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Study on Due Diligence Requirements Through the Supply Chain Study on due diligence requirements through the supply chain PART I: SYNTHESIS REPORT Lise Smit, Claire Bright, Robert McCorquodale, Matthias Bauer, Hanna Deringer, Daniela Baeza- Breinbauer, Francisca Torres-Cortés, Frank Alleweldt, Senda Kara, Camille Salinier and Héctor Tejero Tobed January – 2020 EUROPEAN COMMISSION Directorate-General for Justice and Consumers Directorate— A — Civil and Commercial Justice Unit— A.3 — Company Law E-mail: [email protected] European Commission B-1049 Brussels 2 EUROPEAN COMMISSION Study on due diligence requirements through the supply chain Part I: Synthesis Report 3 Directorate General for Justice and Consumers 4 LEGAL NOTICE Printed by the British Institute of International and Comparative Law in United Kingdom Manuscript completed in January 2020 First edition This document has been prepared for the European Commission however it reflects the views only of the authors, and the Commission cannot be held responsible for any use which may be made of the information contained therein. The European Commission is not liable for any consequence stemming from the reuse of this publication. Luxembourg: Publications Office of the European Union, 2020 © European Union, 2020 Reuse is authorised provided the source is acknowledged. The reuse policy of European Commission documents is regulated by Decision 2011/833/EU (OJ L 330, 14.12.2011, p. 39). For any use or reproduction of photos or other material that is not under the copyright of the European Union (*), permission must be sought directly from the copyright holders. PDF ISBN 978-92-76-10542-8 doi: 10.2838/688 DS-01-20-076-EN-N 5 CONTENTS I. INTRODUCTION ...................................................................................................... 8 1. Background ................................................................................................. 8 2. Scope ......................................................................................................... 9 3. Overview of ongoing developments ............................................................... 10 II. MARKET PRACTICES ............................................................................................ 14 1. Introduction................................................................................................ 14 2. General survey data .................................................................................... 14 3. Current due diligence practices ..................................................................... 14 4. Stakeholder views on regulatory options ........................................................ 16 5. Perceived impacts of regulation being at EU level ............................................ 19 6. Further stakeholder observations .................................................................. 20 III REGULATORY REVIEW ........................................................................................ 21 1. Introduction................................................................................................ 21 2. The concept of due diligence ......................................................................... 21 2.1 Developments in due diligence ...................................................................... 22 2.1.1 UN Guiding Principles on Business and Human Rights ...................................... 22 2.1.2 OECD Guidelines for Multinational Enterprises ................................................. 24 2.1.3 EU-level standards and developments ............................................................ 26 2.1.4 Domestic measures regulating due diligence in supply chains ........................... 28 2.1.5 Case law .................................................................................................... 30 2.1.6 Due diligence in the Draft Treaty ................................................................... 33 2.2 Environmental due diligence and climate change ............................................. 34 2.2.1 Environmental due diligence ......................................................................... 34 2.2.2 Due diligence and climate change .................................................................. 36 IV PROBLEM ANALYSIS AND INTERVENTION LOGIC ................................................ 39 1. Introduction................................................................................................ 39 2. Regulatory Options ...................................................................................... 42 3. Further considerations around scope of application .......................................... 49 3.1 Accompanying non-binding guidance on the mandatory duty ............... 49 3.2 Regulation of transnational corporate activity: foreign-based subsidiaries, suppliers and third parties ............................................. 50 3.3 Implementation at Member State level .............................................. 53 3.4 Material scope of adverse human rights and environmental impacts ..... 54 3.5 Conflict of laws considerations ......................................................... 55 3.6 Transitional period .......................................................................... 56 3.7 Mandatory due diligence as part of a “smart mix” of measures ............. 57 4. Discussion of strengths and weaknesses of the options identified ...................... 57 V ASSESSMENT OF OPTIONS .................................................................................... 65 1. Introduction................................................................................................ 65 2. Company-level costs .................................................................................... 65 3. Impacts on competitiveness and innovation .................................................... 67 4. Impacts of new technology solutions on the costs of due diligence .................... 68 5. Impacts on Public Authorities ........................................................................ 69 6. Social Impacts ............................................................................................ 69 7. Human Rights Impacts ................................................................................. 70 6 8. Environmental Impacts ................................................................................ 71 7 I. INTRODUCTION This is the Synthesis Report delivered for the European Commission for a study on due diligence through the supply chain.1 For this study, the British Institute of International and Comparative Law (“BIICL”) leads a research consortium in partnership with Civic Consulting and LSE Consulting. This Synthesis Report summarises the findings set out in more detail in the full report (“the report”).2 1. Background Action 10 of the European Commission Action Plan on Financing Sustainable Growth of 8 March 2018 provides a mandate to:3 [C]arry out analytical and consultative work with relevant stakeholders to assess: (i) the possible need to require corporate boards to develop and disclose a sustainability strategy, including appropriate due diligence throughout the supply chain, and measurable sustainability targets; and (ii) the possible need to clarify the rules according to which directors are expected to act in the company's long- term interest. [Our emphasis] In its May 2018 Report on Sustainable Finance, the European Parliament “[c]alls on the Commission” to provide a “legislative proposal” for:4 [A]n overarching, mandatory due diligence framework including a duty of care to be fully phased-in within a transitional period and taking into account the proportionality principle. [Our emphasis] The European Parliament report further:5 [C]alls also for a proportionate mandatory due diligence framework based on the 2017 OECD Guidelines for Responsible Business Conduct for Institutional Investors, requiring investors to identify, prevent, mitigate and account for ESG factors after a transitional period; upholds that this pan-European framework should be based on the French Corporate Duty of Vigilance Law for companies and investors, including banks... 1 JUST/2018/COMM/FW/RIGH/0070 (2018/03). 2 The report is based on the methodology set out in the Technical Annex to the request for service under Framework contract n° JUST/2015/PR/01/0003 (“the offer”), which corresponded to the request for services or terms of reference (hereafter “TOR”). The report is structured around the following main parts: Introduction; Market practices (Task 1); Regulatory review (Task 2); Problem analysis and regulatory options (Task 3); Assessment of regulatory options (Task 4). 3 Action 10 of the Communication from the Commission to the European Parliament, the European Council, the Council, the European Central Bank, the European Economic and Social Committee and the Committee of the Regions Action Plan: Financing Sustainable Growth, COM/2018/097 final, 8 March 2018, available at: https://ec.europa.eu/info/publications/180308-action-plan-sustainable-growth_en. 4 European Parliament Report on Sustainable Finance, (2018/2007(INI)), 4 May 2018, available at: http://www.europarl.europa.eu/doceo/document/A-8-2018-0164_EN.html at para 6. 5 Ibid at para 11. 8 The concept of due diligence in this context6 is due diligence to “identify, prevent, mitigate and account for” adverse corporate impacts on human rights and the environment, which was introduced by the UN Guiding Principles on Business and Human Rights (“UNGPs”),7
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