In the event that an enterprise abuses human rights, the state is under obligation to ensure accessible remedy and effective remediation whenever such abuses occur within their territory and/or jurisdiction. The third pillar of the UN Guiding Principles on Business and Human Rights revolves around this fundamental principle, detailing the state's duty to protect human rights and enterprises responsibility to respect human rights. States must also ensure that victims of human rights abuse have access to state and, where necessary, non-state grievance mechanisms and remediation. According to the UN Guiding Principles, remediation can take the form of rehabilitation, financial or non-financial compensation, punitive sanctions or prevention of harm through, for example, injunctions or guarantees of non-repetition.
Judicial grievance mechanisms
Anyone who considers their rights to have been violated by the actions of a business enterprise in Germany can assert claims before the German civil courts. Similarly, anyone who considers that their rights have been violated by the actions of a German business enterprise in another country can also bring action in Germany, normally at the place of the enterprise’s registered office. German international law of civil procedure also contains further rules allowing action to be brought before German courts in the case of certain violations of rights abroad that have a sufficient domestic connection (an example is the jurisdiction for tort under section 32 of the Code of Civil Procedure).
German civil procedure law contains mechanisms that facilitate access to the German civil courts. For example, applicants who are impoverished can obtain legal aid. Following verification that the petitioner is in need and that the action has prospects of success, this covers court costs and the costs of the petitioner’s own counsel in whole or part according to the degree of need. Legal aid for German proceedings is also available to those who do not have German nationality. All legal entities established in the European Economic Area (such as victims’ associations) can obtain legal aid subject to the conditions set out in the Code of Civil Procedure. The German Code of Civil Procedure also features instruments of collective action in the form of joinder of parties and the consolidation of claims in a single action.
Victims of human rights violations will only be able to use the available grievance mechanisms if they are sufficiently informed about them. For this purpose, the Federal Government has published an information booklet in German and English, “The responsibility of business enterprises for human rights violations: Access to justice and the courts”, which provides potential affected parties with an easy-to-understand overview of their options to enforce their rights under civil procedure law in Germany.
In addition, business enterprises can be held directly responsible under administrative offences law for criminal conduct by directors – which can also include human rights violations attributable to the enterprise – with fines of up to €10 million. Even larger fines can be imposed if financial gain is made from the offence.
The Federal Government has adopted an act introducing entitlement to survivors’ benefits which has been in force since 22 July 2017. A person liable to pay compensation is required to pay a survivor – who at the time of injury was personally particularly close to the person killed – appropriate monetary compensation for the psychological suffering caused to them.
A major aspect with a view to potential human rights violations along global supply and value chains consists of strengthening the rule of law and democratisation in relevant third countries, because it creates the conditions for the introduction of effective remedial mechanisms in those countries. One organisation that contributes here is the German Foundation for International Legal Cooperation (IRZ). Founded by the Federal Government, IRZ advises partner countries on the law of civil (commercial) procedure, criminal procedure and administrative procedure – including the creation of administrative jurisdictions – and on enforcement law. It also addresses questions at various levels around shaping an effective legal aid system to ensure access to justice. Its work additionally covers alternative dispute resolution options such as arbitration and mediation. IFZ naturally not only advises on procedural law, but also, and in particular, on substantive law, including the various areas of civil and commercial law, such as the codification of civil law, intellectual property, insolvency law, criminal law and so forth.
National Contact Point for the OECD Guidelines as extrajudicial grievance mechanism
The Federal Government has reorganised the National Contact Point (NCP) for the OECD Guidelines for Multinational Enterprises and increased its staffing. The NCP is organised under the Federal Ministry for Economic Affairs and Energy (BMWi) and has the task of providing information on the OECD Guidelines for Multinational Enterprises (OECD Guidelines), publicising the OECD Guidelines and promoting compliance with them. It also helps to solve problems that arise in implementation of the OECD Guidelines. The NCP thus acts as a grievance mechanism in the event of potential violations of the OECD Guidelines – for example if companies fail to adequately meet their human rights due diligence obligations. The OECD Guidelines, as revised in 2011 with recommendations on respect for human rights, are expressly based on the UN Guiding Principles on Business and Human Rights. The grievance mechanisms in accordance with the OECD Guidelines therefore also serve to implement the UN Guiding Principles.
The NCP reviews incoming complaints. If the criteria for acceptance of a complaint are met, it offers the parties to the conflict the option of participating in mediation. Decisions are made in consultation with the Interministerial Committee on the OECD Guidelines. In addition to the BMWi, which holds the chair, the Interministerial Committee comprises representatives of the Federal Foreign Office, the Federal Ministry of Labour and Social Affairs, the Federal Ministry of Food and Agriculture, the Federal Ministry of Finance, the Federal Ministry of Justice and Consumer Protection, the Federal Ministry for the Environment, Nature Conservation, Building and Nuclear Safety and the Federal Ministry for Economic Cooperation and Development. The NCP is additionally advised and supported by a working group comprising representatives of business associations, unions, non-governmental organisations and additional organisations with specific expertise, such as the German Global Compact Network.
A company’s constructive participation in NCP grievance mechanisms is taken into account in the granting of external trade promotion instruments (export credits, investment guarantees and untied loans). The Federal Government reserves the right to exclude companies from the external trade promotion instruments mentioned above if they refuse to address alleged grievances.
Constructive participation in NCP grievance mechanisms may taken into account for companies’ participation in high-level ministerial visits by the Federal Ministry for Economic Affairs and Energy (BMWi). Explanatory notes on the grievance mechanism, including information on past cases and their outcomes, are publicly available on the NCS website.
Corporate in-house grievance mechanisms