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29 Mai 2024

Nicolas Bueno, Nadia Bernaz, Gabrielle Holly & Olga Martin-Ortega, via Business and Human Rights Journal

BHR Journal article explores main elements of final CSDDD compromise

'The EU Directive on Corporate Sustainability Due Diligence (CSDDD): The Final Political Compromise'

...A. Personal Scope: Very Large Companies

The Directive applies to very large EU companies employing more than 1,000 employees and generating a net worldwide annual turnover of EUR 450 million, regardless of the sector in which they operate. To avoid circumvention, these thresholds are calculated at the group level and smaller franchise owners receiving royalties in the EU are also covered. Remarkably, the Directive also applies to non-EU companies generating a net turnover of more than EUR 450 million in the EU...

B. Material Scope: Human Rights, the Environment and Climate

Companies covered by the CSDDD are expected to undertake due diligence with respect to their human rights and environmental impacts. The Directive defines ‘adverse human rights impact’ as the impact resulting from an abuse of selected human rights tailored for corporate conduct and other human rights enshrined in a list of international instruments...

The CSDDD also contains climate obligations. Companies are expected to adopt and put into effect annual transition plans for climate change mitigation...

C. Due Diligence: What, Where, How

The process of due diligence outlined in the CSDDD broadly aligns with expectations under the UNGPs and the OECD Guidelines for Multinational Enterprises (OECD Guidelines), with some points of departure. Under the CSDDD, member states are obliged to ensure that relevant companies conduct due diligence. Those companies must integrate due diligence into their policies; identify actual or potential adverse impacts; prevent and mitigate potential adverse impacts; bring actual adverse impacts to an end, minimise their extent and remediate; establish and maintain a notification and complaints procedure; monitor the effectiveness of their due diligence policy and measures; and publicly communicate on due diligence. The CSDDD also includes a cross-cutting obligation to conduct meaningful consultation with stakeholders at the different stages of the due diligence process.

[C]ompanies must take ‘appropriate measures’ and take into account specific factors when designing them. Appropriate measures are defined as measures ‘capable of achieving the objectives of due diligence by effectively addressing adverse impacts in a manner commensurate to the degree of severity and the likelihood of the adverse impact’... Introducing an effectiveness requirement for such measures should encourage targeted measures to address specific impacts, rather than being focused solely on compliance. Arguably, this requirement should also rule out mere contractual delegation of due diligence measures...

D. Enforcement and Access to Remedy

The CSDDD is the first mandatory due diligence instrument containing two complementary enforcement mechanisms. On the one hand, member states must designate a public supervisory authority to verify compliance... On the other hand, the CSDDD introduces a fault-based civil liability as a way to provide access to justice for victims of adverse impacts. It is the first mandatory due diligence legislation clarifying so precisely the conditions of parent and contracting company liability in the value chain...

To attenuate the onerous burden of proof for claimants, domestic courts must be able to order the disclosure of evidence that lies in the control of the company ‘in accordance with national procedural law’. This should be read as requiring the member states to introduce or adapt a mechanism of disclosure in accordance with their existing laws, otherwise, it would be meaningless...