“The UN Guiding Principles on Business and Human Rights. A Challenge for the European Union or Only for Its Member States? Towards a EU National Action Plan”

With my essay in the festschrift for Professor Stelios Perrakis, I wish to advocate the periodic elaboration of a comprehensive EU National Action Plan to implement the UNGPs (i.e. the United Nations Guiding Principles on Business and Human Rights) as if the EU was a federal state. As a matter of fact, there are many policies and activities that the EU is doing or has already done to implement, even ex ante and spontaneously, the UNGPs. Thus, to avoid the risk of fragmentation of actions and policies between the EU level and the Member States, such a living document would serve as a compass for policy action and would increase the consistency and coherence of the EU as a whole. It would also help Member States to understand their respective policy space and responsibilities to complement and effectively support EU action to fully implement the UNGPs. But are the UNGPs applicable to the EU or rather are they addressed solely to its Member States? This will form the first part of this essay. Here, it will become evident that the EU has developed many activities even before the UNGPs were elaborated. In the second part, my essay turns less optimistic. The role of the EU may be put to a test when dealing with UNGPs Pillar three, namely the “access to remedies” pillar. Under this perspective it emerges that Member States cannot do much today since fundamental matters such as “private international law” including “conflict of jurisdiction” rules have been largely regulated by the EU. Beyond EU private international law there are national solutions which provide a scattered and unsatisfactory picture facilitating forum and law shopping. Hence, any reform of EU Private International Law as a whole should be considered under the light of the UNGPs. All in all, since the EU and its Member States operate in different spheres of competence (exclusive, shared, supporting) it necessarily follows that the responsibility to fully implement the UNGPs may be exclusive or shared.