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13 Nov 2023

German Institute for Human Rights (DIMR)

German Institute for Human Rights outlines key access to justice elements in EU due diligence directive including relaxation of burden of proof

[...] Against the background of potential implications under German law, the Institute summarizes key access to justice elements for both the design and transposition of the CSDD Directive and points out that the civil liability and administrative supervision clauses should entail the following elements:

  • Burden of proof: relaxation of the burden of proof, ideally by implementing a reversal of burden of proof, but at least by referring to a duty of disclosure of evidence including its conditions
  • Injunctive measures: rule on injunctive measures for the time between the discovery of damage and settling of a case.
  • Representation: right for organisations to act in their own name on behalf of rightsholders in courts
  • Limitation period: clear requirements for all Member States for starting of limitation period with the discovery of damage, as well as clear conditions for the suspension of the limitation period
  • Definition of “adverse human rights impact”: as “any action which removes or reduces the ability of an individual or group to enjoy the rights or be protected by the prohibitions enshrined in international conventions and instruments listed in the Annex”. Furthermore, annex must be up for amendments in future revision processes and include a comprehensive list of relevant and globally ratified human rights instruments
  • Administrative supervision: supervisory authorities must establish easily accessible channels for submitting information about human rights and environmental violations. National laws must include the possibility for affected persons to be represented during submission proceedings [...]