Diana Wallis pointed out that the draft ELI report covers a number of essential points about access to remedy and highlighted some of the main issues and recommendations the Project Team is likely to come up with. One of the issues covered is human rights due diligence, which is currently being addressed by the JURI Committee in a recent report of which this exchange formed a part. The ELI Project Team feels that mandatory due diligence should include a standard legal duty of care at the EU level and be accompanied by a right to civil judicial remedy in the jurisdiction of every Member State, in order to not create rights without creating a remedy. In addition and importantly to ensure there is no right without a remedy to ensure that victims can pursue their rights through the courts in a straight forward manner, the Team also believes that there is a need for an accessible horizontal system of collective action at the EU level, which could be built on the existing system in place for consumers.
Other matters highlighted in the draft report include issues of private international law, where the Team considers that a simpler option rather than amending existing EU legislation in the field would be to introduce a mandatory contractual term as part of human rights/environmental due diligence legislation, a clause that EU based parent companies and contractors operating in a third country would need to include in their contracts. The clause would compel a choice of an EU jurisdiction and law. Thereby, litigation would be brought before EU courts and be subject to EU law. The Team also thinks that more could be done regarding transparency and information, where, among other things, the EU’s e-justice portal could be made of greater use and help to point victims and advisors in the right direction.
Last but not least, the Team is looking quite carefully at non-judicial remedies, such as with an EU level Ombudsman scheme with strong investigatory powers. While such mechanisms could be helpful, they should, however, not be presented an alternative to a clear judicial remedy but should rather be complimentary.
FRA representatives Jana Gajdošová and Patrycja Pogodzinska (who is also a Project Team member of the ELI project) presented FRA’s recent report on ‘Business and human rights – access to remedy’ on this occasion.
This was followed by an exchange of views with Committee members, who welcomed ELI’s and FRA’s work in the field. The discussion focused, among other things, on possible legal solutions to ensure access to justice, including the need to codify a rule on forum necessitatis.
The ELI report is foreseen to be sent for adoption by ELI bodies in the upcoming weeks.
