The Court of Cassation (French Supreme Court) issued its ruling on the case against the oil giant Total, led by six French and Ugandan civil society organizations (CSOs) - Friends of the Earth France, Survie, AFIEGO, CRED, NAPE and NAVODAThis is the first legal action based on the law on the duty of vigilance of transnational corporations.
Putting an end to a nearly two years long procedural battle, the Supreme Court ruled in favor of the CSOs, rejecting the jurisdiction of the commercial courts (1). As the violations continue and intensify in Uganda and Tanzania, the case will now return to the civil court of first instance, which will finally examine it on the merits.
After a ruling by the Nanterre civil court in January 2020, which considered that this dispute fell under the jurisdiction of the commercial court, and which was upheld in December 2020 by the Versailles Court of Appeal (2), Friends of the Earth France, Survie and their four Ugandan partners had decided in early 2021 to file an appeal to the Supreme Court.
On this question of jurisdiction they were supported by three other civil society organizations - ActionAid France, CCFD-Terre Solidaire, Collectif Éthique sur l'étiquette -, and one trade union - CFDT. For the claimants, today's ruling by the Court of Cassation, giving jurisdiction to the civil court, is an important victory. The Court ruled in favor of the civil society organizations by recognizing the "right to choose" (‘droit d’option’) that they enjoy as non-commercial claimants (3).
By entrusting the case to the civil court, this decision makes it possible to fulfil the objectives of the law on duty of vigilance. The purpose of this law is to hold companies liable for the impacts of their activities on third parties, such as employees of subsidiaries, suppliers and subcontractors, local communities and the environment.
While the commercial courts draw their legitimacy from their knowledge of the business world, cases brought under the duty of vigilance law relate to the protection of human rights and the planet, and cannot therefore be reduced to a purely commercial dispute.
Moreover, this decision is coherent with the provision recently adopted by French Parliament in a new, soon to be enacted procedural law, which gives jurisdiction to the Paris civil court for all cases based on the duty of vigilance law (4).
For Juliette Renaud, of Friends of the Earth France, "We are relieved by this decision of the Court of Cassation, which finally closes nearly two long years of procedural battle. However, we are very concerned about the impact of the delays this procedural issue has caused: in the meantime, according to our investigations, more than 100 000 people are still totally or partially deprived of their land and livelihoods in Uganda and Tanzania (5). Action is urgently needed, and we hope that the upcoming decision on the merits of the case will order Total to finally take concrete measures to stop these violations”.
This ruling of the Court of Cassation sends back the case to the civil court of Nanterre, where a hearing, finally dealing with the merits of the case, should be held in the coming months.
(1) The decision of the Court of Cassation .
(2) See our press release from December 10, 2020 : "Total Uganda case: the Versailles Court of Appeal remands the case to commercial court". To learn more about the previous steps of this lawsuit, read the briefing from Friends of the Earth France and Survie (October 2020): Total Uganda – A first lawsuit under the duty of vigilance law: An update.
(3) According to the right to choose (‘droit d’option’), if the claimants are a non-commercial entity, as is the case for our organizations, they can choose to bring a dispute against a commercial entity before either the civil court or the commercial court. In November 2020, this principle was reaffirmed by the Court of Cassation in the "Uber" ruling (available here in French only), even in a case where the subject matter of the dispute has a direct link with the company’s internal management. This decision was relied upon by the Nanterre court in the "Total climate" case, also based on the law on the duty of vigilance.
(4) See our press release from October 21, 2021: Attribution de la compétence à un tribunal judiciaire : les parlementaires sauvent l’esprit de la loi sur le devoir de vigilance !
(5) See Friends of the Earth France and Survie report (October 2020): A nightmare named Total - An alarming rise in human rights violations in Uganda and Tanzania
(6) See the news report by Le Monde, published on November 26, 2021: "En Ouganda, le pétrole de Total impose le silence et la peur" (In Uganda, Total's oil imposes silence and fear)