfied with a restricted European text will be able to say "at last, the Law is reasonable", referring to what would have been an initial legislative desire paved with childish intentions to do good for all at the expense of all European companies, including small ones which are already struggling, the European legislator having thus returned to the soil of competitive realities, the age of adolescence having passed... Meanwhile, those who had hoped for the adoption of a Directive as originally intended will be able to say "but when will you grow up, to live up to ambitions worthy of the land of Human Rights? When will you leave the stage where we're only interested in money, bosses and the here and now, and start caring about others, future generations and acquiring that second nature of the civilised being we call Human, and which Europe must bear?".  If we get on these high and low horses, we'll have to wait for the next legislative confrontations, now national ones, with each side blaming the other for the "immaturity" of the Law, and in reality claiming that the other's thinking is immature.

If we take a more technical look at the subject and stick to legal rules , undeniably composed by the French 2017 law which expressly targets goals, since it requires major corporations to "detect and prevent" environmental and human rights abuses, so that such abuses in the future do not occur or are diminished, a teleological law📎!footnote-3446 therefore, aiming at "Monumental Goals", as the Paris Judicial Court emphasized in its judgments of February 28, 2023📎!footnote-3444 in decisions also commented on from all sides📎!footnote-3445 , we note that if there is progress, it is measured not so much in terms of the political ambitions that one carries in a general way, because otherwise one could say that the failure of a law that one disapproves of is "progress" in that it is a sign of the "maturity" of a legal system that recognises its errors, it's more a question of looking for methods to ensure that the Monumental Goal of the 2017 law, to which the now narrowly worded directive adds little (except concerning the Supervisory Authority), are achieved, notably through case law and practices, notably contracts, since companies have long since contractualised the duty of vigilance📎!footnote-3453.

 

10. The methodology implied by a need to know the progress already made with regard to a Goal not yet achieved by French law and practices that are being deployed internationally and that the CS3D hardly exceeds🎯 Indeed, the French 2017 law has begun to produce its legal effects because its object covers value chains📎!footnote-3454 and extends its effects through the contracts in all international trade📎!footnote-3447. As a result, its scope goes beyond the national space, the relay by the European directive which will be transposed in 2 years and will only concern the same companies thus not changing this.  The exercise is more an exercise in knowledge, that of practices and case law, of which there are currently very few, but which has been made famous on the one hand by an effervescence of doctrine and on the other hand because the courts have spontaneously organised themselves to deal with this new type of litigation, in particular the Paris Court of Appeal📎!footnote-3480. This very important institutional change owes nothing to Europe either, but to the awareness that at the centre of Compliance and Vigilance Law, it is above all the Judge who is placed, in dialogue with the other judges📎!footnote-3479.

It is therefore a kind of initial assessment, a few years after the enactment of the French law in 2017, to designate the stages, to give the dates and to measure the progress made, since the question mark in the title already raises doubts as to whether it has already achieved its objectives, i.e. whether practices have already been able to ensure that in an effective, and efficient way📎!footnote-3448, environmental and human rights abuses are detected and prevented by the companies, subjects of law. Through their practices, their obedience to the law, the power of contracts, which alone can transform companies subject to the law into debtors and thus generate creditors📎!footnote-3501, through liability lawsuits. This brings us back to the Compliance Obligation 📎!footnote-3455.

We can therefore imagine a concept that has entered the legal order but has not yet reached what would be its 'accomplished age'... The implicit reference is to the ancient Greek concept of acme, which expresses the apogee of both an illness and a technique, doctrine or civilisation. Conceived according to the cycle of life and in a positive sense, it refers to a state of fulfillment, to the marvelous moment that cannot last when one is both wise and powerful, i.e. adulthood in which mastery is at its peak because the mind has acquired knowledge while the body has not yet lost its grip.

It is not certain that the Vigilance mechanism is neither wise nor powerful. For example, "wisdom" would consist in not using violence but rather in conciliating and educating (which is what we do when we are adults). When a company claims that Vigilance duty  will ruin the economic system, that's not wise; when an NGO claims that the directive voted through, because it doesn't target all companies, is the work of the extreme right political partisans, that's not wise.

For example, "power" would mean not just obtaining money for particular people in a particular case, but obtaining a change in general culture in a globalised economy, in a new culture of the common good shared with Russia, China, etc. (that's what you get when you have authority).

If this is how we conceive of the age of maturity of the duty of vigilance, requiring both wisdom and power, we should recognise that the child does not yet know how to walk. But we can have the ambition for this little legal concept.

 

More technically, this would be the age when the company, also often compared to a large body with a brain, a heart and an "extra soul"📎!footnote-3456, has achieved the goal set by Compliance Law: in this case "to detect and prevent breaches of the environment and human rights in the value chain" where the parent company or ordering company is located. Law, which is less warm-hearted than morality and is careful not to become confused with it, for example by not recognising in positive Law a prohibition on not causing damage to others, because by exercising our freedom we cause damage to others and we are only legally liable for it if we commit a fault or negligence or violate a precise legal requirement📎!footnote-3481, it is not a question of obtaining that in the future the risk of such harm be extinguished, for example by a perfect education of all and everywhere by a morally stoic enterprise which would make the whole world governed by an absolute and sufficient moral rule📎!footnote-3220: by means of a legal obligation that subjects certain companies covered by the law, which must obey the law and are not therefore liable, unless this legal obligation is incorporated into a contract📎!footnote-3482 to obtain that companies equip themselves with the means to detect and prevent such risks.

 

11. To measure the progress of the duty of vigilance towards maturity, agree on what the duty of vigilance applies 🎯 This presupposes that we have a good grasp of what the legal mechanism of the duty of vigilance was adopted for, in order to assess whether the ambition is being achieved.  If we have a clear and shared idea of what the duty of care was established for, then it is easy to measure the progress of the various legal tools in being "effective".  But it is not certain that we have a clear idea of these aims📎!footnote-3214.  Is it just a duty to inform? What is the degree of transparency? Is it a duty to act? How demanding are the results of the actions taken? What standards are binding? Which standards can inspire companies? Which standards are binding on judges? Which standards can inspire judges? For the moment, there are as many answers as there are authors. We therefore need to identify the points of agreement; if they prove to be too weak, since the directive has not made much progress in relation to French law, and before the judge himself answers these questions, as he is more often than not greedily challenged by a doctrine that explains to him what it means to judge, we will no doubt have to turn our attention to the very ways in which progress is being made.

 

12.  Identify the points of agreement, procedural and substantive, the first sign of maturity of the duty of vigilance: for the moment, low maturity 🎯 We will therefore be able to measure what can be described as the "maturity zones" of the duty of vigilance, because everyone would agree. When the legal mechanisms are new, the first points of agreement are procedural. This is even truer if the techniques concerned are procedural in the legal sense  themselves, which is obvious since the duty of vigilance leaves a lot of room for the Judge. However, the points of agreement are still rather weak because, while NGOs seek the support of the courts by building "litigation", thus contributing to the "jurisdictionalisation of Compliance"📎!footnote-3449, companies undoubtedly still tend to rely on "compliance mechanisms" to gather information and process it using an algorithmic system ("Compliance by design"), still confusing Compliance Law and conformity techniques, which are only among the tools of the latter📎!footnote-3450. The processual elements therefore do not yet give rise to many points of agreement. Early case law is deciding disputes on processual issues, including those relating to the right to access to the judge📎!footnote-3457.

From a more substantive perspective, the points of contact are still rather weak, since some stakeholders would like to see the duty of Vigilance as a form of co-management of the company, while some companies are not far from alleging that this demand for power-sharing would constitute some sort of infringement of the Nation's interests, particularly in view of the sector in which the company operates. It should come as no surprise that the draft directive, hiccup after hiccup, ended up in June 2024 with a version that imposes few constraints on companies compared with what the French 2017 law already generates, and targets only large companies, taking up the logic of Compliance Law, which targets only companies "in a position to act" and not all of them.

 

13. Identifying avenues for progress, the second more immediate sign of the maturity of the duty of vigilance 🎯 Rather than continuing what has been close to a pitched battle, and even though, contrary to this warlike tendency, the courts referred to are proposing mediation in matters of vigilance📎!footnote-3458, it seems more fruitful to focus efforts on the very ways in which progress can be made. If only to restore a little calm to what is being said or written. After returning to the question of what constitutes the maturity of a legal concept, and rather than trying to win over one view to another, so that this sort of frozen conflict does not remain in that state, we can suggest 8 possible ways forward📎!footnote-3483.

 

II. PAYING ATTENTION TO LESS VISIBLE AVENUES FOR PROGRESS THAN THE LAW AND THE COURTS

14. Exploiting other avenues too 🎯The duty of vigilance can in law and in fact progress simply by the passage of time (A) and by fixing the vocabulary (B).

 

 

A. ADVANCING THE DUTY OF VIGILANCE THROUGH THE PASSAGE OF TIME

 

15. Rediscovering the past depth of Vigilance to allow it to unfold in continuity tomorrow 🎯 Legal historians affirm that they study "living Law", since Law carries within it its preserved History📎!footnote-3470. What appears to be a break is in fact nothing but continuity, for example the French Civil Code, as Carbonnier📎!footnote-3471 showed. The same is true of the French law, in small comparison, of 2017. In a mechanism of vigilance in which "practices", "corporate cultures", the so-called "soft law", play such a large role📎!footnote-3469, that construction takes place in continuity, with the great legislative evenings taking up little space, even when they are European.

This Vigilance, through which companies put in place instruments to manage risks, to care for people inside and outside📎!footnote-3473 , to anticipate and resolve conflicts, to participate in the so-called "global" society, can be found everywhere in previous laws and practices. Doubtless even more so in the case of a stated-owned company, which then becomes the paragon of the vigilant company📎!footnote-3472, after having been the abnormal organisation under Competition Law.  

Thus by the mere passage of time, modes of governance📎!footnote-3474, surrounding notions of "raison d'être" by the so-called French Pacte law of 2019, the refinement of compliance tools, such as whistleblowing by the European directive of 2019 aimed at improving the protection of whistleblowers, the contracts that will continue to be executed, in the shadow of arbitrations📎!footnote-3487, will fuel a more general movement for which the "program"📎!footnote-3476 technique will develop, with the vigilance plan thus gaining strength in that it is merely a variety of the compliance programs, the importance of which can be measured in Competition Law, for example.

 

16. Laws about Vigilance are only the tip of a slow construction, in which contracts and practices, including judicial ones, weave the essential 🎯 Moreover, it takes only a short time to pass a law, whereas it takes so long to build a "jurisprudential policy", such as François Ancel, member of the Cour de cassation (French Judicial Supreme Court) considers necessary in Compliance and Vigilance📎!footnote-3488, and to forge contracts, including those of a structural and relational nature, which can lead to a common culture, the establishment of which is the Monumental Goal of the entire system📎!footnote-3489.

 

17. Taking advantage of the long time taken by Vigilance jurisdictional procedures, which are part of Emerging Systemic Litigation also concerning the future 🎯 In this respect, jurisdictional procedures have the advantage of restoring a little calm, by their natural slowness and by the obligation for the "stakeholders" obliged to become "parties to the proceedings", to submit to the protocol which restricts the registers of vocabulary and claims admissible in a "space of justice"📎!footnote-3490 governed by the techniques linked to the principle of the Rule of Law. This long period of proceedings, adversarial debate and expert opinions, including legal opinions📎!footnote-3491, allows the development of this new branch of Law continuously. This is all the more beneficial as the Judge hearing a Vigilance claim, i.e. a claim based on a systemic risk, an element linked to Information about the future, must himself/herself rule on the future📎!footnote-3492. 

In this way, Judges, encouraged to anticipate and find solutions beyond the jolts of punctual and multiple laws can build a body of legal principles over time in which balances are more likely to be found, since litigation tends to produce solutions in which the interests and doctrines of all parties are integrated.

 

 

B. PROGRESS IN THE LEGAL MECHANISM OF VIGILANCE THROUGH THE DEFINITION OF TERMS

 

18. The lack of a common vocabulary 🎯Since in Law words are part of the normative effect, one way forward is to adopt a common vocabulary, since at the moment everyone seems to be speaking in their own language... This is due to the fact that we navigate between French and English, with European legislators and regulators being the first to be caught in the pitfalls of translation, but also to the fact that terminology is not so new, having already developed effects in various branches of Law.

 

19. The right word, between French and English 🎯As with Compliance, which many mistakenly believe to be identical to "conformité"📎!footnote-3494,, many difficulties arise from the difficulty of translation. There are so many different ones: duty of vigilance📎!footnote-3495, duty of care📎!footnote-3496📎, due diligence📎!footnote-3497. Positive law interferes in that the CS3D Directive in its English version uses the expression "due diligence", which refers rather to the active verification of Information during a transfer of assets or a takeover.

However, the notion of vigilance is often translated in English as "duty of care". But Professor Muriel Fabre-Magnan rightly points out that the duty of vigilance does not correspond to this notion📎!footnote-3498 , because the latter refers to the duty to take care of someone close to you, whereas the duty of vigilance refers to a distant situation. 

It is also remarkable that the expression "due diligence" is used by the English-speaking European legislator, but should not be truncated, since the Directive refers to Corporate Sustainability Due Diligence, i.e. it is based above all on the notion of "Sustainability", which is appropriate for environmental issues, and even more so for climate issues, but less so for human rights.

This is why my preference is for a more literal translation of "devoir de vigilance / duty of vigilance", because it is really a matter of continuously watching over an interest, a situation and persons who  are outside the person who is in charge of that duty, according to the definition of "power"📎!footnote-3503 as Professor Gaillard developed it transversally through the different branches of Law📎!footnote-3504.

If we take the expression "due diligence" in isolation, it refers more to Investment Law, within which checks must be made on the Information to be provided and verified in structuring transactions, positing that the acquirer must verify the Information in asset disposals and takeovers (M&A)📎!footnote-3654, which shows that it is even more between branches of Law that distortions occur, due to tensions between Compliance Law and other branches of Law📎!footnote-3655.

 

20. The right word, between the many branches of Law involved 🎯 The duty of vigilance must not be confined to Company Law, unless we consider that Vigilance is only a matter for the company or for the transfer of assets, which would be too narrow a view. It is not only insofar as Vigilance is only the leading edge of Compliance Law that it can be articulated in a conception that will notably go beyond the summa divisio on which French Law is traditionally based, namely the distinction between Private Law and Public Law. This distinction handicaps in particular the protection of human rights, which was originally conceived against the power of the State📎!footnote-3500, and means that what goes beyond the private interest always seems to return to the bosom of Public Law. Since Vigilance entrusts companies with the task of caring for a distant other📎!footnote-3506 , many see it, as with Compliance of which it is a part, as an appropriation by companies of a State function, and a distortion of the latter, and not, as should be conceived, an alliance between the two. 

 

21. The right word, between legal vocabulary and everyday vocabulary 🎯 It is possible that a return to everyday vocabulary will be useful. This is the case, for example, with 'judge', 'liability' or even 'contract'. In fact, the "person responsible" is not so much the one who is "punished" as the one who takes charge of a situation in order to provide it with the right organisation with regard to a goal that a third party has set for it: effectively and as such, it is indeed a management task that is required of companies. It is therefore the company that draws up the vigilance plan, even if it does so in consultation with stakeholders whose interests and points of view it must take into account📎!footnote-3507, just as the French or German Legislator must do for future generations📎!footnote-3508. It is in this that we move from a legal situation of "liability" to one of "accountability"📎!footnote-3509, in which the company and the stakeholders are directly involved and must show the efforts made to achieve the Goals for which the Legislation has been adopted and in application of which plans have been drawn up.

In the same way, the strict legal concept of "contract" needs to be replaced by that of "link", both between the company and the diverse entities about which it must be vigilant, and the solutions that can be found, such as  DPA, available in environmental matters, These are presented as 'judicial contractualisation' but strictly they are not contracts, and some present them, even more surprisingly, not as an agreement between the prosecutor and the company, but as an agreement between the NGO and the company at the instigation of the prosecutor. Legal concepts are disappearing and being replaced by everyday vocabulary. 

Everyday vocabulary is always less strict than legal vocabulary. The question is therefore who is legitimate in moving from one to the other. For example, companies may themselves decide to take responsibility for societal issues over and above their legal obligations📎!footnote-3510.  The European Directive of 13 June 2024 expressly encourages them to do so, particularly when it details the way in which companies must respond to the "complaints" that interested parties address to it, i.e. exercise a jurisdictional-type activity📎!footnote-3692.

The introduction of the concept of the "value chain" into the legal vocabulary converges towards such freedom for companies. If we take the concept developed by Michael Porter in 1985📎!footnote-3693, the value chain is a construct resulting from the company's free managerial choices, both internal and external. The fact that the 2024 European directive refused to adopt this vocabulary in favour of "chain of activities", which is more neutral in terms of the liberal conception of the free construction of value chains to increase the competitiveness of a company in relation to others, shows that the European Legislator, while including not only upstream but also downstream activities in the scope of the activities covered, does not intend to depend on a doctrine, or even an author, and limits the activities to those of suppliers of external goods and service.

 

C. THE PROGRESS OF THE LEGAL MECHANISM OF VIGILANCE THROUGH THE EMERGENCE OF THE 3 PRINCIPLES: RESPONSIBILITY, SUSTAINABILITY, DIALOGUE

 

22. The virtue of principles: making things predictable and clear 🎯What has been said against principles, insofar as the Law should evolve step by step, with pragmatism, which would exclude any principle, since in the statement of the latter would be lodged "dogmatism", which would be the freezing of thought .... ? But Professor Alain Supiot has shown that formulating a few principles, such as the Primacy of the human being or the principle of Fraternity, was certainly political in nature, but it also gave permanence to the swarm of norms. Moreover, these are the same people who condemn the so-called dogmatic rigidity of those who do not think like them, who invoke to justify their position, for example, a duty to share or solidarity - in other words, dogmas. In fact, everyone refers to principles, 'pragmatism' being a principle like any other.

Here, principles enable progress to be made because the vigilance mechanism covers an immense regulatory field, human rights being present in all branches of Law, while they do not have the same meaning depending on whether we are in a particular country, or even in a particular company, since we have a subjective definition of subjective rights. Principles give simplicity to the whole.

 

23. Principles of behaviour that are still scattered but articulated: informing oneself, detecting, preventing, promoting, dialoguing, showing 🎯Within this outline of Vigilance, we find what Compliance Law requires of the companies subject to it: informing oneself about what is happening and what their actions produce, which will lead to curbing the harmful and preventing, improving, showing the state of things and projects, and dialoguing with others. Because 'responsibility', and its inseparable corollary 'power', are internalised into the companies, these principles of behaviour are observed in relation with them firstly. But we can also think of them for States, which, according to the Ruggie principles📎!footnote-3656 often referred to in relation to Vigilance, are the first to make human rights effective. We must also think about the stakeholders, who must inform themselves about the risks and engage in dialogue, or at least respond to offers of dialogue. This principle of behaviour can also apply to judges, who must learn about this new world and also help to prevent conflicts, beyond the strict situation  of litigation. 

Because asking companies to follow these principles of behaviour enables others to progress: for example, as soon as a company behaves "responsibly" in Ex Ante terms, this should lead to equally responsible behaviour on the part of the stakeholders involved, in particular so that solutions can be found to the problems that are detected. This presupposes a certain Compliance and Vigilance "shared culture", over and above divergent interests, which requires dialogue. There are not creditors and debtors, there are companies subject to the Law and working to contribute to the achievement of Monumental Goals to which we ourselves must contribute.

 

24. The "Responsibility Principle" 🎯 This is why the principle of responsibility is essential. This is undoubtedly an advance on which everyone agrees ,whether you are a company, an NGO, a State, or a commentator, Jonas now being one of the most quoted authors. In line with the movement in Law from Ex Post to Ex Ante, 'responsibility for the future', i.e. active responsibility, in that it presupposes action, Ex Ante, and has the future as its object, vigilance aims to make operators 'responsible'. 

The way forward undoubtedly lies in a concept of responsibility that is still very individual, since it is only one, the company, that bears responsibility for the others, whereas it would be conceivable for this responsibility to be shared. This would mean moving away from the impossible logic of the company as debtor to all the creditors that we would be, and adopting a more global concept, particularly with regard to a 'debt' that we all share📎!footnote-3511, whereas there would not necessarily be a creditor, because we are in debt to nature, as other legal systems, such as Kanak law📎!footnote-3512📎, see it, just as we may be in debt to a principle we do not have, such as human dignity.

This means that in this transition from Ex Post to Ex Ante Criminal Law must take a less central role, since in its perspective the damage is done, and collaboration must rather be the principle. In this respect, the 2024 European directive stresses the importance of cooperation between companies, which must be coordinated with Competition Law📎!footnote-3694.

 

25. The principle of Sustainability 🎯The other principle on which all agree is the imperative to preserve the various systems so that they do not collapse ("Negative Monumental Goal"📎!footnote-3657), the climate system being just one example of this, this teleological reasoning being the bedrock of Compliance Law. This principle of Sustainability shows the essential points of contact between the European Extra-Financial Reporting Directive (Corporate Sustainability Reporting Directive - CSRD)📎!footnote-3658 and the Duty of Vigilance (CS3D)📎!footnote-3695. The judge himself/herself must, as Judge François Ancel has shown, integrate the principle of Sustainability into his very way of conducting litigation and devising solutions📎!footnote-3517.  The European directive of 13 June 2024, by linking Vigilance and Sustainability in its very title, has sealed the union of these concepts.

 

26. The principle of Dialogue, correlation of the principles of Responsibility and Sustainability 🎯 This is why the principle of Dialogue must be articulated with this principle of Responsibility. It is precisely because everyone does not have the same role or the same interests - NGOs, companies and States are not in the same positions - that dialogue must be promoted as a principle. There can only be dialogue because everyone is in a different position: for example, when drawing up the vigilance plan, which is done by the company writing down its projections as part of its general policy and strategic decisions, the principle of dialogue must nevertheless govern it, dialogue between the company and the stakeholders, because these stakeholders are "concerned", even if they are not co-authors. Trace must be kept of this principle of dialogue. It will come as no surprise to anyone if dialogue relations must be continued before the judge, since the procedure is governed by the Principle of Contradictory📎!footnote-3515. But this principle of contradiction takes on a new resonance here, because the substantial dialogue between parties should lead to more adversarial procedures, where orality and publicity should have a large place.

In the same way that the principle of Responsibility is moving from the Ex Post to the Ex Ante through the notion of "accountability", the principle of Dialogue is moving from the Ex Post of the trial to the Ex Ante of the "consideration" that the company, which is not at all dispossessed of its power, which is on the contrary increased so that it can fulfill these new obligations, must take in consideration to interests that are not necessarily its own immediately.

 

D. PROGRESS IN THE LEGAL MECHANISM OF VIGILANCE BY CENTRALISING ITS DEVELOPMENT

 

 

27. The French solution: centralisation of litigation, a way of ensuring the coherence of Vigilance Law 🎯 In 2021, the French legislator has imposed centralisation before a single judge: the Tribunal judiciaire de Paris (Paris Judicial Court of first instance). Irrespective of whether the civil or commercial courts are more or less well placed to hear vigilance litigation, depending on whether one considers that the purpose of the legal mechanism put in place by the previous 2017 French law is to protect the business, which leads to the commercial courts, or to protect individuals, which leads to the civil courts, considering that the judicial courts are the courts of general jurisdiction, all of which reinforces the teleological nature of the interpretation called for by this law📎!footnote-3513, the very uniqueness imposed by the 2021 law of a single tribunal, and hence of a single Court of Appeal, is justified in order to unify litigation immediately.

The geographical choice of Paris is all the more justified in that the subjects of Vigilance legal mechanism, insofar as it is the cutting edge of Compliance law, quite often have their registered offices within the jurisdiction of the Paris Court of Appeal📎!footnote-3691, which means that appeals converge before the same Court of Appeal: the Cour d'appel de Paris (Paris Court of Appeal). Indeed, since Compliance Law is itself an extension of Regulatory Law, and since this Court of Appeal hears most of the appeals against regulatory and supervisory bodies decisions, particularly in disputes relating to structural issues of Information, everything converges towards it and the unification of principles and interpretations can be achieved quickly, without always having to wait for the Cour de cassation to intervene. It is this link between Regulation and Vigilance that best justifies this legislative choice, as the Regulatory Law transcends not only the distinction between Civil Law and Commercial Law but also that between Public Law and Private Law📎!footnote-3696.

What is more, and to use the proposed expression "emerging systemic litigation"📎!footnote-3514, this institutional centralisation is a way forward that is all the more necessary because in the cases brought before the judge, factual cases in which a system is involved, the issues developed by the parties are of a systemic nature and the solutions that the judges of first and second instance provide have an impact that de facto goes beyond this case, without the judge replacing the legislature, since the sector is a fact📎!footnote-3697.

This systemic nature of Vigilance litigation justifies dialogue all the more, particularly between the judges themselves📎!footnote-3698. This will in no way constitute dispersion, even if it consists of one judge deferring a ruling to ask the other to rule: it will consist of different judges looking, each as far as they are concerned, at the same situation, that of the issue of the sustainability of systems, so that the people caught up in them are not crushed by it but, on the contrary, benefit from it. Preliminary rulings, stays of proceedings and requests for opinions are all ways of centralising litigation. This is going to multiply📎!footnote-3699.

 

 

 

III. IN THE FACE OF LEGISLATIVE UPHEAVAL, PROGRESSIVE CONSTRUCTION OF VIGILANCE DUTY THROUGH CONTRACTS AND JUDGES 

 

 

28. The progressive construction of the legal mechanism of vigilance by contracts and judges 🎯 The uniqueness of the jurisdictional route leads to a final prospect of progress, the contractual mesh being placed under the control of the judge (A). The novelty of the 2024 directive lies rather in the prospect of the institution of an administrative supervisory body, reinforcing the "Regulatory - Compliance - Vigilance" link (B).

 

 

A. THE CONTRACTUAL NETWORK UNDER THE JUDICIAL CONTROL  

 

29. Contractual practices to implement legal obligations of vigilance and their control by the judge 🎯Companies have set up a multitude of contracts to directly detect and prevent breaches of the environment, climate and human rights, for example to outsource certain technical functions, such as audits or the construction of warning systems ("compliance contracts")📎!footnote-3659 or to give rise to structural and behavioural obligations ("compliance clauses")📎"!!footnote-3516. The European Directive reiterates that this cannot be use to exclude the liability of the subject undertaking, as such a contractual arrangement must be wiped out. This impossibility of using contractual power to transfer liability to Ex Post is the result of a general principle of law, the French Constitutional Council having pointed out that the law has established a duty of vigilance which makes the company personally liable, a principle which the Directive takes up.

The judge will be responsible for drawing the line, sometimes a fine one, between what is prohibited, i.e. the transfer of responsibility, and what is permitted, i.e. the practical organisation of implementation by third parties, via what is known today as the "compliance market" and on third parties, who may contractually undertake, for example, to collaborate to provide Information, to educate and be educated, to reinforce themselves, etc... The systemic dimension of this contractual network already in place and its assessment, which must also be systemic, must be considered by the judge.

 

30. Contractual practice to be vigilant beyond or alongside legal obligations and their control by the judge 🎯 The judge's role is even more delicate when the company has expressed its will to go beyond its legal obligation, to oblige itself and/or its supplier by a contract which, for example, states that both parties, for example the company and its supplier, must be "exemplary" in preventing human rights abuses. Such an obligation, which could be said to be "purely" contractual in nature, most often linked to an ethical charter which, for the judge, is only an element in the assessment of a factual situation and cannot be equated with a law or a vigilance plan adopted to implement it, will have to be interpreted by the Judge in the light of a general system of Vigilance which only becomes clear and unambiguous in the light of Compliance Law which is based on these Monumental Goals of preserving systems for the benefit of human beings📎!footnote-3660.

 

 

 

 

B. LA PERSPECTIVE D'UN ORGANE ADMINISTRATIF DE SUPERVISION, RENFORCEMENT DE L'ARTICULATION "RÉGULATION - COMPLIANCE - VIGILANCE"

 

 Pour l'organisation de cela, tous les paris sont ouverts. Si l'on insiste sur le rôle de l'information, l'on songera à étendre la compétence de la Haute Autorité de l'Audit (H2A), mais l'activité de la certification de l'information extrafinancière, si elle a de nombreux points de contact avec la Vigilance, n'a pas la même ampleur et si, contrairement à l'ancien Haut Conseil du Commissariat aux comptes (H3C), il s'agit désormais de superviser une activité et non plus une profession, les comportements et résultats attendus des entreprises sont d'une tout autre ampleur.

31. A return to the roots of Regulatory Law through the prospect of ex ante supervision by an independent administrative authority or agency 🎯 What remains of the long process of drafting the European directive is the obligation for every Member- State to establish or design an administrative "supervisory" authority or agency, i.e. the creation of such a body or the attribution of supervisory powers with the power to impose sanctions to an already existing entity. To take the example of France, all bets are off as to how this will be organised. If we insist on the role of Information, we will consider extending the competence of the French Supervisory Audit Body (Haute Autorité de l'Audit - H2A), but the activity of certification of extra-financial information, while it has many points of contact with Vigilance, does not have the same scope and Vigilance duty goes beyond Information.

Since Vigilance (French law of 2017📎!footnote-3661) and Probity (French law of 2016📎!footnote-3662) both come under Compliance Law, it is more natural to think of the French Anti-Corruption Agency (Agence française anticorruption - AFA), either to extend its powers or to use it as a model. There are already moves afoot in the corridors to bend the French transposition law in one direction or another.

One might think that, because it shall be a supervisory authority and not a regulatory authority, the authority's role being merely to support a system which entrusts companies with the 'responsibility' of ensuring that vigilance functions according to means of which they remain the masters, under the first and permanent control of this Supervisor, it will remain the Judge who will determine the overall picture. This will be all the more the case if the Judge is able, on the one hand, to express the Principles that provide clarity and, on the other hand, to express a balance in the context of individual confrontations that, for the time being, highlight still profound differences in conceptions.

 

 

 

 

CONCLUSION - THE JUDGE, THE PERSON WHO MAINTAINS THE CURRENT AND FUTURE BALANCE OF THE DUTY OF VIGILANCE 

 

 

 

 

32. Conclusion - The judge on the front line 🎯 It is clear from this study that the "maturity" of the duty of vigilance will come about not so much through laws and decrees but if the judge manages to apply clear principles to disputes which for the moment come before him/her as heated. The 3 rulings handed down by the Paris Court of Appeal on 18 June 2024 clearly setting out the procedural principle of the link between the formal notice of the firm and the assignation before the court  are a very good start📎!footnote-3700.

Dialogue between Judges must be combined with centralisation of litigation, which should not be seen as pathological but as the least risky way forward. The procedure must be particularly careful, particularly with regard to the rights of the defence and the adversarial process.

This must be entrusted to specialised judges and/or chambers, with specific and ongoing training, and institutional adjustment must take place at first and second instance.

This is already happening, because this fundamental movement created by the Regulatory Law, Compliance Law and Vigilance, its cutting edge,  puts the Judge at the centre.

 

 

 

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