15. The Commission proposes to delete Article 29(1) and its confirmation of liability for duty of care and the accompanying conditions. If adopted as proposed by the European Commission, the Omnibus would also delete the obligation to classify implementation of the CS3D as overriding mandatory law. The Omnibus, however, would keep all ‘procedural’ requirements (evidence disclosure, cost limitations, possibility of injunctions, statutes of limitations) other than the rules on representative actions. 16. Were these Omnibus amendments to be adopted, the EU therefore firstly would be reintroducing the patchwork of not merely 27 different national regimes (instead of 1 EU-wide regime) with respect to the core question of the existence of a corporate duty of care. Rather, it would reconfirm that the existence of a corporate duty of care and its conditions are once again left to the substantively applicable law which as noted, often is not that of an EU Member State. Under the Omnibus, companies would therefore be exposed not to 27 regimes, not even to 206 regimes (this is the number of States currently recognised by the United Nations), but rather to the 206 PLUS any regional divergence that exists in many of them. 7 To give some obvious examples: the United States has 50 tort law regimes; Australia has 6; Nigeria has at least 6 regional variations of tort law; Canada has ten provinces and three territories with some variation of tort law in each; even within the United Kingdom there are variations between Scots and English tort law. 17. A concrete example of existing divergence today, which the European Commission also cited in its initial reasoning for harmonization, is the scope of liability. 8 18. Further , the EU would also fully restore the discretion for Member States’ courts to apply diverging national regimes under the Rome Regulation’s overriding mandatory law provisions. This would give added impetus to claimants to forum shop across courts in the EU and would increase uncertainty for corporations. 19. The European Commission justifies its deletion of the relevant provisions inter alia by suggesting “ While removing the uniform rules on civil liability reduces harmonisation, it ensures respect for existing, national liability regimes – with which companies in scope are familiar - in line with the subsidiarity principle and ensures greater legal certainty on liability risks under a new type of risk-based corporate obligations.” 9 20. Of note viz. this EC argument is first of all the crucial acknowledgment by the Commission itself that its proposal reduces harmonisation. 7 In application of Article 25 Rome II, “Where a State comprises several territorial units, each of which has its own rules of law in respect of non-contractual obligations, each territorial unit shall be considered as a country for the purposes of identifying the law applicable under this Regulation.”. 8 See ia the following extract from COM(2022) 71: “ In the absence of common rules, divergent national liability regimes may lead to different outcomes depending on whether there is ownership control (as regards subsidiaries) or factual control (either through direct contracts or where control could be exercised by the company through contractual cascading or other leverage in indirect business relationships). This fragmentation would lead to distortions of competition in the internal market as a company located in one Member State would be subject to damages claims due to harm caused in its value chain whilst a company with the same value chain would be exempt from this financial and reputational risk because of diverging national rules.” 9 COM(2025) 81 https://tinyurl.com/4u4rnwd7
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