Court of Cassation decision (in French). 

Six nongovernmental organizations have sued energy company Total over an oil project in Uganda and Tanzania. The plaintiffs allege that Total failed to adequately assess the project's threats to human rights and the environment. 

Under 2017 French Duty of Vigilance Law, French companies must identify and prevent, in a due diligence plan (plan de vigilance), serious violations of human rights and to the environment that could occur as a result of their business practices, including at the level of their foreign subsidiaries and subcontractors. In June 2019, Friends of the Earth France, Survie, AFIEGO, CRED, NAPE/Friends of the Earth Uganda and NAVODA sent Total a formal demand to revise its vigilance plan for the Tilenga Project, along with a report detailing alleged inadequacies in the vigilance plan. These associations claimed that Total did not take into account the social and environmental impacts of the oil project located on the shores of Lake Albert, in western Uganda, and the 1,445 km pipeline that will export fossil fuel by crossing part of the country and then Tanzania to reach the port of Tanga, on the Indian Ocean. Some 100,000 people are to be displaced and a third of the 400 boreholes are to be drilled in the Murchinson Falls National Park, which is home to a significant number of endangered species. The claimants sought an order to take urgent action to prevent the manifestly unlawful disturbance resulting the company’s failure to comply with its due diligence obligations. In the alternative, the claimants sought an order, subject to fine, to establish, publish and implement a set of measures in its due diligence plan to prevent (i) serious violations of human rights and fundamental freedoms, human health and safety and (ii) serious environmental damage. Although the claimants' report focuses on human rights and conventional pollution, it also argues that Total's vigilance plan does not properly account for the project's potential life cycle greenhouse gas emissions. 

Total rejected the allegations and argued that the court in which the case was filed was not competent. On January 30, 2020, the Nanterre Judicial Court ruled that it was not competent to hear the case and that it must be brought before a commercial court. On December 10th, 2020, the Court of Appeal of Versailles decided that the case should be brought before the Nanterre Commercial Court because the due diligence plan should be qualified as an “act of management of a commercial company.” 

On December 15th, 2021, the Court of Cassation overturned the judgment of the Versailles Court of Appeal and recognized the competence of the judicial court to judge the complaint of the associations. The case will be decided by the Nanterre Judicial Court, and not by the Commercial Court as Total had claimed. The Court of Cassation recalled that (i) companies’ duty of vigilance does not constitute a commercial act and (ii) a natural person plaintiff can bring a claim against a legal entity before the judicial court or the commercial court. While this decision is favorable for the claimant, more than 100 000 people are still totally or partially deprived of their land and their means of subsistence in Uganda and Tanzania, according to Friends of the Earth France. 

However, Act No. 2021-1729 of December 22, 2021, which came into force on the following December 24, gave exclusive jurisdiction concerning the actions founded on the Law on the duty of vigilance to the Judicial Tribunal of Paris.
Therefore, on April 21, 2022, the Nanterre high court declared itself incompetent in favor of the summary proceedings court of the Judicial Court of Paris, before the interim procedure has continued.

On February 28, 2023, the court has published its two decisions. The court has recalled that the summary procedure is a judicial mechanism that enables a rapid examination of a dispute. The interim relief judge is responsible for providing an urgent response to a controversy by pronouncing interim measures, in order to preserve the rights of the parties before their assessment by the judge of the merits of the dispute.

The court has stated that it is within the powers of the summary proceedings judge to issue an injunction in application of the above-mentioned provisions when the company, subject to the duty of vigilance, has not drafted a plan, or when the summary and incomplete nature of the plan is tantamount to the non-existence of the plan, or when a manifest unlawfulness can be found. However, it is not within the powers of the judge in summary proceedings to assess the reasonableness of the measures provided for by the plan, when this assessment requires an in-depth examination of the elements of the case, which is the sole responsibility of the judge on the merits. These conditions, set forth by articles 834 and 835 of the Code of Civil Procedure, were not present in these cases, because the court considered that the case was too complex to be dealt with under an emergency procedure.

This judgment is devoid of any res judicata in the main proceedings, the judge on the merits can give a different judgment.


Friends of the Earth et al. v. Total

<p>This entry was provided by the Sabin Center for Climate Change Law. Please see the terms of use for citation and licensing of third party data.</p>

Friends of the Earth et al. v. Total - decision

Filed

France

The Climate Litigation Database

Find climate change litigation data and indicators for {text}.

{text} litigation

Sabin Center for Climate Change Law provides Climate Litigation Database, a comprehensive database of US and Global climate change caselaw

Quickly and easily search through the complete text of thousands of climate change law and policy documents from every country.

Search the Climate Litigation Database

An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Justice is the ethical and political framework that addresses fairness, including issues of responsibility, rights, and structural inequity.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

Either money or something of monetary value is transferred between two or more organisations, people or countries.

Activities of government agencies and institutions that provide public services, enforce laws and manage public resources.

Friends of the Earth et al. v. Total - decision

Economic sector

Finance