BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

Following the request of the EU Council of 2016, the EU Agency for Fundamental Rights (FRA), in April 2017, delivered an expert opinion on possible avenues to lower barriers for access to remedies in the area of business and human rights at the EU level. 49 It is natural that the EU Charter of Fundamental Rights, besides other international human rights documents, serves as the main point of reference in the FRA opinion. Business-related human rights abuses may affect concrete rights laid down in the Charter, e.g. the right to security of the person, economic and social rights, civil and political rights, the right to non-discrimination, the right to privacy, labour rights, and rights of communities or groups including indigenous peoples, as well as consumer rights and rights related to environmental protection. From the perspective of EU law, extraterritorial access to a remedy is an important issue. The FRA opinion recalls harmonized rules on the choice of court and the choice of law. In principle, the Brussels Regulation (Brussels I Recast) 50 provides that companies which have their statutory seat or their central administration in an EU Member State may be sued before the courts of that state for damages which the company has caused by the company outside of the EU. Europeanized rules of private international law (Rome II) 51 further clarify that, in general, applicable law is that where the damage occurs. However, the FRA opinion also found that despite harmonized EU rules on jurisdiction Member States continue to apply different approaches to issues which have not been harmonized so far. For example, the liability of a parent company for acts of a subsidiary and due diligence criteria of a parent company with respect to a subsidiary is regulated differently in the Member States. Therefore, it remains unclear under which conditions the connection between an EU based company and a subsidiary outside the EU is sufficiently strong to establish the jurisdiction of a court in the EU rather than of a court in a host state. By the way, the problem of “forum shopping” does not apply only in relation between an EU Member State and a third country but also between two Member States. In some Member States remedies are more accessible than in others. 4. Conclusions and perspectives Much has been done at the EU level as well as by the individual EU Member States to prevent business-related human rights abuses. The European Union claims to be a strong supporter of the United Nations Guiding Principles. However, the Commission’s intention to launch an EU Action Plan on Responsible Business Conduct, which would address the implementation of the Guiding Principles, has not yet materialised. Therefore, the EU as such has not yet clarified the promotion of due diligence standards and access to remedies as elements of a future overall policy framework. Although the European Commission’s past leadership on business and human rights had a catalytic effect on many actions in the EU and beyond, it seems that the European Commission has lost its momentum. Therefore, we assume that, at present, the focus lies with 49 FRA Opinion – 1/2017 [B&HR], Vienna, 10 April 2017. 50 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. 51 Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations .

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