"The time has come to hold multinationals accountable for environmental destruction and human rights violations committed in their value chain," said MEP Raphaël Gluksmann on Thursday 1 June 2023, where the European Parliament was at the centre of attention, against the backdrop of the adoption of its position on the future European Duty of Vigilance Directive.A text that enjoins companies to integrate into their mode of operation, the fundamental issue of human rights as well as the cardinal concern for environmental protection. With 366 votes in favour, 255 against and 58 abstentions, the vast majority of MEPs expressed their support for a stricter mechanism as part of the duty of vigilance designed to prevent powerful companies from shirking their responsibility.

Originally, the duty of vigilance was perceived as a mechanism whose existence is based solely on the voluntarism of powerful companies since 2011, and this, with the support of international organizations. In particular, the OECD (Guidelines for Multinational Enterprises), the UN (Guiding Principles on Business and Human Rights).Governed by a flexible legal framework, the duty of vigilance has finally become an imperative, outclassing the sole will of companies since the Rana Plaza collapse on April 24, 2013. A humanitarian disaster that will put into orbit the imperative need for the duty of vigilance in several European legislations.

Thus, Law No. 2017-399 of 27 March 2017 on the duty of vigilance of parent companies and ordering companies will be adopted in France, which is the source of inspiration for the European duty of vigilance. On 24th October 2019 the Dutch legislator followed suit France with a law on the introduction of a duty of care to prevent the supply of goods and services derived from child labour...

All these upheavals will not leave the European Union indifferent, which had already, by a Regulation (EU) No. 995/2010 of the European Parliament and of the Council of 20 October 2010, established the obligations of operators who place timber and timber products on the market. On 17 May 2017, through Regulation (EU) 2017/821, it sets out supply chain due diligence obligations for EU importers importing tin, tantalum and tungsten, their ores and gold from conflict-affected and high-risk areas" with in its package, the adoption on 22 October 2014 of a strict directive (2014/95/EU) making non-financial reporting mandatory.

To achieve its objectives, Brussels intends to oblige all companies with their establishments in the EU, as long as certain conditions are met. In particular, the fact that they employ at least 250 people and have a worldwide turnover exceeding 40 million euros. These figures, far from being trivial, are of an importance that cannot be overemphasized.They embody the will of the European Union, which intended to significantly extend the scope of the duty of vigilance to a significant number of companies, as announced in its resolution of 10 March 2021 containing recommendations made to the European Commission on corporate responsibility. In doing so, the EU is taking steps forward with certain countries such as France where the duty of vigilance only concerns companies employing more than 5,000 employees in France or more than 10,000 employees worldwide, but also Germany where only companies with 3,000 employees are concerned with a planned extension to those with more than 1,000 employees in 2024. The European Union thus announces the advent of decisive legislation on the duty of vigilance.

That said, areas of deep uncertainty remain. Need we recall that the duty of vigilance is not a new concept? These concerns are legitimately fuelled by the difficulties of implementation. In this regard, Professor Arnaud Gossement, commenting on the case of TotalEnergies' duty of vigilance in Uganda and Tanzania, rightly stated that "the judge had considered that the French law on the duty of vigilance is imprecise.This gives the government the opportunity to issue an order-in-council. The judge makes this possibility an obligation. Without this decree, he believes that the meaning and scope of the duty of vigilance cannot be assessed. The judge is not equipped to rule on the content of the vigilance plan: he can only rule on the existence of a plan". This reasoning has, according to the latter, allowed the TotalEnergies Group not to be sanctioned because it had formally established its vigilance plans. Be that as it may, the doubt is real and does not suffer from any legitimacy. The EU will have to rely on the good faith of Member States that may be hostile in the prevailing economic situation...

We can only hope that the new directive will provide some precision for greater effectiveness. In which case, it would only contribute to legislative inflation, which is only a departure from the need for accessibility and readability. In the meantime, all eyes are on the negotiations with the Council, which will be crucial.