On Thursday we will vote on the opinion of the @EP_SingleMarket (IMCO) committee on #CSDDD. In contrast to all the other committees, the discussions with the EPP under the lead of @deirdreclunemep (EPP) were constructive. But there is one issue: #maximum #harmonisation. A thread:
🐦🔗: https://n.respublicae.eu/repasi/status/1630989363663306762
The EPP, ECR and Renew have proposed in Compromise Amendment 1A the inclusion of a paragraph 2a, according to which all provisions in the #CSDDD should be maximum harmonisation (which prevents MS to include more stringent rules in their national laws) except for two articles.
🐦🔗: https://n.respublicae.eu/repasi/status/1630989366410506241
The @TheProgressives, @GreensEFA and @Left_EU tabled an alternative compromise amendment 1B, which deletes this paragraph 2a. This will be a key vote. If the CA 1A (maximum harmonisation) gets a majority, we will vote against the entire opinion in the final vote. Here is why:
🐦🔗: https://n.respublicae.eu/repasi/status/1630989369170427904
(1a) The legal base for #CSDDD is Article 50 TFEU, which only allows for directives (which bind MS only to the result to be achieved), which as a matter of principle runs counter the idea of maximum harmonisation.
🐦🔗: https://n.respublicae.eu/repasi/status/1630989371334688772
(1b) Previous examples of maximum harmonisation in directives were exclusively based on Article 114 TFEU, which also allows for adopting regulations (which are maximum harmonisations): a legal base that is open for the idea of max harmonisation (in contrast to Article 50 TFEU).
🐦🔗: https://n.respublicae.eu/repasi/status/1630989374031626244
(2) In the past we chose for maximum harmonisation in the area of consumer protection after decades of experiences with diverging national implementing laws based on EU minimum harmonisation. There are no such experiences in the area of due diligence obligations.
🐦🔗: https://n.respublicae.eu/repasi/status/1630989376871170055
(3a) Maximum harmonisation requires unambiguous wording since judges have to check whether national rules comply with the EU rules. Have a look at Article 6 of the IMCO-CSDDD. Is that clear and unambiguous?
🐦🔗: https://n.respublicae.eu/repasi/status/1630989379203203091
(3c) Or have a look at the proposal by the IMCO opinion on Article 20 #CSDDD with regard to sanctions. This rule provides for a leeway for Member States with regard to sanctions, but should now also be maximum harmonisation? That is contradictory in itself.
🐦🔗: https://n.respublicae.eu/repasi/status/1630989383967952898
(3d) Maximum harmonisation of provisions with multiple open and ambiguous notions makes no sense: neither legally nor politically.
🐦🔗: https://n.respublicae.eu/repasi/status/1630989386379677697
(4a) Maximum harmonisation takes away flexibility for Member States that want to go beyond (such as the Dutch proposal) or already go - in parts - beyond the #CSDDD proposal (such as the French law). Let's first gather some experiences how due diligence can best be achieved.
🐦🔗: https://n.respublicae.eu/repasi/status/1630989388678135827
(4b) After we gathered sufficient experiences, maximum harmonisation can be a future step to take. Let's therefore include the analysis of these experiences and divergences in the review clause as I have proposed it in the ECON opinion on CSDDD.
🐦🔗: https://n.respublicae.eu/repasi/status/1630989391194730496
All these reasons bring me to the conclusion that including maximum harmonisation now in the #CSDDD runs counter the entire idea of corporate sustainability due diligence. If included in IMCO's opinion, @TheProgressives will vote against the entire opinion. I will keep you posted
🐦🔗: https://n.respublicae.eu/repasi/status/1630989393598054401
@Ansip_EU, @sandrogozi, @svenja_hahn, @rozathun, @charanzova, @MarcoZullo, @botos_vlad, @jordi_canyas, @karmel80, @CRinzema, @s_yoncourtin, @SarahAnneAarup
🐦🔗: https://n.respublicae.eu/repasi/status/1630989395808452619
The vote on maximum harmonisation was unfortunately successful with 23 votes in favour and 15 votes against. It was EPP, ECR, Renew and ID in favour and S&D, Greens and Left against. The final vote had the same result.
🐦🔗: https://n.respublicae.eu/repasi/status/1631217255638872065
(3b) Obviously not, national courts will then have to always refer interpretation questions to the CJEU in order to get clarity about the precise content of maximum harmonisation provisions: a nightmare for companies that want to have legal clarity and certainty!
🐦🔗: https://n.respublicae.eu/repasi/status/1630989381732270081