🚧Duty of vigilance: the way forward

1. The European entrée 🎯 In 2017 in France, the so-called Vigilance law expressed great ambition. So did the draft directive. 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.). As a result, it is the judge, in this respect and more generally, who maintains the balance of the duty of Vigilance (I.C.).

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. 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 (III.B). Here again, Vigilance is the "cutting edge" of Compliance Law, as it is an extension of Regulatory Law.

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📎!footnote-3459 conservative📎!footnote-3204, has the reputation of preferring the established to the new. 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 or/and 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📎!footnote-3553, 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 judgment of February 28, 2023📎!footnote-3444 in a decision 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 fulfilment, to the marvellous 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 rights in the value chain" where the parent company or the company giving rise to the 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.