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A Human Rights Approach to Due Diligence: Reflections on key principles
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- Executive summary
- Introduction
- 1. Why is mandatory human rights due diligence needed?
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2. A risk-based approach within human rights due diligence
- 2.1. Business responsibility to respect human rights
- 2.2. Risk-based approach to identification and assessment of adverse impacts
- 2.3. Shared responsibility in implementing due diligence across the chain of activities
- 2.4. Ongoing monitoring in line with a risk-based approach
- 2.5. A risk-based approach to responsible disengagement
- 3. Stakeholder engagement
- 4. Access to effective remedies and civil liability
- 5. Oversight and enforcement
- About this publication
Companies have a responsibility to respect human rights, and Member States have an obligation to protect human rights and ensure that business activities do not infringe on these rights. Member States must also take appropriate steps to ensure that when business-related human rights abuses occur in their territory or under their jurisdiction, they provide effective remedy through judicial, administrative, legislative or other appropriate means [68]
UNGP 25 and its commentary.
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The right to an effective remedy is enshrined in Article 47 of the Charter, and it is a general principle of EU law [69] Case 222/84 Johnston [1986] ECR 1651.
Judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097.
Judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313.
. The EU and its Member States are bound to ensure that everyone in the EU can effectively enjoy this right. It is key to realising and protecting other fundamental rights: it provides that if a person’s rights have been violated, that person can seek and obtain remedy in court.
Remediation is also one of the three pillars of the UNGPs framework, which calls on businesses to remediate harms linked to their activities, and the states to ensure that victims of corporate human rights abuses can access justice. The commentary to Principle 26 UNGP recognises that “[e]ffective judicial mechanisms are at the core of ensuring access to remedy” [70]
UN Human Rights Council, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” framework’, pp. 28-29.
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In practice, significant gaps exist in terms of remediation for business-related human rights abuses. The CSDDD civil liability provisions provide mechanisms to bridge some of these gaps to ensure an adequate level of protection for potential victims and better harmonisation across the EU.
In general, civil liability refers to private law mechanisms through which persons can seek remedy for damage resulting from violations of their rights. It is an important avenue for victims of business human rights abuses to seek remedy. As underlined in the UN Human Rights Council report on the topic, legal liability mechanisms should support meaningful HRDD [71]
UN Human Rights Council, ‘Improving accountability and access to remedy for victims of business-related human rights abuse: The relevance of human rights due diligence to determinations of corporate liability’, A/HRC/38/20/Add.2, 2018, paragraph 45.
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In the context of the EU, Article 29 of the CSDDD introduces the civil liability regime. It does not introduce a fully harmonised civil liability regime across the EU, but includes important safeguards aimed to address the specific context of HRDD in complex corporate value chains: civil liability is clearly linked to breach of the due diligence obligations under the directive, and thus to upholding accountability [72]
Bernaz, N., Bueno, N., Holly, G. and Martin-Ortega, O., ‘The EU Directive on Corporate Sustainability Due Diligence: The final political compromise’, Business and Human Rights Journal, Vol. 9, Issue 2, 2024, pp. 294–300.
and to increased legal certainty for both companies and potential victims.
Harmonising civil liability regimes across the EU would provide companies and rights holders with clarity on obligations and the consequences of failing to meet due diligence standards, thereby increasing legal certainty both for companies across the internal market and for potential victims.
Given the importance of legal certainty, it is essential that there be clarity about the conditions under which companies can be held liable, such as those outlined in Article 29(1) of the CSDDD. This provision establishes two criteria for civil liability rooted in HRDD obligations: (a) companies can be held liable if they intentionally or negligently failed to address adverse impacts in their due diligence process; (b) as a result of the failure referred to in point (a), damage was caused to the natural or legal person’s legal interests that are protected under national law [73] Civil liability is linked specifically to the obligations set out in Articles 10 and 11.
. This minimum standard may address certain existing challenges facing victims of corporate human rights abuses. Although civil liability regimes exist in the legal systems of many Member States, they often differ not only in how they define the criteria for liability but also in the extent to which they hold companies liable for abuses across their corporate structures and value chains. Currently, interpretations of the required standard of behaviour of companies and the attribution of liability across corporate value chains are determined by existing national laws, in a legal landscape across the EU characterised by divergences and gaps [74]
Holly, G. and Zerk, J., Access to Justice in the Corporate Sustainability Due Diligence Directive: Symposium event report, Danish Institute for Human Rights, Copenhagen, 2025.
. Moreover, existing national frameworks often fail to adequately address the reality and complexity of disputes involving large corporations across intricate, global value chains. In clearly linking civil liability to due diligence obligations, the CSDDD bridges some of these gaps.
Overriding mandatory application ensures that the legal obligations and liability rules established by a Member State’s national laws on HRDD apply regardless of which jurisdictions’ law would otherwise govern a dispute under private international law. As a principle, it helps promote regulatory coherence by ensuring that Member States’ HRDD regimes prevail in disputes and by discouraging regulatory arbitrage where companies may seek out jurisdictions with more lax rules [75]
Kramer X. and Silva de Freitas, E., ‘The Corporate Sustainability Due Diligence Directive: PIL and Litigation Aspects’, 2024.
. It enhances corporate accountability and improves victims’ access to remedies despite the cross-border complexities.
The CSDDD in Article 29(7) requires that national law implementing its civil liability provisions have overriding mandatory application whenever the law governing related claims is not that of a Member State. This means that courts that adjudicate civil liability cases will have to refer to the national law implementing the CSDDD civil liability rules – ensuring that companies will be held accountable in line with the standards set out by the CSDDD.
Such a provision is essential to ensuring legal certainty and predictability. Without this provision, the law of the Member State where the damage occurred is likely to be applied according to private international law rules for non-contractual obligations [76] Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations prescribes in Article 4(1) that the law of the Member State in which the damage occurs is applicable as the default rule. This will also be the law applicable to environmental damage, unless the claimant chooses to base their claim on the law of the Member State in which the event giving rise to the damage occurred (Article 7(1)).
. Consequently, EU national courts may, following conflict-of-law rules and national discretion, apply the law of a non-EU country, which can differ in terms of human rights and environmental protection, scope of liability and other substantive law elements.
As the previous FRA report ‘Business and human rights – access to remedy’ (2020) found, applicable law presents a key legal obstacle for access to justice for victims of business-related human rights abuses. The absence of an overriding mandatory application has far-reaching consequences with respect to legal predictability for companies, the internal market, and rights holders. Regulation avoids unfairly penalising companies that carry out due diligence in line with the international standards by allowing their competitors to ‘forum shop’ and avoid accountability for profiting from activities that negatively impact human rights.
Additionally, the failure to regulate mandatory application risks prompting a race to the bottom among Member States, where companies might relocate to jurisdictions with more lenient civil liability rules or weaker enforcement, encouraging governments to follow suit in legal and regulatory terms, ultimately undermining human rights protection standards [77] See also endnote 75.
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The FRA report ‘Business and human rights – access to remedy’ (2020) identified major obstacles for victims seeking justice in relation to business-related human rights abuses [78] Based on findings from fieldwork research in selected EU Member States – Finland, France, Germany, Italy, the Netherlands, Poland and Sweden – and the United Kingdom (data collection was conducted before the EU–UK withdrawal agreement entered into force).
. The effectiveness of judicial remedies is often hampered by restrictive rules on legal standing, evidence and disclosure barriers, high legal costs (combined with restrictive rules on legal aid) and the striking imbalance of arms in general. Accessing the courts in practice is very difficult, especially as victims of business-related human rights abuses are often already in vulnerable situations. This includes victims from outside the EU, where the most severe human rights violations occur [79]
García Esteban, A. and Patz, C., Suing Goliath – An analysis of civil cases against EU companies for overseas human rights and environmental abuses and environmental harm in their global operations and value chains, and key recommendations to improve access to judicial remedy, European Coalition for Corporate Justice, Brussels, 2021.
Dubost, C. and Potier, D., Rapport d'information déposé en application de l'article 145-7 alinéa 1 du règlement, par la commission des lois constitutionnelles, de la législation et de l'administration générale de la République sur l’évaluation de la loi du 27 mars 2017 relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre, 2022.
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Procedural safeguards are part of the effective regulation of businesses’ responsibility to respect human rights. The CSDDD provides certain such safeguards, including provisions on the statute of limitations, the disclosure and costs of proceedings and victims’ ability to authorise certain organisations to bring an action to enforce their rights – aimed at addressing persistent barriers to access to justice faced by victims of human rights abuse by businesses [80] See CSDDD, Article 29(3).
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Previous FRA research [81]
FRA, Enforcing consumer rights to combat greenwashing, Publications Office of the European Union, Luxembourg, 2024.
shows that the rules on whether NGOs can take part in lawsuits about consumer and environmental rights differ between Member States, which can make cases against multinational companies more complicated. In some Member States, NGOs may bring a case even if their own rights or interests are not directly affected. In others, an NGO’s action based on its goals, such as protecting the environment, may be rejected in consumer-related cases because the NGO does not have the required legal standing.
For victims, who are often those most vulnerable or marginalised, the possibility of such representation is vital to access justice. While some Member States allow for similar representation, this is not uniform across all EU jurisdictions.
Establishing clear liability frameworks and harmonised regimes that define and enforce the standard of conduct for HRDD is essential in ensuring effective access to remedies for potential victims of corporate abuse. This can improve accountability by providing courts with a firmer legal foundation to hold parent companies liable for harms linked to their business activity, while at the same time increasing legal certainty for these companies navigating the complex legal systems of the numerous jurisdictions in which they may operate. Clarity and harmonisation of access to justice provisions can help advance justice and accountability for victims and legal certainty and predictability for companies.