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The new proposal for a directive on corporate due diligence

Updated: May 9, 2022

An opportunity for inter- and intra-generational justice?


By Rainer Maria Baratti, Vice President at Large Movements APS


On February 23, 2022, the European Commission presented its proposal for a directive on corporate due diligence and sustainability.[1] The proposal aims to establish obligations on companies with respect to potential or actual impacts on human rights and the environment resulting from their economic activity.

The proposed framework would apply throughout the value chain of a given company, i.e. including its subsidiaries or companies with which it has established relationships. In general, the Directive would require companies to integrate their due diligence policies to identify, prevent, mitigate, minimize or cease adverse environmental and human rights impacts.


The adoption of a directive on this subject would strengthen the regulation of business activities. Currently, at the EU level, there are only Directive 2014/95/EU[2] on non-financial reporting and Regulation (EU) 2017/821[3] on Conflict Minerals on this matter. The former has limitations as it only places reporting requirements, while the latter is limited to crisis areas and the extraction of specific minerals. The adoption of a directive with the broadest application of diligence is more than necessary. This is especially relevant in light of the report "The right to a clean, healthy and sustainable environment: non-toxic environment"[4]: all over the world there are deep environmental injustices and "sacrifice zones" where communities see their health and enjoyment of human rights threatened by high levels of pollution, environmental degradation and climate change.



The directive could be a useful tool in the fight against inter-generational discrimination, toward future generations, and intra-generational discrimination, toward those living in other parts of the world. With reference to the latter, we can think about the issue of migration induced by climate change and environmental degradation. On this point, the United Nations Human Rights Committee in the views on the case of Ioane Tetiota c. New Zealand [5]noted that environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life, activating the obligation of Member States of the United Nations to not extradite, deport, expel or otherwise remove a person towards a territory where there are substantial grounds to believe that there is a real risk of irreparable harm[6].


As stated by the Impresa 2030 Campaign[7], an Italian network of organizations that is promoting the adoption of the directive, the Commission's proposal, however, presents some evident criticalities. The directive would only apply to large companies with a turnover of more than 150 million euros and with more than 500 employees beyond their sector of activity as well as companies with a turnover of more than 40 million euros and with 250 employees for high-risk companies operating in agriculture, textiles and mining. In this case, small and medium enterprises, which are the main economic players in the high-risk sectors referred to in the directive, would be left out. In this regard, they are mentioned only indirectly, leaving doubts about the effectiveness of the proposed directive insofar as margins of avoidance are left. Another major criticism, moreover, is that the text does not take into account a number of obstacles in the access to justice by victims, thus complicating the monitoring work to be carried out by the supervisory authorities envisaged by the directive.


Written by Rainer Maria Baratti


Edited by Nicolò Palmieri


Cover image retrieved from: https://impresa2030.org/cartelle-stampa/#


Rainer Maria Baratti (1996): After graduating with a master’s degree in Relazioni Internazionali (International Relations) at the University of Rome La Sapienza, he obtained a Professional Master's diploma (Italian post-graduate specialization) in Tutela internazionale dei Diritti umani “Maria Rita Saulle” (International Protection of Human Rights "Maria Rita Saulle") at the same university. He is a founding member and Vice-President of Large Movements APS (www.largemovements.it), an association that deals with the migration issue in a comprehensive manner both in the field of information and planning. He has published scientific articles on international refugee and migration law and international environmental law in the scientific journals I diritti dell'uomo. Cronache e battaglie and Ordine internazionale e dirittiuUmani. He has always been active in the protection of human rights, the environment and the fight against discrimination and has collaborated with Service Civil International, Brigada de voluntarios bolivarianos del Peru and Unione forense per la tutela dei diritti umani. In 2020 he won the Un incontro, una storia award as author of the video "Buba in cammino verso una nuova vita".


To follow Large Movement APS on Instagram check it out here: https://www.instagram.com/largemovements/. For Facebook: https://www.facebook.com/LargeMovements/. For LinkedIn: https://www.linkedin.com/company/large-movements.


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References

[1] European Commission, Proposal for a Directive on corporate sustainability due diligence and annex. 23 February 2022. https://ec.europa.eu/info/publications/proposal-directive-corporate-sustainable-due-diligence-and-annex_en

[2] Directive 2014/95/EU of the European Parliament and of the Council of 22 October 2014 amending Directive 2013/34/EU as regards disclosure of non-financial and diversity information by certain large undertakings and groups. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32014L0095

[3] Regulation (EU) 2017/821 of the European Parliament and of the Council of 17 May 2017 laying down supply chain due diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and high-risk areas. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32017R0821

[4] General Assembly. The right to a clean healty and sustainable environment: non-toxic environment. Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment. 12 January 2022. A/HRC/49/53. https://undocs.org/Home/Mobile?FinalSymbol=A%2FHRC%2F49%2F53&Language=E&DeviceType=Desktop&LangRequested=False

[5] Human Rights Committee. Views adopted by the Committee under article 5(4) of the Optional Protocol, concerning communication No. 2728/2016. 23 September 2020. CCPR/C/127/D/2728/2016. https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR%2FC%2F127%2FD%2F2728%2F2016&Lang=en

[6] On this point, see Baratti, R.M. (2021). Vulnerabilità socio-ambientali e migrazioni. I diritti dell’uomo, cronache e battaglie. https://www.researchgate.net/publication/358349600_Vulnerabilita_socio-ambientali_e_migrazioni.

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