ETUC Position for a European directive on mandatory Human Rights due diligence and responsible business conduct
Adopted at the Executive Committee Meeting of 17-18 December 2019
Key Messages
- The ETUC calls for a European directive on mandatory human rights due diligence and responsible business conduct.
- It should establish mandatory and effective due diligence mechanisms covering companies’ activities and their business relationships, including their supply and subcontracting chains.
- The directive would constitute an important step forward to ensure the respect and enforcement of human rights. Human rights should include trade unions’ and workers’ rights as main components.
- A directive should empower workers to fight against violations of human rights. It should ensure the full involvement of trade unions and workers’ representatives in the whole due diligence process.
- Effective remedies and access to justice should be available for victims, including trade unions.
- Companies should be accountable for the impacts of their operations. Liability must be introduced for cases where companies fail to respect their due diligence obligations, without prejudice to joint and several liability frameworks.
Introduction
Violations of human rights, including workers’ and trade union rights, continue to take place in companies’ operations, comprising multinationals, their supply and subcontracting chains. The freedom of association, the right to bargain collectively, the right to information, consultation and participation and to take collective actions are at the core of such violations. This is also the case for violations of the right to fair remuneration, decent working conditions and health and safety in the workplace. From the XPO case in the US and Spain to the Rana Plaza case , such intolerable situations must change. The EU must act. It must act now: there is a clear and concrete political responsibility to live up to the EU objectives, its attachment to the principles of liberty, democracy and respect for human rights as anchored in the EC Treaties and Charter of Fundamental Rights.
Today, corporations operate across borders. Complex corporate structures and supply and subcontracting chains enable parent companies to avoid responsibility for human rights and violations of social and environmental standards. It is furthermore difficult to trace the negative social and environmental impacts of their global operations.
The main international tools, the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises include the responsibility for companies to carry out due diligence within their value chain when doing business abroad. However, there are no specific requirements that these responsibilities should be implemented by companies.
Currently there are no general, overarching and binding obligations at EU level for companies to comply with due diligence mechanisms for their activities and their supply and subcontracting chains (and other business relationships). Only very limited instruments encourage them to do so. As it stands, the current legal framework does not prevent violations of human rights.
The reliance on a voluntary framework to promote business respect for human rights has furthermore proven insufficient and ineffective for workers, society and businesses. National action plans on business and human rights for responsible business conduct which implement OECD guidelines on multinationals and OECD guidance for business conducts reveal the limits of the voluntary approach. This leads to a patchwork of measures that do not provide for legal certainty and legal predictability. It prevents Member States and public institutions, citizens and workers, and businesses to rely on a robust due diligence framework. The unbalanced and piecemeal take-up of voluntary schemes creates unfair competition at European and global level. The current framework leads to a race to the bottom in terms of human rights and environmental and social standards. It raises public expectation without providing the enabling framework for proper enforcement. Furthermore, it provides no stable grounds for investors to evaluate and to compare companies’ sustainability and due diligence processes. There is a clear need to remedy the absence of legally binding obligations upon businesses to comply with human rights and to overcome the lack of effective oversight and means to properly enforce measures to be implemented by companies in this area.
As a result, a large range of Member States in the EU have started to legislate. This is a clear signal to the European Commission to act and to act now to provide for a level playing field for workers and businesses in the EU. A European directive would fill this gap and establish a set of minimum standards across the EU though which companies would fulfil their obligations under the UN Guiding Principles.
This initiative should go hand in hand with the efforts to ensure more transparency of business activities, including through a European business register and public country-by-country reporting. It should provide for consistency with European industrial policy, eco-design legislation and environment and climate policies. Sustainable corporate governance should include fair taxation principles, making multinational companies pay taxes where profits are generated, with the view to prevent the implementation of global supply chains based on tax avoidance and aggressive tax planning.
Therefore, it is necessary to introduce mandatory measures to ensure the full respect and enforcement of human rights, including workers and trade union rights, in companies’ activities as well as throughout their subcontracting and supply chains and franchise systems, at national and cross borders level, and to provide for better enforcement. It is also necessary to guarantee that companies’ operations respect social and environmental standards and contribute to positive social and environmental impacts. Such a step would pave the way to the achievement of the environmental and social objectives defined at European and global level. Finally, an ambitious European regulatory framework on these issues would contribute to promote a more inclusive, sustainable and stakeholder oriented corporate governance model, which recognises the primary role of workers’ contribution and interest and gives a voice to other stakeholders.
For your information, Annex I (the updated discussion paper presented at the September 2019 ETUC Executive Committee) includes a comprehensive overview of the status quo, of the international, European and national instruments and frameworks relevant for these matters, as well as of the political discussions at European level.
What the ETUC calls for
The ETUC calls for a European directive on mandatory human rights, including workers and trade union rights, due diligence and responsible business conduct. It should establish mandatory and effective due diligence mechanisms covering companies’ activities and their business relationships, their supply and subcontracting chains.
A European directive on due diligence would constitute an important step in ensuring that companies’ activities are more sustainable and in establishing accountability, including effective remedies, for the impacts of their operations. It would constitute an important step forward to ensure the respect and enforcement of human rights. It would empower workers to fight against violations of human rights. It would furthermore ensure a clearer environment for all actors of society, based on common minimum requirements, legal certainty and fair competition.
Main ETUC demands
For the European Trade Union Confederation, such a directive should include at least the following elements:
Aim. The directive[i] should establish ambitious due diligence obligations for companies in line with the high social and environmental standards and objectives of the European Union, as well as with the aim to promote and ensure sustainable development and social dialogue. It should focus on effective prevention of human rights violations and negative impacts of business operations, including global operations of companies established or operating in the EU, and on effective controls, sanctions and remedies. The directive should build upon and include the most ambitious elements of the different international instruments and standards, as well as effective solutions developed in EU legislative instruments and national frameworks.[ii] The duty of the company to carry out due diligence should include all its operations and the activities it is linked with through its business relationships, including its subcontracting and supply chains (e.g. franchising, providers, subcontractors, distributors…).
Legal basis. A combination of different legal bases should be considered for the directive, which should include Article 153(1)(e) TFEU (information and consultation of workers).[iii] Social partners should be fully involved in the preparation of the initiative, in accordance with Article 154 TFEU.
To whom should the directive apply? The personal scope of the directive should be based on a large range of relevant international instruments. It includes the United Nations Guiding Principles on Business and Human Rights (UNGP), the OECD Guidelines for Multinational Enterprises (OECD Guidelines), as well as the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy (ILO Tripartite Declaration) and the Council of Europe Committee of Ministers Recommendation on Human Rights and Business.[iv] They all apply to businesses including multinationals, independently of their sizes, active in any sector. Limitations in the scope of the EU directive could, if they were implemented, exclude from the application of the directive many companies whose operations have significant actual or potential impacts in the areas covered by due diligence obligations. For these reasons, the personal scope of the directive should cover all companies, including SMEs, as well as public sector organisations, which are established (seat, headquarters or principal place of business) or active in the European Union, regardless of their legal forms[v].
What should due diligence cover?
- The material scope of the directive should guarantee a broad coverage of the human rights definition including workers’ and trade union rights. It should build on international instruments such as the International Bill of Human Rights and ILO Conventions, as well as the European Convention on Human Rights and European Social Charter. It should further build on the EU Treaties and the Charter of Fundamental Rights of the EU as well as national instruments and legislation in the area of human rights.[vi] This includes, amongst others, freedom of association and the right to collective bargaining and collective action, information, consultation and board-level representation rights, decent working conditions, occupational health and safety, fair wages, social security coverage…
- In any event, the level of protection of human rights should by no means be lower than the one provided for by international and European primary and secondary law, higher national standards and norms and collective agreements. The due diligence obligations should cover actual and potential impacts in this area. They should also cover social and environmental impacts, including on the basis of the UN development goals and the Paris environmental agreement, as well as anti-corruption, corporate governance and tax matters.[vii] The added value of a EU due diligence act would constitute in an anticipative approach to prevent the occurrence of any harm. It would further bring trade unions and workers in the forefront to shape a cultural and behavioural change in business activities based on sustainability, stakeholder involvement, proactive ex-ante assessments and preventive actions.
Due diligence process. According to the UNGP, OECD Guidelines and ILO Tripartite Declaration definitions, companies should carry out due diligence to ‘identify, prevent, mitigate and account for how they address their actual or potential adverse impacts. Building upon those instruments, mandatory due diligence should include assessing and identifying actual and potential […] adverse impacts, acting upon the findings in order to cease and prevent negative impacts, tracking the implementation and the results, and communicating how impacts have been addressed’.[viii] Building on these instruments, the ETUC is of the opinion that a EU mandatory framework should include a set of obligations, in particular:[ix]
- Companies should map, identify and assess actual and potential adverse impacts of their operations – including both their activities and their business relationships, their purchasing practices (in particular along the whole supply and subcontracting chains) – on the above-mentioned areas. The assessment should take into consideration the protection of workers as well as all the areas of business activities and be based on an evaluation of at least the sectoral, geographic, product, service and enterprise-based risk factors.
- Companies should act upon the findings. They should cease any operations, including in their business relationships, which are causing or contributing to adverse impacts that cannot be prevented. Companies should develop, publish and implement a due diligence plan to prevent any potential risks and the materialisation of negative impacts or violation of human rights in their activities and business relationships (in their whole supply and subcontracting chains) but also to ensure proper monitoring and control. The plan should include concrete actions and follow-ups with specific objectives and timetables. It should provide for procedures to regularly assess the situation of companies whose operations are linked with the main company because of its business relationship. The directive should contain provisions that encourages high-level corporate responsibility, including directors’ liability, for addressing the identified actual and potential violations and negative impacts through the due diligence plan. Companies should ensure adequate budget allocations and oversight to guarantee the implementation of the plan and the respect and enforcement of their obligations.
- The directive should require companies to verify effective and transparent tracking and monitoring of the implementation of their due diligence plans. Such verification should be based on qualitative and quantitative indicators and internal and external feedbacks. Companies should provide an assessment of the effectiveness of the due diligence plans, including their implementation, the actions undertaken and any negative impacts which have materialised, and periodically review them based on the findings. This assessment should be provided to the public authority responsible for monitoring the respect of the directive’s obligations for an objective oversight of the quality of the assessment.
- Due diligence plans should include the establishment of an early alert mechanism to collect reporting of existing and potential human rights and social and environmental standards violations and negative impacts about the abovementioned matters, as well as for any violation of the due diligence obligations and plan.[x]
- The directive should require companies to publish an annual, specific and comprehensive public report on the verifiable progress of their due diligence plans and obligations, on the actions undertaken about both their operations and business relationships and on any violations or negative impacts which have materialised. The reports should provide enough information to evaluate the adequacy of the companies’ plans and actions compared to the actual and potential negative impacts of their operations. The extent of reporting should be proportionate to companies’ activities’ potential and actual risks and impacts and corresponding due diligence processes. In designing the reporting framework, the directive should pay due consideration to the existing legal framework for the reporting of non-financial information, which should be revised – according to long-standing trade union demands.
- The directive should also require companies to embed responsible and sustainable business conduct principles and considerations into their management systems and their business models, including in their business relationships (e.g. in their purchasing practices).[xi]
Workers’ and trade unions’ involvement. The international instruments mentioned above recognise the necessary role that trade unions, workers and their legitimate representatives, should play in the definition and implementation of companies’ due diligence initiatives.[xii] The directive should fully recognise the role of workers as the most central actors in companies.[xiii] Without prejudice to existing information, consultation and participation legislation, but building on strong collective rights of workers, the directive should include the following elements:
- The right for trade unions at the relevant level, as defined by trade unions, to negotiate with the company the due diligence process that should be introduced.
- Mandatory involvement of trade unions and workers’ representatives should be guaranteed in an effective manner and at an early stage in the identification of the actual and potential adverse impacts, as well as in the elaboration of the due diligence plan, in its implementation and enforcement, its periodic assessment and review.
- An early alert mechanism should be developed and managed in partnership with the trade union organisations in the companies concerned.
- Mandatory workers’ information and consultation rights should be fully respected regarding the definition of the due diligence plan and its implementation, at national, European and global level, including through the involvement of the European Works Councils. The information should be timely and sufficient to support the active and efficient involvement in the process. Workers’ representatives in company boards should be fully involved as well in the different steps of the due diligence process.
- The directive should ensure that trade unions and workers’ representatives of companies in the supply and subcontracting chains are also involved in the identification and assessment of the actual and potential negative impacts, in the definition and implementation of the due diligence plan and in the early alert mechanism. It is imperative that the directive provides trade unions with the resources and capacity to intervene and act on all stages of the process.
- Social dialogue practices, and trade union rights, notably the right to organise, to bargain collectively and the right to strike, must be protected and enforced also in the supply chain or subcontracting chains, including for non-standard employment relations.
Business relationships, including supply and subcontracting chains. Companies’ operations may be linked with negative impacts or violations of human rights and social and environmental standards. This can be the result of the company’s own activities, of the activities of the company’s subsidiaries or controlled undertakings, as well as of the company’s business relationships, in particular its supply and subcontracting chain. For this reason, the UNGDP, the OECD Guidelines and the ILO Tripartite Declaration recognise that due diligence should also cover companies’ business relationships, including supply and subcontracting chains.[xiv] Due diligence requirements should therefore cover all companies’ operations, independently of their size, including their own activities, the operations of their subsidiaries and controlled undertakings, and their business relationships, including their whole supply and subcontracting chains, franchise and contract management. They should cover operations, actual and potential impacts and violations both within and outside the EU. Limiting the application of the due diligence to the operations of entities with which companies have an established business relationship or over which they have a certain degree of control, would be counterproductive and incentive companies not to engage with and to distance themselves from their business partners and suppliers, in order to avoid due diligence obligations. It would also further encourage short term precarious business relationship, with very negative consequences on workers.
Public monitoring. Member states should ensure that one or more national public authorities (including for example labour inspectorate or health and safety inspectorate) have the responsibility to monitor the respect of companies’ obligations included in the directive. The authority shall have the necessary resources and expertise to carry out controls, also ex officio and checks based on risk assessments, information received from whistle-blowers and complaints. It should work in close cooperation with and ensure the active participation of social partners. The European Labour Authority shall facilitate and enhance cooperation between the member states when it comes to the enforcement of due diligence. OECD contact points should play a role as well in case companies do not respect their obligations.
In addition, in sectors of high human risk violation, industry-specific solutions could be developed in cooperation with trade unions.
Sanctions. The directive should establish proportionate, effective and dissuasive sanctions for any violations by companies of their obligations. Sanctions should include exclusion from public procurement and public funding, as well as financial sanctions in proportion with companies’ turnover and remediation. This should incentivise companies to comply with the obligations and to prevent negative impacts of their activities. This should further contribute to the upwards convergence of the approach towards human rights, including workers’ and trade unions’ rights, in the EU. Member States should introduce positive incentives to promote an ambitious approach by companies towards sustainable economic operations, including in their supply and subcontracting chains.
Access to justice and liability. In case of violations of human rights and social and environmental standards violations as well as of negative impacts of companies’ operations, effective remedies should be available for victims, including trade unions and other interested third parties. Considering the challenges and obstacles that victims often face in the access to justice in third countries where European companies’ operations take place,[xv] the possibility of access to justice in the Member State where the company is established (or where it is conducts business activities) should be ensured. It should therefore be possible to submit claims against companies which are established or conduct activities or have otherwise a link with a Member State in that Member State’ jurisdiction. This possibility is already foreseen by the French corporate duty of vigilance law of 27 March 2017.[xvi] A specific liability framework, including – where appropriate depending on the legal system and the violation – criminal liability, must be introduced for cases where companies fail to respect their due diligence obligations to their fullest extent and human rights, social and environmental standards violations or adverse impacts of companies’ operations occur, including in their supply and subcontracting chains. The burden of proof regarding the full respect of companies’ obligations and the link with the damages occurred shall rest with the company and not with the victims. [xvii] Measures to facilitate access to justice for victims should include appropriate support schemes. Interim proceedings should allow the halting of operations violating human rights, social and environmental standards.
Relationship with other instruments regulating business liability. In any case the directive shall not impact on other subcontracting and supply chain liability frameworks established at national, European and international level (e.g. joint and several liability in subcontracting chains). This is a redline. As recognised by the UNGP, “enterprises conducting […] due diligence should not assume that, by itself, this will automatically and fully absolve them from liability for causing or contributing to human rights abuses” [and other impacts].[xviii] Due diligence and companies’ duty of care are two separate and complementary duties. The directive shall carefully maintain this distinction and clarify that companies shall not be able to escape liability established in other legal instruments by arguing that they have respected the due diligence obligations defined in the directive. In addition, the efforts to establish a directive on due diligence should not undermine trade union initiatives to strengthen the liability of main companies in subcontracting chains and should be accompanied by renewed initiatives in this area, including by deleting the due diligence exception from the subcontracting liability framework in the Enforcement Directive.
Important clauses. The directive should include a non-regression clause, a most favourable clause as well as a review clause. The requirements of a new EU directive should also apply to existing voluntary due diligence tools, which should be adapted where necessary.
Trade. Due diligence requirements together with the ratification of ILO conventions should act as a precondition to trade and investment agreements negotiated by the EU. Due diligence requirements should go in parallel with introducing binding and enforceable labour clauses in EU trade agreements.[xix] Enforceable labour clauses based on complaint and effective economic consequences mechanisms that can be triggered by trade unions in case of violation of ILO standards by states must be introduced in every trade deal and investment agreement negotiated by the EU. Furthermore, through enforceable labour clauses, trade unions and other stakeholders should have effective remedies to address violations, both by multinational companies and by the states. Multinationals should only be able to benefit from the coverage of trade and investment agreements, if they demonstrate an effective commitment to the respect of workers’ and trade union rights. Public procurement and public funding in the EU should be available to companies from third countries only in case they apply due diligence requirements comparable to those established in a directive. This should lead to guaranteeing labour protections with a zero-tolerance approach to violation of workers and trade unions rights[xx].
Due diligence should not be considered as an alternative to stronger social clauses. The efforts to ensure the respect by states of ratified ILO Conventions in law and practice must be renewed and based on stronger enforcement mechanisms in trade treaties.
UN Treaty on Business and Human Rights. The ETUC reiterates its strong commitment to engage, in cooperation with the International Trade Union Confederation (ITUC), to push for the adoption and the ratification of the UN Treaty on Business and Human Rights.
Trade union initiatives - next steps
- European and national developments have opened a window of opportunity for a European directive on mandatory human rights due diligence and responsible business conduct. This should incentivize the European Commission to act.[xxi] The resistance seems however significant.
- The ETUC will inform and work with the European institutions to call for a directive including the abovementioned characteristics. In particular:
- The ETUC will liaise with the European Commission to push for a proposal for a directive and to ensure the appropriate involvement and consultation of social partners in its definition, requesting for our objectives to be included in such a proposal;
- The ETUC will work with the European Parliament in order to ensure support for our demands;
- The ETUC will also contact Member States, addressing the Permanent Representations, and the EU Council Presidencies, with the active involvement and support of affiliates.
- While maintaining our approach and objective, as well as our specific role in the EU legislative process, some joint initiatives with NGOs and other organisations might also be organised – where useful – to push for a legislative proposal.[xxii]
Affiliated unions are requested to support the achievement of the objectives by actively promoting them among their members and by supporting the actions of the ETUC. National trade unions are requested to engage and put the case for a directive on due diligence before their governments, parliaments and all institutional instances which can play a role in promoting the initiative
[i] A directive would constitute the most appropriate legal act. It would have binding force, but it would leave room for Member States to define in the transposition specific and more stringent rules according to national traditions and specificities, while ensuring the achievement of the minimum results defined in the European legal act. See Article 288 TFEU.
[ii] See in annex ETUC discussion paper on Due diligence, focusing on human rights and responsible business conduct, Chapter “Setting the scene”.
[iii] There are different options - which could be used in conjunction – including Article 50(1) TFEU (freedom of establishment), Article 207 TFEU (common commercial policy), Article 192(1) TFEU (objectives of the EU policy on environment) and/or Article 114 TFEU (functioning of the internal market). The choice in the combination of legal bases should allow for the achievement of the abovementioned objectives.
[iv] UN, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, 2011.
https://www.ohchr.org/documents/publications/GuidingprinciplesBusinesshr_eN.pdf
OECD, Guidelines for Multinational Enterprises, 2011.
http://www.oecd.org/daf/inv/mne/48004323.pdf
OECD, Due diligence guidance for responsible business conduct, 2018.
http://mneguidelines.oecd.org/OECD-Due-Diligence-Guidance-for-Responsible-Business-Conduct.pdf
ILO, Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, adopted in 1977 and amended in 2000, 2006 and 2017.
CoE, Committee of Ministers Recommendation on Human Rights and Business, 2016.
[v] EU Recommendation 2003/261
[vi] As for the definition of Human Rights in general, they should include the rights enshrined in:
• UN instruments:
- Universal declaration of Human Rights (UDHR),
- International Covenant on Civil and Political Rights (ICCPR),
- International Covenant on Economic, Social and Cultural Rights (ICESCR);
• ILO Conventions and Recommendations (all, in particular the 8 fundamental ones, but also in relation to this issue the Convention(s) on Labour Inspection and Public Procurement/public contracts are particularly relevant);
• CoE:
- European Convention of Human Rights (ECSR),
- European Social Charter (ESC),
- (Revised) European Code of Social Security (ECSS);
• EU:
- Charter of Fundamental Rights of EU, but also
- the articles of the primary EU Treaties recalling/referring to the Human Rights objectives and instruments (see e.g. article 2 TEU - The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights…).
In relation to the Human Rights instruments, this includes the case law of the respective (quasi-)judicial monitoring/enforcement bodies and the fact that “human rights are universal and inalienable; indivisible; interdependent and interrelated.
[vii] The UNGP refers to Human Rights due diligence, while the OECD Guidelines and the ILO Tripartite Declaration have a broader scope. According to the OECD Guidelines for example, due diligence should address actual or potential adverse impacts in a wide range of areas, including human rights, employment and industrial relations, environment, combating bribery, bribe solicitation and extorsion, consumers interest… Considering the aim of the directive, i.e. to address not only actual and potential human rights violations, but also the respect of environmental standards, social and environmental impacts and other impacts linked with companies’ operations, it is appropriate to ensure that due diligence obligations cover also those areas.
OECD, Guidelines for Multinational Enterprises, cit., Paragraphs 10-12.
[viii] UN, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, cit., Principles 17-23 and commentaries; OECD, Guidelines for Multinational Enterprises, cit., General Policies, Paragraphs 10-14 and commentaries; OECD, Due diligence guidance for responsible business conduct, cit., in particular pp. 21-35; ILO, Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, cit., paragraph 10.
[ix] The following elements are based on a combination of the most advanced elements of the UNGP, the OECD Guidelines and Guidance and the ILO Tripartite Declaration.
[x] French corporate duty of vigilance law of 27 March 2017, Article 1.
[xi] See in particular OECD, Due diligence guidance for responsible business conduct, cit., in particular pp. 22-24.
[xii], UN, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, cit., Principles 18, 20-22 and commentaries; OECD, Guidelines for Multinational Enterprises, cit., General Policies, Paragraph 14 and commentaries; OECD, Due diligence guidance for responsible business conduct, cit., in particular pp. 18-19, 21-35; ILO, Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, cit., paragraph 10(e).
[xiii] S. Vitols and N. Kluge, The Sustainable Company: a new approach to corporate governance, Vol. I, 2011 p. 26.
[xiv] UN, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, cit., Principle 13, 17-19 and commentaries; OECD, Guidelines for Multinational Enterprises, cit., General Policies, Paragraph 12-13 and commentaries; ILO, Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, cit., paragraph 10(c) and (e).
[xv] This challenge is also recognised by the UNGP. UN, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, cit., commentary to Principle 25: "legal barriers that can prevent legitimate cases involving business-related human rights abuse from being addressed" including "where claimants face a denial of justice in a host State and cannot access home State courts regardless of the merits of the claim".
[xvi] French corporate duty of vigilance law of 27 March 2017, Article 2.
[xvii] This would constitute an improvement of the French legislation, where civil liability for those cases has been established, but the burden of proof is on the claimant. French corporate duty of vigilance law of 27 March 2017, Article 2. See European Parliament, Policy Department for External Relations, Study on Access to legal
remedies for victims of corporate human rights abuses in third countries, 2019.
https://www.europarl.europa.eu/RegData/etudes/STUD/2019/603475/EXPO_STU(2019)603475_EN.pdf
[xviii] UN, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, cit., commentary to Principle 17.
[xix] ETUC Resolution for an EU progressive trade and investment policy.
https://www.etuc.org/en/document/etuc-resolution-eu-progressive-trade-and-investment-policy
[xx] The current mission letters of Phil Hogan, Commissioner-designate, only foresee such approach for child labour https://ec.europa.eu/commission/sites/beta-political/files/mission-letter-phil-hogan-2019_en.pdf
[xxi] See the attached ETUC discussion paper on Due diligence, focusing on human rights and responsible business conduct, Chapters “Setting the scene” and “Discussions at EU level”.
[xxii] A call for EU due diligence legislation was already co-signed by the ETUC and by several European Trade Union Federations together with NGOs and civil society organisations.
A call for EU human rights and environmental due diligence legislation, 2019.