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Article

Expert contribution: 'Core Elements of an EU Regulation on Mandatory Human Rights & Environmental Due Diligence'

This contribution is made in relation to the announcement by the European Commissioner for Justice, Didier Reynders, that the European Commission will develop legislation, to be introduced in 2021, which would require companies in the European Union to carry out human rights and environmental due diligence...

The EU legislation on mHREDD [mandatory human rights and environmental due diligence] should include all human rights in the ECHR [European Convention on Human Rights] and the ESC [European Social Charter ], as well as those which are customary international human rights law, as well as indigenous rights. It should also extend to all companies domiciled in Member States, without any threshold... We also propose that the legislation extends to state bodies and state-owned companies...

The type of obligation to be implemented in EU legislation should be an open and broad substantive mHREDD requirement including the entire value chain... It is also important to consult stakeholders on the different steps of mHREDD a company undertakes. In particular gender dimensions and vulnerable groups’ differences should be taken into account in such consultations...

EU legislation on mHREDD should make civil liability on a company for a failure to conduct reasonable and appropriate HREDD... If reasonable and appropriate HREDD is undertaken by a company, this could serve as a defence against liability...

It is pivotal that monitoring and enforcement do not focus on mistakes made by companies... but incentivizes companies to improve continuously...

It is evident that the EU legislation on mHREDD should enable private enforcement, for example through litigation in courts. In connection with this, it is recommended to address some procedural hurdles rightsholders may be confronted in access to remedy. Civil enforcement may result in different remedies for rightsholders, for example compensation of damages but also in forward looking court orders or arbitral awards... 

EU legislation on mHREDD could enable criminal prosecution in cases of gross violations... 

Public supervision deploying administrative law and including development of administrative policies is also essential...

The full document is attached. A blog written by the same authors summarises some of the main arguments from this contribution.