Business Responsibility for Human Rights Impact under the UN Guiding Principles: at Odds with European Union Law?

Abstract

The UN Guiding Principles on Business and Human Rights construe business operators' responsibility for human rights violations independently of whether or not they exercise due diligence, linking it instead to their involvement with adverse impact on people. An analogous solution in law, albeit not mainstream in tort law, is not unfamiliar to corporate liability regimes. Based on case law of the European Court of Justice, this article draws attention to cases of, and the rationale for, risk-based business operators' liability under EU law. It is submitted that the premises of risk-based corporate liability within the EU legal order could be pertinent when answering the key normative question of accountability mechanisms for corporate violations of human rights. Moreover, EU risk-based business liability could usefully be extended in order to implement the UN Guiding Principles model of corporate responsibility for adverse human rights impact within EU internal market law. Expected new EU corporate human rights due diligence legislation could serve as a first step in that sense, though progress could also be made by addressing weaknesses in the legislative design of existing EU and national legislation.