tožba proti Golijatu

Tožba proti Golijatu: analiza civilnih tožb proti podjetjem iz EU zaradi kršenja človekovih pravic in uničevanja okolja

Prispevek je pripravila Laura Bauza Canellas*

Podjetja s sedežem v Evropi, zlasti pa multinacionalne korporacije, pogosto povzročajo, prispevajo k ali so neposredno povezane s hudimi kršitvami človekovih pravic in okoljsko škodo vzdolž svojih globalnih vrednostnih verig.

Podjetja – z nekaj častnimi izjemami – praviloma ne uspejo učinkovito preprečevati zlorab svojih hčerinskih podjetij, dobaviteljev, podizvajalcev in drugih poslovnih partnerjev, na katere imajo v svojih globalnih vrednostnih verigah pomemben vpliv.

Na tem področju so bile ugotovljene očitne regulativne vrzeli. Zaradi odsotnosti ustreznih predpisov in nezadostnih posledic za malomaren odnos do vplivov na človekove pravice in okolje v globalnih vrednostnih verigah podjetja niso motivirana za naslavljanje in odpravljanje negativnih posledic lastnega delovanja.   

V poročilu (v angleščini) so predstavljene vse relevantne civilne (ne kazenske) tožbe, sprožene v državah članicah EU na podlagi domnevnih kršitev človekovih pravic in okoljske škode v tretjih državah, povezanih s poslovanjem podjetij, ter naštete ključne ovire, s katerimi se soočajo tožniki, ko poskušajo dostopati do pravnih sredstev in terjati odgovornost podjetij na sodiščih njihovih matičnih držav.

Naša pripravnica Laura je pripravila izvleček, v katerem se lahko seznanite s podrobnosti v vsakem primeru in se prepričate, da je pot žrtev do pravice trnova. 

Civil proceedings: actions for damages

1.1 Oguru and others v Royal Dutch Shell PLC and others

This case opposes 4 Nigerian farmers, plus Milieudefensie (Friends of the Earth Netherlands), to the quatuor Dutch company Royal Dutch Shell PLC (RDS from UK/Netherlands), Shell Petroleum Development Company of Nigeria Ltd (SPDC Nigeria), Shell Petroleum NV and Shell Transport and Trading Company Ltd.

What is reproached to Shell PLC and others is the impact of their activities of oil extraction in Nigeria. Impacts on the one hand on the environment, with damages on the vegetation, crops and fisheries. And on the other hand on the health and livelihoods of citizens, exposed to high levels of petroleum hydrocarbons concentration in the air, soil, ground and water.

In 2008, four Nigerian fish farmers who had lost land and fish ponds due to 3 oil spills filed a lawsuit, along with Milieudefensie, against Royal Dutch Shell and Shell Petroleum Development Company in Nigeria before the Dutch civil courts. This, for not maintaining the infrastructures in good condition, which provoked the spills, and for not cleaning the area afterwards. The district court dismissed the claim for 2 oil spills using the argument that in Nigeria there is no duty of care for the parent companies toward their subsidiaries. Besides, the Court ordered Shell Petroleum Development Company of Nigeria to pay compensation for the third oil spill.

SPDC and Milieudefensie appealed the decision and finally, in January 2021 the court of appeal held SPCD liable for damage caused by the first 2 oil spills and ordered payment to the claimants. Furthermore, it ordered both SPDC and RDS to install a leak detection system in the pipeline central to the first oil spill. 

1.2 Arica Victims KB v Boliden Mineral AB

This case opposed the contractor Boliden Mineral AB (Sweden) and its contractee Promel (Chile), to Arica Victims KB, a group representing 796 Chilean citizens living in Arika, a port city in northern Chile.

In 2007, 374 residents of Arika went to the Chilean Supreme Court and filed civil proceedings against Promel as the company failed to reprocess the mining waste, which caused a lot of diseases among the local community skin diseases, neurological disorders, cancers…). The Supreme Court ordered Promel to clean the contaminated area but the company was declared bankrupt and didn’t comply with the order. 

In 2013, Arica Victims KB filed a lawsuit before a Swedish court on the ground that Boliden, Promel’s contractor, didn’t fulfill its duty to ensure that Promel processed the sludge appropriately. The Swedish district court, using Chilean law, found Boliden negligent in continuing its relationship with Promel, but  with no legal consequences and dismissed the action on the basis that Boliden could not have foreseen the outcome.

In March 2019 the court of appeal decided to apply Swedish law but dismissed the claimants’ appeal on ground that the cause of action was time barred. As a consequence, the claimants were required to pay €3.2 million in litigation costs…

1.3 Jabir and others v KiK Textilien und Non-Food GmbH

In this case, four Pakistani citizens sued the buyer KiK Textilien und Non-Food GmbH (Germany) and its supplier Ali Enterprises (Pakistan) before the Regional Court in Dortmund, Germany. 

This civil claim was initiated in 2015 after the murderous fire of 2012 in the Ali Entreprise garment factory, which killed 258 workers and injured hundred people. This bleak statement is due to the inadequate health and safety measures of the factory (windows barred, emergency exits locked…) which despite this got, from auditors who have never visited the place, an SA8000 certificate, certifying that it meets basic health and safety requirements. After the fire, Kik agreed to pay US$1 million (approximately €900,000) in compensation to the victims and survivors but negotiations for further compensation to cover the victims’ redress did not materialise.   The Regional German court applied Pakistani law and dismissed the action in 2019 on the ground that the statute of limitation had expired. Hopefully, public pressure surrounding the legal proceedings lead Kik to commit to an additional  compensation of l US$5.15 million (approximately €4.69 million).   

1.4 Luciano Lliuya v RWE AG GmbH

This case is still pending, since 2015 RWE AG, a German energy company, to the Peruvian citizen Saúl Luciano Lliuya on the issues of climate change’s impact on the life of 50 000 people of Huaraz. Indeed, because of global warming and glacial retreat, a glacial lake above the city has grown and threatens to overflow it and the local communities living there, or even break its dam. RWE being known as one the largest European CO2 emitters, Mr. Luciano Lliuya filed first a letter of complaint against the company, and second, a lawsuit in German courts. He asked RWE to pay around €17,000 or 0.47% of the estimated repair cost, which corresponds to the Institute of Climate Responsibility’s estimation of RWE’s global warming emissions responsibility in climate change from 1751 to 2010. This compensation would be used to prevent the risk of flooding in the area.

In 2016, the case was dismissed because the judge found that Mr. Lliuya had not established that RWE was legally responsible for protecting Huaraz from flooding, the plaintiff appeal was heard by the court of appeal who stated in 2018 that climate damages can trigger corporate liability. The court said it would consult experts to determine whether or not there is a serious threat of impairment to the plaintiff’s property. The case is ongoing.

1.5 Francis Timi v Eni SpA and Nigerian Agip Oil Company

This case opposed Eni SpA (Italy) and its subsidiary Nigerian Agip Oil Company Ltd (Nigeria) to Ododo Francis Timi, legal representative of the Nigerian Ikebiri community. 

In 2010 an oil pipeline operated by the NAOC burst, polluting water and land, affecting the creek, fishing ponds and trees essential to the local community, and damaging their livelihoods. A joint inspection visit led by NAOC cited “equipment failure” as the cause of the spill. The only reparation that was made consisted in closing the leak and burning the surrounding polluted area of bush without the consent of the local community, a dangerous and polluting method for cleaning up oil… Furthermore, the community didn’t receive any compensation. Then, some members started legal proceedings at the Nigerian court but faced lack of effective access to justice and poor enforcement. That’s why they, represented by Francis Timi,  finally went to the Italian court where Eni is headquartered, and filed a lawsuit against Eni and NAOC in Milan, asking for €2 million for the damages and a commitment to clean up the area. 

Claimants argued that the parent company should be directly liable for breach of the duty of care that it owed them, and invoked Italian domestic law as a basis for adding the Nigerian subsidiary as a co-defendant. The defendants contested the jurisdiction of the Italian courts and contended that the proceedings against Eni were strategically filed solely to bring the subsidiary under Italian jurisdiction. They also filed a motion against the claimants’ standing, but this was not considered by the judge. 

In 2018, after months of negotiation, NAOC reached an out-of-court and confidential settlement agreement with the community that addressed some of the community needs but did not include cleaning the pollution from the spill.

1.6 Sherpa and Les Amis de la Terre France v Perenco SA

This case opposes Prenco SA (France), Perenco REP (Democratic Republic of Congo) and others, that belong in a quite unclear way to the same corporate oil and gas group, to twoFrench NGOs : Sherpa and Amis de la Terre France. 

The Perenco group has been repeatedly accused of causing severe environmental damage, notably because of crude oil spills, discharge of toxic products, and gas flaring in unsafe conditions. 

In 2019, Sherpa and Amis de la Terre France initiated legal actions against Perenco SA before the French court to access Perenco’s document that would clarify its role and responsibility in environmental harm. It’s important to note at this point that some preliminary evidence of Perenco’s implication has been gathered by the Congolese civil society. The Paris court authorised a bailiff to seize the relevant documents but the company opposed the execution of the decision and denied them access to their premises. 

The claimants filed a new request, asking that the compliance order be accompanied by a financial penalty on the company. The request was dismissed, even by the appeal court in 2020 and now the case is in the hands of the French Supreme Court.

1.7 Cainquiama and others v Norsk Hydro ASA and others

This case involves a lot of different stakeholders with on the one hand, as plaintiff, Cainquiama (the Amazon Association of Mixed Race, Indigenous and Quilombolas) and nine individuals. 

On the other hand, as defendant we find Norsk Hydro ASA (Norway) ; Norwegian Government’s Pension Fund Folketrygdfondet (shareholder of Norsk Hydro ASA), hereinafter referred to as “the Fund”; the Dutch companies. 

Since the 1980’s some Brazilian companies, Alunorte and Albras, have been exploiting the Amazonian region of the Brazilian state of Pará for aluminium production. Their implantation was conditioned by the creation of an ecological reserve to protect the livelihood of the local population, that’s to say 450 families from traditional communities who rely heavily on nature for their daily life (water supply, small scale agriculture, artisanal fishing). However the companies haven’t complied and carried their activities in the protected area, causing environmental damage (forest degradation, water contamination) and wide range of health problems to the local communities, including cancers, Alzheimer’s and skin diseases but also sudden deaths, miscarriages and diseases that can be attributed to pollution by heavy metals. Besides, all these environmental and health issues represent huge financial costs for the local communities.

The association Cainquiama has initiated a number of proceedings in Brazil but none of them have reached a final judgment yet. It will take many years before a definitive decision is reached. In 2021, Cainquiama filed a lawsuit in the Netherlands seeking compensation from the Dutch companies, Norsk Hydro ASA and the Fund on the ground that the defendants not only failed to supervise their subsidiaries sufficiently to ensure respect for the environment as required under Brazilian law, but also failed to act after the first disasters occurred. Under Brazilian law, any indirect polluter, that’s to say any natural or legal person who causes damage by omission, tolerance or permission; funds others to pollute/ cause damage; or financially benefits from the pollution/damage, is liable in the same way as the natural or legal person who directly causes the damage. The case is ongoing

1.8 Canopée and others v Casino Guichard-Perrachon

This case opposes the following plaintiffs : 5 French NOGs (Canopée, Envol Vert, Notre Affaire à Tous, France Nature Environnement, Sherpa), 4 Brazilian organisations ( Comissão Pastoral da Terra (CPT),  Coordenação das Organizações Indígenas da Amazônia Brasileira (COIAB), Federação dos Povos Indígenas do Pará (FEPIPA), Federação das Organizações e Povos Indígenas de Mato Grosso (FEPOIMT)), one Columbian organisation (Organización Nacional de los Pueblos Indígenas de la Amazonia Colombiana (OPIAC)), and Mighty Earth a global advocacy organization to the defendant Casino Guichard-Perrachon, a French group of mass distribution.

In 2020, the NGO Envol Vert published a field investigation that found that Casino’s suppliers regularly purchased meat from slaughterhouses involved in illegal deforestation and land grabbing practices in Brazil and Colombia. The claimants served a letter of formal notice to Casino under the French Duty of Vigilance Law. They demanded that Casino adopt adequate and effective vigilance measures to identify risks and prevent environmental and human rights abuses in its beef supply chains in Brazil and Colombia, including risk-mapping and traceability throughout its supply chains, and introduce an alert system to protect the rights of peoples affected by land grabbing. 

In 2021, the claimants filed a lawsuit against Casino in the Saint-Etienne court (France), requesting a judicial injunction to comply with the legal requirements. Indigenous groups are also demanding compensation for damages done to their customary lands and the impact on their livelihoods. The case is ongoing.

Civil proceedings: actions for injunctive relief

2.1 Association France Palestine Solidarité and others v Alstom SA and others

This case opposed the Association France Palestine Palestine Solidarité (AFPS, France), the Palestinian Liberation Organization (PLO) to three French companies : Alstom SA, Alstom Transport SA, Veolia Transport SA.

In 2005 the Israeli government asked the French companies to construct and operate a light rail project in Jerusalem, and concluded a contract. In 2007, AFPS and PLO filed a lawsuit against the French companies before the Nanterre court (France) requesting the annulment of the contract between the Israeli authorities and the French companies and the halt construction of the light rail project. This on the ground that it facilitated the establishment of Israel’s illegal settlements in occupied territory. Beside, according to the organisations, the movement of Israeli Jewish settlers between Israel and their residences in occupied territory violated international humanitarian law and the French Civil Code.

The companies argued that such requests were outside the scope of French jurisdiction but the Nanterre court ruled that it was, as well as the court of appeal and the Supreme Court in 2009 and 2011. Following public pressure, Veolia sold its shares in the project to Dan Bus Company and withdrew from the railway project.

In 2011, the Nanterre court rejected the demand for canceling the contract with the arguments that the international law did not create obligations “directly applicable” to private companies, and that violations by the Israeli state did not invalidate the contract. Plus,according to the court AFPS and PLO failed to prove the causal link between the companies’ actions and the Israeli authorities’ conduct. The court of appeal confirmed this ruling arguing that international agreements create obligations between states and not obligations for companies. Finally, it ordered AFPS and PLO to pay €30,000 to each of the three companies to cover their legal expenses.

2.2 Milieudefensie and others v Royal Dutch Shell PLC

In this case, the plaintiffs, international and Dutch organisations Milieudefensie (Friends of the Earth Netherlands), ActionAid, Both ENDS, Fossielvrij, Greenpeace, Young Friends of the Earth Netherlands, Waddenvereniging are opposed to Royal Dutch Shell PLC (Netherlands). Shell is the largest polluter in the Netherlands and one of the ten most polluting companies in the world. The company is historically responsible for one fiftieth of the world’s total emissions of CO2 and methane in the period 1854 to 2018

In 2018 Milieudefensie sent a letter to Shell, demanding it to align its business activities and investments with the Paris Agreement, phase out its oil and gas activities and reduce its greenhouse gas emissions to zero by 2050. The multinational rejected the demands.

In 2019 the claimants, along with 17,379 co-plaintiffs, served Shell a court summons. They asked the judge to force Shell to stop driving climate change through its business practices and commit to reducing its CO2 emissions by 45% by the year 2030.

In 2021, the court accepted their request. This was the first time in history a judge held a corporation accountable for its contribution to climate change. This decision was ground-breaking as it obliged Shell to respect the Paris Agreement and because it extended the company’s responsibility to prevent human rights impacts linked to climate change to the whole ? Global value chain, even if the level of responsibility depends on its control and influence on its subsidiaries.

2.3 Sherpa and others v Bolloré SA

This case opposes the following NGOs from Europe Sherpa (France), ReAct (France), GRAIN (France, international),FIAN-Belgium (Belgium),Pain pour le prochain (Switzerland), and from Cameroon SYNAPARCAM, FODER, SNJP, L’Amicale des Riverains d’Edéa and SATAM, to Bolloré SA (France) about the actions of its subsidiary SOCAPALM (Société Camerounaise de Palmeraies/ Cameroonian society of palm groves, Cameroon)

In 2010, NGOs Sherpa, CED, FOCARFE, and MISEREOR filed a complaint against four holding companies of SOCAPALM at the French, Belgian, and Luxembourg National Contact Points (NCP) for the OECD Guidelines for Multinational Enterprises → too complicated ??, on the ground that that these holding companies breached the OECD Guidelines by not taking action to prevent or address SOCAPALM’s adverse impacts on the environment, local communities, and workers. Those impacts could be disminution of public services, natural resources and or territory available for local communities, water and air pollution, disastrous working conditions and more. Bolloré was one of the 4 companies concerned by the complaint but refused to participate in the proceedings for two years.

In 2013, Bolloré (representing Socfin, its Belgium counterpart and SOCAPALM) and Sherpa accepted the NCP’s offer of mediation. The NCP concluded that SOCAPALM had breached certain guidelines and recommended that the companies find a remedy and validated an action plan developed by the parties to remedy the violations. Bolloré committed to use its influence to reduce SOCAPALM’s environmental damages, compensate local communities for loss of resources and land and improve labour conditions, among other things.

In 2014, Socfin backed out of the action plan and Bolloré stopped implementing it, and still did it despite procedures implemented through the NCPs.

In 2019, Sherpa and others filed a contract law claim against Bolloré in the French courts arguing that Bollore’s refusal to implement the action plan placed it in breach of a legally binding contract under French law. Bolloré claimed that the agreement resulting from mediation was confidential and could not be used in court but in 2021 the judge decided the contrary. Bolloré appealed this decision and the case is ongoing, at least until early 2022.

2.4 Les Amis de la Terre France and others v TotalEnergies SE

This case opposes the French NGOs Les Amis de la Terre France, Survie, and the Ugandan NGOs AFIEGO (African Institute for Energy and Governance), CRED (Civic Response on Environment and Development) , NAPE/Les Amis de la Terre Ouganda and NAVODA (Navigator of Development Association) to TotalEnergies SE (France)

Total is planning to implement a megaproject of oil extraction in Murchison Falls, the biggest protected natural park of Uganda. This project, with a huge pipeline, water abstraction system, rads and so one seriously threatens the livelihood of local communities, which depend primarily on agriculture and fishing. Ugandan families are allegedly being intimidated and forced to abandon their lands and only a few of them received a compensation. This mega project is also a threat for the endangered animal species living in the park, the river that could highly probably be contaminated . Finally, it constitutes a CO2 emissions « bomb » as it is estimated that during the peak operations years, more than the combined emissions of Uganda and Tanzania will be produced.

In 2019, the French and Ugandan NGOs mentioned before sent a formal notice to Total, in accordance with the Duty of Vigilance Law, giving the company three months to meet its obligations to develop, publish and implement adequate vigilance measures to prevent abuses in its project in Uganda. Total denied any problems in its vigilance plan and practices in Uganda, so the claimants filed a lawsuit before Naterre civil court (France).

In 2020, the civil court declared itself incompetent in favour of commercial courts, the NGOs appealed the decision, on the ground that the case should be judged bty a civil court as it concerns also the external impact of the company on the people and the environment, and that the commercial court could be biased as its members are part of the business wolrd. However, the Versailles court of appeal (France) confirmed that the case should be judged by a commercial court, and nowadays the case is ongoing.

Beside, it’s important to mention that local community members, human rights and environmental defenders, and journalists who criticise the project allegedly experience harassment, intimidation, threats, and unlawful arrests. This to such an extent the Special Rapporteurs have written to Total and the French and Ugandan governments in this regard.

2.5 Local authorities and NGOs v TotalEnergies SE

This case still ongoing and opposes 14 French local authorities and NGOs Notre Affaire à Tous, Sherpa, France Nature Environnement, Eco Maires and ZEA to theFrench multinational TotalEnergies SE, one of the 20 biggest contributors to worldwide greenhouse gas emissions from 1988-2015

In 2018, local authorities and NGOs sent a letter to Total’s CEO reminding him of the company’s climate obligations under the French Duty of Vigilance Law. In 2019 Patrick Pouyanné, Total’s CEO met with them but nothing really changed. The local authorities and NGOs sent a formal notice to Total, in accordance with the Duty of Vigilance Law, giving the company three months to include adequate emissions reduction targets in its vigilance plan, to avoid a lawsuit.

In 2020, the local authorities and NGOs filed a lawsuit before the Nanterre court (Frace), requesting that Total be ordered to take the necessary measures to drastically reduce its emissions, on the basis of the Duty of Vigilance Law, Article 1252 of the Civil Code on the prevention of environmental harm, and the Environmental Charter, part of the French constitutionality block (which gives to it a big influence in theory…).

Total challenged the tribunal’s legitimacy to judge this case and requested it to be heard by a commercial court (composed of company directors) but in 2021, the pre-trial judge rejected Total’s objection. This decision is interesting as it contradicted the previous decision in the case Total-Uganda but we still have to wait for the outcomes of the trial.

2.6 ProDESC, ECCHR and others v Électricité de France SA

This case opposes Unión Hidalgo representatives (Mexico), ProDESC (Proyecto de Derechos Económicos, Sociales y Culturales, Mexico), ECCHR (European Center for Constitutional and Human Rights, an independant NGO) to EDF (Electricité de France SA) the largest French energy company on the impact of a wind power station project in Mexico, on the territory of the indigenous Zapotec community Unión Hidalgo. .

In 2015, EDF’s Mexican subsidiary Eólica de Oaxaca, negotiated and concluded contracts to use the land with individuals who declared themselves “landholders.” However, the community was never properly consulted about the project

In 2018, Eolica de Oaxaca presented an environmental impact assessment which established that the wind farm could negatively impact ancestral lands and natural resources. The same year, some community representatives filed a complaint against EDFwith the French French National Contact Point (NCP) for the OECD Guidelines for Multinational Enterprises. This because according to them EDF and its subsidiaries had violated the indogenous community’s right to Free, Prior and Informed Consent (FPIC) for the possible construction of the wind farm by not or misconsulting them. A Mexican court ordered the public authorities to undertake a consultation but so far, the decision has not been fully implemented.

In 2019, the plaintiffs withdrew from the NCP procedure as it was unpredictable and opaque. Then, they served a letter of formal notice to EDF demanding it to improve its preventative measures. EDF replied that its vigilance plan was sufficient.

In 2020, community representatives and NGOs ProDESC and ECCHR filed a civil lawsuit against EDF at the Paris civil court, under the French Duty of Vigilance Law. They demanded that the company halt the project until abuses are mitigated.

In this case, which is ongoing, it’s important to point out the responsibility of the Mexican state, which failed to guarantee the local community’s rights, without distinguishing EDF’s responsibility is those attempts to human rights, especially because some representatives of the company are accused of offering benefits to community members to support the project which increased the divisions and violence within the communities and toward human right defenders

2.7 Fédération Internationale pour les Droits Humains and others v Suez SA

This case opposes the international organisation Fédération Internationale pour les Droits Humains (“FIDH”/International Federation for Human Rights), the Ligue des Droits de l’Homme (“LDH”/Human Rights League, France), the Chilean Observatorio Ciudadano (Citizen’s observatory) and Red Ambiental Ciudadana de Osorno (Environmental Citizen’s network of Osorno??) to Suez SA (France) with its subsidiaries in Chile on human health and environment issues.

48,3 % of the Chilean urban population is supplied by companies controlled by Suez Group

On 10 July 2019, 2000 litres of oil were released from the Caipulli drinking water treatment plant managed by ESSAL (company controlled by the Chilean subsidiary of Suez), which is responsible for the sanitation network in the Chilean city of Osorno, affecting the water supply of 49,000 households and reaching the Rahue andDamas rivers. The water supply was cut off for more than 10 days and the health crisis (diseases and lack of drinkable water in healthcare services) engendered even worse because of the delayed and incomplete installation of alternative water-supply points by ESSAL.

The leak is deemed to be due to ESSAL’s negligence in the plant’s maintenance and management, negligence already denounced and sanctioned many times by public authorities, without improvement from the company

In 2020, the claimants served a letter of formal notice to the Suez Group under the French Duty of Vigilance Law, demanding that Suez address the failings and illegalities in the provision of a water supply to Osorno. They also demand the group to publish a new vigilance plan that includes detailed and adequate risk prevention measures and a mechanism for monitoring implementation. The company published a new vigilance plan in 2021 that still does not meet its vigilance obligations. The claimants decided then to bring a lawsuit before the French courts, the case is ongoing. 

Other proceedings

Labour law proceedings

3.1 Former employees v COMILOG and others Social protection law proceedings

This case opposes 857 former COMOLIG workers to several entities of the Compagnie Minière de l’Ogouée/ COMILOG COMILOG (COMILOG, COMILOG France, COMILOG International and COMILOG Holding)

In 1991, following a tragic train accident COMILOG stopped the transport of raw material, filed for bankruptcy and laid off 955 workers without notice for compensation. In 2003 th company said it will give €1 million as compensation but the workers claim they never received the money.

In 2008, the French group Eramet became a majority owner of COMILOG and 857 former workers brought individual complaints before a French employment tribunal. The workers alleged that the dismissal was unfair and requested €65 million as compensation.

In 2011, the court dismissed the case on the grounds of not having jurisdiction over the matter. The workers appealed and the court of appeal ruled that France was the appropriate jurisdiction to hear the case for those claimants that had filed a lawsuit in 1992 before the employment court of Pointe Noire in the Congo, on the basis of the situation of denial of justice. The court of appeal ruled that COMILOG should compensate workers €25,000 to €30,000 each, for terminating their employment contracts in 1992.

In September 2017, the Supreme Court made a restrictive interpretation of the conditions for denial of justice and refused the jurisdiction of French courts over the case, saying that there were not enough arguments to declare a denial of justice and that the mere acquisition of the foreign employer by a French company does not represent a sufficient link between the dispute and France

Social protection law proceedings

3.2 Venel v AREVA SA Consumer law proceedings

The stakeholders of this case were the family of Serge Venel, former COMINAK (Nigerian mining firm and AREVA’s subsidiary) worker as complaignants and AREVA SA, French multinational specialized in nuclear power, as defendant. 

In July 2009, Serge Venel who worked from 1978 to 1984 for COMINAK, died at the age of 59 from lung cancer. According to a medical certificate, his cancer was caused by inhaling uranium dust and cobalt, and was recognised as an occupational disease by the French Social Security. 

In May 2012, the French court for social affairs of Melun found AREVA guilty of negligence as a “co-employer”, since the group had expressed interest in protecting the health of workers employed by its subsidiaries and had behaved as an employer on matters relating to health and safety. As a consequence, the widow of Serge Venel would see her pension double.11 — In 2013, the court of appeal overruled the previous judgement and ruled that AREVA could not be held liable as an employer, but only COMINAK could be held liable, as it operates the site and is the company with which the employee had signed his employment contract. — In 2015, the French Court of Cassation confirmed the court of appeal’s judgment by ruling that AREVA could not be held responsible as Serge Venel worked exclusively under the subordination of COMINAK, which paid him, controlled his activity, and dismissed him in 1984.

Consumer law proceedings

3.3 Hamburg Consumer Protection Agency v Lidl Stiftung & Co. KG

This case opposed the Hamburg Consumer Protection Agency (Germany), on the initiative of ECCHR (European Center for Constitutional and Human Rights, NGO headquartered in Berlin) and the Clean Clothes Campaign (global network of organisation, started in the Netherlands), to Lidl Stiftung & Co. KG (Germany) on workers’ rights issues in the textile factories of Lidl in Bangladesh.

In 2010 the Hamburg Consumer Protection Agency filed an unfair competition complaint in the Heilbronn district court (Germany) against Lidl for it’s advertisements campaign saying that the company advocated for fair working conditions in their supplier chain and contracted its non-food orders only from selected suppliers. Lidl also claimed that it opposed child labour as well as human and labour rights abuses in its supply chain. 

The Consumer Protection Agency alleged that, as shown by a study by ECCHR and the Clean Clothes Campaign, the working conditions in Bangladeshi textile plants in Lidl’s supply chain did not comply with international labour standards. Indeed, employees of many of Lidl’s suppliers had reported harsh working conditions: excessive working hours with no payment for overtime, wage deductions as a punitive measure, obstruction of trade union activity and discrimination against female employees. 

The complaint demanded that Lidl stop deceiving customers about fair working conditions in its supply chain. 

On 14 April 2010, Lidl agreed to withdraw the public claims made in the advertisements regarding fair working conditions… but said nothing about improving those conditions !!!

3.4 Sherpa and others v Samsung Electronics France

This case opposes the French NGOs Sherpas, ActionAid France-Peuples solidaires to Samsung Electronics France (France) on workers’ rights, health and safety issues in its suppliers’premises in several asian countries.

In 2012, China Labour watch (Chinese NGO) reportedemployment of children under the age of sixteen, abusive working hours, and working and living conditions incompatible with human dignity on the premises of Samsung’s suppliers in China. This at the same time than a declaration from Samsung saying that it “aim[ed] to become one of the most ethical companies in the world” and included detailed commitments on workers’ rights.

In 2013, Sherpa and Actiion1id France submitted a complaint against Samsung France for misleading commercial practices, based on the incompatibility between the company’s ethical commitment and reports testyfying of labour abuses in the factories of its contractors.

The complaint was dismissed by the public prosecutor after a preliminary investigation.

In 2015 and 2018, on the basis of new evidence of labour abuses in China, South Korea, Vietnam, the claimants filed 3 civil lawsuits (which enables the designation of an investigative judge). One before the Court of Bobigny (France) but the NGOs withdrew from the proceedings, and two before the court of Paris (France).

In 2018, following a mediation procedure, Samsung admitted to exposing its South Korean factory workers to toxic chemicals and agreed to pay compensation for each employee suffering from work-related diseases.

In 2019, after several unsuccessful complaints, an investigating judge of a Paris Tribunal finally indicted Samsung Electronics France for misleading advertising, but in 2021, the Tribunal’s Investigating Chamber annulled the indictment. It accepted Samsung’s arguments that the civil parties were not admissible as they lacked the approval of the Ministry of Justice supposedly required to file consumer claims and had not suffered any harm. Sherpa and ActionAid France appealed before the French Supreme Court.

In September 2020, French consumer defence organisation UFC-Que Choisir filed a separate criminal complaint against Samsung for deceptive marketing practices, alleging that the group had not kept its commitments on working conditions in its suppliers’ factories

The case still ongoing.

3.5 Collectif Éthique sur l’étiquette and others v Auchan

This case opposes the French organisations Collectif Éthique sur l’étiquette (Ethic on the label), ActionAid France – Peuples Solidaires and Sherpa to Auchan a French company with several suppliers in Bangladesh

In April 2013, the collapse of the Rana Plaza building in Bangladesh, a place which contained clothing factories manufacturing for Western brands killed 1,138 people. Labels belonging to a brand sold by the French supermarket Auchan were found in the rubble. Auchan had made several public statements highlighting the company’s commitments to social and environment standards, including within its supply chain.

In 2014, the NGOs Collectif Éthique sur l’étiquette, Peuples Solidaires and Sherpa filed a complaint in France against Auchan for misleading advertisements regarding the working conditions in which its clothing was produced by its suppliers abroad. The prosecutor’s office launched a preliminary investigation.

In 2015, the case was dismissed by the prosecutor without further action. The three NGOs submitted a plainte avec constitution de partie civile (criminal complaint with a civil action), which meant that an investigating judge could be appointed, open an investigation and send a request for cooperation to the Bangladeshi authorities.

For now, the request for cooperation remains not acted upon, and the investigation appears to be at a standstill

 

Duty of vigilance law proceedings (pre-judicial)

 

3.6 UNI Global Union and Sherpa v Teleperformance

This case opposes the French NGO Sherpa and UNI Global Union (an international federation of unions) to the French contact center giant Teleperformance on worker’s rights issues in all its subsidiary companies.

In 2018, Teleperformance did not publish a vigilance plan in its annual report and only published a two-page plan in 2019, without involving trade unions as stakeholders.No efforts had been made to identify and prevent specific risks of violations to workers’ rights in its foreign facilities, despite the fact that two-thirds of the company’s global workforce are in countries with systematic labour violations and despite the denunciation of such violations in Teleperformance subsidiaries in Colombia, Mexico and the Philippines.

In 2019, Sherpa and UNI Global Union served a letter of formal notice to Teleperformance under the French Duty of Vigilance Law, calling on Teleperformance to strengthen their workers’ rights. The multinational responded that it was working closely with all its internal and external stakeholders to publish an enhanced and detailed vigilance plan and did so. However, The updated vigilance plan still fails to identify risks to rightsholders; fails to meaningfully engage stakeholders in the process, including trade union representatives; and fails to take specific steps to mitigate the risks identified.

In April 2020, UNI Global Union, together with four of its French affiliates, CFDT, CGT-FAPT, CGT and FO-FEC, submitted a complaint to the French National Contact Point (NCP) for the OECD Guidelines for Multinational Enterprises, alleging that Teleperformance did not observe the Guidelines in ten countries where it operates call centres after numerous issues raised concerns about freedom of association, collective bargaining and health and safety during the COVID-19 pandemic, and retaliation against workers.

No judicial action has yet been taken.

3.7 ITF and others v XPO Logistics Europe

This case opposes the International Transport Workers’ Federation (ITF), the European Transport Workers’ Federation (ETF), and XPO Global Union Family of trade unions to XPO Logistics Europe (“XPO ») on the lack of transparency on its all supply chain, endangering human rights and workers rights.

In 2019, the claimants served a letter of formal notice to XPO under the French Duty of Vigilance Law after an analysis by ITF revealed that XPO’s vigilance plan did not fulfil the mandatory requirements set out by the law, and unions had not been consulted on the vigilance plan.

The XPO group’s parent company, XPO Inc, headquartered in the US, issued a short response claiming that the company was doing all it was required to do under the law. It failed to respond to any of the requests for information, transparent sharing or offers of assistance from the union group to collaborate to improve the vigilance plan.

Despite further correspondence with the company, there has been no satisfactory engagement so far. XPO has refused to engage with the global network of unions, even on the most basic superficial level.

The XPO Global Union Family is prepared to bring this matter before the relevant jurisdiction in France if XPO ultimately refuses to fulfil its responsibilities under the law. Investigations continue into practices along the XPO supply chain.

No judicial action has yet been taken.

 

Vir: Suing Goliath: An analysis of civil cases against EU companies for overseas human rights and environmental abuses, Due diligence Publication European Access to justice, September 28th, 2021, by ECCJ

* Laura je aktivna pri Focusu kot pripravnica, od septembra do decembra 2021

Prispevek je nastal v okviru projekta Our Food. Our Future. (#GoEAThics), ki ga sofinancira Evropska komisija preko programa DEAR in Ministrstvo RS za zunanje zadeve. Stališča, izražena v prispevku ne odražajo nujno stališč sofinancerjev. Za stališča v prispevku je odgovoren izključno Focus.