Picture this: you discover that a multinational corporation’s actions have led to severe environmental damage, affecting your community’s well-being and livelihoods connected to the local ecosystems. Frustration and helplessness may set in as you wonder, “Can we even hold them accountable?”. For too long, companies have prioritised their private interests, leading to injustice and impunity. Fortunately, the European Union is working on a law which could overcome just that. The EU Corporate Sustainability Due Diligence Directive (CSDDD) will clarify what is expected from companies to respect people and the planet. 

Today, EU and national lawmakers are in the third political trilogue discussing what the law should require from businesses when harm occurs, and how civil liability and access to justice provisions should look like in the law. Let’s dive deeper into the intricated world of the Corporate Sustainability Due Diligence Directive and unpack the layer on civil liability and access to remedy.

Justice over private interests – civil liability as the rules inside the courtroom

For too long, companies have prioritised their private interests, leading to injustice and a lack of fairness. That’s why including access to justice in the CSDDD is more important than ever: to give access and the right to communities and people to hold companies accountable when harm occurs. To make it easy to understand, access to justice is like having the keys to the courtroom. If a company harms you, these keys allow you to enter the courtroom and seek a solution, such as asking for compensation or making the company fix the damage they caused.  

Now, civil liability is like the rules inside the courtroom. It decides when the company is in the wrong and should make things right. For instance, if a company polluted a river, civil liability rules would determine if they’re responsible for the pollution and what they need to do about it. Civil liability can be a powerful tool to hold companies responsible for repairing the harm they inflict, not just economically, but socially and environmentally too. As a result, including civil liability provisions, the conditions that outline that a harm must be remedied, and to what extent, in the CSDDD is crucial. However, while EU legislators have agreed to including some form of civil liability in the future due diligence law, the different proposals from the EU institutions would significantly restrict liability or even allow for exemptions – threatening to undermine the right to an effective remedy. Consequently, civil liability is really important in the EU Due Diligence directive. Worth mentioning that today is the first political discussion at the EU level on civil liability. More detailed description on the EU positions, below. 

4🧵Justice at the core

Tomorrow, EU & national policymakers must agree that civil liability covers ALL #CSDDD obligations.

Time to ensure justice by making sure companies are responsible for any harm they cause to people or the environment, and give victims access to justice. pic.twitter.com/Fz2y2U3XjM

— European Coalition for Corporate Justice (@ECCJorg) September 6, 2023

Access to remedy – a right, not a favour

Access to remedy is the right that ensures that people whose human rights have been violated can seek and obtain reparation for the harm they have suffered. Access to remedy ensures that you not only have the keys to the courtroom (access to justice) but also that you can use them effectively. It means you can hire a lawyer, gather evidence, and have a fair chance at winning your case. This way, you’re not just allowed into the courtroom; you can navigate it properly. Remedy could be a financial compensation or a solution to fix the harm, such as restitution of land or clean-up of environmental damage. Once your rights have been violated, you as a victim have the right to get compensation.

It’s important to note that the right to an effective remedy is an internationally recognised human right – EU Member States have an obligation to ensure remedy and facilitate access to justice for victims of corporate abuse. However, for people affected by corporate misconduct, the right to effective remedy is often left unrealised and on-paper only. Legal systems and procedural requirements often favour the powerful and leaves the victim behind. Even further, the way multinational companies are operating – often through subsidiaries and value chains, as well as how they are organised – create specific challenges for the right to effective remedy. 

Let’s break it down:

In 2012, a tragic fire at Pakistan’s Ali Enterprise caused by poor safety and working conditions resulted in the loss of 258 lives, many of which were teenagers. This factory made clothes for German discount clothing brand Kunde ist König (Customer is King). However, the victims and their families faced countless obstacles to seeking justice:  difficulties in gathering evidence such as formal work contracts or proving the extent of KiK’s relationship with Ali Enterprise; doubts regarding applicable Pakistani legislation, extremely restrictive time limits and lack of accessible and proper legal representation hindered their pursuit of justice at every step. Eventually, the case was dismissed by German courts for being past the statute of limitation and KiK avoided having to compensate for harm. Survivors and family of victims have been left empty handed. Victims have been failed by a legal system and its inaccessibility.  

Fire exits. Alarms. Safe stairways.

Just some simple measures which could have saved the lives of 258 garment workers.

Workers are people. It’s time that companies start treating them as such & not just profit machines.

Demand #JusticeNotProfit
👇👇🏽👇🏿https://t.co/AveuFPser4 pic.twitter.com/zYslMLHgGA

— European Coalition for Corporate Justice (@ECCJorg) October 5, 2022

It is crucial that the CSDDD is not perpetuating inaccessibility of justice and the power imbalance between corporations and people affected by their activities. No more David vs. Goliath tales, it’s time to ensure the right to effective remedy! 

Who pushes for what? EU positions

In the ongoing political discussion led by the Spanish presidency, divergent positions shape the discourse around civil liability, and fair access to justice within the context of EU due diligence legislation. Today, policymakers are taking this up during the third trilogue meeting. 

• The European Parliament’s is the only of the three co-legislators proposing tackling existing obstacles to access to justice. The Parliament wants to make it easier for victims to prove a company’s link to a harm by requiring companies to share relevant documents. They also want to extend the time limit for victims to make a claim to 10 years. They suggest that NGOs and trade unions can represent victims of corporate abuse cases in court. Judges could also bar companies from continuing with their activities in order to stop them from causing more harm while a case is being heard. The aim is that justice is accessible, affordable, and efficient for all victims of corporate abuse.  
• In contrast, the Council’s position falls far short of ensuring the victims’ right to remedy. The Council even suggests restrictions to the criteria for companies to be held liable and for victims to obtain compensation, without addressing existing obstacles to access to justice. This silence is remarkable, because as recently as 2020, the Council itself acknowledged the need to improve access to justice and called on the EU Commission to support and make use of the Fundamental Rights Agency recommendations on access to justice for human rights impacts along global value chains. 
• The European Commission’s initial proposal sets a historic precedent in requiring large EU companies to conduct due diligence throughout their global value chains. Unfortunately, the Commission’s proposal failed to introduce measures that would facilitate access to remedy for victims. 

It’s time for co-legislators to put justice first by making sure companies can truly be held responsible for any harm they cause to people or the environment, and give victims a true chance to be heard.  

• We urge the EU co-legislators and national policymakers to guarantee strong civil liability provisions within the CSDDD. The EU needs robust rules that make sure companies are held responsible for any harm they cause to people’s human rights, no matter where in the world. 
• We urge the EU co-legislator and national policymakers to grant victims equitable and effective access to remedy. It’s time to give access to justice to those who carry the burden of corporative activities.