III- Access to Remedy
1. Judicial Mechanisms – At the International Level
1.1 The Protocol to the ILO Forced Labour Convention (No.29) [page 47]
France ratified the Protocol to the 1930 ILO Forced Labour Convention (no.29) on 7 June 2016. France was the fifth country to ratify the Protocol.
This Protocol was adopted at the ILO International Labour Conference on 11 June 2014 in Geneva. It supplements the convention, which is one of ILO’s most ratified instruments, by dealing with new forms of forced labour.
The Protocol provides for access to appropriate and effective remedies such as compensation. It also reinforces international cooperation in the fight against forced and compulsory labour. It highlights the important role played by employers and workers in tackling this issue.
This ratification is evidence of France’s commitment to fighting all forms of forced labour and promoting the universal ratification of ILO’s fundamental conventions.
At the European Level
1.2 The European Court of Human Rights
Any individual can lodge an application with the European Court of Human Rights, provided that they have exhausted all domestic remedies and the case falls under the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Once the European Court of Human Rights has delivered a judgment, the State is required to implement all necessary enforcement measures to ensure the violation is not repeated. The enforcement of the judgment is monitored by the Committee of Ministers of the Council of Europe. States must report on the solutions implemented (this covers individual measures such as financial compensation, and general measures such as the revision of legislation).
At the National Level
1.3 Civil and Criminal Liability [page 48]
The right to effective remedy is enshrined in several European and international texts to which France adheres. It is mentioned in Article 8 of the Universal Declaration of Human Rights, Article 47 of the Charter of Fundamental Rights of the European Union (concerning the “rights and freedoms guaranteed by the law of the Union”), and Article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (concerning the “rights and freedoms […] set forth in this Convention”).
Since the French Constitutional Council’s decision of 9 April 1996 (DC 96-373), the right to effective remedy has been protected by the French Constitution. However, the Council also acknowledged that this right did have limits and lawmakers could restrict its scope, provided they did not impose “substantial constraints” (recital 83). In a further decision dated 23 July 1999 (DC 99-416), the Constitutional Council discussed the consequences of this decision, particularly by linking the right to effective remedy to respect for defence rights, which it considered were one of the fundamental principles recognized in French legislation.
To ensure that the constitutional right to effective remedy is recognized as a real and tangible right in France, the State has taken theoretical and practical steps to enable individuals, especially victims of human rights abuses by businesses, to lodge complaints with judges and obtain appropriate reparation.
Under the rules of French civil procedure, the party applying to enforce the rule of law must prove the facts necessary for the success of their claim (Article 9 of the French Code of Civil Procedure).
Pursuant to French civil law, individuals and companies must remedy the harm they cause to others. Under Articles 1382 and 1383 of the Civil Code (Articles 1240 and 1241 as of 1 October 2016), they must remedy the consequences of their fault, even if this was committed through imprudence. The burden of proving the fault, damage and causal link between the two falls on the party requesting remedy.
Other legal texts establish liability in other circumstances. Specifically, Article 1384 of the Civil Code (Article 1242 as of 1 October 2016) deals with vicarious liability for acts committed by people under one’s responsibility or by things in one’s custody. When this text applies, the burden of proof is lighter for plaintiffs. Thus, when a “thing” commits an “act”, its custodian is considered liable, unless they can prove an exonerating cause such as force majeure.
In addition, under Act 2016-1087 of 8 August 2016 on the reclaiming of biodiversity, nature and landscapes, new articles on remedying ecological damage have been incorporated into the Civil Code.
The Jurisdiction of French Courts to Hear Civil Matters [page 49]
The rules determining whether French courts have the international jurisdiction to hear non-contractual civil liability cases against companies or other legal entities differ depending on the State in which this entity is domiciled.
If a company or legal entity has their statutory seat, central administration or principal place of business in an EU Member State, they are considered to be domiciled there under Article 63 of the European Regulation 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. Pursuant to Article 4 of the Regulation, entities domiciled in an EU Member State shall be sued in the courts of that Member State. Consequently, any person suffering harm caused by a company domiciled in France can lodge a request for remedy with the French courts, regardless of the victim’s nationality and State of residence, and regardless of where the harm occurred.
When the company or legal entity that caused the harm is domiciled in another EU Member State or in Switzerland, Norway or Iceland, the victim can lodge a case with the French courts if the harmful event (the harm or the act causing the harm) occurred in France, pursuant to Article 7(2) of the Brussels I Regulation (recast) and Article 5(3) of the Lugano II Convention of 7 October 2007 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
If the entity that caused the harm is domiciled outside the EU and the European Economic Area (EEA), the victim can still file proceedings with the French courts if the harmful event (the harm or the act causing the harm) occurred in France, pursuant to Article 46 of the French Code of Civil Procedure. Furthermore, if the harmful event occurred outside the EU and the EEA, victims domiciled in France can file proceedings with the French courts on a subsidiary basis, regardless of their nationality, pursuant to Article 14 of the French Civil Code.
Finally, even when the company and the harmful event are both based outside the EU and the EEA, and victims are not French citizens and not domiciled in France, proceedings can be filed with French courts on the independent jurisdictional grounds of a “denial of justice”. In this case, victims must prove that they are de jure or de facto unable to file proceedings with foreign courts.
However, in practice, it is very difficult and sometimes impossible to establish a chain of liability.
The Jurisdiction of French Courts to Hear Criminal Matters [pages 49-50]
Generally speaking, unless otherwise stipulated in legislation, companies and legal entities are liable for the criminal offences they commit, provided that these offences can be attributed to one of the company’s “organs” or representatives, and the offences were committed on their behalf.
More specifically, French legislation is strict in combating human rights violations by legal entities. Under French law, it is a criminal offence for companies to engage in activities that breach people’s rights (violations of human dignity, working conditions that violate human dignity, forced labour), equality laws (gender discrimination, anti-union discrimination, denying the freedom to work, corruption), environmental laws (pollution), or social, health and safety laws (hindering organizations representing employees, concealed work, involuntary injuries or death due to workplace accidents).
Companies found guilty of these offences must pay fines equal to a maximum of five times the amount payable by individuals under the law punishing the offence. If the law does not specify fines for individuals who commit these crimes, the fine for companies is set at €1 million.
In addition, victims can sue companies for civil injury and request remedy for harm arising as a result of offences. Specifically, under French law, parent companies can be found criminally liable for acts committed by their subsidiaries, including acts committed abroad, if it can be established that they committed or were complicit in the offence. It should be noted that French law stipulates that those complicit in offences are subject to the same criminal sanctions as those who commit the offence. However, when the main offence is committed in another country, two conditions must be met before this complicity can be established (the offence must be considered a criminal act in both countries, and a definitive judgment must have been obtained in the country where the offence was committed). These conditions make these provisions difficult to apply.
Parent companies can be found criminally liable in other situations, for example when they hide or whitewash offences committed by foreign subsidiaries.
Although French criminal law provides for the criminal liability of legal entities and sets out specific offences and sanctions for companies, victims still face obstacles when seeking judgments and effective remedies, especially when a business’s international operations are concerned. These obstacles are considered by some to be guarantees of legal certainty, and include provisions in Articles 113-5 and 113-8 of the Criminal Code.
Under these provisions, parent companies can only be found complicit in a subsidiary’s offence abroad if two conditions are met. Firstly, the offence must be considered a criminal act in the State where it was committed and in France (the principle of double criminality). Secondly, a final foreign judgment must have been obtained (Article 113-5 of the Criminal Code). This second condition requires victims to have the offence acknowledged by a foreign court.
Article 113-8 of the Criminal Code concerning infractions is another obstacle that prevents victims from seeking remedy or, more commonly, attempting to sue a company for civil injury. This article effectively gives the public prosecutor a monopoly in terms of filing proceedings for crimes committed by French entities abroad and crimes suffered by French victims abroad.
Collective Actions [page 51]
In its opinion dated 24 October 2013, the CNCDH recommended “extending collective action, to matters relating to the environment and health in particular. It is also essential that any French or foreign individual or legal entity residing in France or abroad be able to get involved in any collective action initiated against a French company.”
Collective action, which initially only applied to consumption and competition disputes, was extended to cover health disputes on 1 July 2016, pursuant to the provisions of the Act of 26 January 2016 on the modernization of the health system. Act 2016-1547 of 18 November 2016 on the modernization of the 21st century justice system widened the scope of collective action provisions. Articles 60 to 84 of this Act define a common procedural framework for collective actions and pave the way for their use in a large number of areas.
Under this common framework, a group of plaintiffs can launch a collective action when they experience a similar situation and suffer harm caused by the same person’s breach of a contractual or statutory obligation. Plaintiffs can request a stop to the breach or a remedy for the harm caused. It should be underlined that collective actions do not exclude plaintiffs on the basis of their nationality or place of residence provided they experience a similar situation, as described above.
Given the different fields of application mentioned in the bill, collective actions will become a tool allowing plaintiffs to stop or remedy discrimination in the labour field and elsewhere, including with respect to the provision of services, accommodation, transport, etc. Collective actions will also be possible in the environmental, health, and personal data protection fields.
1.5 The Denial of Justice [page 52]
As underlined by the National CSR Platform in 2014, it is important to find practical solutions to flagrant and serious denials of justice in the event of major events. According to the platform, this was especially true given the fact that access to courts likely to deal fairly and equitably with complaints concerning fundamental rights violations by companies was difficult in many countries.
The platform therefore recommended that the French Government launch an international debate on finding legal solutions to the problem of the denial of justice. A denial of justice occurred when plaintiffs attempted to take legal action against groups domiciled in States subject to the rule of law to obtain remedies for harm caused by subsidiaries operating in countries where courts did not have the necessary independence to deliver justice, or where plaintiffs were threatened. These legal solutions should not challenge the general principle of territorial jurisdiction. According to the platform, this initiative, supported by France, could aim in particular to launch a European movement. By situating this initiative within a European or wider framework (OECD), the risk of French businesses facing an uneven playing field would be minimized.
The French administration is aware of these issues. During negotiations to update the Brussels I Regulation and widen its scope to cover defendants based in countries outside the EU, France suggested giving plaintiffs attacking European companies the option to go before a European judge on the basis of the forum necessitatis principle.
In its 2013 opinion, the CNCDH stated that “it would be desirable for subsidiary jurisdiction based on the denial of justice to be granted in civil matters in the event that the State competent for recognising detrimental acts on the part of the subsidiary is deemed unable or does not want to initiate and see through to their conclusion legal proceedings.”
The Positions Adopted by the Different Groups of the National CSR Platform
Proposals by the civil society and trade union groups
- Civil (and possibly criminal) liability and a duty of vigilance should be introduced for French parent companies and outsourcing companies that commit human rights violations in France or abroad over the course of their activities or those of their subsidiaries or subcontractors. Under this regime, the burden of proof would be on companies, enabling victims to trace the abuse to the highest level of the chain of responsibility.