Consultation for an Initiative on Sustainable Corporate Governance – Citizen tool response template
Section I: Need and objectives for EU intervention on sustainable corporate governance
Question 1: Due regard for stakeholder interests’, such as the interests of employees, customers, etc., is expected of companies. In recent years, interests have expanded to include issues such as human rights violations, environmental pollution and climate change. Do you think companies and their directors should take account of these interests in corporate decisions alongside financial interests of shareholders, beyond what is currently required by EU law?
Please provide reasons for your answer:
Question 2: Human rights, social and environmental due diligence requires companies to put in place continuous processes to identify risks and adverse impacts on human rights, health and safety and environment and prevent, mitigate and account for such risks and impacts in their operations and through their value chain.
In the survey conducted in the context of the study on due diligence requirements through the supply chain, a broad range of respondents expressed their preference for a policy change, with an overall preference for establishing a mandatory duty at EU level.
Do you think that an EU legal framework for supply chain due diligence to address adverse impacts on human rights and environmental issues should be developed?
Companies must be obliged to respect human rights and the environment, in their own operations, subsidiaries and global value chain, including supply and subcontracting chains. This is the reason why the EU needs to table an EU binding legislation on corporate due diligence. In particular:
- Companies must comply with human rights and environmental due diligence obligations.
- Due diligence processes must ensure respect for human rights, which include workers’ and trade union rights, including for example Freedom of Association and Collective Bargaining.
The EU should also engage constructively in the negotiations for an ambitious UN Treaty on Business and Human Rights.
Question 3: If you think that an EU legal framework should be developed, please indicate which among the following possible benefits of an EU due diligence duty is important for you (tick the box/multiple choice)?
Other, please specify:
EU legislation should also, and most importantly, empower victims and their representatives, including trade unions and NGOs, to fight against human rights abuses. It should ensure the right for trade unions to bargain collectively, the full involvement of workers’ representatives in the whole due diligence process, as well as the consultation (and, where applicable, consent) of all relevant stakeholders. In particular:
- Trade unions should have the right to negotiate with the company the due diligence process at the different levels.
- Workers’ representatives should be informed and consulted in the different steps of the due diligence process.
- Early alert mechanisms should be developed in partnership with the trade union in the companies concerned.
- Stakeholders should be informed, consulted and involved as well in the due diligence process.
- Due diligence processes must ensure respect for indigenous peoples’ and local communities’ rights (in particular the right to Free, Prior and Informed Consent).
Question 3a. Drawbacks
Please indicate which among the following possible risks/drawbacks linked to the introduction of an EU due diligence duty are more important for you (tick the box/multiple choice)?
Other, please specify:
None of the above.
Section II: Directors’ duty of care – stakeholders’ interests
[OPTIONAL] Question 5. Which of the following interests do you see as relevant for the longterm success and resilience of the company?
the interests of society, please specify:
other interests, please specify:
[OPTIONAL] Question 6. Do you consider that corporate directors should be required by law to (1) identify the company´s stakeholders and their interests, (2) to manage the risks for the company in relation to stakeholders and their interests, including on the long run (3) and to identify the opportunities arising from promoting stakeholders’ interests?
Question 7. Do you believe that corporate directors should be required by law to set up adequate procedures and where relevant, measurable (science –based) targets to ensure that possible risks and adverse impacts on stakeholders, ie. human rights, social, health and environmental impacts are identified, prevented and addressed?
Question 8. Do you believe that corporate directors should balance the interests of all stakeholders, instead of focusing on the short-term financial interests of shareholders, and that this should be clarified in legislation as part of directors’ duty of care?
Please provide an explanation or comment:
Question 9. Which risks do you see, if any, should the directors’ duty of care be spelled out in law as described in question 8?
How could these possible risks be mitigated? Please explain.
Where directors widely integrate stakeholder interest into their decisions already today, did this gather support from shareholders as well? Please explain.
Question 10. As companies often do not have a strategic orientation on sustainability risks, impacts and opportunities, as referred to in question 6 and 7, do you believe that such considerations should be integrated into the company’s strategy, decisions and oversight within the company?
Question 11. Are you aware of cases where certain stakeholders or groups (such as shareholders representing a certain percentage of voting rights, employees, civil society organisations or others) acted to enforce the directors’ duty of care on behalf of the company? How many cases? In which Member States? Which stakeholders? What was the outcome?
Please describe examples:
Question 12. What was the effect of such enforcement rights/actions? Did it give rise to case law/ was it followed by other cases? If not, why?
Question 13. Do you consider that stakeholders, such as for example employees, the environment or people affected by the operations of the company as represented by civil society organisations should be given a role in the enforcement of directors’ duty of care?
Please explain your answer:
Although fully agreeing with the necessity of giving a role to stakeholders in the enforcement, it has to be stressed that it will also be necessary to ensure that this role is given to genuine representatives of workers, environment or people affected by the operations of the company and not to so-called “yellow” organisations/representatives set up and/or financed by the companies thereby undermining the prerogatives of trade unions/recognized organisations/representatives. As for the representation of workers this means that such role is only for genuine trade unions and cannot be given to yellow trade unions and/or so-called associations of persons/employees.
Question 13a: In case you consider that stakeholders should be involved in the enforcement of the duty of care, please explain which stakeholders should play a role in your view and how.
Section III: Due diligence duty
For the purposes of this consultation, “due diligence duty” refers to a legal requirement for companies to establish and implement adequate processes with a view to prevent, mitigate and account for human rights (including labour rights and working conditions), health and environmental impacts, including relating to climate change, both in the company’s own operations and in the company’s the supply chain. “Supply chain” is understood within the broad definition of a company’s “business relationships” and includes subsidiaries as well as suppliers and subcontractors. The company is expected to make reasonable efforts for example with respect to identifying suppliers and subcontractors. Furthermore, due diligence is inherently risk-based, proportionate and context specific. This implies that the extent of implementing actions should depend on the risks of adverse impacts the company is possibly causing, contributing to or should foresee.
Question 14: Please explain whether you agree with this definition and provide reasons for your answer.
Yes, I agree with this definition. However, it is worth stressing the definition should align its wording with international due diligence standards. Prior to ceasing, preventing, mitigating and accounting for human rights, health and environmental impacts, companies should first be obliged to effectively identify and assess any actual or potential adverse human rights, social, health and environmental impacts. Furthermore, the “due diligence duty” should include a remediation duty, that is, the obligation to actively engage in the remediation of adverse impacts where companies cause or contribute to harm by way of actions or omissions, or, where a company has not caused or contributed to the harm but its operations, products or services are directly linked to it, the obligation to exercise or increase its leverage over those responsible to help ensure that remediation is provided.
Moreover, the “due diligence duty” should cover the company’s global value chain, which includes entities with which it has a direct or indirect business relationship and which either (a) supply products or services that contribute to the company’s own products or services, or (b) receive products or services from the company. Supply chains and value chains are similar terms that refer to the entire production chain. However, while “supply chain” may be used to specifically refer to the production and distribution of a commodity, “value chain” includes the whole set of interrelated activities by which a company adds value to an article.
[OPTIONAL] Question 15: Please indicate your preference as regards the content of such possible corporate due diligence duty (tick the box, only one answer possible). Please note that all approaches are meant to rely on existing due diligence standards, such as the OECD guidance on due diligence or the UNGPs. Please note that Option 1, 2 and 3 are horizontal i. e. cross-sectorial and cross thematic, covering human rights, social and environmental matters. They are mutually exclusive. Option 4 and 5 are not horizontal, but theme or sector-specific approaches. Such theme specific or sectorial approaches can be combined with a horizontal approach (see question 15a). If you are in favour of a combination of a horizontal approach with a theme or sector specific approach, you are requested to choose one horizontal approach (Option 1, 2 or 3) in this question.
Question 15a: If you have chosen option 1, 2 or 3 in Question 15 and you are in favour of combining a horizontal approach with a theme or sector specific approach, please explain which horizontal approach should be combined with regulation of which theme or sector?
The EU directive should apply to all businesses, including multinational enterprises, regardless of their size and sector. Limitations in the scope of the EU directive would exclude many companies whose operations have significant actual or potential adverse impacts in the areas covered by due diligence obligations.
[OPTIONAL] Question 15b: Please provide explanations as regards your preferred option, including whether it would bring the necessary legal certainty and whether complementary guidance would also be necessary.
EU law must clearly establish that due diligence is a continuous, preventative, risk-based process through which all business enterprises must effectively identify and assess; cease, prevent and mitigate; track and monitor; and communicate and account for specific risks and actual and potential adverse impacts in their operations and along their global value chains and business relationships.
The due diligence duty must be focused on the risks and harms not to the enterprise itself but to human rights and the environment, and its extent must be determined by the likelihood and severity of the adverse impacts, and should be regularly re-assessed and adapted to ensure appropriateness and effectiveness. The effectiveness of due diligence is measured by the extent to which actual and potential harm is prevented and mitigated.
A rich body of legally binding international human rights and labour standards has long been developed, leaving no room for legal uncertainties. Although not as straight-forward as human rights standards, environmental standards - often addressed to states - can also be translated into concrete obligations for companies. When laying down due diligence requirements and stipulating corporate liability for harm, EU law should specify the protected environmental goods and the expected standard of business conduct in this regard. This would guide companies when they conduct due diligence, and administrative and judicial authorities when determining liability. Existing international due diligence standards already constitute a useful reference in this regard.
Question 15c: If you ticked options 2) or 3) in Question 15 please indicate which areas should be covered in a possible due diligence requirement (tick the box, multiple choice)
Other, please specify:
The material scope of the EU directive should cover all human rights, including workers’ and trade union rights. This includes, amongst others, freedom of association and the right to collective bargaining and collective action, information, consultation and board-level representation rights, decent working conditions, occupational health and safety, fair wages, social security coverage, etc.
Due diligence obligations should also cover social, health and environmental impacts, as well as anti-corruption, corporate governance and tax matters.
Question 15d: If you ticked option 2) in Question 15 and with a view to creating legal certainty, clarity and ensuring a level playing field, what definitions regarding adverse impacts should be set at EU level?
Question 15e: If you ticked option 3) in Question 15, and with a view to creating legal certainty, clarity and ensuring a level playing field, what substantial requirements regarding human rights, social and environmental performance (e.g. prohibited conducts, requirement of achieving a certain performance/target by a certain date for specific environmental issues, where relevant, etc.) should be set at EU level with respect to the issues mentioned in 15c?
Question 15f: If you ticked option 4) in question 15, which sectors do you think the EU should focus on?
Question 15g: If you ticked option 5) in question 15, which themes do you think the EU should focus on?
Question 16: How could companies’- in particular smaller ones’- burden be reduced with respect to due diligence? Please indicate the most effective options (tick the box, multiple choice possible)
This question is being asked in addition to question 48 of the Consultation on the Renewed Sustainable Finance Strategy, the answers to which the Commission is currently analysing.
Question 17: In your view, should the due diligence rules apply also to certain third country companies which are not established in the EU but carry out (certain) activities in the EU?
Question 17a: What link should be required to make these companies subject to those obligations and how (e.g. what activities should be in the EU, could it be linked to certain turnover generated in the EU, other)? Please specify.
Third country companies placing products on or/and providing services within the EU internal market should be subject to the same obligations as companies established in the EU.
Question 17b: Please also explain what kind of obligations could be imposed on these companies and how they would be enforced.
These companies must also be obliged to respect human rights and the environment, in their own operations, subsidiaries, business relationships and global value chain, including supply and subcontracting chains. These companies must also be liable in case of/for any human rights and environmental abuses, including workers and trade union rights abuses in their operations or value chains, (without prejudice to other subcontracting and supply chain liability frameworks). Governments must set up robust enforcement mechanisms, with effective sanctions, to ensure that these companies also obey the law.
Question 18: Should the EU due diligence duty be accompanied by other measures to foster more level playing field between EU and third country companies?
The due diligence duty of third country companies should be accompanied by broadening jurisdiction of EU Member States courts.
To create a level playing field globally, the EU should also engage constructively in negotiations for an international legally binding instrument to regulate the activities of transnational corporations and other business enterprises. This treaty should include enhanced provisions on access to justice for victims in third countries, including on jurisdiction, applicable law, rights of victims and liability.
EU trade policy should also contribute to ensure the respect of human rights, including workers and trade union rights, and of social and environmental objectives in companies’ activities and in their business relationships and value chains. It should inter alia contribute to ensure that effective due diligence policies are implemented by companies and that comparable legislation on due diligence is introduced in third countries.
Question 19: Enforcement of the due diligence duty
[OPTIONAL] Question 19a: If a mandatory due diligence duty is to be introduced, it should be accompanied by an enforcement mechanism to make it effective. In your view, which of the following mechanisms would be the most appropriate one(s) to enforce the possible obligation (tick the box, multiple choice)?
Please provide explanation:
Companies must be liable in case of/for any human rights and environmental abuses, including workers and trade union rights abuses in their operations or value chains, (without prejudice to other subcontracting and supply chain liability frameworks). In particular:
- EU legislation must make EU companies liable for harms committed at home or abroad in their direct operations or by operations in their global value chains.
- Liability must be imposed for harms caused or contributed to by EU companies in their global value chains, as well as for failure to conduct adequate due diligence.
- In any case, EU legislation shall not impact on other subcontracting and supply chain liability frameworks established at national, European and international level (e.g. joint and several liability in subcontracting chains).
- Companies’ duty of care and corporate due diligence are two separate and complementary duties. Companies shall not be able to escape liability by arguing that they have respected due diligence obligations.
Governments must set up robust enforcement mechanisms, with effective administrative sanctions, to ensure that companies obey the law. In particular:
- Competent authorities must have the mandate to investigate potential infringements and impose sufficiently dissuasive and proportional sanctions on them.
Victims of corporate abuses must have access to courts - in their own country and in the country where the parent or lead company is based or operates - and the rules of the (court) game must be made fairer for victims. In particular:
- Law must allow victims from third countries to choose whether to use the law of the home or host state when bringing a case against a company.
- Law must put an end to placing the burden on victims to prove companies are responsible. Instead, it must require companies to disclose any relevant evidence lying in their control, particularly regarding their connection to the harm and their due diligence process.
- Law must require companies to disclose the names, locations, and other important information of their global subsidiaries, suppliers and business partners. Global supply chain transparency directly improves victims’ ability to access remedy.
- Law must ensure that victims have enough time to bring claims for damages before EU courts.
- Law must ensure that trade unions and NGOs can bring collective actions on behalf of
[OPTIONAL] Question 19b: In case you have experience with cases or Court proceedings in which the liability of a European company was at stake with respect to human rights or environmental harm caused by its subsidiary or supply chain partner located in a third country, did you encounter or do you have information about difficulties to get access to remedy that have arisen?
In case you answered yes, please indicate what type of difficulties you have encountered or have information about:
Victims of corporate abuse frequently face many obstacles (legal, procedural and practical) in attempting to hold European companies liable for the harm caused by their subsidiaries or supply chain partners located in a third country.
The Boliden case is a good example of this. In the 1980s, Boliden paid Promel to export industrial waste to Chile, where Promel disposed of it without removing the arsenic. This caused awful health effects, including cancers and neurological disorders, for people living near the site. In 2013 victims took legal action against Boliden in the Swedish courts arguing that Boliden had breached a duty to ensure that the sludge was appropriately processed by Promel, but eventually lost their case. In March 2019, after the claimants appealed, the court decided to apply Swedish law and dismissed the appeal on the basis: that the claim for damages had been filed too late and the cause of action was time-barred. Boliden has not faced legal consequences for this negligence.
The KiK case led to a similar outcome. On 11 September 2012, 258 workers died and hundreds were seriously injured when a fire broke out in the Ali Enterprise garment factory in Karachi, Pakistan. Due to lax fire safety measures, workers were at first unaware of and then trapped by the fire. At the time, the factory was producing jeans for its main client, German retailer KiK. Victims sought justice in the German courts, but the court decided to apply Pakistani law, as this was where the harm occurred, and dismissed the action, deciding that according to Pakistani law the statute of limitation had expired and the claimants were too late to seek justice.
The Shell case is further proof of said obstacles. Shell is ravaging the Niger Delta through its decades-long quest for oil. Pollution caused by the activities of its subsidiary SPDC is having a devastating effect on both the ecosystem and people living in this area. Victims of Shell’s irresponsible business conduct sued the company before Dutch courts, but claimants have faced endless legal barriers, challenges and uncertainty. They still have not won justice. The story has exposed the weakness of current EU law in allowing victims of corporate harm effective access to remedy and justice. In current law, parent companies like Shell are unlikely to be held liable for the activities of their subsidiaries.
If you encountered difficulties, how and in which context do you consider they could (should) be addressed?
Barriers to justice have prevented victims, like those in the Boliden, KiK and Shell cases, from obtaining remedy.
EU laws and rules on jurisdiction should allow for the liability of parent and lead companies in the EU for harm caused by their subsidiaries or value chain partners located in a third country, without prejudice to other liability frameworks for supply or subcontracting chains.
Victims seeking justice have a limited ability to uncover the information that is necessary to establish a parent or lead company’s liability. Victims should not have to take on the burden of proving the EU parent or lead company’s alleged failure and its connection to the harm they suffered, but rather the EU parent or lead company should be required to prove it took all due care.
EU law currently dictates that cases must be considered under the law of the country where the damage occurred. In seeking the right to claim compensation, victims should be able to rely on EU law.
EU legislation should also provide for reasonable time limitations for bringing legal actions in order to allow foreign victims sufficient time to file a lawsuit in EU courts.
Section IV: Other elements of sustainable corporate governance
Question 20: Stakeholder engagement
Better involvement of stakeholders (such as for example employees, civil society organisations representing the interests of the environment, affected people or communities) in defining how stakeholder interests and sustainability are included into the corporate strategy and in the implementation of the company’s due diligence processes could contribute to boards and companies fulfilling these duties more effectively.
Question 20a: Do you believe that the EU should require directors to establish and apply mechanisms or, where they already exist for employees for example, use existing information and consultation channels for engaging with stakeholders in this area?
Question 20b: If you agree, which stakeholders should be represented? Please explain.
[OPTIONAL] Question 20c: What are best practices for such mechanisms today? Which mechanisms should in your view be promoted at EU level? (tick the box, multiple choice)
Other, please specify:
[OPTIONAL] Question 21: Remuneration of directors
Current executive remuneration schemes, in particular share-based remuneration and variable performance criteria, promote focus on short-term financial value maximisation (Study on directors’ duties and sustainable corporate governance).
Please rank the following options in terms of their effectiveness to contribute to countering remuneration incentivising short-term focus in your view.
This question is being asked in addition to questions 40 and 41 of the Consultation on the Renewed Sustainable Finance Strategy the answers to which the Commission is currently analysing.
Ranking 1-7 (1: least efficient, 7: most efficient)
Question 22: Enhancing sustainability expertise in the board
Current level of expertise of boards of directors does not fully support a shift towards sustainability, so action to enhance directors’ competence in this area could be envisaged (Study on directors’ duties and sustainable corporate governance).
Please indicate which of these options are in your view effective to achieve this objective (tick the box, multiple choice).
Question 23: Share buybacks
Corporate pay-outs to shareholders (in the form of both dividends and share buybacks) compared to the company’s net income have increased from 20 to 60 % in the last 30 years in listed companies as an indicator of corporate short-termism. This arguably reduces the company’s resources to make longer-term investments including into new technologies, resilience, sustainable business models and supply chains. (A share buyback means that the company buys back its own shares, either directly from the open market or by offering shareholders the option to sell their shares to the company at a fixed price, as a result of which the number of outstanding shares is reduced, making each share worth a greater percentage of the company, thereby increasing both the price of the shares and the earnings per share.) EU law regulates the use of share-buybacks [Regulation 596/2014 on market abuse and Directive 77/91, second company law Directive].
In your view, should the EU take further action in this area?
[OPTIONAL] Question 23a: If you agree, what measure could be taken?
[OPTIONAL] Question 24: Do you consider that any other measure should be taken at EU level to foster more sustainable corporate governance?
If so, please specify:
Section V: Impacts of possible measures
[OPTIONAL] Question 25: Impact of the spelling out of the content of directors’ duty of care and of the due diligence duty on the company.
Please estimate the impacts of a possible spelling out of the content of directors’ duty of care as well as a due diligence duty compared to the current situation. In your understanding and own assessment, to what extent will the impacts/effects increase on a scale from 0-10? In addition, please quantify/estimate in quantitative terms (ideally as percentage of annual revenues) the increase of costs and benefits, if possible, in particular if your company already complies with such possible requirements.
Introduction of these duties in binding law, cost and benefits linked to setting up /improving external impacts’ identification and mitigation processes
Rating 0 (lowest impact)-10 (highest impact) and quantitative data
Introduction of these duties in binding law, annual cost linked to the fulfilment of possible requirements aligned with science-based targets (such as for example climate neutrality by 2050, net zero biodiversity loss, etc.) and possible reorganisation of supply chains
Rating 0 (lowest impact)-10 (highest impact) and quantitative data
Administrative costs including costs related to new staff required to deal with new obligations
Other costs including potential indirect
costs linked to higher prices in the
supply chain, costs liked to drawbacks
as explained in question 3, other than
administrative and litigation costs, etc.
Better performance stemming from increased employee loyalty, better employee performance, resource efficiency
Competitiveness advantages stemming from new customers, customer loyalty, sustainable technologies or other opportunities
Better risk management and resilience
Innovation and improved productivity
Better environmental and social performance and more reliable reporting attracting investors
Other impact, please specify
The European Commission’s study on due diligence requirements through the supply chain shows that the additional costs, as percentages of companies’ revenues, would be relatively low (less than 1%).
Question 26: Estimation of impacts on stakeholders and the environment
A clarified duty of care and the due diligence duty would be expected to have positive impacts on stakeholders and the environment, including in the supply chain. According to your own understanding and assessment, if your company complies with such requirements or conducts due diligence already, please quantify / estimate in quantitative terms the positive or negative impact annually since the introduction of the policy, by using examples such as:
- Improvements on health and safety of workers in the supply chain, such as reduction of the number of accidents at work, other improvement on working conditions, better wages, eradicating child labour, etc.
- Benefits for the environment through more efficient use of resources, recycling of waste, reduction in greenhouse gas emissions, reduced pollution, reduction in the use of hazardous material, etc.
- Improvements in the respect of human rights, including those of local communities along the supply chain
- Positive/negative impact on consumers
- Positive/negative impact on trade
- Positive/negative impact on the economy (EU/third country).