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Responding department: Danish Business Auhtority, Ministry of Business and Growth

Also available: Response to the UN Working Group surveys on implementation of the Guiding Principles

Has your government taken any initiatives to reduce companies’ negative impacts on human rights that you consider particularly successful?

Yes, among the initiatives the following can be highlighted:

The establishment of a non-judicial mediation and complaints-handling institution for responsible business conduct (remedy). The institution assesses complaints based on the OECD Guidelines for Multinational Companies and the UN Guiding Principles for Business and Human Rights: [link]

The institution was established based on the recommendations of the Danish Council for CSR: [link]

The introduction of mandatory reporting for the largest Danish companies on human rights policies: [link]

The development of a National Action Plan for the implementation of the UN Guiding Principles for Business and Human Rights (NAP): [link]

The establishment of an interministerial working group to look at barriers for extraterritorial legislation, including developments in other countries.

What department or departments have significant responsibility for business and human rights within your government?

The Danish Business Authority under the Ministry of Business and Growth is responsible for implementing the Danish Governments policies on CSR. The Business Authority coordinates between all the relevant ministries on CSR issues.

In 2008 an inter-ministerial working group was established to coordinate the government’s CSR policy among the different state actors with relevance to the CSR agenda. The purpose is to ensure dissemination between the different relevant government actors, including the state owned investment fund and development funds.

The NAP on Business and Human Rights has been developed by the Ministry of Business and Growth and the Ministry of Foreign Affairs. A number of other ministries and organisations have also contributed to the NAP: Ministry of Employment, Ministry of Justice, and the Danish Institute for Human Rights.

Has your government undertaken new business & human rights initiatives or strengthened existing ones since the endorsement of the UN Guiding Principles in June 2011?

Yes, the Danish Government has developed a National Action Plan for the implementation of the UNGP on Business and Human Rights. The NAP was published in March 2014: [link]

The NAP contains several new business & human rights initiatives among which the following can be highlighted:

The establishment of a non-judicial mediation and complaints-handling institution for responsible business conduct (remedy): [link]

The introduction of mandatory reporting for the largest Danish companies on human rights policies: [link]

The establishment of an interministerial working group to look at barriers for extraterritorial legislation, including developments in other countries.

What are the top 5 priority issues that your government has taken steps to address since June 2011?

Types of company impacts prioritised:

  • Health (including environmental health, workplace health & safety)
  • Other core labour rights (including freedom of association & trade union rights)
  • Migrant workers
  • Forced labour & trafficking
  • Operations in conflict zones

Actions on health

Partnership for Responsible Garments Production in Bangladesh

The Guiding Principles have proved to be an excellent instrument in rallying stakeholders for joint action. Using the Guiding Principles as the basis for a new Partnership for Responsible Garments Production in Bangladesh, the Danish government, business associations and enterprises have agreed on a number of detailed commitments to improve conditions within their sphere of influence. The partnership, which was agreed within the framework of the Danish Ethical Trading Initiative (DIEH), will be implemented in close co-ordination with international partners as well and stakeholders in Bangladesh.

Actions on forced labour & trafficking

Increasing the use of labour and social clauses in public contracts

Part of the foundation of the Danish labour market model is that work performed in Denmark must be performed on Danish pay and working conditions. In this, the authorities hold an important role in ensuring that underpaid foreign labour does not occur in public projects. The Government wants to ensure fair and reasonable pay and working conditions in accordance with ILO Convention 94 by increasing the use and better enforcement of labour clauses in public contracts (GP 5).

Actions on core labour rights (including freedom of association)

Partnership for Responsible Garments Production in Bangladesh

The Guiding Principles have proved to be an excellent instrument in rallying stakeholders for joint action. Using the Guiding Principles as the basis for a new Partnership for Responsible Garments Production in Bangladesh, the Danish government, business associations and enterprises have agreed on a number of detailed commitments to improve conditions within their sphere of influence. The partnership, which was agreed within the framework of the Danish Ethical Trading Initiative (DIEH), will be implemented in close co-ordination with international partners as well and stakeholders in Bangladesh.

For your priority issue of 'Operations in conflict zones' please give examples of steps your government has taken.

The Danish development assistance (Danida) in conflict areas

The Danish development assistance (Danida) generally contributes to the promotion of human rights in conflict areas. In conflict areas it is often difficult to work closely with the host country, because local authorities do not always have sufficient capacity to monitor and legislate. The Danish efforts in fragile states include support for building institutional framework. Furthermore, when Danida signs contracts with companies, it is a requirement that companies live up to Danida’s anti-corruption policy and to the UN Global Compact.

Actions on migrant workers

Increasing the use of labour and social clauses in public contracts

Part of the foundation of the Danish labour market model is that work performed in Denmark must be performed on Danish pay and working conditions. In this, the authorities hold an important role in ensuring that underpaid foreign labour does not occur in public projects. The Government wants to ensure fair and reasonable pay and working conditions in accordance with ILO Convention 94 by increasing the use and better enforcement of labour clauses in public contracts (GP 5).

Other actions

Depending on the specific activity of the company and the location of its operation, different rules on environmental impact analysis applies. Furthermore, potential social and environmental impact is duly investigated in the pre-licencing hearing process, which also involves all citizens that might be affected by the activities of the company.

Human rights are fully integrated into Danish law and all companies are expected to comply with the law without undergoing a specific licensing process in advance.

Has your government adopted a National Action Plan on business and human rights as encouraged by the UN Human Rights Council and UN Working Group on business & human rights, or will it do so in the future?

Yes, the Danish Government has developed a National Action Plan for the implementation of the UNGP on Business and Human Rights. The NAP was published in March 2014: [link]

The NAP has been developed by the Ministry of Business and Growth and the Ministry of Foreign Affairs. A number of other ministries and organisations have also contributed to the NAP: Ministry of Employment, Ministry of Justice, and the Danish Institute for Human Rights.

Denmark applies a rights based approach to development. The human rights based approach entails that political dialogue with partners and concrete development interventions are guided by human rights standards and principles, focusing in particular on rights-holders and duty–bearers and their capacities to claim and fulfill obligations related to human rights.

If your government has adopted a National Action Plan or is planning on adopting one, please highlight whether it makes reference to international human rights standards and whether it was developed in consultation with affected stakeholders.

The National Action Plan makes reference to the OECD Guidelines for Multinational Enterprises from May 2011, UN Guiding Principles from June 2011 and the renewed EU Strategy 2011–14 for Corporate Social Responsibility. Furthermore it also makes reference to a complete list of the International Human Rights Treaties that Denmark has signed and ratified see: [link].

The work of the Danish Government on the implementation of the UN Guiding Principles on Business and Human Rights is to a large extent based on the recommendations from the Danish Council for Corporate Responsibility (The Danish Council for CSR). The Council supports and advises the Danish Government in matters on Danish companies’ social responsibility and represents Danish business and financial organisations, NGOs, local municipalities and trade unions. The council has made recommendations on all three pillars of the Protect, Respect and Remedy framework as to what they believe the Danish Government should do in order to implement the UN Guiding Principles on Business and Human Rights.

The council was established in 2008 as part of the first Danish national action plan for CSR. The purpose of the council is to aid, support, and inform the Danish government in matters on Danish companies’ social responsibility. The council contributes to, and supports the advancement of sustainability in the Danish private and public sector. The council consists of 17 members (vice- and president, 13 members, 2 specialists), who represent Danish trade organizations, NGOs, civil society, local municipalities, and trade unions.

Access to remedy: What steps have been taken to develop new judicial or administrative remedies or to reduce barriers to existing remedies for victims?

Extraterritorial legislation

To further engage in the issue of extraterritorial legislation, the Danish Government has planned the following initiative:

  • At national level the Government will put together an inter-ministerial working group which will discuss the need for and feasibility of legislation with extraterritorial effect in areas of particular relevance. The group will look at what other countries have done and are doing in this area with the purpose of learning what works and what does not work. Finally, the group will examine the need for judicial prosecution of severe human rights impacts as recommended by the Danish Council for CSR.

According to Part 66 a in the Danish Administration of Justice Act, a counsel for the victim of certain violations of the Criminal Code must be appointed after request from the victim. In certain cases a counsel must be appointed unless the victim requests that a counsel not be appointed. The expenses to the counsel are paid for by the state unless covered by the victim’s private insurance.

Access to remedy: What steps have been taken to develop new non-judicial remedies, improve existing mechanisms, and reduce barriers for victims?

Access to non-judicial remedy

As a result of the adoption of the UN Guiding Principles for Business and Human Rights and to accommodate the right to access to non-judicial remedy, the Danish Government has established a mediation and complaints-handling institution for responsible business conduct. To ensure that a non-judicial remedy has a maximum of legitimacy and authority, the institution was established by Danish law, which was passed through parliament and approved on June 12, 2012.

The purpose of the institution is to investigate cases involving potential adverse impacts by Danish companies on international CSR guidelines. The institution focuses on mediation to solve complaints - both on company level and if that is not possible, assisted by the mediation and complaints-handling institution. If mediation is not possible, the institution can initiate an investigation of the matter and based on the result, make a public statement.

The mediation and complaints-handling institution was established in accordance with the international effectiveness criteria for non-judicial mediation and grievance mechanisms as described in the UNGPs (GP 31). The institution can examine complaints involving not only Danish private companies but also public authorities and private organization, like NGO’s. It can also take up cases on its own initiative, which will allow the institution to be proactive in cases of substantive importance.

The institution has an annual budget of 3 mil. DKK.

As a first step in the case handling procedure the institution offers the company, which is the subject of the complaint two months to solve the conflict with the complainant without the involvement of the institution itself. This is an important incentive for the company to engage with the complainant. If the two parties succeed in solving the complaint on their own, the institution does not engage further and the case is closed. The institution, however, will review the agreement between the parties to make sure it is in accordance with the OECD Guidelines and the UNGPs. The result is made public, but without the names of the parties.

If the company and the complainant do not solve the matter on their own, the institution undertakes an initial assessment and based on the result the institution can offer mediation or investigation.

The Danish Institute for Human Rights, Denmark’s National Human Rights Institution, does counselling on laws and regulation regarding equal treatment, i.e. if a citizen contacts the Institute and informs them that he/she has been subjected to discrimination during a job-interview at a private company the Institute will be able to support the citizen. Private as well as public authorities are subject to the same regulatory requirements regarding equal treatment.

The counselling of the Institute can take several different forms, including legal counselling, assistance in developing a complaint to the Board of Equal Treatment and in seeking legal aid etc. Mediation is not something that is used regularly and has not taken place for a while (in cases of mediation external mediators with special knowledge in the area of discrimination have been used).

Other examples of non-judicial institutions which contribute to remedy for victims of business-related human rights abuses, include Employment Tribunals, national Ombudsman, and Consumer tribunal. Furthermore, Denmark has mechanisms for dealing with cases of race, gender, disability, age, religious discrimination in employment or services, etc.

Access to remedy: For companies headquartered in your country or their subsidiaries, has your government taken steps to enhance accountability for human rights impacts abroad?

Companies operating abroad

In co-operation with the Danish Business Authority, the Ministry of Foreign Affairs offers annual CSR workshops for Danish companies and their local partners at embassies around the world, from Mexico in the west to Indonesia in the east. For those embassies that have held workshops two or three times already, the workshops are evolving into so-called CSR “clubs”. Creating awareness about the Guiding Principles is an essential part of the workshops and the agenda of the CSR clubs. Embassies have also received specific instructions about the establishment of the new Mediation and Complaints Handling Institution, the new OECD National Contact Point, which replaced a more old-fashioned NCP model in 2012.

The Trade Council of the Ministry of Foreign Affairs use the UN Global Compact Self-Assessment Tool whenever it carries out CSR assessments for Danish companies abroad and for their local partners. The Guiding Principles, not least the due diligence approach, are integrated in the Tool. In business facilities supported by Danish development assistance (Danida) and administered by the Embassies, the Embassies also make use of Global Compact’s Self-assessment Tool to ensure CSR, including human rights, due diligence.

Denmark works to ensure that companies involved in Danish development cooperation respect human rights and act responsibly within the areas of worker’s rights, human rights, environment, and anti-corruption within the framework of ILO conventions, UN Global Compact, the OECD guidelines for multinational enterprises, and work towards implementing the UN Guiding Principles on Business and Human Rights. Companies involved in Danida Business Partnerships – an instrument that facilitates and provides economic support to develop commercial partnerships between Danish companies and partners from developing countries - are now required to integrate CSR strategically in their business operations and to demonstrate CSR due diligence, including human rights due diligence in order to mitigate adverse impact of their business activities. The Danida Business Finance instrument engages both local buyers and Danish companies in the promotion of human rights and CSR activities through due diligence analysis and requirements to comply with fundamental principles of ILO when providing interest-free loans to public infrastructure projects in developing countries.

According to the Criminal Code, acts committed outside the Danish territory are subject to Danish criminal jurisdiction in certain specified cases. Criminal liability presupposes that the Danish penal provision that may be violated also applies to acts committed abroad (extraterritorial applicability). The question of whether a penal provision has extraterritorial applicability is not generally regulated by law. Instead, the question depends on interpretation in each case of the particular penal provision. Generally, the penal provisions in the Criminal Code have extraterritorial applicability. Conversely, other penal provisions generally only apply to acts committed within the Danish territory.

On the face of it, the Ministry of Justice does not have knowledge of such cases brought before the national courts.

Which factors impede your government’s ability to take action on business and human rights?

Significant factor:

  •  Political limitations imposed by foreign governments or multilateral institutions

Minor factors:

  •  Lack of resources for enforcement, monitoring and prosecution
  • Opposition or lack of consensus within government
  • Oppositon by economic interest groups or business associations
  • Other opposition by influential people or groups outside government
  • Concern about deterring foreign investment
  • Lack of understanding or awareness of business & human rights in government
  • Challenges of coordinating across government departments

What, if any, form of support would your government welcome the most to help advance its actions to improve companies’ impacts on human rights?

Ensure greater coordination among UNGP initiatives internationally. Often different international organisations and initiatives refer to different governmental departments nationally. This makes it very difficult for civil servants working with the UNGPs to keep a complete overview.

The issues of extraterritoriality and the expectations in the UNGP on this issue are difficult to implement from a national perspective. The Danish Government actively promotes the discussion on extraterritorial legislation, in particular the need for joint solutions at international level. The Government has recommended that the Council of Europe should take the lead on the issue of extraterritoriality. The Council of Europe would be an excellent point of departure for this discussion as it covers virtually the entire European continent and focuses on the protection of human rights. Furthermore the Council of Europe is already working on these issues through its Steering Committee for Human Rights.