German Supply Chain Act now in force

The German Supply Chain Act is now in force. A tremendous FAQ is available here.

The Act contains dozens of regulatory strategies and choices as we make the move from generic demands for “due diligence” to a specific, enforceable regime that demands concrete action but respects the need for judgment calls and prioritization by managers and stakeholders facing infinitely variable and complex situations.

For the moment, I’ll just note the interesting approach taken in Section 2 (definitions) on which human rights exactly (or as exactly as possible), the Act encompasses. The approach is a creative blend of broad and narrow. First the Act defines rightsholder “legal positions” by reference to an annex that lists nine ILO Conventions (re forced labor, child labor, anti-discrimination) — as well as the ICCPR and ICESCR. (Note that ILO Convention No. 169 concerning Indigenous and Tribal Peoples is not included).

The Act then extrapolates from these into a list of relatively specific prohibitions that in turn define actionable “risk”; risk under the Act exists when “there is a sufficient probability that a violation of one of the [] prohibitions.” The specificity of the prohibitions varies from “the prohibition of the employment of a child under the age at which compulsory schooling ends according to the law of the place of employment,” to a prohibition on labor for which a person “has not made himself or herself available voluntarily, for example as a result of debt bondage,” to “the prohibition of withholding an adequate living wage,” to “the prohibition of causing any harmful soil change, water pollution, air pollution, harmful noise emission or excessive water consumption that significantly impairs the natural bases for the preservation and production of food” or “harms the health of a person.” It does contain a few dodges, such as a prohibition on “unlawful eviction [or] taking of land,” where the real challenge lies in takings (land grabs) that may be technically legal but nonetheless cause human rights violations.

Finally, in a carefully calibrated catch-all, Section 2(2).12 includes:

The prohibition of an act or omission in breach of a duty to act that goes beyond nos. 1 to 11, which is directly capable of impairing a protected legal position in a particularly serious manner, and the unlawfulness of which is obvious upon reasonable assessment of all the circumstances in question.

This references back to the ILO conventions and ICCPR/ICESCR referenced earlier, bringing in any claim under those conventions so long as it meets the seriousness and obviousness criteria in the act. The obviousness requirement could be frustrating, but may be workable in the context of the contemporary advocacy environment — many companies will not want to be left arguing that a human rights violation is not sufficiently obvious (or serious). The framework also makes clear that “unlawful” here means in violation of human rights law, not domestic law (which would not require an obviousness assessment).

The result, in my view, is a good start at a broad yet specific definition, allowing for strict requirements as to defined risks but opening the door to broader claims depending on the circumstances. Rights advocates can certainly complain that the discretionary language gives companies an easy pass, and companies might complain that the same language does not give them enough guidance, but the balance makes sense.

The exciting thing about this Act is that the same strategies and choices are now on the agenda in dozens of national and multilateral regulatory contexts, and mHREDD regimes continue to bloom. So we can take this first effort, see what the experience is, and grow from there.