"RE: Concerns regarding potential re-opening of Article 22 CSDDD," 17 February 2025

[...] We are a group of legal scholars writing to express our concern regarding the direction taken by the ‘Omnibus Simplification Package’ (Omnibus), particularly regarding the potential introduction of measures that would weaken or undermine Article 22 of the Corporate Sustainability Due Diligence Directive (CSDDD).

We advise against any reopening of Article 22 for three main reasons, which we explain in more detail below:

(1) States have a legal obligation to regulate corporate greenhouse gas (GHG) emissions; [...]

There is a general human rights duty to regulate transnational companies, requiring States to impose due diligence obligations, including in the context of climate change... For most EU Member States, the GHG emissions from the largest businesses regulated in their jurisdiction are so significant that they are bound to exceed their territorial emissions budgets... Removing, weakening, or delaying keystone legislation mandating corporate transition plans in line with international commitments runs counter to State obligations, exposing Member States to further litigation.

(2) Article 22 CSDDD creates a level playing field and thus reduces litigation risk [...]

Presently, several other cases against large companies... are pending before courts across the EU in which plaintiffs seek alignment of corporate policies with the objective to keep below 1.5C global warming. Due to the escalating onset of climate disasters and the developing jurisprudence, it is therefore likely that any further watering down of Article 22 CSDDD will only lead to more litigation. Absent a common and clear legal framework at the EU level, the regulatory gap will be filled by courts in each EU Member State, creating uncertainty, inefficiency, and a fragmented legal framework for companies operating within the internal market.

(3) The desired simplification can be achieved through clear guidance [...]

The Commission's priority at this time should be the provision of clear, comprehensive, and practical guidance for companies regarding their climate transition plans, as foreseen in Article 19 CSDDD. [...]

In conclusion, cogent and strong transition plan requirements as outlined in Article 22, combined with clear implementation guidance from the Commission, are essential to set a harmonised, level playing field which provides clarity and certainty for large European businesses, avert the anticipated exposure to enhanced litigation risk and legal uncertainty, and reduce the scope and need for judicial intervention across different Member States.

[The full letter is available for download above]