58

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Towards a mandatory EU system of due diligence for supply chains

22-10-2020

The growth of international supply chains has undoubtedly brought enormous benefits to developing countries, but at the same time it has had certain negative impacts, relating for instance to violations of human and labour rights, including forced labour and child labour, environmental damage, land grabbing, and corruption. Multinational companies have gained unprecedented power, creating asymmetries in relation to weak regulation and enforcement in developing countries. For several decades, multinational ...

The growth of international supply chains has undoubtedly brought enormous benefits to developing countries, but at the same time it has had certain negative impacts, relating for instance to violations of human and labour rights, including forced labour and child labour, environmental damage, land grabbing, and corruption. Multinational companies have gained unprecedented power, creating asymmetries in relation to weak regulation and enforcement in developing countries. For several decades, multinational companies have been encouraged to take responsibility for their supply chains on a voluntary basis. Whereas in some sectors, where violations have been most egregious, particularly in the extractive industries or in timber extraction, mandatory frameworks have already been adopted at EU level, for others it was hoped that the voluntary approach, guided by several international frameworks, would suffice. The evidence available, however, from academic research, civil society organisations, implementation of the EU Non-financial Reporting Directive, and studies commissioned by the EU institutions, has made it clear that the voluntary approach is not enough. Against this background, many voices consider that the EU should adopt mandatory due diligence legislation. Human rights and the environment stand out as two areas where such legislation would be both most needed and most effective. Beyond its expected intrinsic positive impact, such legislation would have important advantages, such as creating a level playing field among all companies operating on the EU market, bringing legal clarity, and establishing effective enforcement and sanction mechanisms, while possibly improving access to remedy for those affected, by establishing civil and legal liability for companies. The European Commission has undertaken some preliminary steps, including publishing a study and conducting public consultations, towards a possible legislative initiative on mandatory due diligence. Its 2021 work programme includes a proposal for a directive on sustainable corporate governance that would also cover human rights and environmental due diligence.

Human Rights Due Diligence Legislation - Options for the EU

24-04-2020

The European Parliament (EP) has repeatedly underlined the need for stronger European requirements for companies to prevent human rights abuses and environmental harm and to provide access to remedies for victims. The debate — both in the EU institutions and in several Member States — has intensified surrounding due diligence obligations for companies throughout the supply chain. In this context, the EP Human Rights Subcommittee (DROI) requested two briefings on specific human rights related issues ...

The European Parliament (EP) has repeatedly underlined the need for stronger European requirements for companies to prevent human rights abuses and environmental harm and to provide access to remedies for victims. The debate — both in the EU institutions and in several Member States — has intensified surrounding due diligence obligations for companies throughout the supply chain. In this context, the EP Human Rights Subcommittee (DROI) requested two briefings on specific human rights related issues it should consider while preparing its position. The first briefing in this compilation addresses substantive elements, such as the type and scope of human rights violations to be covered, as well as the type of companies that could be subject to a future EU regulation. The second briefing discusses options for monitoring and enforcement of due diligence obligations, as well as different ways to ensure access to justice for victims of human rights abuses. The briefings offer a concise overview and concrete recommendations, contributing to the ongoing debate and taking into account the research undertaken on behalf of the European Commission.

Autor externo

Prof. Dr. Markus KRAJEWSKI, Beata FARACIK, Claire METHVEN O’BRIEN, Olga MARTIN-ORTEGA

Substantive Elements of Potential Legislation on Human Rights Due Diligence

24-04-2020

This briefing provides an overview of the existing legislative approaches to mandatory Human Rights Due Diligence and proposals by non-state actors, concerning the scope of potential European Union (EU) legislation on binding human rights due diligence (HRDD) obligations for companies. The briefing discusses key substantive elements of potential EU HRDD legislation including options for human rights covered by the due diligence requirement; types of violations; specific references regarding women ...

This briefing provides an overview of the existing legislative approaches to mandatory Human Rights Due Diligence and proposals by non-state actors, concerning the scope of potential European Union (EU) legislation on binding human rights due diligence (HRDD) obligations for companies. The briefing discusses key substantive elements of potential EU HRDD legislation including options for human rights covered by the due diligence requirement; types of violations; specific references regarding women and persons in vulnerable situations and the duties of companies to respect and protect human rights. It is recommended that a potential EU HRDD legislation should comprise all human rights and cover all types of violations. The legislation should refer to additional duties, which can be based on existing human rights treaties and instruments such as CEDAW, CRC, CRPD and UNDRIP. The legislation should cover all companies independently of their size and take a non-sector specific approach. Furthermore, the legislation should not apply solely to the company’s own activities, but also to its business relations including the value chain. Finally, the legislation should adopt a substantive due diligence model and require companies to engage actively in analysing, mitigating and remedying any adverse impacts on human rights based on their own activities and connected to them in their business relations.

Autor externo

Prof. Dr. Markus KRAJEWSKI, Beata FARACIK

EU Human Rights Due Diligence Legislation: Monitoring, Enforcement and Access to Justice for Victims

24-04-2020

This briefing explores options for monitoring and enforcement of European Union (EU) human rights due diligence legislation, and how such legislation should contribute to access to justice and remedy for victims of human rights abuses linked to the operations of businesses inside or operating from Member States (MS). The briefing reviews existing due diligence and disclosure schemes and considers the feasibility of specific options for monitoring, enforcement and access to remedy within a future ...

This briefing explores options for monitoring and enforcement of European Union (EU) human rights due diligence legislation, and how such legislation should contribute to access to justice and remedy for victims of human rights abuses linked to the operations of businesses inside or operating from Member States (MS). The briefing reviews existing due diligence and disclosure schemes and considers the feasibility of specific options for monitoring, enforcement and access to remedy within a future EU due diligence law. The briefing recommends that such legislation should require effective monitoring via company-level obligations, national and EU-level measures, including repositories of due diligence reports, lists of companies required to report, information request procedures, monitoring bodies and delegated legislation or guidance further elaborating on due diligence under the law. Regarding enforcement, the law should inter alia require MS to determine appropriate penalties for non-compliance and to establish enforcement rights for interested parties. Finally, on remedy, the law should, besides requiring companies to establish complaint mechanisms, provide for national and EU measures, including requirements that MS ensure effective means of remedy and redress for victims and establish or identify bodies to investigate abuses, initiate enforcement and support victims.

Autor externo

Claire METHVEN O’BRIEN, Olga MARTIN-ORTEGA

Multinational enterprises, value creation and taxation: Key issues and policy developments

03-07-2019

The substantial reduction in trade costs and the rapid technological advances characterising the global economy over the past three decades have allowed multinational enterprises (MNEs) to increasingly break up their supply chains and spread them across different countries. The principal implication of this change relates to the concept of value added and the way it is created and captured across MNE-controlled global value chains (GVCs). The dynamic nature of transfers within MNEs, the increasing ...

The substantial reduction in trade costs and the rapid technological advances characterising the global economy over the past three decades have allowed multinational enterprises (MNEs) to increasingly break up their supply chains and spread them across different countries. The principal implication of this change relates to the concept of value added and the way it is created and captured across MNE-controlled global value chains (GVCs). The dynamic nature of transfers within MNEs, the increasing role of services and intangible assets in manufacturing, and most critically the unfolding digital revolution have all intensified the mobility of value-generating factors within GVCs, and highlighted the difficulty of defining the exact location where value is generated. These developments have significant policy implications. One critical area is that of tax policy, where the challenges posed by the new economic landscape are numerous and multifaceted. On the one hand, governments seek to encourage trade and investment by MNEs by removing tax and regulatory barriers they face. Some governments go even further by resorting to harmful tax competition that drives corporate income taxes to the bottom. At the same time, many MNEs continue to employ enhanced tax arbitrage to minimise their tax obligations across jurisdictions; furthermore, business models are increasingly becoming borderless and highly mobile, and therefore difficult to tax. In view of these challenges, consensus is gradually emerging that tax systems need improved alignment to ensure that profits are taxed where the economic activities generating them are performed and where value is created. Yet, allocating jurisdiction to tax business profits in the context of MNE-controlled GVCs remains a highly complex process.

Public country-by-country reporting by multinational enterprises

26-04-2019

Tax transparency has gained particular importance as a tool in the fight against tax avoidance and tax evasion, particularly in the field of corporate income tax and aggressive tax planning. Cooperation between tax authorities aims at allowing them to obtain information covering the global business of multinational enterprises (MNEs), and progress has already been made in this area. A further step in tax transparency would be to broaden it by providing publicly available information relating to tax ...

Tax transparency has gained particular importance as a tool in the fight against tax avoidance and tax evasion, particularly in the field of corporate income tax and aggressive tax planning. Cooperation between tax authorities aims at allowing them to obtain information covering the global business of multinational enterprises (MNEs), and progress has already been made in this area. A further step in tax transparency would be to broaden it by providing publicly available information relating to tax paid at the place where profits are actually made. Public country-by-country reporting (CBCR) is the publication of a defined set of facts and figures by large MNEs, thereby providing the public with a global picture of the taxes MNEs pay on their corporate income. The proposal is being considered by the European Parliament (EP) and the Council. In the EP, the amendments put forward by the ECON and JURI committees were voted on 4 July 2017. In the absence of a Council position enabling negotiations on the proposal, the Parliament adopted its position at first reading in plenary on 27 March 2019. Third edition. The ‘EU Legislation in Progress’ briefings are updated at key stages throughout the legislative procedure.

Access to legal remedies for victims of corporate human rights abuses in third countries

01-02-2019

European-based multinational corporations can cause or be complicit in human rights abuses in third countries. Victims of corporate human rights abuses frequently face many hurdles when attempting to hold corporations to account in their own country. Against this backdrop, judicial mechanisms have increasingly been relied on to bring legal proceedings in the home States of the corporations. This study attempts to map out all relevant cases (35 in total) filed in Member States of the European Union ...

European-based multinational corporations can cause or be complicit in human rights abuses in third countries. Victims of corporate human rights abuses frequently face many hurdles when attempting to hold corporations to account in their own country. Against this backdrop, judicial mechanisms have increasingly been relied on to bring legal proceedings in the home States of the corporations. This study attempts to map out all relevant cases (35 in total) filed in Member States of the European Union on the basis of alleged corporate human rights abuses in third countries. It also provides an in-depth analysis of 12 cases and identifies various obstacles (legal, procedural and practical) faced by claimants in accessing legal remedy. On the basis of these findings, it makes a number of recommendations to the EU institutions in order to improve access to legal remedies in the EU for victims of human rights abuses by European based companies in third countries.

Autor externo

Dr. Axel Marx, Dr. Claire Bright, Prof. Dr. Jan Wouters, Ms. Nina Pineau, Mr. Brecht Lein, Mr. Torbjörn Schiebe, Ms. Johanna Wagner, Ms. Evelien Wauter

Common consolidated corporate tax base (CCCTB)

15-06-2018

The European Commission has decided to re-launch the common consolidated corporate tax base (CCCTB) project in a two-step approach, with the publication on 25 October 2016 of two new interconnected proposals: on a common corporate tax base (CCTB), and on a common consolidated corporate tax base (CCCTB). Building on the 2016 CCTB proposal, the 2016 CCCTB proposal introduces the consolidation aspect of this double initiative. Companies operating across borders in the EU would no longer have to deal ...

The European Commission has decided to re-launch the common consolidated corporate tax base (CCCTB) project in a two-step approach, with the publication on 25 October 2016 of two new interconnected proposals: on a common corporate tax base (CCTB), and on a common consolidated corporate tax base (CCCTB). Building on the 2016 CCTB proposal, the 2016 CCCTB proposal introduces the consolidation aspect of this double initiative. Companies operating across borders in the EU would no longer have to deal with 28 different sets of national rules when calculating their taxable profits. Consolidation means that there would be a ‘one-stop-shop’ – the principal tax authority – where one of the companies of a group, that is, the principal taxpayer, would file a tax return. To distribute the tax base among Member States concerned, a formulary apportionment system is introduced. The legislative proposal falls under the consultation procedure. The report was adopted in the ECON committee on 21 February and Parliament’s opinion in plenary on 15 March 2018. the proposal is thus now in the hands of the Council. Third edition, based on an original briefing by Gustaf Gimdal. The ‘EU Legislation in Progress’ briefings are updated at key stages throughout the legislative procedure.

Updating the Blocking Regulation: The EU's answer to US extraterritorial sanctions

07-06-2018

On 8 May 2018, President Trump announced the unilateral US withdrawal from the Joint Comprehensive Plan of Action (JCPOA), the landmark nuclear agreement signed by Iran and the E3/EU+3 – France, Germany, the UK and the EU plus China, Russia and the USA – in 2015. He also announced that the US would re-impose sanctions on Iran that had been lifted as part of the implementation of the JCPOA. These sanctions have extraterritorial effect, essentially making it illegal for EU companies and financial institutions ...

On 8 May 2018, President Trump announced the unilateral US withdrawal from the Joint Comprehensive Plan of Action (JCPOA), the landmark nuclear agreement signed by Iran and the E3/EU+3 – France, Germany, the UK and the EU plus China, Russia and the USA – in 2015. He also announced that the US would re-impose sanctions on Iran that had been lifted as part of the implementation of the JCPOA. These sanctions have extraterritorial effect, essentially making it illegal for EU companies and financial institutions to engage in a wide range of economic and commercial activities with Iran. Companies that disregard the US secondary sanctions face major fines and/or criminal charges in the US, or even exclusion from the US market. US sanctions will be reinstated after a 90- or 180-day wind-down period, to allow companies to make the necessary arrangements. Following the signing of the JCPOA in 2015, European companies have entered into important commercial and investment agreements with Iranian counterparts, worth billions of euros. Many of these companies also have important commercial ties with the US. Faced with the prospect of penalties in the US, several EU companies have already announced that they are ending their dealings with Iran, unless a way can be found to exempt or shield them from US secondary sanctions. In response, the Commission adopted a delegated act on 6 June 2018 to update the annex to the 'Blocking Regulation', which was adopted in 1996 to protect EU businesses against the effects of the extraterritorial application of legislation adopted by a third country. The Blocking Regulation forbids EU persons from complying with extraterritorial sanctions, allows companies to recover damages arising from such sanctions, and nullifies the effect in the EU of any foreign court judgment based on them. The effectiveness of the regulation as a mechanism to offset US sanctions has been questioned, however its adoption sends an important political message. Parliament now has two months to object to the delegated act, but may signal earlier that it will not do so, thus allowing the measure to come into force earlier than the end of the two-month period.

Base imponible común (consolidada) del impuesto sobre sociedades

06-03-2018

En 2016, la Comisión decidió relanzar la propuesta de base imponible consolidada común del impuesto sobre sociedades, pero esta vez con un planteamiento en dos fases, con dos propuestas interconectadas. El Parlamento, que solo es consultado, tiene previsto someter a votación dichas propuestas durante el periodo parcial de sesiones de marzo.

En 2016, la Comisión decidió relanzar la propuesta de base imponible consolidada común del impuesto sobre sociedades, pero esta vez con un planteamiento en dos fases, con dos propuestas interconectadas. El Parlamento, que solo es consultado, tiene previsto someter a votación dichas propuestas durante el periodo parcial de sesiones de marzo.

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