I’m not sure I should love reading judgments as much as I do. 📚
⚖️ But as I’ve been chatting with Amy on LinkedIn in my recent post: Once a lawyer, always a lawyer.
👀 I just read the Yves Rocher judgment this week and I found it really fascinating.
For those who didn’t see it, it’s the first French decision to establish the liability of a company and provide for compensation under the French duty of vigilance law.
This case relates to events that happened in 2018 in an Yves Rocher subsidiary in Turkey.
This subsidiary fired 132 employees – nearly a third of its workforce – when they joined a trade union to advocate for fairer wages and equal pay. 🧑🧑🧑🧑
🇫🇷⚖️ I found particularly interesting the whole discussion on the importance of the French due diligence law for French interests.
For a law to be considered so important that it will trump the application of national law where the events took place (which here would have been Turkish law), there needs to be a sufficient nexus with the country (here, France), and the law in question needs to protect an interest fundamental to society in that country.
In this case, the French court delved into the discussions that took place during the preparation for the French devoir de vigilance law (in which the UN Guiding Principles played a key role) and references the French Government’s view of the law being a mandatory law (‘loi imperative’) protecting the weaker in society.
The French court also noted that the sentiment of the EU CSDDD echoes the intention of the French law, and the fact that the Omnibus removed the civil liability provision does not prevent a Member State from regarding its own due diligence law as being a national law viewed as particularly important for a court to apply (so-called ‘loi de police’, contrarily to an argument made by Yves Rocher.)
So in short, the court decided that the French duty of vigilance law applies to these events in Turkey, whether Yves Rocker likes it or not 😬 (and they didn’t, because this meant that the case was not time-barred and could proceed, whereas it would not have proceeded under Turkish law).
🔗 The second point I found particularly interesting was how the French court agreed with the UN Guiding Principles that a causal link can be established through a failure to anticipate.
The court found that Yves Rocher had access to information about the anti-union practices in Turkey – which was publicly reported information. (See in particular the ITUC Global Rights Index!)
And Yves Rocher had the ability to act on this information. If the vigilance plan had properly identified the risks related to freedom of association, and included subsidiaries, then preventive measures could have been taken, and the dismissals could have been avoided.
So, after demonstrating that there was a fault (a faulty vigilance plan that did not delve into subsidiaries or the freedom of association risks in Turkey), a damage (fired workers), and a causal link (a proper plan would have avoided the firing), the court found Yves Rocher liable for breaches of its duty of vigilance obligations. ⚖️📌
So the UNGPs is well and truly shaping court decisions for laws that are based on the UNGPs.
As it should be. 👍
For companies, this judgment confirms what I know you already know:
Use the UN Guiding Principles to shape your approach to human rights due diligence (aka corporate sustainability due diligence aka duty of vigilance), and you’ll be ready for upcoming litigation.
Companies often ask me: How can I stop people from suing us?
My answer: You can’t.
Stopping people from suing sounds a lot like restricting access to justice - which is eerily close to the kind of control over rights and accountability associated with totalitarian regimes.
In fact, the opposite is going to happen: lawsuits are bound to increase. 📈⚖️
So what you can do now is prepare.
Do the work, and document it. Be transparent about what you are doing, and engage with grievances early on.
That’s how you avoid lawsuits from spiralling.
Future company you will thank you. 🙌⏳
Anna 💫
PS: I’ve got nine takeaways for companies from this lawsuit, available in my newsletter here.
PPS: To understand a little bit more about the working conditions of women making lipstick, mascara and face powder at this Turkish subsidiary, also check out my latest newsletter here. 💄🏭
And now you can see the connection between makeup and my law school human rights book 👇
