"企业可持续发展尽职调查指令提案中的 "安全港

V.V. Poiedynok
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引用次数: 0

摘要

在过去十年中,要求大公司对其经济活动中的社会、环境和道德风险进行尽职调查并有效管理这些风险的强制性立法在欧洲迅速推广。2022 年 2 月 23 日,欧盟委员会公布了一项关于企业可持续发展尽职调查指令的提案。在欧洲议会于 2023 年 6 月 1 日通过多项修正案之后,该提案现正与欧盟理事会和成员国进行谈判,以进一步完善。该提案引入了强制性人权和环境尽职调查(mHREDD),规定了当符合提案中规定的雇员人数和营业额标准的公司未能遵守尽职调查义务,造成本可避免的损害时,公司应承担的责任。mHREDD 的通过将预防对人权和环境的有害影响从公司的自愿做法转变为公司行为的规范标准。因此,遵守《指令》的要求将成为公司合规的一部分,成为旨在确保遵守现有规范和规则的内部程序。提案所针对的很大一部分公司虽然表面上很合作,但却试图通过公司游说来削弱未来的规则。其中一种削弱法律的策略就是游说所谓的 "安全港 "豁免。在 "安全港 "豁免中,立法机构规定了一些标准,如果符合这些标准,就可以免除责任,索赔人也就没有能力提起诉讼。在《指令》提案中,"安全港 "是指公司在证明其进行了合法有效的尽职调查评估后,就可以免除所有法律诉讼。安全港豁免与尽职调查作为一种程序性抗辩形成鲜明对比,被告公司可以在法庭上提出抗辩并寻求证明。考虑到乌克兰作为欧盟候选国的地位,该提案对乌克兰的影响非常重要。乌克兰公司与欧盟国家的公司不同,缺乏在企业社会责任和非财务报告框架内运作的经验,企业可持续发展文化也刚刚起步。如果采取 "安全港 "的做法,即当公司看似遵守了尽职调查程序(可能只是 "打勾")时,就不会对其活动的有害影响承担责任,这将对乌克兰企业可持续发展传统的发展产生破坏性影响。
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“SAFE HARBOUR” IN THE PROPOSAL FOR CORPORATE SUSTAINABILITY DUE DILIGENCE DIRECTIVE
Over the last decade, the mandatory legislation that requires large companies to conduct due diligence for the social, environmental, and ethical risks within their economic activities and to manage those risks efficiently has been rapidly expanding across Europe. On 23 February 2022 the European Commission unveiled a proposal for a Directive on corporate sustainability due diligence. Following numerous amendments adopted by the European Parliament on 1 June 2023, the proposal now enters negotiations with the EU Council and member states for further refinement. The proposal introduces mandatory human rights and environmental due diligence (mHREDD) which establishes provisions for corporate liability when companies meeting the employee number and turnover criteria specified in the proposal fail to adhere to due diligence obligations, causing otherwise avoidable harm. The adoption of mHREDD transforms the prevention of harmful impacts on human rights and the environment from a voluntary practice of companies into a normative standard of their conduct. Therefore, compliance with the Directive's requirements will become part of a company's compliance as an internal process aimed at ensuring adherence to existing norms and rules. A large proportion of companies targeted by the proposal, while appearing cooperative, seek to weaken the future rules through the corporate lobbying. Among the tactics used to undermine the law is lobbying the so-called “safe harbour” exemption. With a “safe harbour” exemption, the legislature sets out criteria that, if met, could exclude liability and the corresponding ability of claimants to bring action. In the context of the proposal of the Directive “safe harbour” means that a company shall be released from all legal actions upon proof that it had carried out a legally valid due diligence assessment. Safe harbour exemption is contrasted with the use of due diligence as a procedural defence, which the defendant company can plead and seek to prove in court. The proposal’s implications are important for Ukraine considering its status as a candidate country for EU membership. Ukrainian companies, unlike those in the EU countries, lack experience of operating within the framework of corporate social responsibility and non-financial reporting to build upon, and the culture of corporate sustainability is in its nascence. A “safe harbour” approach, under which when the company has seemingly complied with the due diligence process (which might be a mere “tick-box exercise”), it will not be held liable for the harmful effects of its activities, will have devastating impact for the development of corporate sustainability tradition in Ukraine.
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