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Complaint

Sherpa et al. vs Bolloré

Environmental and labour violations at SOCAPALM in Cameroon

Date filed
7 December 2010
Keywords
Countries of harm
Current status
Agreement
Sectors
NCP

Allegations

On 7 December 2010, complainants Sherpa, CED, FOCARFE, and MISEREOR filed a complaint at the French, Belgian, and Luxembourg NCPs against four holding companies of the Cameroonian palm oil company SOCAPALM (Société Camerounaise de Palmeraiess (SOCAPALM). The four holding companies – Bolloré (France), Socfin (formerly Financière du Champ de Mars) (Belgium), SOCFINAL (Luxembourg) and Intercultures (Luxembourg) – exert joint control over SOCAPALM’s operations in Cameroon through complex financial investments.

The complaint alleged that these holding companies breached the Guidelines by failing to take action to prevent or address SOCAPALM’s negative impacts on the environment, local communities, and workers, which included:
– SOCAPALM’s expansion of palm operations, which diminished the physical territory of local communities and the availability of public services and natural resources;
– SOCAPALM’s failure adequately to treat water and air pollution, causing problems for both the communities and the environment;
– SOCAPALM’s failure to disclose relevant information about the company and its potential environmental risks;
– SOCAPALM’s perpetuation of precarious work situations for workers, while limiting freedom of association;
– SOCAPALM’s provision of deplorable housing facilities for workers;
– SOCAPALM’s hiring of security agent Africa Security, which undertook physical abuse against local villagers;
– SOCAPALM’s failure to pay dividends promised to employees when SOCAPALM was privatised in 2000; and
– SOCAPALM’s failure to contribute to local development, thereby violating its contract with the Government of Cameroon as well as the OECD Guidelines.

Relevant OECD Guidelines

Outcome

NCP proceedings
On 24 August 2011, the French NCP declared admitted the complaint against Bolloré, finding sufficient links between Bolloré and SOCAPALM. Following consultation between the French, Belgian and Luxembourg NCPs, the French NCP was declared the leader of the case because Bolloré resides in France and is linked to the three other companies concerned by the complaint.

Thereafter, no further engagement or discussion was had regarding SOCFINAL or Intercultures, the two Luxembourg-based holding companies.

Bolloré (also representing Socfin) refused to participate in the specific instance process for two years following the NCP’s acceptance of the complaint, but finally, on 30 July 2012, the NCP held a meeting with the parties, in November 2012 Bolloré agreed to participate further in the specific instance proceedings, and in February 2013, Bolloré (representing Socfin and SOCAPALM) and Sherpa accepted the NCP’s offer of mediation.

On 19 June 2013, the NCP issued a final statement concluding that:
–SOCAPALM had breached certain Guidelines relating to general policies, employment and industrial relations, and the environment,
–Through their business relations with SOCAPALM, Bolloré (and Socfin) also violated the Guidelines, and that
–the company had not respected recommendations on information disclosure.

The NCP recommended the companies find a remedy to the violations. The complainants were pleased that the NCPs statement pointed out the violations, including reviewing each chapter of the Guidelines in relation to these.

A procedural issue to note is the complainants insisted on obtaining the NCP’s final statement and determination of breach before the end of the mediation, so they could concentrate on the action plan rather than discussing the alleged violations. This approach aimed to clearly differentiate the process of obtaining a final statement outlining the company’s breaches, from the follow-on process of mediating to determine a remedy of those breaches.

Next, through six months of mediation, the parties developed and presented to the French NCP an action plan to remedy the alleged violations. The action plan called for the companies to take steps on a range of issues, including reducing environmental nuisances, compensating local communities for loss of resources and land, improving labour conditions, transparency, and community dialogue, and providing public services and local development. Bolloré agreed under the action plan to exert its influence to ensure that SOCAPALM would take such steps.

On 3 September 2013, the French NCP validated the action plan as a solution to the violations found in its final statement.

In November 2013, the parties developed an evaluation and monitoring system by two external parties: a European organization (GRET) funded by Bolloré and a local NGO (SNJP). For one year, the parties discussed the monitoring methodology, terms of reference, and division of roles.

In March 2014, the NCP announced in a follow-up statement that the action plan was agreed to and adopted by all parties in September 2013 and that the independent organisations had been selected to monitor its implementation. The NCP’s follow-up statement noted that the NCP should be informed annually about the action plan’s implementation.

Unfortunately, despite the NCP’s findings of non-compliance and additional statements, in November 2014, Socfin backed out of the action plan and Bolloré stopped implementing the agreement.

On 2 March 2015, the French NCP noted the blocking of the action plan and asked Bolloré to use its leverage to ensure implementation of the objectives identified in the action plan it had negotiated with Sherpa. Bollore, however, requested the transfer of the case to the Belgian NCP so that Socfin would become the company primarily responsible for implementing the action plan.

On 18 May 2016, in a final communiqué, the French NCP transferred complaint to the Belgian NCP with regard to Socfin.

On 2 February 2017, at a meeting in Brussels with the complainants, the Belgian NCP asked Socfin to provide a written public statement committing to implement the entire action plan adopted before the French NCP.

However, on 15 June 2017, apparently without any request from Socfin or Bolloré, the Belgian NCP decided to close the specific circumstance. Neither Bolloré nor Socfin ever agreed to implement the action plan agreed by Bolloré through the good offices of the French NCP.

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Follow-on court proceedings
In 2019, Sherpa and other organizations took the novel step of filing a contract law claim against Bolloré in French courts arguing that the agreement to implement the action plan represented a legally binding contract under French law, and that Bollore’s refusal to implement it placed it in breach of contract.

In 2020, Bolloré raised a procedural defense claiming, among other things, that the agreement resulting from mediation is confidential and therefore cannot be produced in court to support the claim.

In March 2021, a decision by a first instance judge confirmed claimants’ position that confidentiality does not apply when it comes to seeking the forced performance of an agreement resulting from mediation, otherwise such an agreement could never be enforced in court when parties refuse to voluntarily perform. Bolloré has appealed this ruling, which will further delay a decision on the merits of the case, and the delivery of remedy to impacted communities and workers.

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