Loi sur le devoir de vigilance (2) : Quelles perspectives pour les filières « agro » en Afrique ?
Following France, Europe could take action to disseminate the "duty of care" to all major European companies. Perhaps failing legislation, the Union is considering implementing a code of good conduct for economic actors, including agricultural ones, which it would lead to commit to good practices in line with sustainability in general and climate change mitigation in particular.[1]. It would thus contribute to spreading the standard that such regulation constitutes for corporate social and environmental accountability. A paradox to be noted: agricultural sectors operating in Africa have been little affected, until now, by the judicialization permitted by French law.
Although a "marker" of Hollande's five-year term (see our previous article), the French law on the duty of care of large companies regarding respect for human rights and the environment has attracted little attention, even less in the agri-food sector. This observation is primarily due to the fact that the public authorities, since the promulgation of this law in March 2017, have not been able to define and publish an exhaustive list of the companies concerned. It would appear that the Ministry of the Economy, Finance and Recovery is, for the time being, unable to carry out such an inventory.[2].
Furthermore, the very broad scope of this regulation constitutes a barrier both for companies, in identifying their risks, and for potential victims. Indeed, it is a question of being able to identify risks due not only to the company's own activity, but also those to which it may be linked throughout the value chain (i.e. with its foreign subcontractors) and which are particularly difficult to document in countries where informality is the norm, including in certain sectors that are nevertheless certified.[3].
In such a context, a company may be discouraged from investing—even if the investment is likely to bring relative improvement to the situation of local populations—for fear of legal action. Documenting potential risks and impacts, which requires relying on professional expertise, increases the cost of the investment. Added to this are non-financial risks, such as political instability in the countries concerned and damage to the company's image in the event of a problem.
The Covid-19 health crisis has hampered the work of European investors in Africa, if only by preventing on-site visits aimed at documenting the risks of planned operations. The consequences of these project delays or abandonments remain to be assessed. It will also be necessary to determine whether they have encouraged the establishment of other investors, particularly Chinese investors, who are traditionally less demanding in terms of sustainability.
Contractualization, a sensitive point
CCFD-Terre Solidaire invites potential investors to be extra careful, by following the guide "Vigilance on the menu, the risks that the agro-industry must identify"[4]. Five risks specific to agribusiness are highlighted in this document: i) resource grabbing, particularly land and water; ii) infringement of farmers' rights; iii) contract farming; iv) environmental and health damage, particularly from pesticides; and finally, v) the risk of criminalization of rights defenders. For the CCFD, these five risks are generally "forgotten" in the vigilance plans established by agribusiness companies.
The guide presents contractualization as the "new face of resource grabbing" and in particular land. In an African context marked essentially by collective ownership of land, contract farming could lead to de facto, and sometimes exclusive, control of land and the populations who live off it. The same document concludes that "This analysis then allows us to consider contract farming not as an inclusive alternative to land grabbing, but rather as a new mechanism for corporate control of land and producers." »[5].
This stance is not to be taken lightly, even though it may seem far removed from the practices of the most virtuous actors, who are keen to engage in fair contracting arrangements with local producers. The success of such arrangements depends on many factors, aimed at creating mutual trust between all stakeholders.[6]In addition to implementing a vigilance plan, large companies subject to this regulation will have to put in place bold contractual schemes, designed around the inclusion and empowerment of the populations concerned. In the long term, other companies could also be affected, at least morally, so powerful is the normative vocation of this law.
Deforestation in the crosshairs
Until now, when appeals have taken place, convictions have remained rare and essentially focused on commercial aspects, without always ruling on compliance with the duty of care strictly speaking.[7]But this observation does not prejudge future developments, given the increased attention paid to the social and environmental responsibility of companies.
The first lawsuits involved companies active in the energy sector. In June 2020, however, the Casino group was accused of its alleged involvement in deforestation in the Amazon.[8]This case, one of the few involving the agri-food sector, concerns a crucial subject in the fight against climate change.
For a long time, deforestation was considered a regional problem, confined mainly to humid tropical zones and to sectors identified as "harmful" by public opinion, starting with palm oil.[9], rubber, and cocoa. The lawsuit against Casino's activities in Brazil, whose reputational consequences should not be overlooked, is symptomatic of the expansion of civil society concerns in northern countries to non-tropical products, such as animal feed and meat. It is therefore a case to be followed closely, as the European Union, and France in particular, have implemented a strategy to combat imported deforestation.
To date, African agricultural sectors have been surprisingly absent from the legal landscape related to the duty of care law. Should we conclude that French companies, which are also very present, sometimes for decades, in these sectors, are more virtuous than their counterparts working in other sectors or other regions?
[1] We thank Bernard Valluis for his insight on this point.
[2] In September 2020, CCFD-Terres Solidaires indicated that: “The Minister of the Economy Bruno Le Maire then commissioned a mission to study the issue. But the report released last March by the General Council of the Economy dampened hopes. It concluded thatincapacity of public authorities to ensure the implementation of the law and put the ball back in the NGOs' court. It would be up to them and not to L'administration to follow up!” (source: https://ccfd-terresolidaire.org/nos-publications/edm/2020/314-septembre-2020/entreprises-les-ong-6710).
[3] See, for example, this article discussing the situation of cocoa producers in Ivory Coast, according to which certified sectors are not always able to document the effects of certification: " The difference in terms of societal costs between sustainable and conventional cocoa-chocolate sectors is moderate" (source : https://www.bastamag.net/La-face-cachee-du-chocolat-travail-des-enfants-et-deforestation).
[4] Accessible here: https://ccfd-terresolidaire.org/IMG/pdf/ccfd_la_vigilance_au_menu-digital.pdf
[5] Op.cit., page 28.
[6] “Contracting with Farmers in Africa,” FARM Working Group Report, June 2018. Available at http://www.fondation-farm.org/zoe/doc/synthesegroupetravail.pdf
[7] This was the case, for example, in 2019 against Total in Uganda. The Nanterre judicial court declared itself incompetent to hear the case relating to the oil giant Total's activities in Uganda. The case was referred to the commercial court.
[8] Since March 3, 2021, Casino has been sued by an international coalition of NGOs and representatives of indigenous peoples from the Brazilian and Colombian Amazon, who accuse it of selling beef derived from deforestation and the grabbing of indigenous lands in South America. According to the plaintiffs, the group practices a "double standard" in France, where it sells organic food products, and in Brazil, where it sources beef from farms involved in deforestation. Casino denies these accusations.
Sources: https://reporterre.net/Des-ONG-attaquent-Casino-pour-des-faits-de-deforestation-et-de-violation-des-droits ; https://www.francetvinfo.fr/monde/ameriques/amazonie/deforestation-de-l-amazonie-le-groupe-casino-mis-en-demeure-par-plusieurs-ong_4106957.html
[9] See in particular “ The oil palm sector in Ivory Coast, a summary of the challenges of sustainable development », FARM, Note 13, February 2020.
