BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

It is understandable that the EU and its Members States may approach soft law commitments in a more flexible way than it is the case with legally binding treaty obligations. Therefore, less effort will be dedicated to issues of exclusive and shared EU competences when it comes to the implementation of the UN Guiding Principles. Nevertheless, in July 2015 the Commission issued the Staff Working Document on Implementing the UN Guiding Principles on Business and Human Right that addressed a number of relevant questions. 44 Following the principle of conferral which is enshrined in Article 5 of the Treaty on the Functioning of the European Union (TFEU), the Commission holds that “business and human rights” is not a stand-alone issue as it touches upon a wide range of different legal and political areas, including but not limited to human rights law, labour law, environmental law, anti-discrimination law, international humanitarian law, investment and trade law, consumer protection law, civil law, commercial law, corporate, or penal law. It is clear that the EU’s regulatory competence varies according to the scope of competence awarded to the EU in respect of each of those areas. The Commission tried to identify some relevant provisions in the founding treaties that may provide the necessary fundament for the implementation of the UN Guiding Principles by EU measures. Article 21 of the Treaty on European Union concerns the relevant external action of the EU, e.g. with regard to the definition of common policies and actions. In this context the EU shall be guided by the idea to consolidate and support democracy, the rule of law, human rights, and the principles of international law. Also EU anti-discrimination might contribute to the implementation of the UN Guiding Principles because the EU has adopted a number of legal acts aimed at combating discrimination based on sex, racial or ethnic origin, religion or belief, disability, age, or sexual orientation. Great importance should be attached to the EU’s common commercial policy, which according to Article 207 TFEU shall be conducted in the context of the principles and objectives of the Union’s external action. Another field of relevance is migration. The EU has developed legislative tools to protect third country nationals’ labour rights. The Staff Working Document points at Directive 2003/109/EC concerning the status of long-term residents or directives protecting specific categories of migrants, Council Directive 2004/114/EC on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service, and Council Directive 2005/71/ EC on a specific procedure for admitting third-country nationals for the purposes of scientific research. Council Directive 2009/50/EC introduced the concept of the so-called “blue card” that aims at facilitating the entry and residence of third-country nationals for the purposes of highly qualified employment and granting them equal treatment. In principle, the Commission Staff Working Document shows that while some implementation measures related to the UN Guiding Principles have to be carried out mainly by the Member States (e.g. with regard to Principles 1, 4-5, 7, 10, 25-27), in quite many areas the EU and Member States will have to closely co-operate and find a common approach. In this situation it is natural that the Member States National Action Plans contain very frequent references to EU-wide strategies and legislative

44 SWD(2015) 144 final.

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