"OHCHR Feedback on the Proposal for a Directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence", 23 May 2022

The Office of the UN High Commissioner for Human Rights (OHCHR) welcomes the European Commission’s commitment to advancing the protection of human rights and the environment through due diligence, as well as the opportunity to submit feedback on the proposed directive on Corporate Sustainability Due Diligence (“proposed directive”)...

The proposed directive appears in a number of areas to reflect compromises made as a result of conflicting stakeholder input and expectations. It is important to keep in mind that the UNGPs were themselves the outcome of several years of consultation with States, companies and other interested stakeholders with conflicting positions, and compromises were made to obtain the broad-based support that has made the UNGPs into the authoritative international standard for business and human rights. When seeking to address the challenges of turning the UNGPs into a binding and widely applicable regulatory standard, any further compromises made through the political process should not materially alter key components of the UNGPs and related international frameworks, notably the OECD Guidelines for Multinational Enterprises.

OHCHR wishes to highlight for your attention some specific features of the proposed directive which risk undermining the regime’s ability to achieve its stated aims, and which raise legitimate questions about the extent to which this proposed regime actually delivers on its stated objective of aligning with, and building upon, the UNGPs.

In this response, we highlight five areas where we believe further attention and discussion are needed in order to improve alignment with the UNGPs, and to create an EU regulatory framework that is capable of meeting the EU’s stated goals. These are:

1. Company scope;
2. Subject-matter scope;
3. Taking action (including the use of leverage to prevent and mitigate adverse human rights impacts);
4. Compliance, enforcement and remedy; and
5. Stakeholder engagement...

Translating the inherently flexible human rights due diligence standards of the UNGPs into an implementable legal regime with the needed level of legal certainty is a challenging task, and OHCHR recognizes that difficult choices need to be made. The comments provided above are intended as constructive feedback to help ensure greater alignment of the proposed directive with the UNGPs. OHCHR would welcome the opportunity for constructive engagement with relevant EU institutions as the process to finalise the proposed directive enters the next phase.

All feedback to the EU Commission survey on its proposal is available here.