Methodology [page 4]
Given the importance the French Government places on [human rights], it formally requested an opinion from the National Consultative Commission on Human Rights (CNCDH) on 21 February 2013 in order to prepare its action plan for the implementation of the United Nations Guiding Principles.
This opinion, adopted at a plenary assembly of the CNCDH on 24 October 2013, included a wide range of recommendations for implementing the guiding principles at a high level. The CNCDH also suggested actions for pillars 1 (the State’s obligation to protect against human rights abuses by third parties, including businesses) and 3 (victims’ right to effective remedy). These recommendations can be viewed at the following address: http://www.cncdh.fr/fr/publications/entreprises-et-droits-de-lhomme (in French). Those that have not already been implemented are included in this action plan.
The CNCDH’s proposals were carefully examined by an inter-ministerial working group run by the CSR Ambassador (members included representatives from the French Ministry for Foreign Affairs and International Development, Ministry for the Economy, Ministry of Finance, Ministry of Labour, Ministry of Justice and Ministry of the Environment). This group distinguished between the recommendations it considered had already been largely implemented by the Government and could be reinforced, those that could form the basis of further proposals for action, and those that should be examined or applied in a more relevant context. This enabled them to establish an overview and develop appropriate proposals for action …
… The French Action Plan for the Implementation of the United Nations Guiding Principles on Business and Human Rights and actions implemented will be monitored and evaluated by the CNCDH, acting as an independent administrative authority, in line with the recommendation issued by the United Nations working group on business and human rights. The CNCDH will evaluate the policy implemented, issuing regular reports.
I- The State’s Obligation to Protect Human Rights
The European Framework
8. Trade and Investment Agreements [page 19]
In its 2013 opinion, the CNCDH underlined that “the need for coherence should guide France’s foreign policy” and recommended that, in accordance with Guiding Principle no.10, “the Government support and promote the aforementioned instruments within multilateral institutions dealing with economic, commercial and financial issues, including those that are binding, that are designed to ensure that businesses respect human rights.” …
The National Framework
13. The Role of Public Agencies [page 27]
In a 2013 opinion, the CNCDH recommended that the State adopt “measures designed to enable COFACE and its clients to introduce a due diligence process with regards to human rights”. It emphasized that “COFACE’s policies and procedures regarding due diligence should be disclosed, along with the projects they insure” and that “it would also be desirable for the information and assessment process adopted with regard to the impact on human rights of operations insured by COFACE to also fall within the jurisdiction of the Ministry of Foreign Affairs and/or the Ministry of the Economy and Finance, the departments of which are able to provide an analysis for each country with regards to respecting human rights, based notably on the ‘information for travellers’ that they produce.” Finally, it stated that “the annual report on the activities of COFACE submitted by France to the European Commission (in accordance with Regulation (EU) 1233/2011) should be discussed at the National Assembly and/or at the Senate and should be the subject of consultations with civil society.”
In addition, the CNCDH recommended that “representatives of civil society and users of those services that are likely to be the subject of public-private partnerships (PPPs) be given a more central role as part of an approach designed to protect and promote the most vulnerable of populations. Indeed, in order for PPPs to be useful for development purposes, it is essential that all stakeholders, including the State, community representatives and users, be kept informed and consulted at all stages of the PPP creation process.” It added that, “in accordance with Guiding Principles nos. 4 and 6, the French State should, by means of its development aid network (the AFD, PROPARCO, the Ministry of the Economy and Finance, the ADETEF, etc.), fulfil its obligation to protect by imposing a series of specifications that include exhaustive impact studies regarding human rights.”
II- Businesses’ Responsibility to Respect Human Rights
5. Employee Representatives [page 43]
In its 2013 opinion, the CNCDH recommended that “employee and union representatives be kept informed and consulted and be able to express their opinions when it comes to producing a company’s management report”, as this would “improve the credibility of such reports”. It added that each company should “be obliged to indicate whether there is in fact any form of union or employee representation within each of its entities and subsidiaries.”…
… In 2013, the CNCDH recommended “including stakeholders outside of the company in the term ‘interested parties’ used in Article L.238-1 of the Commercial Code so as to enable such persons to ask the judge hearing applications for interim relief to order the company to provide any information it might not have provided in its ‘sustainable development’ report.”…
III- Access to Remedy
Introduction [page 46]
In its 2013 opinion, the CNCDH made the following recommendations:
“In order to bring French law into line with Guiding Principle 26, the CNCDH recommends allowing parent companies to actually be held responsible for acts committed by their foreign subsidiaries.
- The CNCDH recommends that consideration be given to the possibility of extending the exception to the principle of legal independence of companies, which is currently limited to environmental issues, to the field of human rights.
- Vicarious liability is an example of something that could be used in civil law to hold the parent company responsible in the event of any violation of human rights committed by its subsidiaries.
- Drawing inspiration from the duty to protect and remedy in the environmental sphere, the CNCDH recommends that a duty of vigilance on the part of the parent company with regards to its subsidiaries be legally imposed with the aim of preventing any violations of human rights that might occur over the course of its activities.
- It should also be possible to hold a contracting party responsible for acts committed by its subcontractors, where it is proven that the relationship with the commercial partner is likely to influence them to operate in a way that is more human rights-friendly.
- With regards to criminal matters, the CNCDH recommends that the competent authorities consider the issue of extending the extraterritorial jurisdiction of French criminal courts. French courts should be able to consider themselves competent with regards to certain offences committed abroad by French companies without being subject to the dual criminality requirement.
- With regards to civil matters, the CNCDH recommends that the government extend the notion of extraterritoriality to the parent company in the case of violations of human rights committed by a foreign subsidiary.
- The CNCDH believes 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 CNCDH recommends that France extend this consideration of the possibility of attributing greater responsibility in civil and criminal matters to businesses for their international activity in the framework of the discussions currently under way in the European Union.”
1. Judicial Mechanisms – At the National Level
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.”…
1.5 The Denial of Justice [page 52]
… 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.”
2. Non-Judicial Mechanisms – At the International Level
2.1 The OECD National Contact Point (NCP) [page 54]
… The French NCP has also made it easier to call on external technical experts at any time, as seen during the Rana Plaza hearings and meetings with the CNCDH …
At the National Level
2.5 The Defender of Rights [page 58]
The Defender of Rights, whose legal authority has been enshrined in the Constitution, was created in 2011. This independent administrative entity has jurisdiction to deal with subjects in four specific areas.
Any individual or legal entity can call on the Defender of Rights when they consider that they have been discriminated against or when they observe public or private representatives of law and order (police officers, customs officers, security guards, etc.) engaging in improper conduct.
The Defender of Rights can also be called on to address difficulties in dealing with public services (the Family Allowances Fund or CAF, the national employment agency or Pôle emploi, retirement funds, etc.).
Lastly, the Defender of Rights can be called on whenever someone considers that a child’s rights are not being respected.
Complaints can be lodged by way of an online form, a letter, or through one of the Defender’s deputies.
This Defender of Rights replaces four previous entities: the Mediator of the Republic, the Defender of Children, the High Authority in the Fight against Discrimination and for Equality (HALDE), and the National Commission on Security Ethics (CNDS).
Given the Defender of Rights’ jurisdiction over discrimination-related matters, he/she plays a role in dealing with cases and mediation proceedings concerning CSR.