# Trade unions and ESG obligations: a private international law perspective on the CS3D

Étienne Pataut, Aukje van Hoek

► To cite this version:

Étienne Pataut, Aukje van Hoek. Trade unions and ESG obligations: a private international law perspective on the CS3D. Mass Claims: an International Journal with a European Focus, 2025, 1, pp.57. halshs-05520175

HAL Id: halshs-05520175

https://shs.hal.science/halshs-05520175v1

Submitted on 20 Feb 2026

HAL is a multi-disciplinary open access
archive for the deposit and dissemination of sci-
entific research documents, whether they are pub-
lished or not. The documents may come from
teaching and research institutions in France or
abroad, or from public or private research centers.

L'archive ouverte pluridisciplinaire HAL, est
destinée au dépôt et à la diffusion de documents
scientifiques de niveau recherche, publiés ou non,
émanant des établissements d'enseignement et de
recherche français ou étrangers, des laboratoires
publics ou privés.

<figure><img src="image_1.png" /></figure>

Distributed under a Creative Commons CC BY 4.0 - Attribution - International License
Trade unions and ESG obligations: a private international law perspective on the CS3D

Prof. dr. A.A.H. van Hoek & Prof. E. Pataut<fnref n="1" />

Abstract: This article looks at the role of trade unions in enforcing the due diligence directive. Due to the international and extraterritorial character of the due diligence obligations of the company covered by the CS3D, its enforcement also has cross-border elements. The article covers both the role the directive ascribes to the unions and other worker representatives as such and private international law complications relating to standing in cross-border cases, applicable law and jurisdiction.

Keywords: due diligence, trade unions, private international law

# 1 Setting the scene

In this article we want to draw attention to the role of trade unions in furthering corporate sustainability. The point of departure is the CS3D as it was adopted in 2024 (Directive (EU) 2024/1760 of 25 July 2024 Corporate Sustainability Due Diligence Directive). On 26 March 2025 the European Commission submitted a proposal to amend the provisions of a series of directives, amongst which the CS3D, in an attempt to reduce administrative burdens for business in the EU.<fnref n="2" /> In this article we describe the text of the CS3D as it currently stands, but will also pay attention to the proposed changes in as far as these affect the topics discussed here.

The CS3D prescribes wide ranging duties to large companies established or operating in the EU to assess and where necessary prevent and mitigate the risk their business model poses to both people and planet. The duties pertain to their own activities, but also cover their supply chain.<fnref n="3" /> The annexes to the directive contain a list of international human rights and standards that should be respected in the company's CSDD policy. This list included several work

<footnote n="1">¹ Aukje van Hoek, Professor of International Private Law and Civil Procedural Law at the University of Amsterdam and Etienne Pataut, Professor of Private Law at the Sorbonne Law School.</footnote>

<footnote n="2">² Proposal for a Directive of the European Parliament and of the Council amending Directives 2006/43/EC, 2013/34/EU, (EU) 2022/2464 and (EU) 2024/1760 as regards certain corporate sustainability reporting and due diligence requirements (OMNIBUS I), Com(2025) 81 final.</footnote>

<footnote n="3">³ Mainly upstream, but also to some extent downstream. See Article 3 paragraph 1 sub g.</footnote>
related rights, including the right to a living wage and the freedom to organize.<fnref n="4" /> Accordingly
the CSDD policy may directly affect the rights of workers in the company and/or its supply
chain. But the workers and their representatives may also be seen as stakeholders in a wider
sense.<fnref n="5" /> They have an interest in the CSDD performance of the company even if they would
not be directly affected (as victims) by a specific human rights breach.<fnref n="6" />

In paragraph 2 we will point out some unclarities as to the role of trade unions<fnref n="7" /> in the
formulation of the due diligence policy on the one hand, and the countering of adverse effects
on the other.<fnref n="8" /> We will show that the unions active in the company on which the due diligence
obligation rests, have a privileged position when it comes to the formulation of the policy. As
regards the response to breaches however, the directive focuses on the unions representing
the directly affected workers. Given the global character of the duty, as formulated in the
CS3D, the relevant unions might be located in different countries. This causes problems of a
private international law character. After touching upon the issue of the standing of trade
unions in domestic and cross border cases in paragraph 2, we will move on to the well-known
topics of applicable law and jurisdiction in paragraph 3 and 4. We round off with a short
summary of findings/conclusion.

## 2 Trade unions as stakeholders and as representatives in the CS3D

The due diligence duty of companies covered by the directive in substance demands of
companies that they implement a policy aimed at risk assessment, prevention, and

<footnote n="4">⁴ See annex I.</footnote>

<footnote n="5">⁵ In the current text also consumers are recognized as such: Article 3 para 1 sub (n). the Omnibus directive limits the concept to employees and the representatives and affected parties and their representatives: Article 4 sub 2 Omnibus I Directive. The preamble of the CS3D in paragraph 4 also mentions investors as interested parties, but these are not identified as stakeholders (they have other, more direct means of control).</footnote>

<footnote n="6">⁶ Employees of the company may be involved in the implementation of the DD policy or might be implicated in the human rights breach themselves but also have a wider interest in the performance of the company they work for.</footnote>

<footnote n="7">⁷ Trade unions (or unions) are the classic representatives of organized labour. The following definition is given by the European industrial relations dictionary (https://www.eurofound.europa.eu/en/european-industrial-relations-dictionary/trade-union): "A trade union is a legal entity consisting of employees or workers who have a common interest, such as all the assembly workers in a company, or all the workers in a particular industry. A trade union is formed for the purpose of collectively negotiating with an employer (or employers) over wages, working hours, and other terms and conditions of employment. Trade unions often use their organisational strength to advocate for social policies and legislation favourable to their members or to workers in general." Other types of workers' representation are the works council (see for example Directive 2009/38/EC) and the special appointee in the board of the company which exists in the Germany (see https://www.mitbestimmung.de/html/gesetze-mitbestimmung-im-aufsichtsrat-23989.html)".</footnote>

<footnote n="8">⁸ The directive also contains a duty to put into effect a transition plan for climate change mitigation (Article 22), but stakeholders do not seem to play a role there.</footnote>
remediation.<fnref n="9" /> This substantive duty is supported by (internal) complaints and notification procedures, public oversight and in some cases civil liability.<fnref n="10" /> In this paragraph we look at the involvement of unions in the formulation of the due diligence policy on the one hand, and their role in addressing breaches of the due diligence obligations resulting in harm to persons or the environment on the other. A pre-warning is merited however: especially the provision on civil liability will undergo significant changes if the Omnibus I proposal is accepted – see paragraph 2.2 and 3.3.

## 2.1 Stakeholder involvement in the formulation and implementation of the due diligence policy

The policy itself and some of its implementation measures should be established after ‘meaningful engagement’ with ‘relevant stakeholders’.<fnref n="11" /> This duty is further specified in Article 13.<fnref n="12" /> In the current text ‘stakeholders’ is a wide ranging concept, referring to ‘the company’s employees, the employees of its subsidiaries, trade unions and workers’ representatives, …, including the employees of the company’s business partners and their trade unions and workers’ representatives, …’ but also to consumers, human rights and environmental institutions and civil society organisations.<fnref n="13" /> In the Omnibus proposal the latter groups are no longer recognized as such, but the employees and their representatives still are. If it is not feasible to consult directly with the relevant stakeholders, companies may consult experts on certain risks.<fnref n="14" /> It would seem that this latter provision might discharge the company from the duty to directly consult stakeholders further removed in the supply chain.

Article 7 explicitly states that the due diligence policy of the company ‘shall be developed in prior consultation with the company’s employees and their representatives’. This provision gives the employees of the company and their representatives, be it trade unions or works councils, a privileged position in the development of the due diligence policy.<fnref n="15" /> This raises interesting questions as to the mandate of these representatives in the Member State of

<footnote n="9">⁹ See Article 5 para 1.</footnote>

<footnote n="10">¹⁰ See Article 29 and Article 4 sub 12 Omnibus I proposal for the civil liability provisions.</footnote>

<footnote n="11">¹¹ Article 5 para 1 sub e and Article 13.</footnote>

<footnote n="12">¹² Article 13 inter alia specifies at which stages of the process stakeholders should be consulted. The Omnibus I proposal removes two stages from the list.</footnote>

<footnote n="13">¹³ Article 3 para 1 sub n. other groups that are specifically identified are consumers, human rights institutions and environmental NGOs.</footnote>

<footnote n="14">¹⁴ Article 13 para 4.</footnote>

<footnote n="15">¹⁵ See also preamble 39. Interestingly enough also temporary agency workers or workers in non-standard form of employment are deemed to be workers of the company for the purpose of this directive. The directive does not specify how these workers should be represented, though.</footnote>
establishment of the company as regards the rights of workers in the supply chain. Can and should local unions and works councils actively defend the interests of workers in other countries who are not members of these unions, nor part of the workforce represented by the works councils? Or is the duty to consult the representatives of the company's employees limited to the effect of the due diligence policy on these employees? In the latter case, the duty might to a large extent overlap with consultation duties that already exist in the relevant national and European instruments.<fnref n="16" /> It is, moreover, not clear how this provision would be effectuated vis à vis companies established outside the EU – who may also be covered by the directive if they do business in the EU.<fnref n="17" />

As the directive contains minimum harmonization on this issue, the Member States may introduce more extensive or specific duties of consultation in their implementing law.<fnref n="18" /> It would be interesting to see how this provision is implemented in the Member States.

The directive itself does not contain any specific provision on the consequences of non-compliance with the duty to consult. Companies should have a notification and complaints procedure, but this procedure is prescribed only when there are ‘legitimate concerns regarding actual or potential adverse impacts’. The access to civil remedies likewise is linked to adverse impacts and is open to victims of such adverse impact.<fnref n="19" /> Natural or legal persons who sustained damage caused by a breach of the duties contained in Articles 10 and 11 are entitled to full compensation and can request an injunction to protect their interests. No such access to court is guaranteed to stakeholders who want to enforce the consultation duties under Article 13.

The only enforcement route open in the directive itself is through the supervising authority. This authority should monitor compliance with the provisions of the directive, including

<footnote n="16">¹⁶ The duty to consult is without prejudice to consultation rights workers might already have under the relevant provision of EU law and national law. Article 13 para 7.</footnote>

<footnote n="17">¹⁷ Compare preamble 30 on the difficulty of using the number of workers employed by the company as a threshold criterion in case of non-EU companies.</footnote>

<footnote n="18">¹⁸ Preamble paragraph 31, Article 4 para 2. The Omnibus directive aims to extend the scope of maximum harmonization but still does not impose maximum harmonization on this issue: see Com(2025)81 p. 17 and Article 4 para 3 of the proposed directive – Com(2025)81 p. 37 ff.</footnote>

<footnote n="19">¹⁹ Article 29 para 1. Member States shall ensure that a company can be held liable for damage caused to a natural or legal person, provided that:</footnote>

<footnote>(a) the company intentionally or negligently failed to comply with the obligations laid down in Articles 10 and 11, when the right, prohibition or obligation listed in the Annex to this Directive is aimed at protecting the natural or legal person; and</footnote>

<footnote>(b) as a result of the failure referred to in point (a), damage to the natural or legal person's legal interests that are protected under national law was caused.</footnote>
Article 7 and Article 13.<fnref n="20" /> Natural and legal persons may submit ‘substantiated complaints’ to the supervising authority. The complainants should receive a response from the authority regarding the assessment of the complaint and should also - if the complainant has ‘in accordance with national law, a legitimate interest in the matter’ - be notified of any action taken against the company. In the latter case, also administrative appeal might be open to them if they find the action taken by the authority to be insufficient.<fnref n="21" /> The possibility for specific action by the representatives of the workers will therefore depend on national law, including the transposition of the directive. National law will not only determine what would constitute a legitimate interest in the context of the administrative procedure, but also under what conditions a trade union or works council would have access to the internal complaint procedure set up by the company and/or the local courts. The Omnibus I proposal doesn’t contain any amendments in this regard. The situation is radically different when it comes to the civil law remedies of Article 29.

## 2.2 Prevention and remediation of harm

Article 29 of the directive contains the rules on civil liability. Under the conditions specified in paragraph 1, natural or legal persons who suffered damage as a result of a breach of due diligence obligations may claim compensation for the damage sustained. Claimants should also be able to request injunctive measures in order to put a stop to the infringement. The latter provision does not specify whether the claimants should also be direct victims.

Article 29 contains rules on civil procedure and conflict of laws, which will not be addressed here, but in sections 3 and 4 of this paper. Relevant for this paragraph is a subparagraph of Article 29 paragraph 3 which deals with representation. If the Omnibus I proposal is accepted, this subparagraph will be deleted in its entirety. The current text reads:

> "Member States shall ensure that [...] (d) reasonable conditions are provided for under which any alleged injured party may authorise a trade union, non-governmental human rights or environmental organisation or other non-governmental organisation, and, in accordance with national law, national human rights' institutions, based in a Member State to bring actions to enforce the rights of the alleged injured party, without prejudice to national rules of civil procedure;

<footnote n="20">²⁰ Article 24 para 1.</footnote>

<footnote n="21">²¹ Article 26.</footnote>
a trade union or non-governmental organisation may be authorised under the first subparagraph of this point if it complies with the requirements laid down in national law; those requirements may include maintaining a permanent presence of its own and, in accordance with its statutes, not engaging commercially and not only temporarily in the realisation of rights protected under this Directive or the corresponding rights in national law;"

Several points stand out in this provision:

First, whereas in the consultation phase the directive recognizes both unions and works councils as stakeholders, the representation in the enforcement stage only refers to trade unions.

Second, the only type of collective action the directive envisages is the one based on authorization / mandate. This is stricter than the requirements for collective action in the Representative Action Directive (RAD) which deals with representative action in consumer cases.<fnref n="22" /> This latter directive allows ‘qualified entities’ to file claims for both injunctive measures and redress measures.<fnref n="23" /> Consent (either explicit or tacit) of the represented consumers is only needed in case the qualified entity seeks compensation.<fnref n="24" /> The right to file for injunctive measures could be seen as a kind of legal mandate (in which the qualified entity still operates on behalf of a group of consumers)<fnref n="25" /> or as an indication that the qualified entity has a legally recognizable interest of its own.<fnref n="26" /> Yet another mechanism which allows a legal entity to bring forth a claim based on mass damages would be assignment of the claims of the individual injured parties to a single entity.<fnref n="27" /> This route is not dealt with in the RAD.

Third, the provision in the CS3D limits (the guarantee of) access to court to organisations based in a Member State. Given that the directive explicitly is meant to cover also the extra-EU activities of European companies, this limitation might pose serious problems as regards the representation of victims resident outside the EU if this hurdle is not overcome by more

<footnote n="22">²² Directive (EU) 2020/1828 of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC (Text with EEA relevance) OJ 2020 L 409/1–27, current consolidated version: 18/07/2024.</footnote>

<footnote n="23">²³ Article 7 para 4 RAD.</footnote>

<footnote n="24">²⁴ Compare Article 8 para 3 with Article 9 para 2 and 3 RAD. We consider both opt-in and opt-out procedures to be mandate based procedures. Compare para 2.2 of the article of Van Duin, Episcopo and Jonkers in this journal.</footnote>

<footnote n="25">²⁵ See for an example in the area of labour law: Article L1235-8 of the French Code du Travail.</footnote>

<footnote n="26">²⁶ See for example Article 3 para 2 of the Dutch code of making collective agreements generally binding (Wet AVV).</footnote>

<footnote n="27">²⁷ See for example CJEU, 25 January 2018, case C-498/16, *Schrems on privacy or CJEU*, 12 February 2015, Case C-396/13 Sähköalojen ammattiliitto as regards the rights of workers under the posting directive.</footnote>
generous national rules.<fnref n="28" /> If the provision is implemented ‘as is’, the local representatives of affected workers (trade unions or otherwise) could be denied access to remedies based on their non-EU domicile. The trade unions in the Member State where the company is established, however, might not have a sufficient mandate to represent foreign workers – even if they would otherwise qualify under Article 29 para 3 sub d.

Lastly, the provision does not contain any rules on (mutual) recognition of representative entities. Again, a comparison with the RAD may be helpful: in that directive representative organization are given a right of collective action for both injunctive and compensatory relief to counter breaches of specific consumer rights included in the Annex to the directive. The directive obliges Member States to create a system of collective redress but doesn't fully harmonize the particulars of such system. It does however contain the requirements entities must meet in order to qualify for commencing cross-border collective actions.<fnref n="29" /> Once an entity is qualified as such by a Member State and listed in the EU register, other states must give the entity standing in their courts for the purpose of defending the protected consumer rights.<fnref n="30" /> The basic requirements for qualification are: legal personality, at least 12 months of actual public activity and a statutory purpose linked to consumer rights, non-profit character, independence, transparency and solvency.

Like the RAD, the CS3D also aims to protect specific rights, listed in the Annex to the directive. But the directive does not contain the requirements an entity must meet in order to qualify for recognition in other Member States. Both preamble 84 and Article 29 of the CS3D state that Member States should provide for reasonable conditions under which any alleged injured party would be able to authorize a trade union, NGO or human rights institution to act on their behalf. These conditions could inter alia relate to permanency of the entities itself and its activities, its statutory goal and non-profit character. The preamble specifies that the provisions on representation in the CS3D ‘should not be interpreted as requiring the Member

<footnote n="28">²⁸ The directive does not contain maximum harmonization on this point and neither does the revised text in the Omnibus directive. For the current text see Article 29 para 6; see for the minimum harmonization character of the directive as such: Preamble n° 17, 31 and 91, and Articles 1 para 3 and 4 para 2. For the Omnibus proposal, see Com(2025)81, Article 4 of the proposed directive. For comments and analysis of these provisions, see amongst many others, N. Touw (2022). Civil liability in the EU proposal for a Corporate Sustainability Due Diligence Directive: a leap forward or stifling progress? Rethinking Secondary Liability for International Crimes. Retrieved from https://rethinkingslic.org/blog/tort-law/117-nicky-touw?highlight=WyJ0b3V3Il0=; Silvia Ciacchi, The newly-adopted Corporate Sustainability Due Diligence Directive: an overview of the lawmaking process and analysis of the final text. ERA-Forum (2024) Volume 25, pages 29–48.</footnote>

<footnote n="29">²⁹ Article 4 para 3 RAD.</footnote>

<footnote n="30">³⁰ Article 6 RAD.</footnote>
States to extend the provisions of their national law on representative actions as defined in [.. the Representative action Directive.. ].' The Member States may however choose to do so, as the directive only contains minimum harmonization on this point.<fnref n="31" /> In the Omnibus directive the issue of representative actions seems to be delegated in its entirety to the Member States.<fnref n="32" />

These provisions suggest that (under the current text of the directive) national requirements as regards the permanency, non-profit character, statutory goal, and previous activities of a representative entity would in principle be considered ‘reasonable’. Neither Article 29 nor the preamble contains any requirement that an entity should be deemed to be qualified – also in cross border cases – if it fulfills these requirements.<fnref n="33" /> Given the practical importance of NGO’s in the enforcement of due diligence obligations, <fnref n="34" /> this is a missed opportunity. The regulatory deficit only increases if the Omnibus I proposal is accepted as the provision on representation is deleted in its entirety. Any regulation of representation would in that case be left to the Member States.

## 2.3 Recommendation

Most of the provisions on representation in the directive were added later in the legislative process.<fnref n="35" /> The fact that trade unions are given a prominent role in the final text of the directive is in itself positive. However, this role is underdeveloped and not always thought through sufficiently – especially as regards the cross-border implication thereof. The guidelines of the European Commission may offer clarification on some of the problematic points but cannot change the text of the directive and the rights and duties contained therein.
As the relevant provisions largely have a minimum harmonization character, some of the open questions might be addressed in the national implementation laws. In particular,

<footnote n="31">³¹ On this question, see recently, A. Danis-Fatôme, « Le devoir de vigilance des sociétés : les sanctions infligées aux sociétés (responsabilité civile ; autorité de contrôle) », in B. Lecourt (dir.), *Le devoir européen de vigilance des sociétés*, Dalloz, 2025.</footnote>

<footnote n="32">³² Com(2025)81 p. 20.</footnote>

<footnote n="33">³³ Even if the CS3D is included in the annex to RAD, this will not solve the problem for trade unions, as the RAD is limited to consumer organizations: see Article 3 para 4 RAD.</footnote>

<footnote n="34">³⁴ The French experience on the implementation of the law on the “devoir de vigilance” (L. n° 2017-399 relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre) shows that NGOs are part of almost every case before national judges. See Anne Danis-Fatôme, Tatiana Sachs, ‘La quête d’un devoir de vigilance effectif : la voie contentieuse s’ouvre (enfin!)’, [2024] 31 Recueil Dalloz 1556.</footnote>

<footnote n="35">³⁵ Procedure file 2022/0051(COD). Compare Com(2022)71 to Report of the EP - A9-0184/2023. Not all changes proposed by the EP in first reading made it to the final text.</footnote>
Member States, when implementing the CS3D, might consider introducing the following provisions:

- Rules and procedure to assess the adequacy of the stakeholder involvement ex Article 13.

- Standing of both national and foreign trade unions in case of breaches of Article 10 and 11 with a light regime in cases limited to injunctive relief.

Inspiration for the latter may be found in the requirements imposed on consumer organization in the RAD.<fnref n="36" /> These requirements however, do not address the prerequisite of having a legitimate interest in the procedure: do trade unions have a legally relevant interest in the enforcement of due diligence obligations, both in general and particularly where they touch upon workers' rights? And if so, what claims can they enter and on which grounds? The CS3D directive delegates these points to national law. Comparative research may be needed to see whether there is some common ground on this latter issue.<fnref n="37" />

### 3. Choice of law<fnref n="38" />

#### 3.1 The due diligence duty as a many headed monster

The due diligence directive obliges companies to introduce specific risk assessment procedures into their company policy. It also mandates meaningful consultation with relevant stakeholders. If a risk is identified and has manifested itself, the company has a duty to act – to prevent, terminate, mitigate or remedy it. The mixed character of the obligations brings the directive in the realm of different legal subfields, which traditionally have their own classification in private international law. This is a first obstacle to our analysis. The requirements as to the policy of the company may be seen as impinging on company law rules with regard to the purpose of the company and the duty of directors. The rules on

<footnote n="36">³⁶ However, legal personality might be a hurdle not all unions can take – for example: the trade unions in Belgium do not have (full) legal personality. See https://leglobal.law/countries/belgium/employment-law/employment-law-overview-belgium/10-trade-unions-and-employers-associations/.</footnote>

<footnote n="37">³⁷ French law, for example, opens for a wide array of actions, in particular since Article L. 2132-3 of the Code du travail allows Union to take legal action against any act which “directly or indirectly harm the collective interest of the profession they represent”. Another example would be Finnish law, as described in the Sähköalojen ammattiliitto case (CJEU 12 February 2015, Case C-396/13), which allows for Union action based on assignment of claims. In Dutch law, the unions have an autonomous right to enforce collective agreements (Article 15 of the law on collective action, Wet CAO) and generally binding agreements (Article 3 of the law on making collective agreements generally binding, Wet AVV). They can also act as representatives within the system of collective action (WAMCA, Art 3:305a of the Civil Code).</footnote>

<footnote n="38">³⁸ Section 3 and 4 are inspired by and adapted from a previous article : Etienne Pataut, ‘Le devoir de vigilance – Aspects de droit international privé’ [2017] 10 Droit Social 833.</footnote>
consultation, on the other hand, interact with workers participation rules – as is
acknowledged in paragraph 65 of the preamble. The duty to formulate a code of conduct,
which is part of the due diligence obligation in Article 7 par 2 sub b directly affects
employees, who will be duty bound to implement and respects such codes under their
employment contracts. In some Member States this aspect would be subject to workers
participation as well.<fnref n="39" /> Finally, the duty towards (potential) victims of harm can be seen as a
species of the duty of care (of both the company itself and its directors), leading – when
breached - to tort liability. The directive is not overly specific on the exact character of the
duties imposed nor is it clear about the private international law implications thereof. But it
does contain some information as to the international scope of application of its provision.

## 3.2 Scope of the directive

Article 2 of the directive defines the scope of application of the directive itself by specifying
which companies are subject to its obligations. According to paragraph 1 of this Article, the
directive is applicable to “companies which are formed in accordance with the legislation of a
Member State” that fulfil certain requirements as to both turnover and number of
employees.<fnref n="40" /> This part of the scope seem to place the directive in the realm of company law,
by referring to companies established under the law of a Member State (which will be
referred to below as EU companies). In contrast to similar national laws,<fnref n="41" /> the directive
doesn’t use the seat (be it real or statutory) as the point of entry nor does it specify which law
should apply in case the company has seats in different states. Article 24, however, states that
the country where a company has its registered office should supervise the implementation of
the due diligence obligations by that company.<fnref n="42" />

The application of the directive is not limited to EU companies, though. It also applies to
companies, “formed in accordance with the legislation of a third country” that meet the

<footnote n="39">³⁹ See for example (albeit indirectly) Article 25 para 1 sub 1 and Article 28 para 4 of the Dutch law on works council (Wet op de ondernemingsraden) on the role of works councils in protecting the environment: https://performa-or.nl/faq/kan-de-bestuurder-zomaar-een-gedragscode-invoeren/; in France, see for example the obligation to consult the works council for the adoption of an internal code of conduct : L. 1321-4 Code du travail.</footnote>

<footnote n="40">⁴⁰ Article 2 para 1: more than 1 000 employees on average and a net worldwide turnover of more than EUR 450 000 000. The threshold may also be reached by a group of companies or a franchise network.</footnote>

<footnote n="41">⁴¹ E.g. the French law on the devoir de vigilance or the German *Lieferkettensorgfaltspflichtengesetz* are limited to companies which have their seat in their respective countries and, in the German case, having a branch in Germany.</footnote>

<footnote n="42">⁴² Article 24 para 2.</footnote>
threshold requirement as to turnover in the EU.<fnref n="43" /> This is the real innovation of the directive compared to existing national laws on due diligence: it also imposes obligations on companies that do not have their seat, or even branches (Article 2 para 7) in the EU and that are constituted under a non-EU legal system. This so-called extraterritorial objective is clear, and sometimes criticized from the third countries perspective.<fnref n="44" />

In that case the application of the directive is based on the economic activity of the company on the EU market without any reference to the legal structure of the company.<fnref n="45" /> This deviates from the trend in company law. The case law of the Court of justice<fnref n="46" /> and many private projects<fnref n="47" />, clearly favour the applicability of the law of the statutory seat to the internal workings, including the overall policy of companies.

The directive takes a completely different route, following autonomous criteria and thus separating the due diligence obligations (at least in part) from the law applicable to the company. The idea of separating the due diligence obligations from the *lex societatis* is not entirely new. Application of EU law based on the activities of a company in the international market is not uncommon when it comes to regulating its activities on the market – e.g. in competition law or data protection law. The duty to integrate due diligence in corporate policy, however, seems to affect the internal workings of the company. That element is usually governed by the law applying to the company as such. That is why some projects favour a specific exception, according to which rules on Corporate social responsibility fall outside the scope of the *lex societatis*.<fnref n="48" />

In the directive, it is not entirely clear yet how this specific scope of application falls into the classic private international law categories. The directive does not give any specific answer,

<footnote n="43">⁴³ Article 2 para 2: more than EUR 450 000 000. The number of employees does not play a role here.</footnote>

<footnote n="44">⁴⁴ See e.g the protest of Qatar against application of the Directive to their LNG export. https://www.reuters.com/business/energy/minister-says-qatar-will-stop-eu-gas-sales-if-fined-under-due-diligence-law-ft-2024-12-22/ and the letter of the US Chamber of Commerce Coalition https://www.uschamber.com/finance/u-s-chamber-of-commerce-coalition-letter-to-congress-voicing-concerns-over-eu-corporate-sustainability-due-diligence-directive.</footnote>

<footnote n="45">⁴⁵ See preamble paragraph 16, referring to ‘companies active in the internal market’.</footnote>

<footnote n="46">⁴⁶ Lastly: CJEU, 25 April 2024, Case C-276/22, *Edil Work*.</footnote>

<footnote n="47">⁴⁷ GEDIP, “Draft Rules on the law applicable to companies and other bodies”, adopted at the Milan session in September 2016, available at: http://www.gedip.egpil.eu. On this draft, see Francisco Garcimartin Alferez, ‘GEDIP’s proposal on the law applicable to companies’ [2016] *Riv. Di Dir. Int. Priv. e Proc.* 949 at 968; Carsten Gerner-Beurle, Federico Mucciarelli, Edmumd-Philipp Schuster and Mathias Siems, ‘Study on the law applicable to companies’, [2016] available at: https://publications.europa.eu/en/publication-detail/-/publication/259a1dae-1a8c-11e7-808e-01aa75ed71a1/language-en.</footnote>

<footnote n="48">⁴⁸ E.g. GEDIP project, op. cit., Article 1 para 3.</footnote>
but the very nature of the scope rule included in Article 2 tends to show that the obligations
laid down by the directive should be considered as international mandatory rules – having an
overriding effect with regard to non-EU companies. Overriding mandatory provisions are
now common in European private international law, as shown by Article 9 of the Rome I
Regulation or Article 16 of the Rome II Regulation.<fnref n="49" /> These Articles allow for the
application of the law of the forum when the law normally applicable does not achieve the
particularly important aim of the specific forum rule. It is moreover not uncommon to give
mandatory rules in EU directives external effect by treating them as overriding mandatory
provisions.<fnref n="50" /> It is therefore possible, in corporate matters, to impose the application of
European law on companies which, although not governed by European law, present a
sufficiently close link with the European legal system to justify the application of European
legislative policy.<fnref n="51" />

Through its double-headed scope the directive will have a very strong level playing field
effect on the whole EU market, in spite of the great liberalization of the law applicable to
companies. It is clear, as has been remarked, that the liberalization and enhancement of party
autonomy coming with the expansion of the statutory seat theory has a counterpart in the
reduction of the domain of the *lex societatis*.<fnref n="52" /> The directive is a striking example of that new
balance. This aspect of the CS3D will not change if the Omnibus I directive is adopted as is.

3.3 Civil liability

Civil liability for companies that fail to act in accordance with their obligations under the
CS3D and in doing so, cause harm to natural or legal persons (and/or the environment) in the
supply chain, will in most likely sound in tort for private international law purposes. We will
therefore focus the discussion on the private international law rules pertaining to tort, and in

<footnote n="49">⁴⁹ Council Regulation (EC) 593/2008 of 17 June 2008 on the law applicable to contractual obligations (Rome I), [2008] OJ L 177/6–16 and Council Regulation (EC) 864/2007 of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), [2007] OJ L 199/40–49. A possible codification of conflict of laws in corporate matters would probably also leave room for internationally mandatory rules, as evidenced by Article 10 of the GEDIP project, which also specified in Article 1 para 3 that “This Regulation does not prejudice the fulfilment of the obligations deriving from social responsibility of companies (corporate social responsibility) as defined by national, European or international norms.”</footnote>

<footnote n="50">⁵⁰ See for example ECJ, 9 November 2000, case C-381/98, *Ingmar*.</footnote>

<footnote n="51">⁵¹ As the overriding mandatory element only affects non-EU companies, there is little risk of this application (which is based on EU law to begin with) would run counter to the market freedoms as specified in CJEU, September 30, 2003, Case C-167/01, *Inspire Art*.</footnote>

<footnote n="52">⁵² Louis D'Avout, 'L'entreprise et les conflits internationaux de lois' [2019] 397 *Recueil des Cours de l'Académie de La Haye* 226.</footnote>
particular on the interaction between the provisions of the CS3D and the Rome II regulation.<fnref n="53" />

The Omnibus directive proposal, however, diverges from the original project. As it currently stands, Article 29 para 1 contains a specific provision providing for an EU-wide civil liability regime. The new project intends to suppress this regime, falling back only on national laws of the Member States. Should the new text be adopted, Member States will be under no obligation to create specific civil liability rules. This would indeed be an important step backward from the original project, even though in its present state, the provision on civil liability shows some important weaknesses.

Currently, the provision on civil liability specifies that:

> "Member States shall ensure that a company can be held liable for damage caused to a natural or legal person, provided that:

> (a) the company intentionally or negligently failed to comply with the obligations laid down in Articles 10 and 11, when the right, prohibition or obligation listed in the Annex to this Directive is aimed at protecting the natural or legal person; and

> (b) as a result of the failure referred to in point (a), damage to the natural or legal person's legal interests that are protected under national law was caused."

This provision already contains some important limitations: only damage caused to natural or legal persons is covered, seemingly leaving out damage to the natural environment unless the natural environment itself has legal personality<fnref n="54" /> or (in a more generous reading of the provision) national procedural law allows for some form of representation by NGOs, trade unions or other stakeholders.

The claim must be based on a right, prohibition or obligation listed in the Annex – which as we mentioned earlier does include important labour rights, amongst which the rights of association and collective negotiation. The rights a claimant wants to rely on must furthermore be aimed at protecting the person claiming damages. Given these restrictions it is

<footnote n="53">⁵³ Infringements of fundamental rights would seem to qualify as torts, independent of any pre-existing contractual relations between the tortfeasor and the victim. The due diligence duties themselves are likewise independent from any kind of contractual link between the company and the 'beneficiaries' of the obligation. As, moreover, the damage to individuals will most likely be done lower in the supply chain, a contractual link between the duty bearing company and the victims will in most cases not be present.</footnote>

<footnote n="54">⁵⁴ See for examples: https://en.wikipedia.org/wiki/EnvironmentalPersonhood.</footnote>
questionable whether trade unions would ever be able to claim damages in their own right.
They might in some systems be considered the (co-)beneficiaries of the collective labour
rights.<fnref n="55" /> But as to other basic rights connected to labour, they will most likely only be able to
act on behalf of the workers they represent. In any case, should the Omnibus directive be
adopted, the question will be answered only by national law, since the general standards set
forth for the actions of trade unions in Article 29 para 3 sub d are deleted (see par. 2.2 of the
present article).

The tortious nature of the action leads to the application of the general text governing the
matter: the Rome II regulation. This regulation offers a range of solutions which will not
always lead to the application of the law of a Member State.

The general rule is contained in Article 4 of the Regulation, according to which the law
applicable in principle is the law of the place where the direct damage occurred – the *lex loci
damni*. This rule has the drawback of allowing potential perpetrators of harmful acts to place
certain risky activities in the territory of states whose rules of civil liability are not
excessively severe.<fnref n="56" /> Legal optimization can be found in all fields.

Since the aim is to make parent companies and principals accountable for their actions (or
rather non-actions), the search for liability is by its very nature focused on the conduct of the
perpetrators.<fnref n="57" /> It would therefore be particularly appropriate to apply the law of the causal
event to offences of this kind. This is however not the basic rule of the Rome II regulation as
it stands, since Article 4 primarily refers to the place of the damage.

Rome II holds an exception to the *lex loci damni* rule in case of environmental damage. Here,
the desire to move away from the traditional neutrality of the conflict-of-laws rule has led to
the adoption of a provision whose clearly substantive objective is to protect both the victim
and, beyond the victim, the environment as a whole. To achieve this, Article 7 of the
regulation offers the victim the option to choose between the law of place of the damage and
the law of the place of the event giving rise to it. As far as the directive is aimed at companies

<footnote n="55">⁵⁵ Compare with regard to the right to strike Filip Dorssemont & Aukje van Hoek (2011), ‘Collective action in labour conflicts under the Rome II regulation (part I). *European Labour Law Journal*, 2(1), 48-75. http://www.ellj.eu/pdf_file/ITS/ELLJ_02_01_0048.pdf paragraph 2.4 at 70-71. For France, see Article L2132-3 Code du Travail.</footnote>

<footnote n="56">⁵⁶ European Commission: Directorate-General for Justice and Consumers, British Institute of International and Comparative Law (BIICL), Civic Consulting, Migliorini, S., Lein, E. et al., Study on the Rome II Regulation (EC) 864/2007 on the law applicable to non-contractual obligations, Publications Office of the European Union, 2021, https://data.europa.eu/doi/10.2838/399539 p. 11.</footnote>

<footnote n="57">⁵⁷ The rule of Article 4 is more focused on compensation and the distribution of risks and losses.</footnote>
headquartered in Europe, the obligation to draw up a due diligence plan and, when necessary, act upon it to prevent or remediate harm, is located in an EU Member State, hence on European territory. Where the absence of a due diligence plan has led to environmental damage, it will therefore be possible to hold the parent or principal company liable in Europe under the law of a Member State, including where relevant any incorporated rules of European law. The situation is less clear with regard to non-EU companies covered by the Directive, though.

The Rome II regulation, however, provides no similar provision which could be used to enforce the due diligence obligations in the social field. If the damage caused falls outside the field of environmental law, the choice of law rule would lead to the application of a non-EU legal system as soon as the direct damage is located outside the EU. As the main innovation of the directive is precisely to consider the entire behavior of the group and its partners, also where it affects the Global South, the solution offered by the Rome II regulation is very unsatisfactory.

This is why Article 29 of the CS3D has a specific provision on the applicable law, the only pure private international law provision in the text. This provision, Article 29 para 7 states that:

> "Member States shall ensure that the provisions of national law transposing this Article are of overriding mandatory application in cases where the law applicable to claims to that effect is not the national law of a Member State."

The exact ambit of this provision remains however somewhat blurry. The vocabulary used in the directive, and the general doctrine of restrictive interpretation of the concept of international mandatory rules<fnref n="58" /> suggests that this sentence should not be given too wide an interpretation. However, the liability provision in the directive itself does not deal with all aspects of tort law. This could lead to severe difficulties, if the European provisions on civil liability should then be coordinated with the possibly foreign law of the tort (applicable for example to damages or remedies, which are not fully dealt with in Article 29), because of Article 4 of the Rome II convention. The exact interpretation of the provision on liability and

<footnote n="58">⁵⁸ On which, see recently CJEU, 5 September 2024, case C-86/23, *HUK-COBURG-Allgemeine Versicherung II*.</footnote>
its interaction with national law is not made easier by the recitals, in particular recital 90,<fnref n="59" />
which uses general formulas that are difficult to construe.

This is the reason why some argued in favor of a special (multilateral) choice of law rule,
either in the directive or as an amendment to the Rome II regulation.<fnref n="60" /> This solution has not
been adopted by the European legislator – thus far. Obviously, lawyers have a great deal of
work to do in order to transform the directive in a workable instrument.

The Omnibus project suggests deleting Article 29 para 7. This proposal is consistent with the
new aim of the text, which is to suppress altogether the general civil liability rule of Article
29 para 1. Therefore, the possible characterization of the tort rule as an international
mandatory provision will be left to national laws, under scrutiny of the ECJ since, as far as
tortious responsibility is concerned, the Rome II regulation is still applicable.

This does not mean that the Directive will no longer have an impact on tortious liability. The
effect on international cases, however, will be even more complex and will vary depending
on the specific aspect of tortious liability involved. Whether companies are under a duty to
perform due diligence and offer remedies in case of harm will still be still determined by the
scope of the directive itself (see paragraph 3.2). Article 29 will still contain a right to full
compensation (para 2) which would seem to apply to all infringements of the duty imposed
by the directive - as long as liability has been established under the applicable national law.
Article 29 para 3 will still contain minimum rules on limitation periods (subparagraph a) the
cost of procedures (subparagraph b), the right to seek injunctive measures (subparagraph c) as
well as rules on disclosure of evidence (subparagraph d). Especially as regards the statute of
limitation – which under Rome II would be part of *lex causae* (Article 15 sub h) – it is

<footnote n="59">⁵⁹ "In order to ensure that victims of human rights and environmental harm can bring an action for damages and claim compensation for damage caused when the company intentionally or negligently failed to comply with the due diligence obligations stemming from this Directive, this Directive should require Member States to ensure that the provisions of national law transposing the civil liability regime provided for in this Directive are of overriding mandatory application in cases where the law applicable to such claims is not the national law of a Member State, as could for instance be the case in accordance with international private law rules when the damage occurs in a third country. This means that the Member States should also ensure that the requirements in respect of which natural or legal persons can bring the claim, the statute of limitations and the disclosure of evidence are of overriding mandatory application. When transposing the civil liability regime provided for in this Directive and choosing the methods to achieve such results, Member States should also be able to take into account all related national rules to the extent they are necessary to ensure the protection of victims and crucial for safeguarding the Member States' public interests, such as its political, social or economic organisation"</footnote>

<footnote n="60">⁶⁰ See Procedure file 2022/0051(COD); also GEDIP, Recommendation of the European Group for Private International Law (GEDIP/EGPIL) to the European Commission concerning the Private international law aspects of the future Instrument of the European Union on [Corporate Due Diligence and Corporate Accountability 2021](https://gedip-egpil.eu/wp-content/uploads/2021/02/Recommandation-GEDIP-Recommendation-EGPIL-final-1.pdf).</footnote>
currently unclear whether the provisions in the directive (as implemented in national law)
may or even should override more restrictive provisions, for example with shorter limitation
periods, in the applicable law. 29 para 3 sub a only requires the MS to make sure their
national law complies with the requirements contained in the directive.

4. Jurisdiction over civil liability claims.

Several attempts were made to deal directly with the jurisdiction questions the provision on civil liability elicits – either by including private international law provisions in the directive itself or by amending the Brussels I bis Regulation.<fnref n="61" /> A specific ground of jurisdiction based on the applicability of the directive, as was done in the posting of workers directive, could have been added to the text.<fnref n="62" /> Regrettably, the European legislator did not follow this example and, as it stands, the issue of jurisdiction is not regulated at all in the directive, leaving any questions on this matter to be decided by the normal EU and/or national rules.

The first instrument of relevance here is the Brussels I bis regulation.

There is little doubt that civil liability actions come within the scope of this regulation. The
most relevant provisions will be the general rule of Article 4 – giving jurisdiction to the
courts of the state in which the defendant is domiciled. This rule is now so universally
accepted in Europe that one may forget that it can still play a fundamental role in ensuring
respect for social rights in a globalized world.<fnref n="63" /> The competence of the courts of the State of
the domicile of the defendant allows for jurisdiction in an EU Member State against
European parent companies with subsidiaries and chains of commerce in the whole world.<fnref n="64" />
The other grounds of jurisdiction specified in the regulation are less promising though.

<footnote n="61">⁶¹ See e.g. the GEDIP 2021 project (footnote 60); Ralf Michaels and Antonia Sommerfeld, ‘The EU Sustainability Directive and Jurisdiction’ https://conflictoflaws.net/2023/40963/; see for corporate human rights abuses in general A. Marx e.a *Access to legal remedies for victims of corporate human rights abuses in third countries*, Study requested by the DROI committee, Policy Department for External Relations Directorate General for External Policies of the Union PE 603.475 - February 2019.</footnote>

<footnote n="62">⁶² Council Directive 96/71/EC of 16 December 1996 concerning the posting of workers in the framework of the provision of services OJ L 18/1–6, as amended by Directive (EU) 2018/957 of 28 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services OJ L 173/16–24, Article 6.</footnote>

<footnote n="63">⁶³ Olivier de Schutter, ‘Le contrôle du respect des droits de l’homme par les sociétés transnationales: le rôle de l’Etat d’origine’, in: Marie-Ange Moreau et al. (dir.), *Justice et mondialisation en droit du travail* (Dalloz 2010), at 107.</footnote>

<footnote n="64">⁶⁴ European Commission: Directorate-General for Justice and Consumers, Milieu SRL, Rass-Masson, N., Rouas, V., Paron Trivellato, M. et al., Study to support the preparation of a report on the application of Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and</footnote>
It is a well-known problem of the Brussel 1 bis regulation that there is no specific jurisdiction
rule for collective redress or any type of collective actions.<fnref n="65" /> Legal action taken by a trade
union must therefore follow the general rules of the Regulation. When the union is (seen to
be) acting as a representative of a group of plaintiffs, jurisdiction has to be vested in the same
court for all underlying claims.<fnref n="66" /> Because claims against non-complying companies will most
likely sound in tort,<fnref n="67" /> we concentrate our discussion on 7 para 2.<fnref n="68" /> Article 7 para 2 opens up a
choice for the plaintiff, between the (EU) domicile of the defendant and the place where the
harmful event occurred. This ground for jurisdiction covers both the place where the
wrongful act occurred and the place where the direct damage was sustained – at the choice of
the plaintiff. The second alternative is likely to be of little help in the case of actions deriving
from the directive. Experience shows that the direct damage will in most cases be located
outside the EU. This will therefore not allow for jurisdiction of the courts of a Member State.
The place of the wrongful act is more promising at first sight – as the act lying at the basis of
the claim is the duty of due diligence, which can be located in the EU. However, this ground
of jurisdiction will most likely coincide with the Article 4, giving jurisdiction to the country
of domicile of the company, at least for EU companies.

As supply chain liability is likely to involve more than one company, it is relevant that Article
8 para 1 allows for the joinder of multiple defendants in the domicile of one of them.
However, also this provision is only available if the co-defendants have their domicile in the
EU.

<footnote>commercial matters (Brussels Ia Regulation) – Final report, Publications Office of the European Union, 2023, https://data.europa.eu/doi/10.2838/14604, p. 219 contains a caution that the new rule on lis pendens for third country proceedings may become a complication factor. See also M. Requejo Isidro, ‘Business and Human Rights Abuses: Claiming Compensation under the Brussels I Recast’, *Human Rights & International Legal Discourse*, Vol. 10, No 1, 2016, p. 77 and 92.</footnote>

<footnote n="65">⁶⁵ See, the study cited in footnote 64, p. 229/230; Opinion of Advocate General Bobek in Maximilian Schrems v Facebook Ireland Limited, C-498/16, para 123 and Eva Lein et al., *Collective redress in Europe: why and how?* (BIICL 2015).</footnote>

<footnote n="66">⁶⁶ See the study cited in footnote 64, p. 231.</footnote>

<footnote n="67">⁶⁷ Actions based on a self-standing right of unions to enforce labour law will sound in tort (in absence of any contractual relationship between the union and the company). Actions on behalf of and/or in the name of affected workers will also most likely sound in tort – in all cases in which the content of the contract is irrelevant for the obligation that forms the basis of the claim.</footnote>

<footnote n="68">⁶⁸ Collective actions may also raise complicated issues with regard to lis pendens and related actions (Articles 29-34 Brussels I bis Regulation. However, this issue is outside the scope of the current article. See extensively N. Touw & I. Tzankova, ‘Parallel actions in cross-border mass claims in the EU: A (comparative) lawyer’s paradise?’ *NIPR* 2023(1) p 9-30,</footnote>
This means that both the general rule of Article 4 and the special rules of Articles 7 para 2 and 8 para 1 only apply in the intra-EU context.<fnref n="69" /> If a defendant is not domiciled in the EU, the Brussels I bis regulation refers the question of jurisdiction back to national law. This is widely seen as one of the great flaws of the regulation – both in general<fnref n="70" /> and in particular when it comes to the enforcement of the CS3D.<fnref n="71" /> As we discussed, the directive also applies to non-EU companies that realize a certain net turnover in the EU (Article 2 para 2). The possibility to sue these companies in an EU Member State for not respecting the obligations set forth by the directive will depend on the national jurisdiction rules of the court seized. This will not only lead to differences from one country to the other but might also lead to major enforcement lacunae, especially as regards damage sustained outside the EU. Many countries in Europe do not provide for a jurisdiction ground when both the domicile of the defendant and the place of the damage are located outside the territory.<fnref n="72" />

On the whole, both the absence of any specific jurisdiction for collective actions and the limitation of the geographical scope of the Brussels I bis regulation could pose major difficulties when it comes to litigating the infringement of the CSDD directive.

Negotiations over a new recast of the Brussel I bis regulation will take place soon, and the general report of the European Commission on the matter has just been made public.<fnref n="73" />

One of the outcomes of these negotiations could be a specific rule on collective redress, which would be available to Trade Unions. Another outcome could be the extension of the

<footnote n="69">⁶⁹ As we limit ourselves to civil liability claims, we will not discuss the relevance (if at all) of the exclusive jurisdiction in matters of company law.</footnote>

<footnote n="70">⁷⁰ See, recently, Tobias Lutzi, Ennio Piovesani et Dora Zgrabiljic Rotar (Eds), *Jurisdiction over non-EU defendants – Should the Brussels Ia Regulation be Extended?* Studies in Private International Law, Hart Publishing 2023.</footnote>

<footnote n="71">⁷¹ Interestingly enough the seat of the company as such doesn't figure in the scope of application of the directive – which is based on the law applicable to the legal entity. Companies incorporated under the law of an EU Member States will however have a domicile in the EU, either through their statutory seat or through their real seat (center of business or center of administration).</footnote>

<footnote n="72">⁷² Olivera Boskovic, ‘Extraterritoriality and the proposed directive on corporate sustainability due diligence, a recap’ [2024] 20 Journal of Private International Law 117-128, at 120. More generally, in matters of tort, see Arnaud Nuyts, ‘Study on residual jurisdiction, (Review of the Member States’ Rules concerning the ‘residual jurisdiction’ of their courts in civil and commercial matters pursuant to the Brussels I and II Regulations) - General Report’, 3 September 2007, available at: https://gavclaw.com/wp-content/uploads/2020/05/arnaud-nuyts-study_residual_jurisdiction_en.pdf., specifically pp. 32 et seq. on torts.</footnote>

<footnote n="73">⁷³ Report from the Commission to the European Parliament, the Council and the European economic and social committee on the application of 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 (recast), Com(2025)268, of 02/06/2025.</footnote>
geographical scope of application of the regulation, as was already suggested by the Commission in 2010.<fnref n="74" /> This would provide a very good opportunity to allow for new grounds of jurisdiction and, it is to be hoped, a more general *forum necessitatis*, now common in European PIL regulations, which would considerably help the effectiveness of the directive, in the regrettable absence of a specific ground of jurisdiction in the directive itself.

### 5. Conclusions

The CSDD directive clearly recognizes the relevance of trade unions with regard to both the formulation of the due diligence policy of major companies and the monitoring and enforcement of the duties contained in the directive. But as to the effectuation of this role much is left to national law. Some basic rules – inter alia – as regards mutual recognition of standing requirements, seem necessary to make the directive fully effective in this regard.

The obligations in the directive straddle multiple private international law categories, leading to complex puzzles of applicable law. The scope of the directive itself is a mix of reference to the law applying to the company and an overriding element based on activities on the EU market. In its present state, the provision on civil liability is specifically characterized as overriding mandatory and hence applies in all cases to which the directive as a whole applies. When damage is sustained outside the EU, this calls for complex coordination between the law of the country where the direct damage occurred (applicable under Rome II) and the liability rules in the directive itself. Should the Omnibus project be adopted, the question will be largely left to national law. Once again, this is a major step backward from the original project, in spite of its many ambiguities.

The major problem with regard to jurisdiction is the limited scope of application of the Brussels I bis Regulation – which restrict itself by and large to situations in which a company domiciled in the EU is the defendant. Enforcement of the directive against non-EU companies might turn out to be problematic – thereby undermining the harmonizing effect of the directive. Active enforcement by the supervising authorities might mitigate this problem but a change of EU jurisdiction rules in the upcoming revision of the Brussel I bis Regulation seems advisable.

<footnote n="74">⁷⁴ European Commission, 'Proposal for a regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters' Com(2010) 748 Final of 14 December 2010.</footnote>