Benjamin Dors and Paul Boutron look back at the concept of climate litigation. As COP28 draws to a close, what are the practical aims of these lawsuits? What is their legal basis?
Watch the video.
Companies have already implemented internal control systems in order to combat corruption and influence peddling offences. Beyond the internal ethical satisfaction, they do not draw any legal advantage other than hoping to prevent, and in this way avoiding, the commission of illegal activities.
In order to be punished, it was still necessary that they had committed an offense, and that this offense was recognized by a Judge . . . this risks becoming a thing of the past.
Indeed, for the largest among them who belong to a group with a workforce greater than 500 employees and who have a consolidated turnover greater than €100 million, they could see their systems audited, be required to change their systems and even be penalized up to €1 million, not for having committed crimes, but simply for having implemented a control system considered as being of inadequate “quality”.
It will be up to an “agency with national jurisdiction reporting to the Minister of Justice and the minister responsible for the budget”, directed by a High Judge appointed by Decree of the President of the Republic, to alert and detect systems of inadequate quality.
The independence of the agency vis-à-vis the executive branch leaves one wondering.
The law sets a long list of measures to be mandatorily implemented by the companies, namely: a code of conduct, a warning system, a mapping of risks, evaluations of first-tier clients and suppliers, internal or external accounting audits, training and a system of disciplinary penalties.
The abovementioned agency could thus, on its own initiative or upon request by the Justice and Budget Ministers, carry out audits on the implementation of these rules.
Upon what basis will these audit choices be determined by these “happy few”? The law does not say.
The audited company and its executives could, after having been able to submit their observations (whew!), be given a “warning” by the agency, but also be referred to the Sanction Commission in order to have imposed upon them injunctions adapted to their procedures or, ultimately, penalties.
These “violations”, which would be identified in this manner and for which no definition is provided, which is in fact a very unclear grievance, could lead to penalties of €200,000 for natural persons and €1 million for legal entities.
The appeals of these decisions will be appeals in which the Court has unlimited jurisdiction and will be therefore treated by an administrative judge and not a judicial (or ordinary) judge.
The judicial judge is not, however, completely left out as he could count on the introduction of an ancillary criminal penalty against the legal entities obliging them to implement a compliance program, under the supervision of the agency, and for which the fees that it will incur shall be paid by . . . the convicted company.
One could infer from this legislative arsenal, which is at the very least burdensome, that legal entities having implemented a system judged as quality would benefit in turn from some sort of recompense or a lenient evaluation in the event that an offense would still be committed in their company and which could go as far as, let’s go wild, criminal irresponsibility. None of this is in the Law.
However, what reproach is to be made against a legal entity whose system was audited and judged to be of quality by the audit agency when an infraction is still committed. Will the agency be held accountable?
If the Bill wanted to make companies and their executives partners in the fight against corruption, which can be defended, it has in fact, at this stage, unfortunately made them targets of new administrative penalties with very vague boundaries . . . it is a shame to wager more on the fear, not of the constable, but of the Administrative Judge, than on a systemized partnership.
