10.6092/issn.1561-8048/18383
In this article, we highlight the different positions expressed by the European Parliament and the European Commission on the need to provide for the involvement of trade unions in the new directive on Company Due Diligence. The Parliament's position tends to emphasize the importance of prior consultation with trade unions. In the opposite direction, the European Commission's draft directive, from a management perspective, understands due diligence compliance as a governance constraint decided unilaterally by companies. Considering these processes, we try to ask whether trade unions can autonomously contribute to the ecological transition of companies and the protection of human rights, considering the advantages and disadvantages of their involvement.
application/pdf
1561-8048
18383
2
en
Costantino Cordella
https://creativecommons.org/licenses/by/4.0
Italian Labour Law e-Journal
proposal for a European directive
The Slow Approval Process of the Due Diligence Directive and the Different Paths for the Involvement of Trade Unions
Text.Serial.Journal
https://illej.unibo.it/
16
Miscellaneous
2023-12-14
2023-11-03
2023-12-14
2023-12-14
17-34
ILLeJ
Costantino Cordella
2023/12/14
10.6092/issn.1561-8048/18383
17
University of Naples Federico II
1561-8048
2
proposal for a European directive
en
34
The Slow Approval Process of the Due Diligence Directive and the Different Paths for the Involvement of Trade Unions
https://illej.unibo.it/article/download/18383/17067
16
The Slow Approval Process of the Due Diligence Directive and the                     Italian Labour Law e-Journal
Different Paths for the Involvement of Trade Unions.                                        Issue 2, Vol. 16 (2023)
Costantino Cordella                                                                               ISSN 1561-8048
costantino.cordella@unina.it                                       https://doi.org/10.6092/issn.1561-8048/18383




   The Slow Approval Process of the Due Diligence
 Directive and the Different Paths for the Involvement
                   of Trade Unions.
                                         Costantino Cordella*

1. Introduction. 2. The most relevant international documents on due diligence and the role
of trade unions. 3. The limits of the French experience. 4. The binding nature of due diligence
and the European Parliament’s proposed regulation. 5. The Commission’s “corporatist”
directive proposal and the second phase of the clash: the European Parliament’s
modifications of 1° June 2023. 6. Trade union involvement on a voluntary or binding basis?
7. What contribution from trade unions to just transition? 7.1. Spaces of convergence
between the European Commission and Parliament: grievance procedures actionable by
stakeholders.


                                                    Abstract

  In this article, we highlight the different positions expressed by the European Parliament and the
  European Commission on the need to provide for the involvement of trade unions in the new
  directive on Company Due Diligence. The Parliament’s position tends to emphasise the
  importance of prior consultation with trade unions. In the opposite direction, the European
  Commission’s draft directive, from a management perspective, understands due diligence
  compliance as a governance constraint decided unilaterally by companies. Considering these
  processes, we try to ask whether trade unions can autonomously contribute to the ecological
  transition of companies and the protection of human rights, considering the advantages and
  disadvantages of their involvement.

  Keywords: Corporate due diligence, Trade unions involvement, Proposal for a European
  directive.


1. Introduction.

  One of the most significant lines of development to achieve the goals of the transition to
a green and climate-neutral economy requires enterprises to introduce self-regulatory
mechanisms. These are the due diligence obligations in the value chain, whereby businesses


* Costantino Cordella,   Assistant Professor (RtdB) in Labour Law at the Università degli Studi di Napoli Federico
II. This article, with due adaptations and updates, reproduces the oral paper presented at the 20th International
Conference in Commemoration of Prof. Marco Biagi “Green Transition and Quality of Work: Links, Implications
and Prospects”, held in Modena on March 16 and 17, 2023. This essay has been submitted to a double-blind peer
review.
    Costantino Cordella                                                                      Italian Labour Law e-Journal
                                                                                                    Issue 2, Vol. 16 (2023)
                                                                                                    Section: Miscellaneous




take necessary measures to avoid negative impacts on fundamental values, such as
environmental protection.
   It should be noted that corporate responsibility for environmental negative impacts uses
a mechanism that was initially designed to verify the best practices adopted by companies to
optimise their economic and financial performance. It is only more recently that there has
been an international trend to intend due diligence as a mechanism open ‘outside’ the
company and helpful to achieve first social and then environmental objectives: in the context
of this more recent trend, and thus of the international documents on which it was based,
that the origins of this institute must be traced.


2. The most relevant international documents on due diligence and the role of trade
unions.

    The debate on best corporate practices for respecting the human rights of workers arose
as early as the 1970s in response to the problem of law shopping, namely the choice to move
to territories where minimal rules for the protection of workers are applied.1
    In the following decades, due to the development of globalisation processes, the need to
promote respect for human rights and sustainable development was felt more; several
international organisations addressed the problem and, among them, even those not having
worker protection as their primary objective (World Bank; World Trade Organization).2
However, the debate on corporate social and environmental responsibility was not so mature
as to require companies to take adequate measures to prevent negative impacts in their own
production organisation or among the companies that are part of the value chain.3
    The concept of corporate due diligence was first used to ensure respect for human rights
with the Guiding Principles of UN Resolution 17/4 of June 2011.4 In the corporate
accountability part of this document (Principles 11 to 24 and in particular, Principle 17), due
diligence was evoked as a mechanism to prevent incidents of human rights violations in the
value chain, adopted by companies to demonstrate that they operate in a socially responsible
manner in the market.


1 Although they are soft law mechanisms (applicable, among other things, only to multinational enterprises),
both the OECD Guidelines of 1976 (revised in 2000 and 2011 and currently the subject of public consultation
with a view to their further amendment), with which the path of promoting corporate social responsibility for
environmental protection and public health (point VI) began, and the ILO Tripartite Declaration on Principles
Concerning Social Policies and Multinational Enterprises of 1977 (later supplemented in 2000, 2006 and 2017)
were introduced during this period.
2 See the documents cited in Brino V., Diritto del lavoro e catene globali del valore. La regolarizzazione dei rapporti di

lavoro tra globalizzazione e localismo, Giappichelli, Turin, 2020, 46.
3 At the beginning of the millennium, for example, Corporate Due Diligence was still not referred to in either

the UN Global Compact (2000) or the UN Norms on the Responsibility of Multinational Corporations and
Other Business Enterprises Concerning Human Rights (2003).
4 In this sense see Salcito K., Wielga M., What does Human Rights Due diligence for Business Relationships really look like

on the ground?, in Business and Human Rights Journal, 2017, 2, 113; Loeve P., Etude sphere d’influence versus due diligence,
http://www.diplomatie.gouv.fr/IMG/pdf/1_2PESP_1_Etude_sphere_dinfluence_versus_due_diligence_cle
874ee9.pdf, 2010, 6.

https://doi.org/10.6092/issn.1561-8048/18383                                                                             18
    Costantino Cordella                                                                   Italian Labour Law e-Journal
                                                                                                 Issue 2, Vol. 16 (2023)
                                                                                                 Section: Miscellaneous




   This was a key document that was adopted by a large number of companies due to the
positive effects on reputational ranking that compliance with such due diligence obligations
generates among consumers and investors.5 Its importance is also linked to the choice of
imposing the constraints directly on companies and not on the States in which they are
located. Since international law comprises a system of provisions and principles designed to
regulate relations between States and their related responsibilities, the choice of defining
responsibilities regarding human rights directly towards private economic actors is indeed a
relevant innovation.6
   A second important aspect to consider is that the Guiding Principles also introduce
corporate responsibility concerning the choice of business partners. The duty of care is
extended to the economic activity itself, regardless of the different corporate articulations
that make it up; in other words, exercising control over possible violations committed outside
the enterprise is envisaged.
   The framework of Corporate Due Diligence outlined in the Guiding Principles is further
complemented by Oil’s Tripartite Declaration on Multinational Enterprises and Social
Policy, last updated in 2017.7 The main new feature of this document is the due diligence
provisions (paragraph 10). It cites the United Nations Guiding Principles on the
responsibility of enterprises for the violation of human rights at work and the extension of
this responsibility to the entire value chain, but more importantly it values the consultative
role of stakeholders and potentially affected organizations in identifying risks of violation.
   This is a relevant statement – for the first time introduced in an international due diligence
document – that confirms the International Organization’s focus on trade union freedoms
and collective rights,8 and demonstrates how due diligence measures to prevent risks and
negative impacts can be based on more than just reputational objectives.



5 As well as affecting and having a profound influence on the adoption and use of the concept of duty of care,
as a means of verifying the standards required of companies, for the purpose of respecting human rights and
environmental sustainability, by international institutions (Oecd, Ilo) and national legal systems (France,
Switzerland, Germany). See Aa.Vv., Study on Due Diligence Requirements Through the Supply Chain: Final Report. A
study requested by the European Commission, Directorate-General for Justice and Consumers. Publications
Office of the European Union, 2020, 160-161.
6 V. Brino V., nt. (2), 56.
7 Also in 2011, however, the OECD Guidelines approved in 1976 were updated. The updated version assigns

central importance to due diligence and the role of trade unions in guaranteeing workers’ fundamental rights –
see Chapter 5 entitled “Employment and Industrial Relations”, on which see Tergeist P., The OECD Guidelines
for Multinational Enterprises, Kluwer Law Intl, 2016, 45 ff. – but nowhere does it relate the need to define the
duties of care, risks and negative impacts of production activities to the prior consultation of workers’
organizations and, in this respect – which is instead intended to be highlighted here – it is less advanced than
the ILO Tripartite Declaration in the 2017 updated version.
8 Specifically, paragraph 10(e) of the Declaration states “Such a process [of assessing the risks of human rights

violations] should include in-depth consultation with potentially affected groups and other relevant
stakeholders, including workers’ organizations, taking into account the size of the enterprise and the nature and
context of the activities. In order to achieve the objectives enshrined in the Declaration on Multinational
Enterprises, this process should take into account the central role of trade union freedom and collective
bargaining, as well as industrial relations and social dialogue as an ongoing process”. From the standpoint of
enforcement, the Declaration has been referred to in numerous global framework agreements entered into by
multinational corporations: see the findings on ILO data by Murgo M., Global value chains e diritto del lavoro. Problemi
e prospettive, Cedam, Padova, 2021, 124 and ch. IV.

https://doi.org/10.6092/issn.1561-8048/18383                                                                          19
    Costantino Cordella                                                                             Italian Labour Law e-Journal
                                                                                                           Issue 2, Vol. 16 (2023)
                                                                                                           Section: Miscellaneous




   This was followed by OECD recommendations and guidelines,9 European initiatives
prior to Parliament’s 2021 resolution,10 and, at the national level, the experience of France,
which passed the first general law on human rights and environmental obligations and
became a regulatory ‘laboratory’ followed by other States where Due Diligence for
Sustainability has been at the centre of policy debate or has been approved more recently
(Netherlands, Germany, Switzerland).11


3. The limits of the French experience.

     The French experience deserves attention because the law of 27 March 2017 uses rules
like those used by the European Commission in the proposed Due Diligence Directive.
Therefore, their examination is helpful to establish the space and support the European
legislator should give workers’ organisations, in the elaboration of risks and negative impacts
caused by companies.12
     As known, the 2017 French Duty of Vigilance law is the first legislative example in which
a general mandatory due diligence requirement for human rights and environmental impacts
is imposed.13 The law lays down a duty of vigilance on certain large French companies
(employing 5,000 employees in France or 10,000 globally). It extends to the activities of
French companies’ subsidiaries, subcontractors, and business enterprises in the supply chain
“with which the company maintains an established commercial relationship.”
     To discharge their legal duty, companies must implement a ‘vigilance plan’, which should
include reasonable measures to adequately identify risks and prevent severe violations of
human rights and the environment within their company and with their subcontractors and
suppliers. This plan must include a ‘mapping’ of these risks, “appropriate mitigation actions
[...] to prevent serious harm”, and a “warning and reporting mechanism”. In case of a breach,



9 Apart from the 2011 update to the 1976 OECD Guidelines (on which see previous footnote), the OECD Due
Diligence Guidance for Responsible Business Conduct, approved in 2018, with cross-sectoral application, and
the OECD Sector Guides, which are added to the former, to determine the typical specificities of different
production areas see, in this regard, Addo M., An external view of the OECD Working Party on Responsible Business
Conduct and its Chair, in Mulder H., Scheltema M., van ‘t Foort S., Kwant C. (eds.), OECD Guidelines for
Multinational Enterprises: a Glass Half Full. A Liber Amicorum for Dr. Roel Nieuwenkamp, Chair of the OECD
Working Party on Responsible Business Conduct 2013-2018, Oecd, 2018, 40 ff., but also the references to the
guidelines for some productive sectors proposed by Murgo M., ibid, 114 ff.
10 For detailed examination of the interventions in the European context prior to the proposed directive see

Aa.Vv., nt. (5), 165 ff.
11 On the Dutch experience, which focused on preventing the risk of child labor, see Erkens Y., Sustainable

business agreements in the Netherlands: search for the missing link, in Giornale di diritto del lavoro e delle relazioni industriali,
2021, 19 ff.; on Germany, see Nogler L., Lieferkettensorgfaltspflichtengesetz: perché è nata e quali sono i suoi principali
contenuti, in Giornale di diritto del lavoro e delle relazioni industriali, 2022, 1 ff. and Murgo M., nt. (8), 184 ff.; on
Switzerland, see Brino V., nt. (2), 112, and the bibliography cited there, as well as, on the instruments introduced
in non-European countries (see in particular the United Kingdom and California), see Aa.Vv., nt. (5), 165 ff.
12 In this sense see Pollet M., EU corporate due diligence law to learn from the French example, Euractiv, Feb. 21, 2022.
13 French Law No. 2017-399 of March 27, 2017 on the “Duty of Care of Parent Companies and Ordering

Companies”. More recently, about the new law on human rights and environmental sustainability of German
legislators, see Nogler L., nt. (11), 1 ff.

https://doi.org/10.6092/issn.1561-8048/18383                                                                                      20
     Costantino Cordella                                                                             Italian Labour Law e-Journal
                                                                                                            Issue 2, Vol. 16 (2023)
                                                                                                            Section: Miscellaneous




the company may be prosecuted “by any person who can show an interest in acting to that
end.”
   Many issues have been raised about these regulations,14 but we are interested in those
about the involvement of trade unions. In this regard, the hope of a well-known French labor
law scholar that French companies, obligated to draw up the Vigilance Plan, would involve
unions in the drafting of the document, because they were interested in avoiding litigation
and/or being found guilty, has been disproved.15
   Without a specific legal obligation, most of the Vigilance Plans were drafted with little or
no prior sharing with stakeholders, including trade unions.16
   Partly due to the lack of clarity and the absence of guidelines on the correct way of
drafting,17 after the law was passed, companies adjusted their Vigilance Plans, ensuring only
formal compliance with the law: the legal obligation has often been fulfilled without
dedicated documents, but by including additional information in the non-financial
information part of the accounting documents required under Directive 2014/95.18
   In addition – as has been correctly pointed out – in the absence of specific legislative
backing,19 the ‘burden’ of union participation has been dumped directly on the unions, which
have been able to intervene only through other instruments of self-defence. In particular,
looking at the French case, it was noted how the lack of detail, if not inertia, 20 that
accompanied the drafting of the Supervisory Plans in the first phase of application of the
French law was replaced by an attitude of greater rigour when the trade unions, and in



14  The literature on the subject is vast: see among others Savourey S., Brabant S., The French Law on the Duty of
Vigilance: Theoretical and Practical Challenges Since its Adoption, in Business and Human Rights Journal, 2021, 6, 141 ff.;
Aa.Vv., Tra attuazione e dibattito: primi insegnamenti dalla legge francese del 2017 sul dovere di vigilanza delle imprese, in
Giornale di diritto del lavoro e di relazioni industriali, 2021, 37 ff.; Daugareilh I., La legge francese sul dovere di vigilanza al
vaglio della giurisprudenza, in Giornale di diritto del lavoro e di relazioni industriali, 2021, 2, 159 ff.; Zito M., La giustizia
francese indaga sui colossi dell’industria tessile per “occultamento di crimini contro l’umanità” e lavoro forzato degli Uiguri presso
le loro catene di fornitura globali, in Giornale di diritto del lavoro e di relazioni industriali, 2021, 537; Lyon-Caen A., Verso
un obbligo legale di vigilanza in capo alle imprese multinazionali?, in Rivista giuridica del lavoro, 2018, 2, 245.
15 V. Lyon-Caen A., ibid, 245.
16 From the evaluation reports on the submitted Plans, it was found that only companies with stakeholder

committees or employee representative institutions that already existed before the adoption of the 2017 law
had decided to make concerted definition of the prevention rules to be introduced with the Plan, see Daugareilh
I., nt. (14), 168.
17 On the absence of interpretation guidelines see Savourey S., Brabant S., nt. (14), 146.
18 See in particular the report Terre Solidaire - Sherpa, Le radar due devoir de vigilance. Identifier les entreprises soumises

a la Loi, 2021. It was, not surprisingly, noted that at the stage of first application, no concrete difference in
terms of content came to light between the Supervisory Plans and the obligations of listed companies of a
certain size to supplement their corporate financial statements with information on the measures taken by the
company on social, diversity management and environmental protection v., on this point, Sherpa, Ne minons pas
la transition énergétique. La vigilance dans les chaînes d’approvisionnement en minerais utilisés dans le cadre de la transition
énergétique, 2020, 16 ff.; see also Guarriello F., Il ruolo del sindacato e delle rappresentanze del lavoro nei processi di due
diligence, in Rivista giuridica del lavoro, 2021, 585; Baylos A., Empresas Transnacionales Y Debida Diligencia, in Diritti
Lavori Mercati International, 2022, n. 2, 11.
19 Guarriello F., ibid, 586.
20 A report of Sherpa, CCFD Terre Solidaire and Business and Human Rights Resource Center, ‘Duty of Vigilance

Radar’ (see: https://vigilance-plan.org/ ) has identified just 265 companies falling into the scope of the Law.
Out of those, the report indicated that 27 percent of companies had not published a vigilance plan (including
high-profile companies from French or foreign groups).

https://doi.org/10.6092/issn.1561-8048/18383                                                                                       21
     Costantino Cordella                                                              Italian Labour Law e-Journal
                                                                                             Issue 2, Vol. 16 (2023)
                                                                                             Section: Miscellaneous




particular the international trade union federations (in addition to the NGOs), decided to use
extrajudicial and/or judicial remedies.21
   Despite the lack of habit of French trade unions to move against companies by going the
judicial route,22 the choice to use the judicial method, despite the uncertainty in outcomes,23
had an echo effect on companies, which then started to pay more attention to the document
processing stage.24
   The weak point of French law regarding union participation, however, concerns the
limited transparency obligations required. In fact, from the standpoint of union consultation
obligations, it must be remembered that the legislature, even having established that
companies are obliged to consult with stakeholders before deciding on the alert, collection,
and monitoring mechanisms to be adopted,25 has not also required that some notice be given
of the consultation that has taken place.
   In particular, the prior involvement of stakeholders and, among them, first and foremost,
of workers’ organizations, while not provided for on a voluntary basis has remained – as
noted by French doctrine – almost unimplemented, both because the law does not indicate
the trade union bodies with which companies are obliged to consult for the purpose of
drawing up the Plans (national trade unions, European federations, international federations,
workers’ representatives? ) and because the law does not require that the Plan expressly
acknowledge the effective participation of the stakeholders with whom the company has
consulted prior to the drafting of the Plan itself.
   The result was a regulation that did not encourage the involvement of trade unions, and
thus was unable to counter the backward, but widespread, opinion of company management
that workers’ representatives were unable to contribute effectively to the drafting of the Plan


21 Murgo M., nt. (8), 176.
22 In this sense see Daugareilh I., nt. (14), 168.
23 We refer to the jurisdictional issues that have animated the litigation against Total (Nanterre Court, Order

January 30, 2020, rg. 19/022833; Court of Appeal of Versailles, judgment Dec. 10, 2020, rg. 20/01692; Court
of Nanterre, preliminary order Feb. 11, 2021, rg. 20/00915), in which the question was raised as to whether it
was legitimate for appeals filed against companies for violations of the rules on Vigilance Plans to be decided
by commercial (and not civil) judges, even though these judges are not togaes, but are elected judges and,
moreover, coming, by training and experience, precisely from the business world. The final word came from
the Supreme Court, which ruled in the sense of excluding the exclusive jurisdiction of the commercial court in
the case of disputes between a non-business plaintiff and a business respondent over facts related to the
management of the business. In particular, the rule that the non-entrepreneur plaintiff has the option to bring
the case alternatively in the civil or commercial court was considered to prevail (Court of Cassation, Commercial
Sec., Nov. 18, 2020, rg. 19-19463). On the other hand, as far as extrajudicial activity is concerned, the
international mediation action initiated before the OECD (within the framework of the OECD Guidelines on
Multinational Enterprises) at the request of the French trade unions (Cfdt, Cgt Fapt, Cgt, Fo-Fec) and the
international trade union Uni Global Union, against the company Teleperformance, deserves to be mentioned,
for failing to comply with norms on the fundamental rights of call center workers during the Covid-19
pandemic, in ten different states, as well as the outcome of the letter of formal notice against XPO Logistic,
which in fact procured consultation with the group committee, regarding the subsequent reworking of the
Vigilance Plan, cf. Daugareilh I., nt. (14), 167, 168 and 170.
24 See the results of the comparison made from data published at https://planvigilance.org/company/xpo-

logistics-europe/ by Murgo M., nt. (8), 180.
25 According to Article 1 of the law, “The plan is intended to be developed in association with the company’s

stakeholders, possibly as part of multistakeholder initiatives within sectors or at the territorial level”. On this
point, see Daugareilh I., nt. (14), 169; Aa.Vv., nt. (14), 47.

https://doi.org/10.6092/issn.1561-8048/18383                                                                      22
     Costantino Cordella                                                                         Italian Labour Law e-Journal
                                                                                                        Issue 2, Vol. 16 (2023)
                                                                                                        Section: Miscellaneous




and that their involvement was a harbinger of an unnecessary lengthening of the decision-
making process.26


4. The binding nature of due diligence and the European Parliament’s proposed
regulation.

   Examining the issue from a European perspective, the French example has accelerated
the debate on the due diligence, highlighting the effects of the absence of legal rules to
support the action of trade unions.
   The low propensity to promote plural processes open to trade unions and, consequently,
the limited positive effects in countering violations of fundamental rights have already been
demonstrated by the use of other instruments based on voluntary self-regulation.27 Think the
voluntarist nature of corporate social responsibility (CSR). Although CSR has over time
found ample space among soft law techniques for the protection of rights, it often continues
to provide only a ‘documentary’ view of the use of tools to prevent the risks of violation.
With it, in fact, companies very often want to demonstrate to consumers only the ethicality
of their business practices and, with respect to this end, the involvement of trade unions in
the verification of risks is intended as an unjustified lengthening of the risk assessment
process.28
   From this point of view, there is a high risk that Corporate Due Diligence in
environmental sustainability will be declined at the European level in the same way, leaving
companies free to decide whether or not to involve trade unions in such processes.29
   The European Parliament’s resolution of March 10, 2021, on recommendations to the
Commission on due diligence and corporate responsibility (2021/C 474/02), had indeed




26 Aa.Vv., nt. (14), 47.
27 In the sense of highlighting how voluntaristically based soft law techniques, such as codes of conduct, social
certifications, or corporate social responsibility, can show important limitations in terms of effectiveness and
effectiveness see Brino V., nt. (1), 41. Emphasizes the need for the socially responsible company to be one that
declares its mission and has at its base a system of proper labor relations under which commitments to decision-
making processes are maintained and its behavior can be made observable and verifiable Gottardi R., CSR da
scelta unilaterale datoriale a oggetto di negoziazione collettiva: la responsabilità sociale contrattualizzata, in Guarriello F.,
Stanzani C., Sindacato e contrattazione nelle multinazionali, FrancoAngeli, 2018, 67.
28 In a critical sense on Corporate Social Responsibility see Daugareilh I., La responsabilité sociale des entreprises en

quête d’opposabilité, in Supiot A., Delmas-Marty M. (eds.), Prendre la responsabilité au sérieux, PUF, Paris, 2015, 183-
199; Gualandi S., Addressing MNEs’ violations of workers’ rights through Human Rights Due Diligence. The proposal for an
EU Directive on Sustainable Corporate Governance, in Diritti Lavori Mercati International, 2022, 1, 84; Angelici C.,
Divagazioni sulla ‘responsabilità sociale’ d’impresa, in Rivista delle società, 2018, no. 1, 6. In highlighting the purpose of
the instrument to enhance corporate credibility see Tullini P., La responsabilità dell’impresa, in Lavoro e Diritto, 2022,
2, 357; on the international framework see, recently, Borzaga M., Mussi F., Luci e ombre della recente proposta di
direttiva relativa al dovere di due diligence delle imprese in materia di sostenibilità, in Lavoro e Diritto, 2023, 500 ff.
29 Other examples derive from European regulations regarding the duty of care in human rights matters that

have already been passed, such as the Regulation on Minerals from Conflict Zones (Regulation (EU) 2017/821),
the Directive on Non-Financial Reporting (Directive 2014/95/EU), and the Timber Regulation (Regulation
(EU) No. 995/2010).

https://doi.org/10.6092/issn.1561-8048/18383                                                                                  23
     Costantino Cordella                                                               Italian Labour Law e-Journal
                                                                                              Issue 2, Vol. 16 (2023)
                                                                                              Section: Miscellaneous




adopted an apparent enhancement of the prerogatives and possibilities for intervention by
trade unions.30
    It had provided that prior consultation with them was a means to “help undertakings to
identify potential and actual adverse impacts more precisely and to set up a more effective
due diligence strategy” (Recital 38); moreover, the spaces for trade union involvement had
been differentiated and made broader than those intended for other stakeholders:31they were
recognized for organizations (at the relevant level: sectoral, national, European, global), but
also for individual employee representatives of the company (Art. 5). Among other things,
such involvement was envisaged not only for the due diligence strategy drafting phase, but
also for the implementation phase: consider, for example, the necessity for at least an annual
review of the effectiveness and appropriateness of the due diligence strategy (Art. 8(1)) and
the need to discuss its revision with interested parties and, in particular, with the involvement
of trade unions and workers’ representatives (Art. 8(2)).
    Confirming the special consideration with respect to the other stakeholders, it was also
specified the right of information of employee representatives, in accordance with the
European directives on union participation 2002/14, 2009/38 and 2001/86 (Art. 5(4)).
    The intention to support, through specific norms, the action of trade unions has been
betrayed by the evolution of the legislative process, which has also been affected by the
lobbying power of employers’ associations. In particular, the studies on how to regulate due
diligence, commissioned by the European Commission, showed that the majority of
companies and employer associations consulted (67 per cent) were pessimistic about the
usefulness of a provision that would allow stakeholders to intervene in the drafting stage of
due diligence documents,32 and this result seems to have influenced the choices made by the
Commission in the proposal for a directive.


30 Following the approach suggested by the European Trade Union Confederation (ETUC) – invited to give
its opinion on the content of the European harmonization rules on due diligence – the European Parliament
had called for the approval of a directive with Articles 153(1)(e) and 154 TfEU as its legal basis, so that the
legislative process would take place in accordance with the principles of information and consultation of the
social partners at the European level. Yet, as will be better seen in the text, this and other indications expressed
by the ETUC will remain unfulfilled. Particularly on the choice of legal basis, a significant role was played by
employers’ associations, which called for regulating the matter with a directive approved under Articles 50
(freedom of establishment) and 114 TfEU (functioning of the internal market). In this regard see ETUC
Executive Committee, ETUC Position for a European directive on mandatory human rights due diligence and responsible
business conduct, December 17-18, 2019. For a commentary see Gualandi S., nt. (28), 90 ff. The proposed directive
can be made part of the European Parliament’s actions on governance in Global Value Chains, which include
the April 27, 2017, resolution on clothing, the September 12, 2017, resolution on international trade, and the
May 17, 2017, Regulation No. 821 on supply chains for Union importers of tin and other minerals from high-
risk areas; on the subject see Brino V., nt. (1), 91 ff.
31 Again in Recital 38 of the Resolution there is in fact a reference to trade unions as privileged stakeholders,

where it states, “it is necessary that all stakeholders are consulted in an effective and meaningful manner and
that trade unions, in particular, are adequately involved” (italics mine).
32 V. European Commission, Directorate-General Justice and Consumers, Sustainable corporate governance initiative.

Inception Impact Assessment, July 30, 2020 and the summary report of the public consultations, European
Commission, Directorate-General Justice and Consumers, Sustainable corporate governance initiative. Summary report
- public consultation, June 2021. For a commentary on these data see Gualandi S., nt. (28), 86 ff., who points out
that it was precisely on the intervention of stakeholders in the drafting of due diligence documents that the
most striking contrast between the ‘corporatist’ positions of the employers’ organizations and those of the
consulted trade unions was consummated, given that the latter were almost unanimously (93 percent) in favor.

https://doi.org/10.6092/issn.1561-8048/18383                                                                       24
     Costantino Cordella                                                                   Italian Labour Law e-Journal
                                                                                                  Issue 2, Vol. 16 (2023)
                                                                                                  Section: Miscellaneous




5. The Commission’s “corporatist” directive proposal and the second phase of the
clash: the European Parliament’s modifications of 1° June 2023.

   It is no coincidence that the European Commission, with its proposal for a directive of
23 February 2022 on companies’ duty of care for sustainability (COM(2022) 71 final),
subverted the Parliament’s resolution on the role of stakeholders (and among them the role
of trade unions) by deleting Article 5 of the Parliament’s proposal for a directive, expressly
dedicated to ‘Stakeholder Involvement’. The Commission has framed its proposal for a
directive within the framework of rules to prevent national regulatory differences on the
exercise of fundamental freedoms from distorting competition.33 In this sense, a legal basis
based on Articles 50 and 114 TFEU was envisaged, and thus in contrast to what was
requested in the advisory opinion to the trade unions, which had instead argued for a “social”
legal basis based on Articles 153 and 154 TFEU.
   Consequently, since the legal basis of the directive was based on the objective of the fair
competition between the companies of the Member States, there was no need for the direct
involvement of the social partners, as required for the social policy objectives by Art. 154
TfEU. This favoured the corporatist perspective, according to which the observance of
duties of care – as was the case with the French law – is a governance constraint decided
mostly unilaterally by companies.
   In more general terms, on union involvement in corporate governance, as an
organisational model to achieve the just transition goals set by the European Green deal, 34
seems to be occurring between the Commission and the European Parliament an ideological
clash.35


33 Thus, the proposal of that part of the consulted employers’ associations and companies, which joined the
legislative initiative in a favourable way, was accepted, stressing the usefulness of an intervention on due
diligence because of the need to make the harmonization of the European rules in this matter more adequate
and to avoid, consequently, the risk of distorting competition among European companies due to disciplines
decided in the different national fora. In any case, it should be noted that a substantial part of the companies
and employers’ associations consulted highlighted concerns about the impact that the new rules may cause on
the supply chains and competitiveness of European companies, calling for deep reflection aimed at withdrawing
the proposed directive (see, for example, the content of letters sent by the Director General of Europe’s largest
business association, BusinessEurope, to European Commissioner Didier Reynders (BusinessEurope, Due
diligence and sustainable corporate governance - Letter from Markus J. Beyrer to Didier Reynders, October 13, 2020) and to
European Parliamentarians (BusinessEurope, Vote on the draft report on corporate due diligence and corporate
accountability - Letter from Markus J. Beyrer to the European Parliament Legal Affairs Committee, January 21, 2021). In
general, Employer organizations at the EU level such as BusinessEurope and the European Association of
Craft, Small and Medium-Sized Enterprises (UEAPME) had expressed fear that European companies might
have a competitive disadvantage in the world market because of the EU target of a 20 per cent reduction in
CO2 emissions (see Eurofound, 2009).
34 See Communication from the Commission to the European Parliament, the Council, the European Economic

and Social Committee and the Committee of the Regions, The European Green Deal, December 11, 2019, COM
(2019)640 final.
35 In the report of December 29, 2021 (European Parliament, Report on democracy at work: a European framework

for employees’ participation rights and the revision of the EWC Directive (2021/2005(INI)), 2021, A9-0331/2021), the
European Parliament called on the Commission “to make the necessary improvements to the regulatory
frameworks for information, consultation and participation rights of employee representatives, in order to
ensure effective and timely information and consultation before business decisions with a major impact on
workers are made, and if a fair and equitable green and digital transition is to be achieved [and, in addition,] to

https://doi.org/10.6092/issn.1561-8048/18383                                                                           25
  Costantino Cordella                                                                            Italian Labour Law e-Journal
                                                                                                        Issue 2, Vol. 16 (2023)
                                                                                                        Section: Miscellaneous




    The different views of the two institutions on these issues are well known and represent
a trend that has already been demonstrated, for example, with the approval of Directive
01/86/EU, on employee involvement in European companies.
    On that occasion, the Commission’s more liberal approach, based on Anglo-Saxon-style
European company law, according to which the company is conceived on ownership and
the managers’ obligation to maximise shareholder value,36 was countered by the European
Parliament’s approach. This was more in favour of the continental (and, first and foremost,
German) model of the stakeholder enterprise, by which governance is understood in a
genuine sense, according to a more intense relationship with those who manifest, directly or
indirectly, interests (of a varied nature: social, environmental, economic, etc.) related (even if
opposed) to the performance of the enterprise’s activities.
    During the approval process of this directive (although the contrast was also manifested
on other occasions, such as the approval of Directive 2003/72/EC on the European
Cooperative Society), it was written that it marks “a halt, perhaps a definitive one, in the
attempt to link social Europe to the generalisation of the participatory model” and, at the
same time, the “consolidation in Community law of the rights of information and
consultation”.37
    Mutatis mutandis, the European Commission’s recent proposal for a directive on due
diligence, raises the theoretical question about the model of transnational labour relations
toward which we are moving (or should be moving) to meet the challenges of just transition.
This is particularly true if one considers the latest stage of the clash between the two
institutions that occurred with the European Parliament’s recent attempt to extend the
involvement of trade unions further than envisaged in its 2021 resolution.38 In the plenary
session of 31 May 2023, in fact, the European Parliament approved its amendments to the
Commission’s directive text, among which the new obligation to “carrying out meaningful
engagement with affected stakeholders” stands out.39
    This is a provision that, on closer inspection, goes beyond what was proposed on
stakeholder involvement in the 2021 resolution, and thus confirms the absolutely important
role that the Parliament intends to play on this issue.


fulfil its commitment to adopt the Due Diligence Directive [that] ensures the full involvement of trade unions
and worker representatives throughout the due diligence process”.
36 Santagata R., Il lavoratore azionista, Giuffré, 2008, 285.
37 Pessi R., Informazione e partecipazione tra esperienze nazionali ed indirizzi comunitari, in Ficari L. (ed.), Società europea,

diritti di informazione e partecipazione dei lavoratori, Giuffré, Milan, 2006, 51 ff.
38      See the text approved by Parliament in plenary on 31 May 2023, at:
https://www.europarl.europa.eu/doceo/document/A-9-2023-0184_EN.html#_section1.
39 See the text of the new Article 8d, introduced by Amendment 206 to the text of the Commission’s proposal

for a Directive. See also, however, Amendment 122 adding a point ‘n.a.’ to Article 3 para. 1, and thus introducing
the figure of ‘vulnerable stakeholders’, understood as those “that find themselves in marginalised situations and
situations of vulnerability, due to specific contexts or intersecting factors” ..., as well as those “living in conflict-
affected and high-risk areas, which are the causes of diverse and often disproportionate adverse impacts, and
create discrimination and additional barriers to participation and access to justice”. With regard to this category
of persons, it is provided that in the information and consultation phase with stakeholders, companies shall
take into account their ‘specific needs’ (Art. 8d, introduced by amendment 206) and, moreover, that States shall
ensure that the same needs are safeguarded when introducing complaints mechanisms (Art. 9(3a), introduced
by amendment 214).

https://doi.org/10.6092/issn.1561-8048/18383                                                                                  26
     Costantino Cordella                                                                       Italian Labour Law e-Journal
                                                                                                      Issue 2, Vol. 16 (2023)
                                                                                                      Section: Miscellaneous




    Analysing the provision in detail, the first paragraph establishes the object and modalities
of stakeholder participation: it refers in particular to the right to ‘information’ and
‘consultation’ of stakeholders (in line with what was already stated in the 2021 resolution);
more precisely than before, it also states that the commitment of companies in making these
rights concrete must be “comprehensive, structural, effective, timely, and culture and gender-
sensitive”.
    The second paragraph of the provision deals with the addressees of the ‘meaningful
dialogue’ mentioned above. So-called ‘affected stakeholders’ are to be involved but, if a
“genuine interaction and dialogue” is not possible, ‘relevant stakeholders’ may be involved.
From this point of view, the provision does not specify who decides in which cases the
dialogue with ‘affected’ stakeholders may be replaced by ‘relevant’ stakeholders, and this
could lead to excessive discretion for companies. This ambiguity does not, however, concern
the meaningful dialogue that the provision envisages with ‘other experts’, since their
involvement seems to be envisaged as ‘additional’ to that with affected stakeholders and
implemented specifically in case of absence of credible insights on potential or actual negative
impacts.
    In the paragraphs following the second one, the concrete ways of exercising the right to
information and involvement are dealt with,40 and the extent of the contrast with the
Commission’s position in its proposal for a directive is also fully understood. It is clarified
that the right to information of stakeholders is on all news related to the value chain and on
all potential or actual negative impacts for the respect of human and environmental rights
(with the right of stakeholders to request additional written information, see para. 4). With
regard to the right to consultation with interested parties (para. 5), it is specified that the
involvement of employee representatives must take place at all stages of the due diligence
process that the directive will require companies to comply with. It is therefore an
involvement that begins when due diligence ‘policies’ are to be defined, continues when it
comes to establishing mechanisms to identify, prevent, and develop plans to counteract
adverse impacts (Arts. 6 and 7), and finally ends with monitoring activities (Art. 10).41


6. Trade union involvement on a voluntary or binding basis?

   After examining the difficulties in providing legal support for the involvement of trade
unions in due diligence processes, one may wonder whether trade unions can make a
significant contribution to the ecological transition even without the regulatory support of
European and/or national legislators. The projection of trade union action towards the
management of environmental issues, in fact, has already been manifested by European
national sectoral confederations and federations,42 implementing their own statutes with the

40 Specifically, Article 8d, paragraphs 4 and 5, introduced by Amendment 206.
41 Involvement that is then protected by binding companies to ensure that the recipients of the information
and consultation “are not subject of retaliation or retribution”(par. 7).
42 Zito M., Il ruolo del dialogo sociale e della contrattazione collettiva transnazionale nella gestione delle tematiche legate

all’ambiente e alla transizione verde, in Diritto delle relazioni industriali, 2022, 3, 699.

https://doi.org/10.6092/issn.1561-8048/18383                                                                                27
     Costantino Cordella                                                                             Italian Labour Law e-Journal
                                                                                                            Issue 2, Vol. 16 (2023)
                                                                                                            Section: Miscellaneous




aims related to the realisation of climate change and to a ‘green, digital and just’ transition.43
The previous experiences of trade union involvement on a voluntary basis in human and
environmental rights suggest, however, a negative answer to the question.
   As mentioned above, the need for binding intervention to safeguard human and
environmental rights is unavoidable in view of the lack of effectiveness of instruments on a
voluntary basis only, but if such intervention did not also promote trade union involvement,
the results would be no different from those that have already emerged in the past.44 If the
main objective of companies voluntarily using due diligence is to maintain/enhance their
reputation, it is not surprising that this ‘defensive’ approach to the instrument – i.e. to obtain
exoneration from liability in the case of violations of human and environmental rights –
could be repeated even if a binding act such as a European directive without support for
consultation with workers’ representatives were to be approved.45
   In fact, the move from a voluntary to a binding instrument would not guarantee
overcoming the tendency towards the aforementioned ‘defensive’ use of due diligence,
especially if the choice to involve stakeholders remained in the hands of companies and
control over risk assessment and prevention of violations was made possible to trade unions
only after (as will be discussed in a moment) the due diligence duties had been defined. In
this case, in the internal managerial dynamics of companies, the interests to be balanced
would continue to be of an economic nature only. In fact, the recognition of negative impacts
on human or environmental rights due to corporate practices (or those within the supply
chain) and the subsequent organisational reconversion actions to be taken are interventions
on which contrasts may arise depending on the particular interests of individual constituents

43 Even the European Commission, before releasing its proposal for a directive, had on several occasions
highlighted the importance of the European social dialogue and “the active involvement of the social partners”
as instruments for “the Union’s impetus towards a digital, green and fair transition” and “for the social
development of a highly competitive market”: see the Porto Declaration of May 8, 2021; see also Commission
Communication ‘A Strong Social Europe for Just Transitions’ (COM (2020) 14 final).
44 See Recitals 4 ff. of the Parliament resolution of March 10, 2021, where the issue of the lack of effectiveness

of voluntary due diligence mechanisms is raised. Also from experiences related to transnational collective
bargaining and agreements on the transposition of information and consultation rights in the work of EWCs
(on which see the recent European Parliament Resolution of February 2, 2023, making recommendations to the
Commission concerning the revision of the European Works Councils Directive 2009/38/EC), it appears that
in the landscape of EWC agreements and GFAs signed between multinationals and global trade unions, the
environmental issue has remained on the margins of social dialogue; it has been pointed out in this regard that
“it does not represent, except for aspects concerning occupational health, the subject of information and
consultation for workers’ representatives, and collective bargaining is never specifically focused on the
environmental issue” see Zito M., nt. (42), 705.
45 A key provision of the proposed directive is its applicability also to third-country companies operating in the

territory of a European State. This is a highly relevant issue, which is causing much discussion in the legislative
process of approving the directive and on which scholars have always highlighted the need for intervention to
safeguard fair competition between European and non-European companies. Given the approach of this paper,
we will not be able to deal with it specifically: for further discussion see Brino V., Gli ordinamenti nazionali e le
misure di governance con implicazioni extraterritoriali: limiti e tendenze, in Id., nt. (2), 99 ff. In addition, the issue of
extraterritoriality arises on which, too, it has been pointed out that in order to ensure that unilateral responsible
corporate governance initiatives do not remain mere declarations of intent, the intervention of trade unions
and employee representatives in the monitoring and supervisory process is necessary, especially along the global
value chain, where violations are most frequently reported, cf. Guarriello F., Nogler L., Violazioni extraterritoriali
dei diritti umani sul lavoro: un itinerario di ricerca tra rimedi nazionali e contrattazione collettiva transnazionale, in Giornale di
diritto del lavoro e delle relazioni industriali, 2020, 173 ff.; Zito M., nt. (14), 704.

https://doi.org/10.6092/issn.1561-8048/18383                                                                                       28
     Costantino Cordella                                                                    Italian Labour Law e-Journal
                                                                                                   Issue 2, Vol. 16 (2023)
                                                                                                   Section: Miscellaneous




in corporate governance (shareholders, directors, etc.),46 but where counterbalancing the
economic interest is the reputational interest vis-à-vis investors and consumers, which is in
practice an indirect economic interest.
   Where, on the other hand, decisions in which it is necessary to carefully balance the
economic costs of adopting virtuous practices and the resulting social and environmental
benefits are made with the involvement of trade unions, the risk of this balancing of interests
being occluded and of choices being made based solely on economic interests would be
limited.
   Trade union intervention could push for a greater reconsideration of workers’ human
rights and be a driving force for pursuing ecological transition paths based on organisations’
growing interest in having a more open role in society.47 On the other hand, support for
union activity ensures that organisations acquire an institutional role that they desire,
intending to return to the centre of European and national level debate at a time when
environmental issues are on governments’ national and international agendas.


7. What contribution from trade unions to just transition?

   To highlight then the critical aspects of the approach in the Commission’s draft directive,
which excludes the involvement of trade unions from the process of preventing violations
and assessing risks, it is necessary to make explicit the benefits, for the achievement of
European sustainability goals, that, instead, an open and participatory reinterpretation with
trade unions of due diligence obligations would entail.
   What has transpired about implementing the 2014/95 Directive on Non-Financial
Information is a valuable example to understand that, in the absence of union involvement,
the disclosure requirements imposed on companies, in social and environmental matters, can
become mere compliance obligations managed in a self-referential manner.48
   As is known, the EU Directive – now replaced by Directive 22/2464 of 14 December
2022 on corporate sustainability reporting – mandates companies to draw up a nonfinancial
statement including information related to “environmental, social and employee matters,




46 On the existence of a ‘legal’ duty on the part of directors to balance the interests of shareholders and
stakeholders see Bevivino G., Dalla “responsabilità sociale di impresa” alla “sostenibilità”: andata e ritorno, in Lavoro e
Diritto, 2023, 486.
47 On the institutional role that trade unions can play in environmental issues see Eurofound, Industrial relations

and sustainability: the role of social partners in the transition toward a green economy, 2011, 7.
48 For a comparative analysis at European level, prior to the approval of the directive see Cremers J., Non-financial

reporting beyond the strict minimum: is the workforce a well-informed stakeholder?, European trade union institute, Working
Paper, 2013. Italy was one of the first European States to transpose the directive thanks to Legislative decree
254/2016, in force since 25 January 2017. On the transposition in Italy, see Caputo F., Leopizzi R., Pizzi S.,
Milone V., The Non-Financial Reporting Harmonization in Europe: Evolutionary Pathways Related to the Transposition of
the Directive 95/2014/EU within the Italian Context, in Sustainability, December 2019; Posadas S., Tarquinio L.,
Assessing the Effects of Directive 2014/95/EU on Nonfinancial Information Reporting: Evidence from Italian and Spanish
Listed Companies, in Administrative Sciences, 2021, 11, 89.

https://doi.org/10.6092/issn.1561-8048/18383                                                                            29
     Costantino Cordella                                                                    Italian Labour Law e-Journal
                                                                                                   Issue 2, Vol. 16 (2023)
                                                                                                   Section: Miscellaneous




respect for human rights, anti-corruption and bribery matters”.49 In doing so, it created a
new European scenario for corporate reporting, in which the disclosure of non-financial
information changed from voluntary to mandatory. However, it did not provide – and
neither does it the more recent Directive 22/2464, although it leaves more space for
stakeholder involvement – for any kind of trade union involvement neither in the preparation
of such information, nor when publishing company accounts. Research has shown that, in
the years following the entry into force of the national regulations implementing this
directive, a statistically substantial number of companies have supplemented their financial
statements with information on the measures adopted in social and environmental matters,
according to a minimal level of detail,50 which has made fulfilment of the information
obligation merely documentary.51
    The reasons for companies’ opposition to accepting trade union involvement in these
activities – which led employers’ organisations to exert strong pressure to limit the space for
trade union participation in the text of the due diligence directive – are the economic burdens
that such involvement could generate. The concerted drafting of due diligence documents,
it is said, would lengthen decision-making processes, and more incisive strategies for the
defence of human and environmental rights could cause costly changes in organisational and
production structures.
    On the contrary, without considering reasons other than the purely economic ones, the
benefits that a greater awareness of environmental issues among workers through the action
of their representative organisations could provide should not be underestimated. Although
the shift towards more environmentally friendly forms of production often implies the
remodelling of the products to be manufactured (as in the case of the automotive sector),52
environmental transitions are also generated by policies to reduce waste and with it
production costs.53 The promotion of these through trade unions – which have in their
background the ability to interpret the discomforts and needs of the workforce, but also to
guide their choices –54 could take into account the knowledge of workers on the most

49 EU Commission, Directive 2014/95/EU of the European Parliament and the Council of October 22, 2014 Amending
Directive 2013/34/EU as Regards Disclosure of Non-Financial and Diversity Information by Certain Large Undertakings
and Groups, Brussels, 2014, par. 1.
50 Guarriello F., nt. (18), 580.
51 About the effects of the transposition of the directive in Italy, it was written that “the company’s goal in

disclosure was not accountability, but only to comply with the letter of the law”. Therefore, based on the
existing literature on institutional theory and corporate social responsibility, it is reasonable to assume that
companies’ NFI reporting is only a response to recent pressure from the EU and the Italian government.
Moreover, the risk is that companies could “just adapt their current reporting practices to comply with the
Directive and maintain a ‘business as usual’ approach”: Tarquinio L., Posadas S., Pedicone D., Scoring
Nonfinancial Information Reporting in Italian Listed Companies: A Comparison of before and after the Legislative Decree
254/2016, in Sustainability, 2020, n. 12, 18.
52 On the impact for the sector in Italy, see Terzano C., The ecological transition in automotive: risks and opportunities.

Report Uilm, October 5, 2022, www.startmag.it
53 Tomassetti P., Diritto del lavoro e ambiente, Adapt University Press, Modena, 2018, 248.
54 See, in this sense, the company collective agreements referred to in Carta C., La transizione ecologica nelle relazioni

sindacali, in Lavoro e Diritto, 2022, 314, in which there are clauses combining reductions in environmental impact
and economic benefits. Since workers are the actors in the productive organization who recognize the risks of
business activity and therefore have the opportunity to learn about its effects on the environment, it has been
pointed out that increased access to information and their greater participation in decision-making processes
can improve the quality of decisions and strengthen their effectiveness see, Tomassetti P., ibid, 248; on union

https://doi.org/10.6092/issn.1561-8048/18383                                                                            30
  Costantino Cordella                                                                          Italian Labour Law e-Journal
                                                                                                      Issue 2, Vol. 16 (2023)
                                                                                                      Section: Miscellaneous




functional ways to perform the activity while avoiding waste; in this way, the most material
and elementary of convergences could be found between the interest in profit and
environmental issues as called for in the Action Plan for the Circular Economy, as a pillar of
the European Commission’s European Green Deal.55


7.1. Spaces of convergence between the European Commission and Parliament:
grievance procedures actionable by stakeholders.

    Analysing the rules of the draft directive issued by the European Commission, a space of
greater convergence with what the European Parliament resolution envisages regarding the
prerogatives granted to labour organisations is found concerning the ex-post control of due
diligence obligations.
    These are the compliance procedures regulated in both documents by Article 9. In the
European Commission’s version, the provision defers the active legitimacy to file complaints
to, among others, “trade unions and other employee representatives representing persons
working in the value chain concerned”.
    This is a reference to an expanded number of actors (which is likely to be better
circumscribed when the directive is transposed by member states, depending on the typicality
of trade union rights at the national level) that gives the possibility of detecting potential or
actual adverse impacts on human and environmental rights along any stage of the production
process and regardless of whether the responsibility is internal to the company or a business
partner of the company.
    In this way, we take what is positive from the discipline introduced by the French
legislature, in the part in which it extended the responsibility for risk prevention through the
Vigilance Plan beyond the traditional perimeter of the company to include the general activity
in which it operates.56
    As we have pointed out concerning the French regulations, the exercise of the complaints
power can considerably affect the choice of enterprises to develop appropriate violation
prevention and risk assessment strategies.57 However, it is an instrument that circumscribes
its effects depending on the ability of organisations to become aware, from the outside, of
the limitations of the due diligence system and therefore prevents an effective and ‘structural’
control upstream of corporate strategies. Its effects are therefore less incisive than those that

participation in environmental matters see generally Etuc, Una guida per i sindacalisti. Coinvolgere i sindacati nella lotta
contro il cambiamento climatico per creare una transizione giusta, 2018.
55 Communication from the Commission to the European Parliament, the Council, the European Economic

and Social Committee and the Committee of the Regions, A more ambitious 2030 climate goal for Europe. Investing
in a climate-neutral future in the interest of citizens, September 17, 2020, COM (2020) 562 final.
56 V., para. 3. In general on the advantages of a due diligence extended beyond the boundaries of the individual

company see, among others, Brino V., La governance societaria sostenibile: un cantiere da esplorare per il diritto del lavoro?
in Lavoro e Diritto, 2023, 445; on the notion of ‘value chain’ and the notion of ‘chain of activity’, cited in the
Council’s General Guidelines of 1 December 2022, see Borzaga M., Mussi F., nt. (28), 500.
57 In the French case, companies began to adjust their Supervisory Plans, providing more detailed and

numerically superior information, only after the unions had exercised their grievance powers against several of
them: see amplius, infra, para. 3.

https://doi.org/10.6092/issn.1561-8048/18383                                                                               31
 Costantino Cordella                                                               Italian Labour Law e-Journal
                                                                                          Issue 2, Vol. 16 (2023)
                                                                                          Section: Miscellaneous




could be derived from the constraint of respecting the spaces of union involvement in the
broad terms suggested by the European Parliament.




                                                Bibliography

Aa.Vv., Study on Due Diligence Requirements Through the Supply Chain: Final Report. A study
requested by the European Commission, Directorate-General for Justice and Consumers.
Publications Office of the European Union, Bruxelles, 2020, 160-161;
Aa.Vv., Tra attuazione e dibattito: primi insegnamenti dalla legge francese del 2017 sul dovere di vigilanza
delle imprese, in Giornale di diritto del lavoro e di relazioni industriali, 2021, 37;
Addo M., An external view of the OECD Working Party on Responsible Business Conduct and its Chair,
in Mulder H., Scheltema M., van’t Foort S., Kwant C. (eds.), OECD Guidelines for Multinational
Enterprises: a Glass Half Full. A Liber Amicorum for Dr. Roel Nieuwenkamp, Chair of the OECD
Working Party on Responsible Business Conduct 2013-2018, Oecd, 2018, 40;
Angelici C., Divagazioni sulla “responsabilità sociale” d'impresa, in Rivista delle società, 2018, 1, 6.
Baylos A., Empresas Transnacionales Y Debida Diligencia, in Diritti Lavori Mercati International,
2022, 2, 11;
Bevivino G., Dalla “responsabilità sociale di impresa” alla “sostenibilità”: andata e ritorno, in Lavoro e
Diritto, 2023, 486;
Borzaga M., Mussi F., Luci e ombre della recente proposta di direttiva relativa al dovere di due diligence
delle imprese in materia di sostenibilità, in Lavoro e Diritto, 2023, 500;
Brino V., Diritto del lavoro e catene globali del valore, La regolarizzazione dei rapporti di lavoro tra
globalizzazione e localismo, Giappichelli, Turin, 2020;
Brino V., La governance societaria sostenibile: un cantiere da esplorare per il diritto del lavoro? in Lavoro
e Diritto, 2023, 445;
Businesseurope, Due diligence and sustainable corporate governance - Letter from Markus J. Beyrer to
Didier Reynders, 13 ottobre 2020;
Businesseurope, Vote on draft report on corporate due diligence and corporate accountability - Letter from
Markus J. Beyrer to the European Parliament Legal Affairs Committee, 21 January 2021;
Caputo F., Leopizzi R., Pizzi S., Milone V., The Non-Financial Reporting Harmonization in Europe:
Evolutionary Pathways Related to the Transposition of the Directive 95/2014/EU within the Italian
Context, in Sustainability, December 2019;
Carta C., La transizione ecologica nelle relazioni sindacali, in Lavoro e Diritto, 2022, 314;
Cremers J., Non-financial reporting beyond the strict minimum: is the workforce a well-informed
stakeholder?, European trade union institute, Working Paper, 2013;
Daugareilh I., La legge francese sul dovere di vigilanza al vaglio della giurisprudenza, in Giornale di diritto
del lavoro e di relazioni industriali, 2021, 2, 159;
Daugareilh I., La responsabilité sociale des entreprises en quête d’opposabilité, in Supiot A., Delmas-
Marty M. (eds.), Prendre la responsabilité au sérieux, PUF, 2015, 183-199;


https://doi.org/10.6092/issn.1561-8048/18383                                                                   32
 Costantino Cordella                                                                 Italian Labour Law e-Journal
                                                                                            Issue 2, Vol. 16 (2023)
                                                                                            Section: Miscellaneous




Erkens Y., Sustainable business agreement in the Netherlands: search for the missing link, in Giornale di
diritto del lavoro e delle relazioni industriali, 2021, 19;
Etuc Executive Committeee, ETUC Position for a European directive on mandatory Human Rights
due diligence and responsible business conduct, 17-18 December 2019;
Etuc, Una guida per i sindacalisti. Coinvolgere i sindacati nella lotta contro il cambiamento climatico per
creare una transizione giusta, 2018;
Eu Commission, Directive 2014/95/EU of the European Parliament and the Council of 22 October
2014 Amending Directive 2013/34/EU as Regards Disclosure of Non-Financial and Diversity
Information by Certain Large Undertakings and Groups, Bruxelles, 2014, par. 1;
Eurofound, Industrial relations and sustainability: the role of social partners in the transition towards a
green economy, 2011, 7;
European Commission, Directorate-General Justice and Consumers, Sustainable corporate
governance initiative. Inception Impact Assessment, 30 July 2020;
European Parliament, Report on democracy at work: a European framework for employees’ participation
rights and the revision of the EWC Directive (2021/2005(INI)), 2021, A9-0331/2021;
Gottardi R., CSR da scelta unilaterale datoriale a oggetto di negoziazione collettiva: la responsabilità sociale
contrattualizzata, in Guarriello F., Stanzani C., Sindacato e contrattazione nelle multinazionali,
FrancoAngeli, Milano, 2018, 67;
Gualandi S., Addressing MNEs’ violations of workers’ rights through Human Rights Due Diligence. The
proposal for an EU Directive on Sustainable Corporate Governance, in Diritti Lavori Mercati
International, 2022, 1, 84;
Guarriello F., Il ruolo del sindacato e delle rappresentanze del lavoro nei processi di due diligence, in Rivista
giuridica del lavoro, 2021, 585;
Guarriello F., Nogler L., Violazioni extraterritoriali dei diritti umani sul lavoro: un itinerario di ricerca
tra rimedi nazionali e contrattazione collettiva transnazionale, in Giornale di diritto del lavoro e delle
relazioni industriali, 2020, 173;
Loeve          P.,        Etude        sphere       d’influence     versus     due        diligence,      2010,
http://www.diplomatie.gouv.fr/IMG/pdf/1_2PESP_1_Etude_sphere_dinfluence_versus
_due_diligence_cle874ee9.pdf;
Lyon-Caen A., Verso un obbligo legale di vigilanza in capo alle imprese multinazionali, in Rivista
giuridica del lavoro, 2018, 2, 245;
Mulder H., Scheltema M., Van’t Foort S., Kwant C. (eds.), OECD Guidelines for Multinational
Enterprises: a Glass Half Full. A Liber Amicorum for Dr. Roel Nieuwenkamp, Chair of the OECD
Working Party on Responsible Business Conduct 2013-2018, Oecd, 2018, 40;
Murgo M., Global value chains e diritto del lavoro. Problemi e prospettive, Cedam, Torino, 2021, 124
e cap. IV;
Nogler L., Lieferkettensorgfaltspflichtengesetz: perché è nata e quali sono i suoi principali contenuti,
in Giornale di diritto del lavoro e delle relazioni industriali, 2022, 1;
Pessi R., Informazione e partecipazione tra esperienze nazionali ed indirizzi comunitari, in Ficari L. (a
cura di), Società europea, diritti di informazione e partecipazione dei lavoratori, Giuffré, Milan, 2006,
51;
Pollet M., EU corporate due diligence law to learn from the French example, Euractiv, 21 febbraio
2022;

https://doi.org/10.6092/issn.1561-8048/18383                                                                     33
 Costantino Cordella                                                               Italian Labour Law e-Journal
                                                                                          Issue 2, Vol. 16 (2023)
                                                                                          Section: Miscellaneous




Posadas S., Tarquinio L., Assessing the Effects of Directive 2014/95/EU on Nonfinancial Information
Reporting: Evidence from Italian and Spanish Listed Companies, in Administrative Sciences, 2021, 11,
89;
Salcito K., Wielga M., What does Human Rights Due diligence for Business Relationships really look
like on the ground?, in Business and Human Rights Journal, 2017, 2, 113;
Santagata R., Il lavoratore azionista, Giuffré, Milano, 2008, 285;
Savourey S., Brabant S., The French Law on the Duty of Vigilance: Theoretical and Practical Challenges
Since its Adoption, in Business and Human Rights Journal, 2021, 6, 141;
Sherpa, Ne minons pas la transition énergétique. La vigilance dans les chaînes d’approvisionnement en
minerais utilisés dans le cadre de la transition énergétique, 2020, 16;
Tarquinio L., Posadas S., Pedicone D., Scoring Nonfinancial Information Reporting in Italian Listed
Companies: A Comparison of before and after the Legislative Decree 254/2016, in Sustainability, 2020,
12, 18;
Tergeist P., The OECD Guidelines for Multinational Enterprises, Kluwer Law Intl, 2016, 45 ff.;
Terre Solidaire – Sherpa, Le radar due devoir de vigilance. Identifier les entreprises soumises a la Loi,
2021;
Terzano C., La transizione ecologica nell’automotive: rischi e opportunità. Report Uilm, 5 October 2022,
www.startmag.it;
Tomassetti P., Diritto del lavoro e ambiente, Adapt, Modena, 2018;
Tullini P., La responsabilità dell’impresa, in Lavoro e Diritto, 2022, 2, 357;
Zito M., Il ruolo del dialogo sociale e della contrattazione collettiva transnazionale nella gestione delle
tematiche legate all’ambiente e alla transizione verde, in Diritto delle relazioni industriali, 2022, 3, 699;
Zito M., La giustizia francese indaga sui colossi dell’industria tessile per “occultamento di crimini contro
l’umanità” e lavoro forzato degli Uiguri presso le loro catene di fornitura globali, in Giornale di diritto del
lavoro e di relazioni industriali, 2021, 537.




Copyright © 2023 Costantino Cordella. This article is released under a Creative Commons
Attribution 4.0 International License




https://doi.org/10.6092/issn.1561-8048/18383                                                                   34
