The main provisions concerning environmental protection are included in the French Environmental Charter and the French Environmental Code.

Please note that there are additional implementation provisions that have not been codified in the French Environmental Code and that the mining regulation is provided by the French Mining Code (not covered in this chapter).

Key Policies

A key aspect of French environmental law concerns the regulation of classified facilities, which applies to industrial or agricultural facilities that may have an impact on the environment.

French law defines classified activities and sets thresholds for declaration, registration or authorisation, allowing authorities to impose requirements on these facilities (see 4.2 Environmental Permits/Approvals). A similar regulation provides that an activity affecting waters (surface waters and groundwater) can be subject to declaration or authorisation from the relevant authorities. Those authorities may impose some requirements on regulated activities.

Another major aspect of environmental regulation concerns waste management. The governing principle is that waste producers or owners are legally responsible for waste collection, elimination and recycling.

Key Principles

The French Environmental Charter enshrines the fundamental principles of environmental protection at a constitutional level. Indeed, this charter contains important principles such as the precautionary principle, the right to live in a healthy environment, the right to environmental information, the duty not to harm the environment, and the duty to preserve the environment and repair the damage ‒ as well as the “polluter pays” principle. The prevention principle is also included in this charter. In addition, the charter sets out the principle of sustainable development as a central objective of public policies.

Additional principles are defined in the French Environmental Code and embody legal concepts such as the principle of participation, which allows affected people to express their opinion on a project with potential environmental impacts. Another key principle is “non-regression”, which implies that measures protecting the environment can only be improved through constant scientific progress and shall not be reduced.

In France, the key regulatory authorities are the Ministry for the Environment and the prefects of departments, who directly represent the Ministry at a local level. The missions of the Ministry mostly involve the drafting of environmental regulatory provisions.

Prefects are responsible for issuing orders or authorisations relating to classified facilities and for ensuring compliance with regulatory requirements. To do so, prefects rely on local administrative services – such as the Regional Directorates for the Environment, Planning and Housing (DREAL) as well as the Departmental Directorate of the Territories (DDT) ‒ all of which participate in the local implementation of national policy. At a local level (communes), mayors also exercise environmental-related enforcement (eg, waste law).

Moreover, the Environmental Authority, an advisory body on projects likely to affect the environment, delivers an opinion on the quality of the environmental impact assessment (see 4.2 Environmental Permits/Approvals). The Environmental Authority shall remain totally independent and be distinct from the authority in charge of delivering permits.

Finally, other specific agencies play a role in some defined sectors – eg, the Nuclear Safety Authority (ASN) and the Regional Health Agency (ARS). Also, the Office Français de la Biodiversité (OFB) was created in 2019: it aims to better protect biodiversity by merging all the services responsible for the preservation of French ecosystems into a single agency.

Globally, local-level authorities may work together to deal with an environmental issue that has, for example, sanitary implications ‒ as they may be complementary. Specifically, the Inter-Services Mission for Water and Nature (Mission Inter-Services de l’Eau et de la Nature, or MISEN) is an authority whose goal is to facilitate coherence in enforcing and financing actions for the implementation of water and biodiversity policies. MISEN includes various regional authorities such as DREAL, the Regional Directorate of Food, Agriculture and Forestry (DRAAF), the DDT and the OFB, among others. MISEN operates under the authority of the prefect in each department.

Additionally, the Operational Committee to Combat Environmental Crime (COLDEN), created in September 2023, is an authority that develops and implements strategies that mobilise the full range of administrative and legal levers to combat environmental crime. COLDEN may impose both administrative and criminal sanctions, has a wide range of stakeholders ‒ for example, magistrates, public prosecutors, the DDT, DREAL, the OFB and the national police ‒ and operates under the authority of a prosecutor.

The protection of environmental assets in France is mainly governed by the French Environmental Code, which groups together the laws and regulations governing environmental protection. This Code protects the natural heritage ‒ ie, all fauna, flora, geological, soil, mineralogical, paleontological and ecological resources – and is divided into several “books” and chapters, each dedicated to a particular asset.

These provisions apply to all French territories. On top of these rules, certain rules laid down by EU regulations also apply to the protection of environmental assets. For instance, EU Regulation 2024/1991 of June 2024 aims at restoring degraded terrestrial and marine ecosystems in all EU countries.

Violating environmental protection rules can lead to three different types of sanction: administrative, criminal and civil. The administration plays the role of regulator in environmental protection and can impose numerous obligations, with penalties for non-compliance. For the same offence in which the administration intervenes, criminal sanctions may also be imposed, and the offender may be held civilly liable. By way of example, in the emblematic case of the Erika, the companies involved were sanctioned at all three levels.

Under French law, the environmental authorities have investigative and access powers with regard to environmental incidents and breaches of law/permits. They have both administrative and criminal enforcement rights.

Administrative Inspections

The French Environmental Code provides conditions under which administrative inspections can be performed. During such inspections, the administrative authority has several powers regarding access to the facility and documents. The 2019 OFB Law gives additional powers to environmental inspectors, who are authorised to take samples and place them under seal. A December 2020 law has extended their competence even further.

If irregularities are found during the inspection, the administrative authority can impose sanctions. After the inspector’s visit, the operator receives a copy of the report and thus becomes aware of the case against them and can respond to the prefect. Before actual sanctions are imposed, the operator is given the chance to comply (prior formal notice).

The 2019 OFB Law has introduced a new criminal offence. If an operator who has conducted their activity without authorisation or certification is ordered to take remediation measures in the context of the cessation of their activity, and does not respect this order, the sanction might result in a two-year prison sentence and a maximum fine of up to EUR100,000.

Negotiated settlements are not allowed under French law. Authorities cannot agree to either reduce sanctions or decline to bring an enforcement action in their role as administrative police.

Criminal Investigations

Criminal investigations are accomplished by regulatory authorities in the case of a breach of environmental law. In the event of a criminal investigation, the inspection performed is similar to the administrative procedure, but the prerogatives of the inspector are extended – for example, they may conduct identity checks.

Similarly, the inspector issues a report to the prosecutor and remains (along with the prefect) at the prosecutor’s disposal for further investigations. By way of example, the inspector may question the operator on behalf of the prosecutor. Since the OFB Law, environmental inspectors are also able to collaborate with other police services on a given case, while remaining entirely autonomous in their investigations. Since December 2020, these environmental inspectors have the same powers as judicial police officers for the judicial investigations they lead.

Environmental permits may be required, depending on the project. The classified facilities regulation and the water activities regulation provide categories and thresholds that determine the legal framework applying to the project (ie, declaration, registration and authorisation for classified facilities). Facilities with the highest environmental risks fall under a special category, determined by the Seveso Directive.

An environmental authorisation (ie, a permit) is required for activities that materially affect protected interests listed in the French Environmental Code (environment, water, health, etc).

Since March 2017, all the procedures necessary for projects subject to authorisation under the classified facilities regulation or the water regulation have been merged into a single environmental authorisation. This environmental authorisation thus covers other specific authorisations when they are required for the project (eg, land-clearing activities and derogation for destruction of protected species). However, the building permits are not included in this broad authorisation.

The French Environmental Code provides specific criteria and procedures to obtain environmental permits; they are progressively more restrictive, ranging from the simplest (declaration) to the most stringent (registration and environmental authorisation, including an environmental impact assessment).

The Environmental Impact Assessment Directive sets criteria and thresholds, which are integrated into French law, and determines whether the projects are likely to have notable consequences. Projects with a potential impact on the environment must undergo either a systematic environmental assessment or an assessment after a case-by-case review, depending on certain thresholds.

After a public inquiry, regulatory authorities issue the authorisation with prescriptions or refuse it with justifications. To appeal permitting decisions, it is mandatory to lodge a claim before the administrative court within two months following the permitting decision for the operator, and within four months for interested third parties.

Recently, a “Green Industry” law was adopted: it aims to shorten the deadlines necessary to obtain the environmental permits.

Finally, the revised EU Directive on the prevention and reduction of industrial emissions from certain sectors was published in July 2024. This directive introduces a new condition for industrial operations, requiring the establishment of emission limit values for the consumption and use of certain resources, notably water. Emission limit values are also set for waste and resources other than water. This directive will have to be transposed by member states before 2026.

Since 2017, the French political approach to environmental policy and enforcement has favoured simplifying procedures for facility operators. Indeed, the French government created the “environmental authorisation” in 2017 (see 4.2 Environmental Permits/Approval). Its most important goal is to improve the efficiency of project authorisation procedures for operators, reduce the time required for obtaining an authorisation and, at the same time, limit the number of disputes that may arise in connection with a single project. This procedure has not only improved the process for industrial petitioners but also case examination and public access to environmental information.

In the same spirit, and as part of the development of low-carbon energy production sectors, a law was passed in March 2023 concerning the acceleration of renewable energy production. Additionally, a second law was adopted in June 2023 relating to the acceleration of new nuclear facilities construction.

Finally, an October 2023 law relating to the Green Industry encourages procedural simplification. The main provision of this law is the simplification of the environmental authorisation procedure. Public consultation will be led – alongside the examination of the application file – by the environmental authority, so as to reduce the period of issuance of the environmental authorisation by half. Additionally, exceptional procedures are introduced for industrial projects of major national interest (known as PIINM), identified by decree. Compatibility of local planning documents will be achieved more rapidly, building permits will be issued by the state rather than by local authorities, and exemptions from restrictions posed by protected species will be facilitated.

The regulators’ approach is also in favour of strengthening waste management, following a law that was passed in 2020 in order to reinforce extended producer responsibility (REP) and circular economy mechanisms. Regulators are also focusing on improving knowledge of polluted sites and soils, the effectiveness of remediation measures and the attractiveness of the areas where these sites are located.

Under French law, an environmental permit can generally be transferred. The change in the permittee is contingent upon the declaration by the new permittee to the regulatory authority within three months following the transfer.

While most permits can be transferred through a simple declaration, the transfer of the environmental authorisation for facilities requiring financial guarantees (landfilling, quarries or some other polluting activities) must be authorised by the prefect. The new operator must file an application for the transfer in order for the regulatory authorities to review the financial guarantees. If the authority authorises the transfer, it may impose additional prescriptions or requirements.

Finally, a procedure for the partial transfer of environmental authorisations was introduced in 2021, thereby enabling a permittee to transfer part of its site to one or more other beneficiaries, who will then hold new and separate environmental authorisations. This possibility is subject to strict conditions – namely, the transfer must not adversely affect interests protected by environmental law, and the responsibilities of the beneficiaries must be clearly divisible.

Both criminal and administrative sanctions punish breaches of permitting requirements.

Firstly, if one runs a facility without an environmental authorisation, the criminal sanctions include a one-year prison sentence and a maximum fine of EUR75,000. If the offender is a corporate entity, this maximum fine is multiplied by five.

Secondly, the regulatory authority may:

• require, by issuing a formal notice, compliance with the regulation within a time limit; and
• then impose administrative sanctions on the offender.

In addition to the suspension of the facility’s activity, the regulatory authority may hold a deposit until the required work is completed. The authority can also have the prescribed measures carried out automatically, in place of the person summoned and at their own expense.

To ensure that the measures will be fully implemented, the regulatory authority can impose a maximum fine of up to EUR15,000 or a daily penalty payment of up to EUR1,500 until compliance is achieved. According to the 2021 Climate and Resilience Law, the sanction can be more severe when a risk of lasting harm to the environment results from this offence.

The revised EU directive on the prevention and reduction of industrial emissions from certain sectors (see 4.2 Environmental Permits/Approvals) also provides, for the most serious violations committed by a legal entity, an administrative financial penalty of a maximum amount equal to at least 3% of the operator's annual sales within the EU. Alternatively, member states can also resort to criminal sanctions.

In addition, in April 2024, a new EU directive on the protection of the environment through criminal law has strengthened compliance with environmental protection legislation through more effective, proportionate and dissuasive criminal sanctions. This directive will have to be transposed by member states before May 2026 and will certainly affect the French legislation, in which the directive provides for penalties proportional to turnover (penalties of 5% of the company’s total worldwide turnover or an amount corresponding to EUR40 million for the most serious offences).

Under French law, three types of liability can be imposed on operators and polluters.

Administrative liability (also called environmental liability) is imposed by regulatory authorities on operators of facilities or activities subject to environmental laws and regulations. The regulatory authorities evaluate the damage and the measures taken to prevent or mitigate it in order to determine liability.

Civil liability in environmental matters occurs for torts or negligence resulting in pollution. The causal link between the harmful event and the damage has to be proven and may result in the award of compensatory damages. Furthermore, the French Civil Code embodies the ecological prejudice reparation concept, codifying the Erika case resolution (see 11. Civil Liability).

Additionally, it is possible to be held liable for environmental damage under contractual liability. Such liability would likely arise in land purchases where a seller retains important information regarding the facility and the industrial history of the land (see 16. Transactions).

Criminal liability applies to both individuals and corporate entities. The head of a company may be criminally liable for the actions of the company. Sanctions can include imprisonment or a criminal fine. The 2021 Climate and Resilience Law introduced new environmental offences, notably:

• a general offence of environmental damage, sanctioned by a five-year prison sentence and a EUR1 million fine;
• an uncontrolled waste-dumping offence, sanctioned by a three-year prison sentence and  a EUR150,000 fine; and
• an “ecocide” offence, introduced in cases of voluntary environmental endangerment and sanctioned by a ten-year prison sentence and a EUR4.5 million fine.

Two more offences now sanction the endangerment of the environment when caused by the breach of a formal notice. The sanction is a three-year prison sentence and a EUR250,000 fine.

If there is a threat of persistent damage to the environment, the operator of a classified facility must report the following to the regulatory authorities: the nature of the threat, the preventive measures that the operator implements and their effects. In case of damage, the operator must inform the authorities without delay, in addition to taking measures to end the causes of the damage and limit its aggravation, as well as its impacts on human health and ecological services.

The regulatory authorities must address a formal notice to the operator in the event of non-disclosure or incomplete disclosure of these pieces of information. Upon expiry of the period determined by the regulatory authority in its formal notice, and without any reply from the operator, the regulatory authority will proceed with sanctions such as a fine of up to EUR15,000.

Administrative obligations and liability for historical incidents or damage may be transferred from one operator to another if the new operator is conducting the same activities. Therefore, the new operator will be liable for the pollution relating to the continued activity even if they were not the operator at the time the pollution originated.

Liability for pollution from the former operator that is unrelated to the continued activity is not transferred. The landowner cannot be liable for historical environmental incidents or damage, except under specific circumstances. In that regard, if none of the aforementioned former stakeholders can be identified, the owner of the contaminated land may be liable if their negligence or participation in the pollution can be proven.

The French Environmental Code provides for at least three reporting requirements in the event of an environmental incident or damage.

First, the operator of a classified facility must declare, as soon as possible, to the classified facilities inspectors any accidents or incidents arising from the operation of its facility that are likely to affect the environment.

Second, concerning application of the polluter pays principle, in the event of damage to the environment, the operator (ie, for this purpose, any natural or legal person – public or private – who exercises or controls a profit-making or non-profit-making economic activity on a professional basis) must immediately inform the administration authority and take measures to put an end to the causes of the damage, as well as to prevent or limit its worsening and its impact on human health and ecological services.

Third, regarding activities that specifically affect water, any person aware of any incident or accident that endangers the safety of the public and the quality, circulation or conservation of water must inform the mayor and the prefect as soon as possible.

Administrative Liabilities

When the classified facilities regulation applies, the prefect may order any administrative measure necessary to address a threat to the environment. Similar provisions are applicable under the water regulation and to any type of environmental damage supervised by a regulatory authority.

State liability

Interested third parties (eg, neighbours of a classified facility) may seek the state’s legal responsibility for the lack of action taken to protect the environment. Public authorities can elude liability if they demonstrate that they have conducted the necessary checks to ensure the facility’s safety.

More generally, there is an overall tendency to seek state liability for its inaction or insufficient action regarding environmental protection. By way of example, the Administrative Supreme Court found the state liable in several landmark cases concerning the insufficiency of the measures enshrined in the Protective Atmospheric Plan, whereby the state was ordered to pay a penalty of EUR10 million for every six months of inaction.

Furthermore, in May of 2024, the Douai Administrative Court of Appeal found the state liable in several cases where residents living near classified facilities had requested the prefect to implement clean-up measures. Although the prefect had exercised adequate monitoring and made appropriate use of their powers to issue formal notices and impose penalties on the operator, the prefect did not require a significant reduction in atmospheric pollutants at a greater number of discharge points, thus not anticipating national standards.

Civil liability

The key concepts of civil liability include “disturbances of the neighbourhood” and “control over the things under one’s guard” (see 11.1 Civil Claims). The French Civil Code also sets out the ecological prejudice reparation concept and provides that any person who causes an ecological prejudice must repair it.

A corporate entity may be liable for environmental damage or breaches of environmental law when acts of negligence or faults are demonstrated. Under French criminal law, the liability of the individual does not exclude the liability of the corporate entity. The maximum fine for a corporate entity is five times the sanction for an individual.

The European Public Prosecutor, Environmental Justice and Specialised Criminal Justice Law of December 2020 provides the option for corporate entities whose actions have harmed the environment to pay a public fine, within the framework of an environmental judicial agreement (known as CJIP). Moreover, the same law has created a specialised court in charge of environmental disputes.

As regards the interaction between corporate law and environmental law, a 2019 law (Loi PACTE) prescribes that any decision related to the company management must take into account corporate social responsibility (CSR) and environmental considerations.

Voluntary firms may explain their “reason for being” to justify what they can bring to customers in a competitive market. Furthermore, companies should be mindful of their advertising duties, as the 2021 Climate and Resilience Law imposes rules on greenwashing.

Nearly 40 environmental taxes generate more than EUR50 billion in France. The main taxes are as follows.

General Tax on Polluting Activities (TGAP)

A company that has a polluting activity or uses polluting products is subject to the TGAP.

Companies are subject to this tax if their activity involves the storage, treatment or transfer to another country of hazardous or non-hazardous waste, or if it emits one of 18 polluting substances.

Taxes on Air Pollution

The bonus-penalty system for automobiles aims at changing the fleet to the lowest-CO₂-emitting vehicles by increasing the price of diesel (and, to a certain extent, oil) motors, and by encouraging the production and increasing the number of electric cars. An ordinance of July 2023 transposes the new EU framework governing road pricing for heavy goods vehicles planned for the European Collectivity of Alsace. It also enables regions and departments to voluntarily introduce an eco-contribution system for heavy goods vehicles.

Taxes on Water Pollution

These taxes are implemented through water agencies. They aim to limit water pollution and cover, for example, the emission of pesticides by taxing companies that discharge polluting products in a watercourse.

Taxes on Waste

“Incentive pricing” (tarification incitative (TI), taxe d’enlèvement des ordures ménagères incitative (TEOMI), redevance d’enlèvement des ordures ménagères incitative (REOMI)) consists of linking the amount of the household waste collection tax to the quantity of waste produced. It aims to reduce overall waste, as well as the quantities of unsorted waste sent to landfill or incineration.

French law does not directly provide for incentives or penalties for “good” or “bad” environmental behaviour. However, in September 2023, the French Ministry announced a bonus-penalty system aimed at improving plastic bottle collection and recycling rates. Local authorities, responsible for household packaging collection, are subject to this system.

Since May 2024, an eco-modulation system has been in place for the REP policy. This bonus-penalty system applies to eco-contributions based on environmental criteria. In concrete terms, they aim to support the use of sustainable, reusable and recyclable products, while limiting the presence of hazardous substances in products.

As of 2010, the French Environmental Code provides that a parent company may be held financially liable for the remediation measures of contaminated land if it wrongfully contributes to its subsidiary’s bankruptcy.

Under the French Commercial Code, certain companies have to include a non-financial performance statement in their annual management report. The obligation to publish such a statement falls on companies with more than 500 employees, as well as on listed companies with total assets of EUR20 million or a turnover of EUR40 million and non-listed companies with EUR100 million in total assets or a EUR100 million turnover.

The statement must tackle environmental and societal issues such as climate change, social commitments to sustainable development and the circular economy. Listed companies must also add to their statement pieces of information concerning their activity’s effects on human rights and the fight against corruption and tax avoidance.

In December 2023, France transposed the EU Corporate Sustainability Reporting Directive into French law, extending the scope of companies required to publish sustainability information, opening the auditing of such information to new players and introducing new sanctions. Further transposition measures will also be required later, given the directive’s progressive timetable, which sets different deadlines for different types of company.

In France, environmental audits are used in a wide variety of operations. Although the situations an environmental audit covers are varied, European Regulation 1221/2009 provides that it is a “systematic, documented, periodic and objective evaluation of the environmental performance of an organisation, management system and processes designed to protect the environment”.

Environmental audits are often used by companies following the detection of an anomaly or the occurrence of an incident or accident on an operating site.

In France, there is no general obligation for companies to carry out an environmental audit, but certain circumstances imply that one should be performed. By way of example, an environmental audit is often required:

• prior to the purchase of land, an industrial building or a factory; or
• in the event of the acquisition of a brownfield or the transfer of remediation obligations.

Directors and officers can be held personally liable for environmental damage or violations of environmental law if their personal conduct contributed to the offense or if they had knowledge of the offense and failed to act. This standard applies beyond the environmental sector.

The individual’s level of authority is not considered when finding them liable, but rather the fact that they were acting in the capacity of a company’s representative or acting on the company representative’s instruction or delegation. In the latter situation, the judge will carefully examine the scope and regularity of the delegation or representative’s instruction.

The penalties for environmental offences range from a fine of up to EUR100,000 to a prison sentence of up to two years. Additional penalties, such as prohibition from doing business in a similar area for a time period of up to five years, may also be imposed.

Global liability insurance for company directors can cover defence expenses and damages arising from civil procedures (thus including environmental matters) and can sometimes benefit the spouse and/or inheritors or legal representatives. Criminal fines are not covered by liability insurance. The company will be the signatory of the insurance contract for the benefit of all natural persons likely to be held personally responsible and therefore who had, have or will have an executive or representative position in the company or in its subsidiaries.

In France, environmental insurance may be purchased specifically to cover any type of contamination or nuisance (detailed further in 12.2 Environmental Insurance). However, French law does not impose any obligation on operators to purchase an environmental insurance.

Almost all environmental risks can be covered by environmental insurance, except for:

• environmental damage resulting from contamination identified prior to signing the contract;
• chronic contamination due to the operator’s activity; or
• damages resulting from a lack of maintenance of the facility.

Financial institutions and/or lenders can be held liable for damages arising from projects they fund, depending on their level of involvement and their awareness of the risks. The same liability regime applies to financial institutions as to any corporate entity.

Furthermore, the French government has demonstrated its will to promote green finance by launching a new label, Greenfin. This certification aims at ensuring transparency and the environmental involvement of financial products.

Since financial institutions and/or lenders’ liability is not specific to environmental project funding, these entities should be aware of the risks taken in becoming involved in their borrower’s projects and of the level of involvement. The more involved a lender or financial institution is, the more likely it is to be held liable for a damage or breach, including an environmental damage or breach.

This is why thorough due diligence is necessary (see 18.1 Environmental Due Diligence). In this respect, the 2019 Energy Climate Law requires investment companies to include in their policies information about the risks associated with climate change and biodiversity.

As mentioned in 6.3 Types of Liability and Key Defences, some of the key concepts of civil liability applied to the environment are “disturbances of the neighbourhood” and the “control over the things under one’s guard”.

The former provides that no one should cause excessive damage to their neighbourhood, even if an environmental permit authorises the industrial activity. However, the theory of “prior occupation” applies under certain conditions ‒ ie, one could not bring claims over a nuisance that already existed prior to their occupation of the neighbouring site.

The second concept provides that a person may be held liable for the harms caused by the things under their effective control. Moreover, the French Civil Code provides for tortious liability, which may impose an obligation to repair the damage resulting from wrongful acts or negligence.

Finally, since 2016 the French Civil Code states that anyone who causes environmental damage can be held liable and be obliged to repair it in kind. If impossible, the reparation ought to be pecuniary. This provision incorporates what is referred to as a “pure” environmental damage, meaning that it is no longer necessary to prove the violation of a “human interest” ‒ for example, financial loss, physical injury or property damage.

Under French law, exemplary or punitive damages cannot be awarded. This category of damages would be a violation of the principle of full compensation of prejudices. Indeed, the French judge must contribute to the repair of the full extent of prejudice caused.

A 2016 law created the possibility of group actions. The French Environmental Code states that a group action is possible when several people in a similar situation suffer from an environmental damage, caused by the same person and with a breach in legal or contract-based duties as its common origin. Such legal action may seek the cessation of the violation and/or the reparation of the damage.

Environmental “approved associations” (which is a specific status) can lead to a group action. Approved associations working for the defence of those who suffered physical injury damage or defending an economic interest may also do so.

The landmark case establishing civil liability for environmental damage was the 2012 Erika case concerning the oil spill caused by the sinking of a tanker. In this case, in addition to criminal liability, the court recognised the legal concept of ecological prejudice for the first time.

Climate litigation is currently increasing considerably, and this trend is certainly going to assume greater importance in years to come. Gradually, liability regarding climate change and global warming is being sought more and more – for example, the French state has been found liable for its lack of climate action.

In addition, the fire at the Lubrizol chemical products plant and warehouse in September 2019 will surely become a major civil and criminal case. It is already giving rise to a governmental action plan for the prevention and management of industrial risks, as well as generating regulatory changes in relation to the prevention and management of accidents on hazardous sites (see 17.1 Self-Reporting Requirements).

Finally, an important decision has been issued concerning transnational water pollution. The judge found an operator liable for causing environmental damage and fined them more than EUR9 million vis-à-vis a foreign state.

It is possible to transfer or apportion liability for incidental damage or breaches of law through a contract between two private parties. Such private contract does not affect private parties’ potential liability to regulatory authorities.

The last operator of a classified facility may transfer its administrative liability through an “interested third party” (tiers demandeur) that carries out the facility’s remediation, and more recently, may also ensure its safety under the provisions issued by the regulatory authority. This results in the transfer of the last operator’s liability to the purchaser. The operator has a residual liability if the third party cannot fulfil its new obligations.

Environmental insurance contracts are available for events that can occur in the course of operating activities, including events causing ecological prejudice. There is also a special insurance for historic pollution, but it only covers currently unidentified pollution and is yet to be further developed in France.

First, one of the key laws is the classified facilities regulation. This regulation addresses the contaminated land obligations in the context of the cessation of activity.

Contaminated land under French law has no definition. However, a 2017 French methodology provides criteria to determine the environmental condition according to which a site shall be managed.

The general approach taken by regulatory authorities is a risk-versus-use approach and respect for the protected environmental interests

Remediation is mandatory at the end of the facility operations. Remediation goals are devised in a manner consistent with the expected future use of the site. Usually, the mayor and the landowner (if different from the operator) are consulted on the use suggested by the operator, and the prefect makes the final decision on the future use. Several operators can be held responsible for parts of the remediation where different activities have generated pollution on the same site.

Secondly, on sites where pollution that poses a threat to public health or safety occurs – or might occur – the  regulatory authority may implement the necessary remediation works at the expense of the person responsible for the remediation. The regulatory authority may also charge a deposit until the remediation works are finalised.

When remediation has been carried out properly, the person who changes the use must provide measures to manage the pollution to ensure that the land is compatible with public safety or health. Additionally, consultancy firms are increasingly involved in cessation of activities procedures: they now have to deliver several certifications for the operator of an industrial site in order to prove to the regularity authorities that they complied with their requirements.

A December 2022 Decree defines eight types of use for the management of polluted soils and also defines the concept of change in use. The uses include, among others, industrial, residential, outdoor recreational, agricultural and renaturation.

Traditionally, the last operator of an industrial site would only be responsible for the remediation necessary to allow the safe continued operation of the site for industrial purposes, while a person seeking to change the use of the site would be responsible for the additional remediation needed to permit the change of use. As detailed in 6.3 Types of Liability and Key Defences, when neither the last operator or stakeholders can be identified, the owner of the land may be held responsible if their negligence or participation in the pollution can be proven.

Each operator is liable for the impacts of the activities of the facilities that they have operated, as well as for the impacts caused by the operators whom they succeed in the same activity. If impacts on the same site arise from different activities, the administration must identify each operator as far as it is concerned (see 6.1 Liability for Historical Environmental Incidents or Damage).

The rules governing locus standi require that a legal action must be useful to the plaintiff. More precisely, people affected by contaminated land must prove that they have a direct and personal interest to bringing proceedings against polluters/landowners/occupiers, and that this interest is legitimateand present. Associations, for their part, must prove that the contamination directly affects the interests they have set out to defend, in accordance with their statutes.

The application of these requirements may vary depending on the courts (civil, administrative or criminal). However, the requirements are generally considered to be broadly construed and easily met.

In France, following an environmental accident, a classified facility’s operator must report to the classified facilities inspector and the prefect. The report must analyse the causes of the accident, and the effects and consequences thereof on the environment and the population. The operator must also report the measures undertaken to prevent any similar future accident or incident and the measures carried out to overcome the accident’s impacts in the medium to long term.

Public prosecutors play a special role in investigating environmental accidents. If the public prosecutor decides to pursue the case, the victim or complainant is informed, and an investigation may take place. Furthermore, the OFB may investigate a site and issue fines for offences. Criminal investigations are carried out by the OFB under the authority of the public prosecutor.

On top of that, the French Environmental Code provides that a technical investigation may be led by the Office for Investigation and Analysis of Industrial Risks (known as BEA-RI), on its own initiative or as required by the Ministry for Ecological Transition and Territorial Cohesion. The investigation aims to improve the security of the site and prevent future accidents, without determining potential liabilities. On the basis of the investigation, the BEA-RI drafts security recommendations.

France is involved in international climate negotiations within the framework of the United Nations Framework Convention on Climate Change (UNFCCC).

France hosted the 2015 21st Conference of the Parties (COP21), which resulted in the Paris Agreement. The French Climate and Resilience Law of August 2021 states that France aims to respect the reduction goals set in the Paris Agreement.

Key Policies

Reduction of atmospheric concentrations of greenhouse gases (GHGs) to prevent dangerous anthropogenic interference with Earth’s climate system is considered a national priority. This goal is implemented through sectoral policies and global targets. France aims to cut its GHG emissions by 50% by 2030 compared with 1990 levels.

Key Principles

To meet the objectives of the Paris Agreement and the commitments to GHG reduction made by France through its Intended Nationally Determined Contribution (INDC), the French Climate Plan unveiled in 2018 (the “Climate Plan”) sets the goal of carbon neutrality by 2050. The Climate Plan focuses on several areas: thermal renovation, clean mobility development and the circular economy. It also aims to achieve carbon neutrality by 2050 through banning new hydrocarbon exploration projects and reinforcing green taxes. National Low Carbon Strategy 2 (Stratégie Nationale Bas-Carbone 2 (SNBC 2)), which is in force today, includes the same objectives defined by the Climate Plan.

Key Laws

Key laws relating to climate change are the 2009 Grenelle II Law and the 2015 Energy Transition for Green Growth. In 2019, the Energie Climat law (discussed in 2.1 Regulatory Authorities) introduced the concept of “ecological and climate emergency”.

The 2021 Climate and Resilience Law has introduced new sets of climate policies on food, work and production, transport, housing and criminal law matters. This law also established the objective of zero net artificialisation of the soil, which aims to slow the pace of urbanisation. Many decrees were passed in 2022 to implement this law.

The 2005 EU Emissions Trading Scheme (EU ETS) is the EU’s main instrument for reducing GHG emissions. The recent reform of the scheme is part of the “Fit for 55” package, a set of proposals to revise and update EU climate, energy and transport legislation. In France, the European system is implemented through the National Quota Allocation Plan (PNAQ), which allocates GHG emission quotas to over 1,300 plants. The current PNAQ phase runs from 2021 to 2030.

Legal goals are determined by the French Energy Code, which contains a legal target for GHG emissions reduction of 40% between 1990 and 2030. For 2021–30, the government has issued a series of objectives aimed at reducing GHG emissions by 43% (by comparison to 2005 levels), with a particular focus on aviation and industry. The goal is also to reach carbon neutrality by 2050.

The Environmental Code outlines reduction targets for GHG emissions, including a 40% cut in fossil energy consumption by 2030 under the 2019 Energie Climat law. While the Ukraine war led France to reopen coal plants, in September 2023, the French President reaffirmed his pledge to convert the last two coal plants to biomass by 2027.

Exposure to asbestos is widespread and is the most common cause of workplace death in France.

Use of asbestos and all products containing asbestos is strictly forbidden in France subsequent to a decree issued in 1996.

Protection measures for the general public against asbestos range from organising research and monitoring of the state of conservation of buildings containing asbestos to setting out the rules in connection with the responsibility of building/apartment owners and organising the communication of technical documentation between participants (landlords, construction companies, lessors, etc).

The Labour Code also provides a set of rules to protect workers from inhaling asbestos in the course of their normal work activities in direct connection with asbestos products (dismantling or handling thereof).

Physical harm or injury does not have to be established for a damages claim. Since 2010, French courts have recognised the existence of a specific anxiety prejudice for workers who have been exposed to asbestos during their past work activities and who are expecting a possible diagnosis of an asbestos-related illness.

The key laws governing waste come from an EU Directive on waste management that was incorporated into the French Environmental Code. Their main principles and objectives are to limit the production and toxicity of future waste at their source, to organise waste management so as to be respectful of the self-sufficiency and proximity principles, to add value to waste through recycling and to proceed to the disposal of waste as a last-recourse solution. Therefore, there is a hierarchy in waste management.

Traditionally, the person responsible for waste management is either the waste producer or the waste holder.

The mayor is the regulatory authority for the application of the waste regulation, except if the waste is subject to the classified facilities regulation (where the prefect is competent).

A February 2020 law made the circular economy a priority, through improving waste recovery and recycling and undermining planned obsolescence. This law also provides further duties for producers: there will be a global prohibition of the destruction of unsold products in order to preserve resources.

This law also introduces a deposit return scheme in order to increase recycling and significantly reduce the amount of waste. An ordinance of July 2020 (transposing EU directives) complements this law, aiming to broaden the exit from waste status and to strengthen the management of biowaste. A law of November 2021 plans the recycling of digital sector products.

The Green Industry Act has also introduced a number of innovations in terms of waste management, notably by specifying that by-products from industrial platforms may not be considered as waste under certain conditions.

Any waste producer or waste holder is responsible for the management of waste until its final disposal or recycling. The person responsible for the waste must ensure that the person to whom they deliver it is authorised to take charge of it and will comply with the applicable regulations.

In a 2023 decision, the Administrative Supreme Court ruled that the person collecting and transporting wastes on behalf of third parties cannot be qualified as a producer or holder of wastes under environmental law unless they acted with negligence. This means that the environmental liability for the disposal of waste, assigned to the transporter or collector, remains with the producer or consignor.

The French Environmental Code has provided for the principle of REP since 1975. The responsibility reverts to the producer of the product, the manufacture of which ultimately results in the creation of the waste.

Approximately 30 sectors are now regulated, including sport, building materials and toys. Producers usually have to pay an eco-contribution in order to fulfil their REP obligation. In addition, a penalty is established for producers that do not meet the objectives.

The 2020 legislation has also launched a system of economic bonuses and maluses to encourage more environmentally friendly methods of production. This system will apply to every product that belongs to a REP sector.

The law also extends the existing obligation of the manufacturer to take back an old device, free of charge, when the consumer buys a new one. This obligation also applies to online commerce. Also, from January 2023, companies that put waste-generating products on the national market will have to inform consumers about the environmental qualities and characteristics of these products.

Waste operators are considered as managers of waste storage and disposal facilities, and are therefore subject to legislation on classified facilities. They are subject to two types of liability: as facility operators and as waste holders.

Their main obligations are to treat and manage waste in accordance with their environmental permit.

Furthermore, to make companies more accountable, French regulations require waste to be traceable, so that precise information can be kept on the characteristics, origin and destination of the waste. A waste-tracking slip, which can be added to the Trackdéchets platform, is used to track waste and ensure that it is treated in accordance with regulations and can be identified in the event of faulty management.

The waste-tracking system also benefits waste operators, who can demonstrate their lack of liability more easily in the event of waste-related issues.

The operator of a classified facility must report incidents or accidents potentially harmful to protected interests under the French Environmental Code. The report must detail the causes, consequences and measures taken to prevent recurrence and mitigate long- and medium-term effects.

Since the Lubrizol incident (see 11.4 Landmark Cases), much has been carried out to improve crisis management and information within facilities in which dangerous substances could be the cause of major accidents. A September 2020 decree aimed at improving the prevention and management of industrial risks is one such example.

For activities that affect water, the mayor and the prefect must be informed as soon as possible by any person aware of any incident or accident that endangers public safety or the quality, circulation or conservation of water (see 6.2 Reporting Requirements).

Under French law, the public has the right to obtain environmental information from public authorities and bodies. This principle applies to every interested person – and to all public and private bodies – in the name of environmental public service to the extent that it is not sensitive information (classified, public security, etc) and is related to environmental matters.

Specific activities (relating to waste, high industrial risks, contaminated lands, etc) are regulated by particular provisions.

The Géorisques website enables the public to be informed about both natural and technological risks, as well as historic pollution.

Under the French Commercial Code, some corporate entities are obliged to annually disclose information concerning the entity’s corporate and social responsibility (CSR) engagement with their shareholders. This includes management of the social and environmental consequences of its activity.

Furthermore, the Duty of Vigilance Law of 2017 creates an obligation for the parent company to implement a “vigilance plan”, which applies to approximately 150 companies.

The plan aims to control the corporate entity’s activities and prevent significant breaches in environmental or human rights regulations. Since January 2020, several major French companies have been subject to claims brought by NGOs challenging the climate-related aspects of their compliance plans; however, the rulings so far have mainly concerned procedural aspects. Moreover, one NGO is publishing a comparative legal study of the plans of 25 multinationals with ranks and marks since 2020.

The EU Directive on Corporate Sustainability Due Diligence, effective from 2024 and applicable by 2027, aims to promote sustainable corporate practices. It requires companies to identify and address human rights and environmental impacts across their operations and global value chains.

Lastly, in 2024, new chambers were established within both the Paris Judicial Court and the Paris Court of Appeal to handle environmental disputes involving large corporations more efficiently. These chambers will have exclusive jurisdiction over cases concerning corporate sustainability due diligence.

The EU Sustainable Finance Disclosure Regulation (SFDR) and the EU Taxonomy Regulations both apply in France. France is also required to transpose the EU Corporate Sustainability Reporting Directive (see 7.5 ESG Requirements).

As of 2021, the SFDR imposes mandatory ESG disclosure obligations for asset managers and financial market participants. The SFDR aims to help investors by providing transparent information about the extent to which financial products take social and environmental features into account.

Furthermore, the EU Taxonomy reporting must take place annually, in the non-financial statement or in a separate report until 2024 and in the management report from 2025 onwards. Among other things, this taxonomy enables companies to demonstrate their commitment to the low-carbon transition and enables investors to have a better understanding of the risks and opportunities of their investment portfolios.

The 2021 French Energy Climate Law, aligned with the EU SFDR Regulation, requires portfolio management companies to disclose climate change and biodiversity risks. They must also provide a document detailing their policy on incorporating environmental criteria into their investment strategy and contributing to the energy and ecological transition.

Environmental due diligence is typically conducted on M&A but is less frequent for financial and real estate transactions.

Environmental due diligence is particularly important when a classified facility is included in the deal, as environmental due diligence is the only way to identify compliance issues regarding every environmental regulation and the liabilities issued in connection with contaminated lands.

Environmental due diligence performed by a purchaser typically ensures that the seller complies with applicable environmental regulations. In the case of a classified facility, the environmental due diligence will also check the possession and validity of the permits and licences required for the activity, as well as the fulfilment of the prescribed conditions. The buyer will also check the legal implications of the different identified risks and contingencies.

The seller of land must inform the purchaser via a written statement that a classified activity used to operate on the site. The landowner must also inform the potential buyer of any danger or harm resulting from the previous facility operation.

When the seller is also the facility’s operator, the contract must demonstrate that the seller provided information concerning whether or not the facility’s operation led to the use or storage of hazardous substances.

As regards M&A transactions, there is a general duty to provide information.

A seller who fails to provide the appropriate information because of voluntary omission or negligence might retain environmental liability in the following situations.

• Hidden defects warranty: The seller is liable for hidden defects that significantly reduce or prevent the property’s use, affecting the buyer’s decision to purchase. The buyer may cancel the sale, but many contracts exclude seller liability for hidden defects. However, this exclusion does not apply if the seller knew of the defect at the time of sale.
• Fraud: When the seller intentionally retains information to mislead the buyer, the buyer may cancel the contract.

In France, the most common legal issues concern non-compliance with applicable environmental regulations. These breaches may include obligations relating to waste management, polluting emissions or the protection of biodiversity. On the other hand, the absence of permits or authorisations to operate classified facilities, although important, is less frequent. There are also soil and groundwater contamination issues. However, these must be assessed on a case-by-case basis.