own operations, the operations of their subsidiaries, and the operations carried out by their business partners in the chains of activities of those companies; (b) liability for violations of the obligations as referred to in point (a);…”
5. The type of obligations regulated by the Directive are so-called ‘due diligence obligations’ as also referred to in Article 4. These extend beyond planning, reporting, and stakeholder consultation requirements, into a duty to identify and assess actual and potential adverse impacts (Article 8), prevent adverse impacts (Article 10), bringing actual adverse impacts to an end (Article 11), and remedy adverse impacts (Article 12), if so required in a prioritised approach based on the severity of the various risks (Article 9).
B. The Civil Liability Provision of Article 29 CS3D
6. Material civil liability provision. The obligations to prevent adverse impacts (Article 10) and to bring any such impacts to an end (Article 11) are supported by Member States’ duty included in Article 29 CS3D, to ensure that a company can be held liable. This includes Member States having to ensure a right to full compensation ‘in accordance with national law’, for victims of damage caused to them as a result of a company’s ‘intentional or negligent’ failure to comply with its Article 10 and 11 obligations. This liability is subject to the conditions that the rights which Articles 10 and 11 are targeted at are included in Annex to the Directive, and are aimed at protecting the natural or legal person bringing the claim, and to the requirement that the damage caused is a result of the company’s failure to comply with Article 10 or 11. The rights in Annex include the human and environmental rights upon which many of these claims have been and continue to be brought against companies across the EU. 7. Procedural requirements. Article 29 CS3D includes a number of procedural requirements which Member States have to ensure, such as standardised minimum period within which a claim needs to be brought (so-called ‘ statutes of limitation’ ) and provisions on when these periods start to run; costs of proceedings; the availability of injunctive measures; the possibility for injured parties to authorise a NGOs or trade unions to bring a claim; and the disclosure of relevant information. 8. Applicable law. Generally, the substantive law that applies to the claim is determined by the general conflict of law rules as already harmonised by the EU. As noted, the most likely claims relevant to the Directive are non-contractual claims and it is the Rome II Regulation which identifies the law that will apply. The Rome II Regulation does not have a specific rule for the type of claims based on the CS3D, other than for environmental claims. However, the Rome II Regulation allows for EU courts to replace the ordinary applicable law with those provisions of their national law which they consider to be of extreme relevance to the type of claim concerned (‘ overriding mandatory provisions ’, also known as ‘ lois de police ’). 4 This is precisely the route the
4 Article 16 of the Rome II Regulation formulates this as follows: “Nothing in this Regulation shall restrict the application of the provisions of the law of the forum in a situation where they are mandatory irrespective of the law otherwise applicable to the non-contractual obligation.”
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