Brussels, 20 November 2017
Commissioner Věra Jourová, Justice, Consumer and Gender Equality, European Commission
Ms Renate Nikolay, Head of Cabinet
Mr Daniel Braun, Deputy Head of Cabinet
Subject: Seizing the opportunity to uphold human rights in the context of business operations
Dear Ms Jourová,
The EU took a leading role when endorsing the UN Guiding Principles on Business and Human Rights (UNGPs) in 2011, and committing to work towards their implementation. Access to remedy is a core pillar of the Principles but it has so far received insufficient attention by Member States and the EU. Meanwhile, victims of human rights abuses linked to global business operations face major obstacles when they seek justice. This represents a pivotal challenge to the promotion and protection of fundamental rights, which lies at the centre of the EU values.
As acknowledged by the EU Fundamental Rights Agency,[i] victims of human rights abuses involving European companies face multiple legal, procedural and practical obstacles to access judicial remedies. These include difficulties on admissibility; high costs associated with judicial procedures; restrictive procedural rules related to the disclosure of evidence in civil litigation and the absence of clear liability standards for parent companies. While some barriers concern the judicial or legal systems of Member States, others arise from EU legislation or are difficult to address at the Member State level due to the need for a harmonized approach in the EU.
European institutions, including the European Parliament, the Fundamental Rights Agency and the Council of Europe, as well as international bodies[ii], have placed emphasis on the need to remove the aforementioned obstacles. These institutions have considered developing human rights due diligence legislation and collective redress as important avenues in this respect.
Embedding human rights due diligence into a corporate duty of care
A number of national legal initiatives in the past few years have paved the way towards greater corporate responsibility and accountability. France adopted the “duty of vigilance” law in 2017, a landmark legislation that requires large companies to identify and prevent negative human rights and environmental impacts throughout their operations. The Netherlands is in the process of adopting a Child Labour law which will require companies to take steps to prevent child labour in their global supply chains. Switzerland is expecting a referendum on a Responsible Business Initiative that would create a duty of care for companies based on human rights due diligence obligations. Other countries such as Germany have also foreseen the possibility to legislate on human rights due diligence as part of their Action Plans to implement the UNGPs.
These developments are unequivocal signals that the process of creating clearer obligations for parent companies to prevent adverse human rights impacts in their supply chains is already in motion. The time is ripe for the Commission to lead and present a legislative proposal that levels the playing field for all companies operating in different Member States.
Making collective redress reforms work towards the realisation of a fundamental right to effective remedy
The activities of multinational companies affect the life of communities and individuals worldwide. Very frequently, victims of companies’ adverse impacts belong to impoverished communities or vulnerable groups. Yet even average citizens suffer notable power imbalances when facing business misbehaviour. Collective redress can make an essential difference in terms of access to legal remedies when a company’s misconduct affects many people in a similar way, as it counterbalances the powerlessness of individual claimants by allowing them to join forces and bring resources together.
We welcome the fact that the Commission is looking into introducing EU-wide civil remedies for consumers harmed by unfair or illegal commercial practices, as part of its ‘New Deal for consumers’ expected for 2018. Nonetheless, as the Dieselgate textbook case shows, the implications of companies’ behaviour go beyond its impacts on consumers. The European Environment Agency concluded in a recently published report that near 400.000 EU citizens died prematurely in 2014 because of high levels of particulate matter in the air.[iii]
A collective redress mechanism can provide effective access to justice and compensation for victims and create an incentive for greater diligence. We encourage the Commission to take decisive action and include the protection of Fundamental Rights in the scope of a future collective redress mechanism as suggested by the EU Fundamental Rights Agency[iv]. This can be achieved by returning to the “rights granted under EU law” approach laid down in its 2013 Recommendation on Collective Redress. Only such a horizontal approach can effectively guarantee effective enforcement of EU law and ensure fair competition for responsible companies in the EU Single Market.
The documents attached show the momentum to implement reforms in the right direction. We encourage the Commission to seize the promising opportunities that lie ahead and take decisive action to balance the equation in favour of victims of negative corporate impacts. We hope and trust that you will take our recommendations into consideration and we look forward to continuing our discussions.
European Coalition for Corporate Justice (ECCJ)
[i] European Union Agency for Fundamental Rights, “Improving access to remedy in the area of business and human rights at the EU level”, FRA-Opinion 1/2017 [BHR], 10 April 2017.
[ii] European Parliament Report on “Corporate liability for serious human rights abuses in third countries” (2016); the EU Council Conclusions on Business and Human Rights (2016); the EU Council Conclusions on Global Value Chains (2016); the Report of the UN Office of the High Commissioner for Human Rights on improving accountability and access to remedy (2016); the Council of Europe Recommendations on Human Rights and Business (March 2016); European Union Agency for Fundamental Rights, Opinion 1/2017, op. cit.
[iii] https://www.eea.europa.eu/publications/air-quality-in-europe-2017 https://www.politico.eu/article/air-pollution-linked-to-nearly-400000-premature-deaths/
[iv] European Union Agency for Fundamental Rights, “Improving access to remedy in the area of business and human rights at the EU level”, op. Cit. Opinion 2.
[Read and Download Full Letter with "ANNEX: Recent calls and commitments to address gaps in the protection of human rights from negative business impact" here.]