This country-specific Q&A provides an overview of laws and regulations applicable in France – Environment.
What is the environmental framework and the key pieces of environmental legislation in your jurisdiction?
The framework for environmental law in France is set by:
The “Charte de l’environnement”, which has a constitutional value, contains a number of principles such as the prevention and precautionary principles, or the polluter pays principle
The Environmental code, which main regulations concern classified facilities (“ICPE”), waste, contaminated lands and soils, water, biodiversity and air;
Ministerial orders, which are not codified.
Who are the primary environmental regulatory authorities in your jurisdiction? To what extent do they enforce environmental requirements?
The main authorities are the prefect, the regional environment, development and housing directorate (“DREAL”), and other specific State services such as the regional health agency (“ARS”). The Ministry for the Environment is mainly dedicated to the drafting of environmental law and definition of main policies and priorities.
These authorities have both administrative and judicial police powers. While the administrative police has a preventive purpose, aiming at preventing the damages to the public order, and in particular to the environment, the judicial police has a repressive purpose, penalising criminal offenses.
What is the framework for the environmental permitting regime in your jurisdiction?
There are two main nomenclatures under French law, the classified facilities nomenclature and the water activities nomenclature. They both provide categories and limits that determine the applicable legal framework to the activity. Under classified facilities regulation, the activity may be subject to an authorisation, registration or a declaration while under the facilities, structures, works and activities impacting water resources regulation (“IOTA”), an authorisation or a declaration may be required.
Since 2017, the environmental authorisation, created for facilities presenting a high level of risks, encompasses the authorization of the classified facilities or water facilities and a wide range of other regimes (endangered species, land clearing…). Containing in most cases an impact assessment (see below paragraph 3) and a hazard study, and after an evaluation by the regulatory authority, the facility project is subject to public inquiry. If authorised, the classified installation is regulated by its own prefectural order setting the specific prescriptions applying to the installation. Some specific rules apply to some authorised facilities (Seveso, IED, waste facilities).
The registration procedure is a simplified authorisation for facilities which are above the declaration thresholds and fulfilling the standardised general prescriptions enacted by the Minister for the environment. After the submission of an application to the regulatory authority and a public consultation, the prefect decides to register or not the facility. In addition, particular requirements can be enacted to fill out the registration.
The least polluting and dangerous facilities are subject to the declaration regime, which only requires from the operator to report its facility to the authority before the commissioning of the activity and to respect ministerial orders.
Under water regulation, the IOTA facilities presenting no particular danger are subject to the declaration regime but have however the obligation to respect the general rules of water preservation, and some legal prescriptions set by prefectural orders when necessary.
Can environmental permits be transferred between entities in your jurisdiction? If so, what is the process for transferring?
Generally, under French law, an environmental authorisation can be transferred between entities. This procedure requires from the new operator a declaration to the regulatory authority, and varies depending on the regime. For the facilities subject to declaration or registration, the new operator declares to the regulatory authority, within one month, the change of operator. For those subject to authorisation, the declaration must occur within 3 months after the transfer.
For certain facilities whose activity requires financial guarantees (Seveso, waste storage facilities, quarries or other polluting installations), the transfer of environmental permit must be authorised by the prefect.
Environmental permits for IOTA facilities can also be transferred within 3 months after the transfer, but certain installations (dams or installations using hydraulic energy) must make a prior declaration.
What rights of appeal are there against regulators with regards to decisions to grant environmental permits?
There are two main procedures of appeals. Third parties can appeal an administrative decision delivering an environmental permit, a registration or a declaration within 4 months after publication.
The operator can appeal the refusal of the Prefect to deliver the permit within 2 months after notification.
The procedure of appeal takes place before the administrative court of the facility’s place and provides to the tribunal the opportunity not only to annul a decision but also to modify it.
Are environmental impact assessments (EIAs) for certain projects required in your jurisdiction? If so, what are the main elements of EIAs and to what extent can EIAs be challenged?
Under French law, some projects are systematically subject to environmental impact assessment, while for others it is a case-by-case decision made by the Environmental Authority (“Autorité environnementale”), depending on the expected impacts of their activity on the environment.
The Environmental Authority is responsible for issuing an opinion on the need of performing an environmental impact assessment for projects, plans and programmes. Then, through its opinion on the assessment’s quality, it enlightens the decision markers about the environmental consequences as it confirms or recommends to modify the analysis and proposals put forward in the operator’s assessment.
The assessment includes a non-technical summary of the project, a description of the project (location, size, characteristics), a depiction of the likely evolution of the environment without the project, a description of the significant environmental impacts of the project, the measures considered to avoid, reduce and, where possible, offset significant adverse environmental or human health impacts of the project, a presentation of the monitoring modalities for these measures and their effects, and a description of the alternatives examined and the main reasons for its choice in terms of environmental impact.
Under French law, the impact assessment cannot be challenged on its own; it must be challenged within the frame of an appeal against the environmental permit.
What is the framework for determining and allocating liability for contamination of soil and groundwater in your jurisdiction, and what are the applicable regulatory regimes?
The applicable regulatory regimes are divided among a chapter dedicated to the contamination caused by classified facilities, a chapter on waste and another chapter for the pollution on contaminated sites and soils.
The main principle is that when the lands are contaminated by a classified facility due to the last operator or the person that changed the use, this person is liable for the remediation of the polluted land. For waste, the producer or owner that contributed to the contamination is liable.
Under what circumstances is there a positive obligation to investigate land for potential soil and groundwater contamination? Is there a positive obligation to provide any investigative reports to regulatory authorities?
There is no general obligation to investigate the lands to detect contamination. Nevertheless, it can become necessary when a contamination is identified on a site where an activity is still operated.
Within the frame of the cessation of activity, investigations can be performed and provided to regulatory authorities to attest that the environmental condition fits with the future use of the land. Indeed, French law applies a risk versus use approach, meaning that the condition must be consistent with the use of the site through a Human Risk Assessment and in respect of the codified protected interests.
If land is found to be contaminated, or pollutants are discovered to be migrating to neighbouring land, is there a duty to report this contamination to relevant authorities?
Under French law, there is no specific obligation to inform the administration of a contamination. However, there is an obligation for operators of classified facilities to report to the regulatory authorities accidents or incidents generated by the facility’s operation and that could harm the interests protected by the environmental regulation. Therefore, a contamination that may be considered as an accident or incident must be disclosed, in particularly if there are some off-site impacts.
Does the owner of land that is affected by historical contamination have a private right of action against a previous owner of the land when that previous owner caused the contamination?
Under French law, the seller has the obligation to inform the buyer by a written statement that a classified activity used to operate on the site, as well as the danger or harm that result from the past operation of the facility. The actions will be most frequently exercised on the basis of the deed of sale because the information has not been disclosed.
If the owner is also the last operator, its liability will be challenged as such, depending on the operator’s respect of its regulatory requirements and of the contract terms.
What are the key laws and controls governing the regulatory regime for waste in your jurisdiction?
Key provisions regarding waste are codified in a specific chapter in the environmental code. The waste directive 2008/98 (modified in 2018 by directive 2018/851) also regulates this sector. As well, a bill concerning circular economy is currently being discussed at the Parliament and is likely to profoundly modify the current legislation.
The regulatory authority regarding enforcement of waste law is the Mayor, unless the waste producer is a classified facility, in which case the prefect is competent.
Do producers of waste retain any liabilities in respect of the waste after having transferred it to another person for treatment or disposal off-site (e.g. if the other person goes bankrupt or does not properly handle or dispose of the waste)?
The producer of waste has a legal obligation to proceed to its disposal and elimination. Its liability retains from the production of the waste to the final disposal or recycling as the producer has a legal obligation to make sure that the person to whom he transfers the waste has the authorisation required and complies with the law. Therefore, even with a contractual agreement whereby he subcontracts the disposal, the producer remains responsible: there is always the possibility for the administration to ask the initial producer for the elimination of waste.
To what extent do producers of certain products (e.g. packaging/electronic devices) have obligations regarding the take-back of waste?
Under French law, an extended producer responsibility imposes a financial contribution for their waste management on producers, some distributors and importers. Around twenty extended producer responsibility sectors exist nowadays in France. Some have created a take-back obligation for the distributor, for instance concerning electric and electronic devices, or gas bottles.
The new bill concerning circular economy provides for an extension of the take-back obligation to all sectors of extended producer responsibility.
What are the duties of owners/occupiers of premises in relation to asbestos, or other deleterious materials, found on their land and in their buildings?
Owners of buildings whose construction permit has been issued before 1997, except individual housing, have to establish and update a technical study on asbestos listing the products containing asbestos, details on the previous evaluations and the safety recommendations regarding the identified materials.
Before a demolition, a preliminary diagnosis must be done by the owner of any type of building whose construction permit has been issued before 1997, in order to identify the different products and protect workers from inhaling asbestos.
The results of the diagnoses take into account the degradation of the material, its physical protection and exposure to air flow, shock and vibration. According to the results, three different measures can be imposed: a periodic evaluation of the state of preservation, a measure of the level of dust and in case it exceeds a certain point, removal works can be necessary.
To what extent are product regulations (e.g. REACH, CLP, TSCA and equivalent regimes) applicable in your jurisdiction? Provide a short, high-level summary of the relevant provisions.
The regulation is enforceable in France through the transposition of directives, or by direct application if it is a European regulation, such as REACH and CLP.
Industrial sectors have adapted to fulfil the requirements of the regulations. In order to comply with REACH, operators have to identify and manage the risks of the substances they use and sale in the EU. In this framework, they have to produce information regarding physicochemical, toxicological and ecotoxicological properties of the substances they produce or import. This data is used to ensure that there is no risk for human health or the environment when the substance is placed on the market.
In addition, they have to adapt their labelling and packaging of the substances regarding the CLP classification so the different dangers identified (physical, environmental or regarding health) can be communicated to both actors of the supply chain and consumers.
What provisions are there in your jurisdiction concerning energy efficiency (e.g. energy efficiency auditing requirements) in your jurisdiction?
Codified in the French energy code and the French environmental code, provisions provide various mechanisms to improve energy efficiency, such as energy efficiency certificates or energy audit.
Energy efficiency certificates consist in the obligation for energy suppliers (“les obligés”) to save energy so they get an incentive to promote energy efficiency to their clients and energy consumers in general. The obliged actors must detain energy efficiency certificates by measuring energy saving or buying them.
Energy audit concerns companies with more than 250 employees or a turnover exceeding 50 million euros and a statement of account exceeding 43 million euros.
What are the key policies, principles, targets, and laws relating to the reduction of greenhouse gas emissions (e.g. emissions trading schemes) and the increase of the use of renewable energy (such as wind power) in your jurisdiction?
Most of the current principles and objectives relating to the reduction of greenhouse gas emissions arise from the Paris Agreement signed and ratified after France hosted the 21st Conference of Parties (“COP21”), and fixing the objective to limit global warming below 2°C. The new law “Energie Climat” (law n°2019-1147 dated 8 November 2019) has translated this objective into the French regulation by setting the goal of a carbon neutrality by 2050.
Introducing the concept of “ecological and climate emergency” into the French environmental code, this legislation also heightens the targets previously provided by the Grenelle I and II laws as well as by the law on the energy transition. Indeed, the Energie Climat act sets a reduction by 40% of the fossil fuel consumption by 2030, and plans that renewable energies must account for 40% of the French electricity generation by 2030.
As a member of the European Union, France is part of the EU Emissions Trading System (EU-ETS) since its creation in 2003. The rules governing the fourth period (2021-2030) of the EU-ETS have been transposed into national law by decree in October 2019.
The French environmental code also provides a specific chapter related to the air and the atmosphere.
To what extent are environmental, social, and governance (ESG) issues a material consideration in your jurisdiction? Is ESG due diligence for transactions and ESG due diligence in supply chains becoming mandatory or more common? To what extent are companies obliged to report on ESG matters? Has COVID-19 had any impact in relation to companies’ approach to ESG in your jurisdiction?
Since 2001 and its new economic regulations act, France has progressively settled a wide range of rules concerning extra-financial information, mostly for companies and more recently for institutional investors.
In 2015, an obligation of transparency for institutional investors (mutual and insurance companies, banks…), relating to the inclusion of environmental, social and governance issues in their investments, has been introduced in national law and for the first time in the world. In this sense, a socially responsible investment (SRI) label has also been created to certify the respect of several criteria by the products or investment services.
In 2017, an ordinance and a decree have created an obligation for the biggest companies to integrate in their management report a declaration of non-financial performance. In 2017, a regulation introduced the concept of duty of care into national law for parent companies exceeding certain thresholds.
To what extent can the following persons be held liable for breaches of environmental law and/or pollution caused by a company: (a) the company itself; (b) the shareholders of the company; (c) the directors of the company; (d) a parent company; (e) entities (e.g. banks) that have lent money to the company; and (f) any other entities?
(a) The company itself can be held liable under administrative, civil and criminal law for breaches of environmental law and/or pollution. Its liability can be challenged for environmental damage or breaches of environmental law in case acts of negligence or faults are shown. Under French criminal law, if an individual is held liable, the liability of the corporate entity is not excluded.
(b) Shareholders can never be held liable in the current status of French environmental law.
(c) Directors of the company can only be held liable under criminal law. To be personally liable, the offence must be the result of their personal conduct or if they had personal knowledge of the offence and did not act in an appropriate manner.
(d) A parent company can be held liable under civil law under certain conditions (theory of the veil piercing during a bankruptcy procedure). Indeed, since 2010 the parent company can be held liable for the remediation measures in case it wrongfully contributes to its subsidiary’s bankruptcy.
(e) Entities that have lent money to the company can never be held liable for breach of environmental law.
To what extent can: (a) a buyer assume any pre-acquisition environmental liabilities in an asset sale/share sale; and (b) a seller retain any environmental liabilities after an asset sale/share sale in your jurisdiction?
Under French law, a buyer and a seller can introduce an environmental liability guarantee clause in order to proceed to the allocation of their contractual liabilities in case a contamination is discovered at a later stage. Depending on this clause, the seller could also retain his environmental liabilities after the asset.
More broadly, if the new operator is conducting the same activities as the former one, he will be transferred the obligations and liabilities related to the continued activity on site. However, this responsibility will remain on the previous operator if contamination is not related to the continued activity.
The mechanism of “interested third party” provided by the French environmental code also allows the last operator to transfer its administrative liability to the purchaser who will then be in charge of the remediation.
What duties to disclose environmental information does a seller have in a transaction? Is environmental due diligence commonplace in your jurisdiction?
Regarding land sale, article L. 514-20 of the environment code sets the obligation to disclose the existence of certain classified activities and the impacts of such activities. There is a general obligation of information for all the other sales.
Environmental due diligence is becoming frequent in transactions involving a classified facility as it is the only method to check the regulatory compliance (classified facilities, waste, contaminated land and pollution, asbestos) and the liabilities issues. To avoid disputes during or after the due diligence, it is highly recommended to call in a law firm specialised in environmental matters.
What environmental risks can be covered by insurance in your jurisdiction, and what types of environmental insurance policy are commonly available? Is environmental insurance regularly obtained in practice?
Several environmental insurance can be contracted by the operator of a classified facility to cover the risks related to a site’s activity, e.g. operating losses or clean-up costs. As well, a specific insurance covering currently unidentified contamination is available for historic contamination, but still insufficiently developed in France.
To what extent are there public registers of environmental information kept by public authorities in your jurisdiction? If so, what is the process by which parties can access this information?
In France, most of the environmental information is now available on the internet via a large number of digital portals and databases centralising the information held by the State’s services. Since 2010, the French Ministry for the ecological and solidary transition has launched a web platform directing the public to these portals.
The procedure to access to the information is provided by the French environmental code and the code governing the relations between the public and the administration. The applicant can access directly to the information online or on-site, but also by email or by post.
To what extent is there a requirement on public bodies in your jurisdiction to disclose environmental information to parties that request it?
Under French law, the environmental information hold by the State, territorial bodies, public bodies and persons in charge of a public mission related to the environment has to be communicated to any person who requests it. However, in some situations, certain sensitive information related to public and national security or industrial and technical expertise are not available to persons who request them.
Have there been any significant updates in environmental law in your jurisdiction in the past three years? Are there any material proposals for significant updates or reforms in the near future?
In 2017, a decree and an ordinance have created a single environmental authorisation, merging all procedures relating to classified facilities, water facilities and other environmental authorisations in a unique procedure and thus simplifying the administrative process and the instructions for project holders.
The legislation for the energy and the climate of November 2019 has recently introduced the concept of “ecological and climate emergency” in the French environmental code, and provides ambitious targets concerning France’s consumption of renewable energy by 2030.
Law relating to the creation of the French office for biodiversity of July 2019 merges under a unique agency different services for the preservation of ecosystems. It also reinforces the powers of environmental inspectors, especially to prevent and struggle against water contamination.
As well, a bill for the circular economy is likely to be promulgated in 2020. The bill includes four main points: putting an end to wastage in order to preserve natural resources, mobilising operators to transform production methods, strengthening consumer information as well as improving waste collection and combating illegal dumping. In this frame, there are major measures such as the end of single-use plastic packaging by 2040, reinforcement of the polluter pays principle and the introduction of a bonus for manufacturers that design their products in an ecological way.
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