March 25, 2023

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Working Paper

🚧Vigilance, a piece of the European puzzle

by Marie-Anne Frison-Roche

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► Full referenceM.A. Frison-Roche, Vigilance, a piece of the European puzzle, Working Paper, March 2023.

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🎤This Working Paper has been done as was made the  conclusion of the colloquiul La société vigilante ("Vigilant Company") at the Aix-Marseille University on March 24, 2023 (conference given in French) 

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📝It is also the basis of the article that introduces a special issue on La société vigilante

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► Summary of this Working Paper: The contributions form a contrasted whole. It should not be concluded that some of them are correct and others false: through the reading that each one makes of the so-called French 2017 "Vigilance law," it is a vision of the world as it should be that each author proposes. Because Compliance Law, which Vigilance is a part, claims to draw the future, it is normal that each author should draw the present Law with a hand that bends in one direction or the other, following their conception of the future world. The whole contributions must be seen as a dialogue.

A lively dialogue, with this French 2017 law receiving a lot of "glory" and a lot of "indignity" on both sides, from which it is necessary to emerge in order to find solutions, because it is a fundamental movement of which this law is only a gateway (I).  Whatever one thinks of it, it is all the branches of law that are used, affected, and transformed by Vigilance (II). To master this profound transformation, we must turn to Europe, to the great puzzle of texts recently adopted or in the process of being adopted in the European Union, of which Vigilance is the hallmark (III).

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🔓read the Working Paper⤵️

As if reflecting the work on the duty of vigilance, the contributions in this dossier on The Vigilant Company, published in French, form a contrasted whole. It should not be concluded that some of them are correct and others false: through each author's reading of the French so-called Vigilance Law, it is a vision of the world as it should be that is proposed. We should not be surprised: because Compliance Law, impregnated with politics, claims to draw the future, it is normal that each author, according to their conception of the future world, draws the present Law with a hand that bends in one direction or the other. The whole dossier should therefore be read as a dialogue.

It is certainly a lively dialogue, the French 2017 law receiving a lot of "glory" and a lot of "indignity" on both sides, from which we must emerge to admit that the law, whether good or bad, is only the expression of a fundamental movement (I).  From then on, and whatever one thinks of it, it is all the branches of Law that are used, affected, and transformed by Vigilance (II). To master this profound transformation, we must turn to Europe, to the great puzzle of texts recently adopted or in the process of being adopted in the European Union, of which Vigilance is the prow (III).

 

I. EMERGING FROM SO MUCH INDIGNITY AND GLORY TO RECOGNISE THE EXTENT OF THE MOVEMENT THAT THE FRENCH SO-CALLED VIGILANCE LAW REFLECTS

The contributions highlight the weaknesses of the 2017 law: it is poorly written and very vague. It does not provide legal definitions, even though it covers new concepts, in particular that of "stakeholders", and refers sometimes to the company, sometimes to the enterprise, shareholders being treated as stakeholders like any other.

Some lawyers in charge of applying the law have the impression that all they have at their disposal is a political discourse without normative scope, a sort of compliance washing committed by the legislator himself, a discourse without consequences that the company could take up at no cost but which could be turned against it, taken at its word by associations which then claim to be able to demand accountability on behalf of all, the most distraught of all being the judge, since the latter needs a technical basis to remain within the modest application of the texts in which Civil Law legal systems place him.

On the other hand, other contributions cover the law with glory, in that it would impose, at last, a new conception of the company, towards which all hopes would converge because in it would be expressed all the virtues.

A middle way may be to recognise that the company must play a greater role in the fate of the community, the collective interest finally finding its way in the legal system, a role expressed by vigilance techniques, without being demanding companies to save humanity.

In this respect, the 2017 law reflects a fundamental movement to which all refer in three ways. Firstly, the movement is on a large scale, a sign of a change in corporate culture. Secondly, the movement is irreversible. Thirdly, we are only at the beginning. 

 

II.  THE DISCIPLINES AFFECTED: THE NEED TO ARTICULATE THEM

Certain disciplines or branches seem to be in confrontation, traditional branches of Law being under siege, from within but also from outside, for example by the sciences of calculation and management, which count points, cross-reference data, certify and manage vigilance mesures and proofs, relying on data technology. 

But no discipline can close itself off or 'rule' alone. A sense of proportion must prevail, and the judge is best placed to strike a balance between traditional principles and modern techniques, notably to ensure that freedoms are not crushed by the desire for efficiency in the vigilance system and that the technology remains in its place: a tool.

The branches of Law are more or less activated: sanctions are always involved, contract law is increasingly involved as companies contractualise their legal obligation of vigilance, company law is involved in instilling a new form of governance, and soon public law will be involved, as the vigilance of companies that give orders is so reminiscent of the benevolent State. 

The notion of vigilance is so pervasive that the branches of Law that lend a hand may well be transformed, international law becoming transnational, the judge inventing a new processual law since he is forced to answer new questions without having been previously equipped to do so, while the hierarchy of norms slips away from under his feet. Compliance Law thus places him at the centre of a legal system that rearranges the branches of Law to produce effective solutions to future systemic issues. The distinction between public and private law becomes even more blurred.

 

III. THE CLARITY OF THE EUROPEAN PUZZLE, WITH VIGILANCE AS THE KEYSTONE

Many people complain about the "complexity" of the texts, which is the kindest way of putting it, and the "uncertainty" of their future application, which is the politest way of distrusting the judge, a costly and trying situation. But if we look at Europe, the directive that will soon cover the 2017 law through the transposition of the directive under discussion, the principles are nevertheless simple.

The Corporate Sustainability Due Diligence Directive - CSDDD, which will impose a duty of vigilance on companies of a certain size operating in the European Union, should not even be separated from other texts, because the European Union is moving forward according to an overall plan. Looking at it piece by piece, it can seem meaningless and terribly complicated. On the contrary, it should be seen as a puzzle, for which the soft law produced by the European Commission has long provided the framework and the major figures.

Thus, the directive Corporate Sustainability Reporting Directive - CSRD of December 22, 2022, is linked to the CSDD. The 2022 directive is resolutely ex ante and only views corporate 'responsibility' in this way. It obliges large companies to draw up a 'sustainability report' in which they set out the environmental and social diligence of their activities and management. The consideration of human rights and the environment in value chains is thus at the heart of the text, the titles of the two directives showing their twin nature.

In a departure from these two sister texts, the European Union, through the Digital Services Act - DSA, adopted in the wake of the Digital Markets Act - DMA, similarly entrusts large systemic digital companies with the power and obligation (i.e. the "duty") to monitor ex ante (and thus detect and prevent) systemically human rights damaging behaviour, such as misinformation and hate content. It is an analogous duty of vigilance that weighs on these operators, who have become in charge because they are the systemic holders of a digital space, legal duty that the DSA puts in place.

It is therefore above all the political understanding of the European project, driven by a humanist will that expresses sovereignty, which gives Vigilance its rightful and simple place: that of a piece of a grand plan, of which it constitutes the figurehead. As with the European project as a whole, companies, particularly industrial companies, play the leading role.

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