The European Union has a troublesome relationship with corporations and human rights. The single market was established to improve trade within the EU. As a block, the EU plays an important role globally--in negotiating conditions and ideally leading by example. At the same time, the EU was also established to overcome the divisions that lead to the World Wars, with human rights being central to its raison d'etre. (1) Also, civil society organizations and citizens, as well as customers have high expectations for the EU in terms of setting and ensuring high human rights standards. (2) In this context, the EU--with a shared mandate with its 28 Member States in this area--struggles to meet competing demands between 'business-friendliness' and human rights protection. (3)
Significant multinational companies are headquartered in the EU, such as the automotive company Volkswagen of Germany, the Anglo-Dutch consumer goods company Unilever, the flat-box furniture store IKEA of Sweden, the oil and gas company Royal Dutch Shell in the Netherlands, and BNP Paribas providing financial service out of France. (4) There are some leaders on human rights among the 98 of the world largest publically traded companies covered coming from the EU Member States, such as Marks & Spencer Group, Adidas, Unilever, Total and Hennes & Mauritz. (5) However, some of these EU based companies are at the opposite end of the spectrum, including big luxury labels like Hermes International and Prada. (6) There are also reports from August 2017 that suggest the risk of severe labor exploitation has increased in Europe's supply chains due to the large influx of migrants in the last few years. (7) While many of these companies work proactively to prevent human rights abuse and even improve human rights, serious abuses have occurred.
Due to these abuses, the EU has taken action to hold businesses accountable, including binding EU legislation. (8) For instance, in 2016, the Council of Europeadopted recommendations on human rights and business. (9) In 2017, the European Union Agency for Fundamental Rights issued an opinion on what could be done, per the request of the Council of the EU--the governing body bringing together the 28 government of the EU. (10)
The aim of this Note is to assess the barriers victims of human rights abuse involving companies face in accessing effective judicial remedies in the European Union. As such, this Note looks at the EU experience regarding civil litigation for corporation-related human rights abuses and explores efforts undertaken by the EU to ensure liability for these abuses, making additional recommendations for continued success. Section I deals with civil litigation in EU Member States and touches on relevant jurisprudence at the regional level, highlighting issues related to access to remedies in relation to business and human rights. Section II explores some recent measures taken by the EU to facilitate access to judicial remedies in this regard. Section III recommends additional safeguards to ensure that victims of human rights abuse are able to access effective judicial remedies in the EU and its Member States.
EXPERIENCE FROM EU MEMBER STATE COURTS HIGHLIGHTING CONCERNS WITH ACCESS TO REMEDY
Among the many (overlapping) ways companies are held accountable for human rights abuse--in addition to preventive measures, ranges from civil society media campaigns to criminal and civil law; civil law is often the most common avenue.11 Civil litigation, as with other options, brings with it a range of complications, much of which stems from the power imbalance that often exists between large companies and the individual victim or stakeholder. (12) Issues such as legal resources/assistance, costs, access to evidence, burden of proof, and procedural obstacles are the likely contributing factors to this imbalance. (13)
The most recent triggering case with repercussions in Europe could be said to have been the 2013 Rana Plaza factory collapse, which raised the issue of corporate behaviour and human rights,. (14) This case exposed the abhorrent labor conditions of the Bangladeshi garment industry with implications for clothes retailers in the EU, such as the Spanish Zara and Italian Benetton. (15) In August of 2017, the Bengal government sentenced the factory complex's owner to three years imprisonment on graft charges. (16) Another 'incident' that garnered significant attention in Europe involved the German clothing retailer KiK. In 2012, a similar incident to that of the Rana Plaza accident took place in Pakistan, with KiK being the main customer of the factory. (17) A civil case was brought on behalf of some of the victims before a court in Germany, led by a German civil society organisation. (18) The court accepted jurisdiction over the case and issued legal aid in 2016. (19) Other organizations provided funding for the victims and witnesses to travel to Germany for the trial. (20) Parallel criminal proceedings were brought before courts in Pakistan and in Italy. (21) The link to the latter country is a company based in Italy having issued a certificate guaranteeing safety in the workplace in Pakistan just weeks before the accident. (22)
A third example of a 'leading case' in Europe and arguably, the most well-known, involves the energy company Shell Nigeria who lost a case in a Dutch court in 2013 (23) The court held the corporation responsible for oil pollution in Nigeria in 2005, environmental damage that affected the livelihood of many in the region. (24) Shell has been active since the 1930s in the country and there are a number of complaints in various for a about pollution and even complicity to murder. (25) This case serves as an example of how civil litigation can respond to corporate human rights abuses, but also as an illustration of the obstacles that exist. The Nigerian claimants, together with civil society organizations (26) filed the suit in 2008 in the Netherlands. (27) In the first instance, the court found that Shell Nigeria should have done more to prevent sabotage that led to the oil spill. (28) Claims against Shell's parent company in the Netherlands were dismissed. Both parties appealed the decision; Shell for holding the company responsible and the plaintiffs for the dismissed claims against Shell's parent company. (29) The appeals court ruled that Shell notably should provide access to certain company documents, a first in a Netherlands court. (30) The appeal court's decision is not expected until late 2017 and there is a strong possibility that an additional appeal to the supreme court will considerably delay justice for these victims. (31)
In 2012, a similar suit was brought against Shell before the London High Court for two oils spills that occurred four years earlier. (32) Ultimately, the court dismissed the case for lack of jurisdiction due to the absence of a sufficiently strong connection to the UK. (33) Despite the UK court's finding, the case has been litigated before courts in two EU Member States, with different outcomes, (34) underscoring the need for an 'EU area of justice,' as the ambition is, that is more uniform in its approach..
Many business and human rights cases have been litigated in UK courts, where experiences from lawyers arguing cases against companies can be drawn from testimonies before parliamentary bodies. For instance, problems have been identified in relation to insufficient level of damages based on the cost of living in a country where the damages has occurred (35), while litigation is pursued in a country where a multinational corporation has its seat, with high legal costs. (36)
Lessons from Various Reports?
Individual case analyses across the 28 EU Member States are highly complex given that each Member State has its own distinct legal system and...