A number of judicial actions have been recently brought in France against the French State and private entities for alleged breaches of their legal obligations relating to climate change. This sets a new trend within the existing local legal framework that companies need to consider and assess when operating in France.

Below we describe the legal basis on which these actions have been brought and how this may impact the companies’ business in the future.

Climate change litigation against the French State

Climate change litigation directly against the French State is possible in France. In two landmark cases, Commune de Grande-Synthe and Notre affaire à tous, the French State was found liable for not taking sufficient action to reduce greenhouse gas emissions.

Notably, by decisions issued on 4 August 2021 and 17 October 2022, the French Conseil d’Etat (the highest administrative jurisdiction in France) ordered the French State to pay three penalties, in the amount of €10 million each, pending adoption of the necessary measures to reduce greenhouse gas emissions.

Admissibility of the claim

These actions were brought, inter alia, by several non-profit organizations (the so-called associations under French law), including Oxfam France, Greenpeace and Notre affaire à tous.

French law provides for a lower admissibility threshold for environmental claims filed by non-profit environmental protection associations.

Under Article 31 of the French Code of Civil Procedure, a person can bring a claim if it can show a direct interest in the outcome of a judicial proceeding. Under Article 1248 of the French Civil Code, action in reparation of environmental prejudice “is open to any person that has the capacity and interest to act, such as the State, … as well as accredited associations established for at least five years prior to initiating the proceeding and whose purpose is to protect nature and defend the environment.” However, pursuant to Article L. 142-1 of the French Environmental Code, “[a]ny association whose purpose is to protect nature and the environment can bring an action before the administrative courts in relation to any claim which is related to that purpose,” regardless of whether that association is accredited or not, and whether it has been established for at least five years.

Legal basis for the claim

In addition to numerous provisions of French law which govern the State’s environmental undertakings, French courts can examine the French State’s compliance with its international treaty obligations in the area of climate change, as well as its obligations arising under European Union law.

In Commune de Grande-Synthe and Notre affaire à tous, claimants directly relied on, inter alia, the 1992 United Nations Framework Convention on Climate Change and the 1997 Kyoto Protocol, as well as the 2015 Paris Agreement which contains certain binding procedural commitments on behalf of the contracting parties.

The French administrative courts ruled that the French State was in breach of its obligation to reduce greenhouse gas emissions by a certain percentage so long as the actual emissions have not been reduced in France in compliance with the set objectives. Evidence of the actual level of greenhouse gas emissions—consisting mainly of authoritative studies and reports on the greenhouse gas emissions in France—was deemed sufficient to establish causation between the State’s “insufficient action” and the prejudice to the environment.

As regards the State’s obligation to repair the prejudice thus caused, Article 1246 of the French Civil Code provides that “[a]ny person responsible for environmental prejudice must repair it.” That obligation extends to the State and its emanations.

Specific performance and damages

French law establishes a hierarchy of measures that can be ordered to repair the so-called environmental prejudice. Under Article 1249 of the French Civil Code, environmental prejudice must be remedied “as a matter of priority” through specific performance. It is only when such specific performance is not possible or is insufficient that the judge can order payment of damages to repair the harm caused by the wrongful action or inaction.

For instance, in Notre affaire à tous, the French State was ordered to take “all necessary measures” to repair the environmental prejudice by 31 December 2022 (see Tribunal administratif de Paris, Judgment of 14 October 2021, Case Nos. 1904967, 1904968, 1904972, 1904976/4-1).

Priority given to specific performance is explained in part by the very nature of the environmental prejudice which concerns assets that have no market value as such. The valuation of such prejudice and the calculation of the amount of damages sufficient to fully repair it raises a number of legal and factual difficulties that have not yet been fully addressed in practice.

Depending on the circumstances of each case, such damages could be calculated based on a number of factors such as: a) the cost of measures necessary to repair the prejudice caused by the wrong action or inaction (such as the cost of replanting a forest or the cost of re-introducing an endangered species into its natural habitat); b) a lump sum calculation based on a particular monetary value to be attributed to a cubic meter of water or air, a hectare of forest land and so forth; or c) damages resulting from losses sustained by a particular sector of the economy.

However, none of these factors may be sufficient in and of itself to fully repair the prejudice caused by greenhouse gas emissions and the resulting climate change. In addition, given the means available to the State, including its legislature and enforcement apparatus, there is a broad assumption that it should be possible for the State (as opposed to a private entity) to adopt all necessary measures of specific performance.

Examples of French courts ordering payment of damages instead of specific performance include those instances where the environmental prejudice was caused by a private party and the action in reparation was filed by a State body responsible for enforcement of environmental protection measures, such as a national conservation park. In such instances, French courts deemed that a private party did not have the sufficient technical means at its disposal to repair the prejudice other than through payment of damages to the State. The amount of such damages is typically based on the costs that the State incurs to repair the prejudice through specific performance (see, eg, Tribunal judiciare de Marseille, Judgment of 6 March 2020, Case No. 16253000274).

Payment of moral damages can be ordered in addition to specific performance and/or compensation for losses.

Calculation of the amount of moral damages faces the same practical difficulties as calculation of losses suffered as a result of the wrongful acts. So far, moral damages requested against the State have been awarded and calculated on a “symbolic” basis, in the amount of €1. These symbolic amounts were awarded for instance to claimants in the Notre affaire à tous case.

Penalty payments to enforce specific performance obligations

French law also allows the imposition of penalties on the State if the State’s efforts to comply with its specific performance obligations to repair climate change prejudice are deemed insufficient.

In the Commune de Grande-Synthe, the French Conseil d’Etat ruled in July 2020 that if the French State did not take sufficient measures to reduce greenhouse gas emissions within the six months following the issuance of its decision, the French State would be ordered to pay a penalty of €10 million per semester in the event of its continued breach of the specific performance obligation.

On 4 August 2021, the Conseil d’Etat ordered payment of the first tranche of the €10 million penalty, for the 11 January – 11 July 2021 period. The Conseil d’Etat adopted a further decision on 17 October 2022, ordering the French State to pay two additional tranches of the €10 million penalty, for the 11 July 2021 – 11 July 2022 period. These payments should be made to nine environmental protection associations listed in the decision (see Conseil d’Etat, Decisions of 4 August 2021 and 17 October 2022, Case No. 428409).

While some of the measures addressed above are specific to litigation against the French State, others apply to climate change litigation against private parties, with such litigation facing its own set of challenges.

Climate change litigation against private entities

As regards action against private entities, the issue of enforcement and accountability is even more convoluted than action against the State, as the general rules governing civil liability in France are not entirely adapted to climate change litigation.

The foundation of French civil liability law is based on the notion of a causal link between the factor(s) triggering liability and the damage(s) suffered. In the instance of climate change actions, in addition to the difficulty of proving the factors triggering liability, which are attributable at least in part to the private entity, the required causality is particularly difficult to establish. Several approaches to causality could potentially be applied in such litigation, including a so-called equivalence of conditions that could arguably be most adapted to this type of action. However, causality always requires a certain degree of certainty which is very difficult to establish in climate change actions.

The causes of the climate change phenomena are multiple, and the liability, if any, is collective. Civil liability is based on individual liability (or shared liability), not on a concept of collective liability, which makes it difficult to apply in the presence of a multi-factor, highly complex and global phenomena that goes beyond an individual action.

Thus, Article 1240 of the French Civil Code—which governs tort liability in France and states that “any act whatsoever of a person, which causes damage to another person, obliges the person by whose fault it occurred to repair it”—is not actually adapted to climate change litigation.

Similarly, actions for compensation of environmental prejudice based on Articles 1246 et seq. of the French Civil Code are premised on a traditional notion of causality. These provisions are more suitable to address prejudice suffered as a result of environmental disasters than environmental prejudice arising from climate change. For climate change, the action of a private company is not a determining factor that contributes to this global and multi-causal phenomenon. Some authors have called for the modification of these civil liability rules to adapt them to the specific nature of climate change and, by doing so, hold private entities liable for the global and complex phenomenon that is climate change. Where this notion encounters challenge is how, then, to hold said private entities accountable in a manner viable for these entities and their insurers. This raises the question of whether and how private entities can and should bear liability for phenomena which are attributable to the larger society.

That being said, certain measures recently introduced in French legislation have attempted to hold private companies liable in such matters. In 2017, a duty of care was introduced in Article L.225-102-4 of the French Commercial Code which only applies to large companies. It provides that these companies must put in place a due diligence plan, including reasonable vigilance measures to identify risks and prevent serious violations of human rights and fundamental freedoms, the health and safety of persons and the environment, resulting from the company’s activities and those of “the affiliates and companies that it controls”.

These provisions have been used by several environmental protection associations to try to initiate actions against private entities, including climate change litigation. Several proceedings are ongoing, and concern requests that private entities be ordered to adopt additional measures aimed at environmental protection, or to pay damages, or both.

Claimants in such actions can only seek damages amounting to the loss that would have been avoided if the duty of care had not been breached (Article L.225-102-5 of the French Commercial Code).

French law also allows for other actions based on consumer protection laws (such as deceptive commercial practices consisting of alleged misrepresentations of carbon neutrality). We may also expect an increase in actions linked to the obligations of extra-financial communications applicable to certain companies. However, such actions are limited to deceptive communications or misrepresentations, which should be distinguished from the issue of liability for actions or inactions allegedly contributing to climate change.