EU/Germany: Legal opinion examines civil law issues related to CSDDD transposition, including liability
[Unofficial BHRC translation of German original based on electronic translation]
'Civil law issues regarding the transposition of the EU Sustainability Due Diligence Directive', 17 April 2026
[The European Corporate Sustainability Due Diligence Directive (CSDDD) will make] human rights due diligence obligations enshrined in the UN Guiding Principles on Business and Human Rights... binding for companies throughout the EU. This entails a significant need for adaptation of the German Supply Chain Act (LkSG), which will be examined in more detail below with regard to due diligence obligations and civil liability. In this context, the legal opinion takes into account the latest developments resulting from the Omnibus I Directive...
The Omnibus I Directive removed Article 29(1) CSDDD and thus the explicit obligation on Member States to introduce, in their national law, civil liability specifically linked to breaches of companies' due diligence obligations. However, as reiterated in Recital 49 of the Omnibus I Directive, this was not intended to leave a void but the gap is to be filled by Member States’ own tort law...
...The prevailing view interprets [Omnibus] amendments to mean that Member States are no longer required to introduce civil liability for breaches of due diligence obligations. If they do so voluntarily, they would have to take into account the remaining provisions of Article 29 CSDDD... [However, others] point out that this view leads to significant inconsistencies: not only would the remaining provisions of Art. 29 CSDDD lose their regulatory basis; but numerous references to civil liability in other provisions of the Directive... would also run into a dead end. These inconsistencies could be avoided if Article 29(2) CSDDD was not merely understood in a conditional sense, but rather as a normative mandate to Member States to actually provide for a corresponding basis for civil liability in national law...
In our view, the arguments supporting the latter position are more persuasive. The Omnibus I Directive makes it clear in Recital 49 that Member State tort law has to fill the gap created by the deletion of Article 29(1) CSDDD. It is therefore inconsistent to allow Member States to decide on the “whether” of civil liability at their discretion...
It is particularly problematic that the Omnibus I Directive has removed the overriding mandatory application of the Directive’s provisions... In human rights lawsuits, unless national implementation law applies via Article 16 of the Rome II Regulation as an overriding mandatory provision..., the foreign tort rules of the place of harm would generally be the applicable law. It is virtually impossible for legal practitioners to predict the specific civil liability consequences associated with this. In any case, one cannot assume that the application of foreign tort law poses no or only minimal liability risks for companies. On the contrary, in light of previous human rights lawsuits in England (Vedanta, Shell, Dyson, etc.), it can be observed that common law is significantly more open to corporate liability... Against this backdrop, it could prove beneficial for both affected rightsholders and companies alike if Member States transposing the CSDDD establish a balanced civil liability regime of overriding mandatory application...