â–ş Full reference: V. Monteillet, « Le contrat, outil de mise en Ĺ“uvre des obligations de vigilance entre les partenaires de la chaĂ®ne de valeur », in M. Hautereau-Boutonnet, J. Rochfeld and B. Parance (eds.), Engagements et contrats Ă l’aune des mutations environnementales, Dalloz, “Thèmes & commentaires – Actes” series, 2025, pp. 15-24, in French.
____
► Summary: the author starts from the observation that the French Act no. 2017-399 of 27 March 2017 on the duty of vigilance of parent companies and ordering companies sets a goal – establishing a culture of social and environmental risk management throughout the value chain – without predetermining the means. After seven years of application of the Act and the adoption of Directive (EU) 2024/1760 of 13 June 2024, she shows that the contract formalising exchanges between ordering companies, their subcontractors and their suppliers is one of the operational instruments of Vigilance, wanted by public authorities but criticised by non-governmental organisations, since the Rana Plaza building had been audited a few days before its collapse.
A first part deals with the drafting of the contractual content, which enables partners in the value chain to anticipate risks. The first requirement is to master contractual technique: the purpose of vigilance clauses and the “cascading contractualisation” of the contractual assurances required by the Directive, and the subject matter of these clauses, which refer to the company’s charters and codes of conduct, to international instruments and, increasingly, to technical standards. The second is to ensure contractual balance: monitoring and auditing of business partners, allocation of the cost of these controls, cooperation with partners and support for SMEs, with a view to the model contractual clauses that the Commission must adopt by 26 January 2027.
A second part addresses the modulation of contractual effects and the fair allocation of risks between partners. The contractual relationship is regulated by the ordering company: enhanced prevention action plan, suspension or termination of the business relationship, sanction clauses subject to review for significant imbalance, consultation of stakeholders, which recalls the theory of contractual solidarism. Lastly, the contractual chain is made accountable in light of Article 29 of the Directive: the ordering company’s failure of vigilance may cover the harmful act of the subcontractor, and joint and several liability towards the victim may be shifted, at the stage of contribution to the debt, onto the business partner through the clauses (French Civil Code, Art. 1313 and 1317).
____
🦉 The article is available in full text to those registered in Professor Marie-Anne Frison-Roche’s courses.