Accountability of corporations and remedy for rightsholders are critical components to ensure the effectiveness of corporate human rights and environmental due diligence. Comprehensive and effectively designed access to justice is essential, not only to encourage companies to act more responsibly, but also to give those affected the opportunity to seek remedial action.

Nonetheless, barriers to access to justice in respect of business impacts on human rights are well known. Potential claimants often face challenges arising both from a lack of a substantive cause of action, but also procedural and other barriers. Improving access to remedy for affected people was a key goal of the EU Supply Chain Act, the Corporate Sustainability Due Diligence Directive (CSDDD) as originally adopted in 2024 (Recitals 16, 79, 82). The amendments to the CSDDD introduced by the Omnibus I directive change the approach to access to remedy in a number of key respects, most critically by removing a harmonized “Union wide” civil liability regime – a core pillar of access to justice under the CSDDD. However, in addition to the fact that the revised CSDDD retains the two other pillars of access to justice – namely substantiated concern procedures before supervisory authorities and company led grievance mechanisms – it may not be true to suggest that this removes the obligation on Member States to address the issue of suitable civil liability provisions entirely, as we will outline below.

The Original CSDDD

The CSDDD creates a set of duties requiring in scope companies to conduct due diligence to identify and address adverse impacts in accordance with the terms laid down in the Directive. In cases of due diligence failures, earlier versions contained several provisions aimed at addressing access to justice challenges.

First, Member States are obliged to ensure that a company provides remediation where it has caused or jointly caused an adverse impact (Article 12), defined as “restoration of the affected person[s] (…), communities or environment to a situation equivalent or as close as possible to the situation they would have been in had an actual adverse impact not occurred, in proportion to the company’s implication in the adverse impact (…)” (Article 3(1)(t)).

This overarching obligation to provide remediation was operationalized by an attempt to create a partially harmonized civil liability regime. This regime required Member States to enable people to claim compensation from companies covered by the CSDDD for damage arising from due diligence failures.  The Directive set out a number of conditions for triggering liability namely the existence of a damage to the natural or legal person’s legal interests, an intentional or negligent failure to comply with due diligence requirements and a causal link between the two. Certain kinds of harm were to be excluded: derivative damage caused indirectly to natural or legal persons who were not protected by the rights and prohibitions articulated in the Annex to the Directive was not to be covered (see Recital 79), as were harms caused only by a business partner , provided that certain criteria set out in the Article are met (former Article 29(1), analysis here and here).  

This was complemented by several provisions addressing known access to justice challenges, such as evidentiary issues and access to information, limitation periods, availability of representative actions and costs.

The CSDDD also included a provision which would have made the liability article of mandatory overriding application, meaning that the liability regime would be accessible to claimants in cases where the law applicable to the dispute was supplied by a third country. This would have provided an important means of addressing challenges faced by claimants seeking redress for harms which occur outside the EU, as the applicable law is often that of the place where the damage occurred, which may not recognize an equivalent cause of action to one based on due diligence failures, or may contain different limitation periods.

The Omnibus I Directive and its Modification of Civil Liability

The Omnibus I Directive is part of an EU legislative package that proclaims to reduce regulatory burdens and enhance European competitiveness by amending key sustainability and corporate due diligence rules, including the CSRD and the CSDDD. The scope of the amendments introduced under this “simplification” agenda has been subject to criticism, and had the result of substantially weakening these instruments, despite the stated objective to maintaining the policy goals of the Green Deal.  One such amendment resulted in the removal of Article 29(1), which would have provided for the “union wide” civil liability regime with harmonized conditions as mentioned above.

While this signifies a break with the idea of a partially harmonized liability regime, it does not remove obligations on Member States to ensure that a pathway to liability is possible.

Although former Art. 29 (1)has been removed, language remains in Article 29(2) stating that “where a company is held liable pursuant to national law for damage caused to a natural or legal person by a failure to comply with the due diligence requirements under this Directive, Member States shall ensure that those persons affected have a right to full compensation. […]”. Moreover, Recital 49 of the Omnibus I Directive recalls overarching obligations on Member States under European and international law to ensure that victims of adverse impacts have effective access to justice and to guarantee their right to an effective remedy. There is considerable variation in liability regimes across the Union, and the question of whether Member States rely solely on existing civil liability regimes when transposing the CSDDD requires examination of the adequacy of those regimes to provide remedy in cases of due diligence failures under the instrument. Existing regimes may provide adequate in some jurisdictions, but not others.

The Omnibus I Directive also removes the mandatory overriding application provision  Art. 29(7). Therefore, instead of providing a clear mandatory conflict-of-law rule to govern civil liability conditions , the applicable law will – unless otherwise regulated by Member States – be determined by the  Rome II Regulation. This means that in many cases the law applicable will be that of the country in which the damage occurred, which will not necessarily be in Europe. Companies must therefore familiarize themselves with the liability regime in each country in which they operate. Moreover, the deletion of Art. 29 (7) does not only affect rightsholders as potential claimants and companies. European courts will also increasingly have to deal with different legal systems, as it will still be possible to bring legal action before European courts, but different laws may apply. There is a risk that access to justice for those affected will be made so difficult by this complexity that it will be practically impossible to enforce civil liability.

Further, it remains uncertain whether national provisions on civil liability are adequate to meet the provisions remaining in Article 29(3) on access to justice which continues to oblige Member States to address issues such as the cost of proceedings, limitation periods, disclosure, and questions of burden of proof. The same uncertainty applies in relation to remaining Article 29(5) on joint and several liability and the relationship between the civil liability of a company and that of its subsidiaries or business partners. Whether a representative action is permitted remains, however – with the deletion of Article 29(3)(d) – within the discretion of Member States.

What Can we Learn From the Yves Rocher Case?

In the context of the transposition of the revised CSDDD, Member States should undertake a comprehensive review of their national legal frameworks and, where necessary, adopt the required provisions to ensure their capacity to fulfil the Directive’s enduring objectives, namely preventing human rights violations and environmental harm and ensuring access to justice, remedy and full compensation for victims.

The modification of Article 29(1) provides wider discretion to Member States on how they achieve access to justice. As elaborated in a comprehensive report, Member States have existing liability regimes that could apply to cases of human rights violations and environmental damage in supply chain constellations, often based on tort or its equivalents. However, given the clear and well documented gaps in access to remedy for victims of business related harms, it seems difficult to argue that existing national law civil liability regimes, including those which provide for procedural rules, are adequately equipped to ensure access to effective remedy in respect of the new legal obligations on companies introduced in the CSDDD. This is particularly so as there is significant variation across Member States in relation to available causes of action, procedural barriers, evidentiary standards, and interpretations of full compensation.

This is especially the case of transnational human rights cases where challenges with jurisdiction, applicable law, evidence and other procedural matters add another layer of complexity. These kinds of claims could be made considerably less complex if Member States make their own national provisions of mandatory overriding application, as envisaged in Omnibus Recital 49. The approach taken by the Paris Judicial Court (of first instance) in the recent decision in the Yves Rocher case is particularly instructive. The judge relied on the French legislator’s intention to promote responsible and sustainable business conduct, by imposing a duty of vigilance aimed at preventing human rights violations and environmental damage, and by ensuring that victims, wherever they may be, have access to justice and can obtain full compensation for harm caused by in-scope companies’ failure to comply with their due vigilance obligations, in order to conclude that the national law applies on a mandatory basis. To ensure that the victim’s access to remedy is effective, including where the harm occurred in a third country, the judge considered that the French duty of vigilance law refers to the applicable national civil liability law, rather than the law designated by private international law rules” (§70). Interestingly, the defendant company’s argument based on the removal by Omnibus I of the harmonized civil liability regime and of the overriding mandatory provision was rejected. Indeed, the latter does not prevent Member States from establishing or maintaining their own specific regimes to fully achieve the CSDDD’s objectives.     

Unless there is a common commitment across Member States to ensure that their national liability regimes are fit for the purpose of providing access to justice for due diligence failures under the CSDDD, there will be considerable fragmentation across the EU. This will inevitably create disparity between a claimant who happens to suffer harm in the Member State jurisdiction with a well-developed body of jurisprudence on these kinds of cases and one attempting to litigate in jurisdictions with a less developed body of law. It will also undermine legal certainty for all affected and weaken the Directive’s preventive objective.

Conclusion

Omnibus I has weakened one of the CSDDD’s pillars relating to access to justice, but the underlying objective remains intact: namely that victims have effective access to justice, a right to remedy and full compensation. It is for Member States to determine how best to achieve this, considering the remaining CSDDD provisions relevant in the context of civil proceedings and in light of the Member States broader obligations under European and international law. It is challenging to see how this can be done without examination and potential revision of existing national liability regimes. There is a role for the European Commission to guide this process in transposition workshops with the Member States in order to ensure a coherent and consistent approach to liability across the Union.

The observations in this blog reflect a number of findings made in the Access to Justice in the Corporate Sustainability Due Diligence Directive: Symposium event report, organized by  the Danish Institute for Human Rights (DIHR), the German Institute for Human Rights (DIMR), the French National Consultative Commission on Human Rights (CNCDH) and the Fundamental Rights Agency (FRA) in 2025.