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On March 15, 2024, following weeks of political wrangling, the Corporate Sustainability Due Diligence Directive (CS3D) was endorsed by the EU Council. The make-or-break vote was the last opportunity for the CS3D to be adopted in its current form before the June 2024 European parliamentary elections.
The final text, as voted by the Council, is a heavily watered-down version of earlier proposals—themselves already diluted through the legislative process. In particular, it covers fewer companies and fewer activities, and provides for a more gradual phasing in, than originally envisaged.
Surprisingly, these last-minute concessions—summarized below—were brokered in the Council after a provisional agreement on the text had already been reached with the Parliament. The latter must now approve the Council’s compromise text, with a plenary vote likely to take place in April 2024. While parliamentary approval had not been expected to pose any obstacle to the CS3D’s final adoption, given the extent of the changes made by the Council, this is no longer certain. All eyes are now on the Parliament to see whether it takes the position that any agreement is better than no agreement.
The proposal for the CS3D was published by the European Commission on February 23, 2022.[1] On November 30, 2022, the Council announced its negotiating position on the proposal, introducing a number of key changes.[2] This was followed, on June 1, 2023, by the Parliament presenting its amendments to the proposal.[3] Further to inter-institutional negotiations, on December 14, 2023, the Parliament and the Council reached their provisional agreement on the text.[4]
A “qualified majority” of some 15 Member States representing 65% of the EU population was needed for the CS3D to pass in the Council. After Germany, which controls 18.72% of the votes, announced its intention to abstain and a number of other States declared they would follow suit, the vote was pulled from the Council’s February 9, 2024, agenda. It thereafter reappeared but was quickly removed from the February 14 agenda, before finally being put to a vote on February 28. With one opposition and 13 abstentions, the vote failed.
On March 6, 2024, the Belgian presidency circulated a compromise text. A vote was expected on March 8, but was postponed after Germany indicated it would continue to abstain. A last-ditch compromise text making even further concessions was circulated on March 13,[5] and a vote scheduled for March 15.
The key changes contained in the text as voted by the Council on March 15, 2024, are set out below.[6]
While the compromise text will disappoint many proponents of the CS3D, it still represents a significant advancement of the regulatory framework for sustainable corporate governance in Europe. The new rules preserve the core idea of mandatory sustainability due diligence, requiring companies to identify—and to prevent, end or mitigate—adverse impacts on human rights or the environment of their activities across their worldwide “chain of activities,” with consequences including pecuniary penalties and civil liability for non-compliance. Not only companies headquartered in the Union but also non-EU companies operating within the bloc and meeting the applicable turnover thresholds will be required to comply, further ensuring the effects of the directive will be felt beyond European borders.
News that the CS3D has, following the Council’s vote, edged closer to the finish line will also be welcomed by the many companies that have advocated for its adoption, on the basis that it provides greater legal certainty and helps to create a level playing field across the EU.
We will continue to monitor developments and will provide further updates and analysis in due course. Please do not hesitate to contact the authors with any questions.
[1] European Commission, Proposal for a directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937, COM(2022) 71, February 23, 2022.
[2] Council of the European Union, Proposal for a directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937—General Approach, November 30, 2022. The Council sometimes adopts such a “general approach” to give the Parliament an indication of its position on a legislative proposal.
[3] European Parliament, Amendments adopted by the European Parliament on 1 June 2023 on the Proposal for a directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937 (COM(2022)0071 – C9-0050/2022 – 2022/0051(COD)), P9_TA(2023)0209, June 1, 2023.
[4] Council of the European Union, Press Release, “Corporate sustainability due diligence: Council and Parliament strike deal to protect environment and human rights,” December 14, 2023. The final draft was released on January 20, 2024.
[5] Proposal for a Directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937, March 13, 2024.
[6] Council of the European Union, Proposal for a directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937—Letter to the Chair of the JURI Committee of the European Parliament, March 15, 2024.
[7] Review clauses in EU legislation are provisions typically addressed to the European Commission, requiring it to review, evaluate and/or report on the implementation or application of a particular act after a certain number of years, accompanied by legislative proposals, where appropriate.
[8] As defined in the Representative Actions Directive (i.e., as actions brought by qualified entities before national courts or administrative authorities on behalf of groups of consumers to seek injunctive or redress measures, or both). See Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC.
[9] Directive (EU) 2022/2464 of the European Parliament and of the Council of 14 December 2022 amending Regulation (EU) No 537/2014, Directive 2004/109/EC, Directive 2006/43/EC and Directive 2013/34/EU, as regards corporate sustainability reporting.