2. The Netherlands

by Shift highlighted that “the requirements of the Duty of Vigilance Law have pushed companies to improve their reporting” (Shift, 2019, p.5). The report notes that, “overall, 55% of companies slightly improved the maturity of their disclosure, with an average overall score of 2.58/5, up from 2.45/5 before the entry into force of the Law” (Shift, 2019, p. 5), which is slightly higher than the average non-French company (Shift, 2018, p. 6). One study found generally high levels of compliance with the legislation, and observed that the French Duty of Vigilance has had some positive impacts on business practices (Duthilleul & de Jouvenel, 2020).

However, a majority of companies seem to have adopted a compliance-orientated approach, and to have focused on the risks to the business itself, rather than on the risks to people and the planet (ActionAid et al., 2019). Furthermore, consultation with external stakeholders (which is encouraged but not made compulsory under the FDVL) has remained limited in practice (Barraud de Lagerie et al., 2020). To address some of these issues, a recent report for the French Government recommended to nominate a public authority which would be in charge of: (i) monitoring the promoting and implementation of the law; (ii) contributing to the harmonisation of corporate practices; and (iii) promoting sectorial and multi-party approaches (Duthilleul & de Jouvenel, 2020).

Finally, despite its objective to improve access to remedy for victims, the FDVL failed to address a number of obstacles to accessing remedy faced by claimants in concrete cases. In particular, the burden of proof remains on the claimant, who will need to prove that they suffered damage as a result of a fault on the part of the parent company or lead company (Bright, 2021).

2. The Netherlands

The Dutch Child Labour Due Diligence Act (DCLDDA) was adopted on 14 May 2019,40 although it has yet to enter into force.41 It is framed around a double objective of preventing the use of child labour in supply chains thereby ensuring consumer protection (Enneking, 2020):

we have taken into consideration the desirability of enshrining in law that companies that sell goods and services on the Dutch market should do everything within their power to prevent their products and services from being produced using child labor, so that consumers can buy them with peace of mind. (The Dutch Child Labour Due Diligence Act, 2019, Preamble)42

Child labour is defined in Article 2 of the DCLDDA (2019) as meaning:

in any case, any form of work, whether or not under an employment contract,

40 The Netherlands Child Labour Due Diligence Act of 2019: “Wet van 24 oktober 2019 n. 401 houdende de invoering van een zorgplicht ter voorkoming van de levering van goederen en diensten die met behulp van kinderarbeid tot stand zijn gekomen (Wet zorgplicht kinderarbeid).” 41 Its exact date of its entry into force is to be determined by Royal Decree. It may, in fact, never enter into force if the legislative proposal published in March 2021 is adopted as the latter would effectively replace it. 42 For an unofficial translation please see Ropes & Gray LLP publication (Littenberg & Blinder, 2019).

performed by persons who have not yet reached the age of 18 and which is included among the worst forms of child labor referred to in Article 3 of the Worst Forms of Child Labor Convention, 1999.

In addition, Article 2 specifies that if the work takes place in the territory of a State Party to the Minimum Age Convention, 1973, child labour shall further be defined as “any form of work prohibited by the law of that State in implementation of that Convention,” in the alternative, the DCLDDA (2019) states that child labour shall be understood to mean:

i. any form of work, whether or not under an employment contract, performed by persons who are subject to compulsory schooling or who have not yet reached the age of 15, and ii. any form of work, whether or not under an employment contract, performed by persons who have not yet reached the age of 18, insofar as such work, by virtue of the nature of the work or the conditions under which it is performed, may endanger the health, safety or morality of young persons.

However, child labour shall not include light work as defined in Article 7(1) of the Minimum Age Convention (ILO, 1973), carried out for a maximum of 14 hours a week by persons who have reached the age of 13.

The DCLDDA (2019) requires companies selling goods or supplying services to Dutch end users (art. 4.1)43 to exercise human rights due diligence (art. 5). In particular, companies are to investigate, on the basis of reliable sources that are reasonable known and accessible to the company, whether there is a reasonable suspicion that the goods or services to be supplied have been produced using child labour (art. 5.1). Should such a suspicion arise, the legislation mandates companies to adopt and implement a plan of action (art. 51). The legislation refers to the ILO-IOE Child Labor Guidance Tool for Business (ILO, 2015) as a benchmark for the due diligence exercise (DCLDDA, 2019, art. 5).

Under Article 4 of the DCLDDA (2019), companies are required to declare that they exercise due diligence in order to prevent goods or services from being produced using child labour (art. 4.1). More specifically, they are to send a statement to a public supervising authority who is in charge of supervising compliance with the law (art. 3.1). The public supervising authority is to publish the declarations in a public register on its website (art. 4.5).

In case of non-compliance with the obligations laid out in the law, the public supervising authority can issue binding instructions accompanied by a time limit for execution (art. 7.4), and impose an administrative fine in case of continued non-compliance (art. 7). The company can be fined up to €8,200 in case of failure to submit the statement in accordance with Article 4, or up to 10% of the worldwide annual turnover in case of failure to exercise due diligence in accordance with Article 5 (Littenberg & Blinder, 2019). In addition, repeat offenders can incur criminal sanctions (DCLDDA, 2019, art. 9).

43 The legislation does not express any restriction in terms of size of the companies, turnover or in terms of legal form of the companies falling in its scope but Article 6 provides that categories of companies may be exempted from the legislation by general administrative orders. Under Article 4.4, companies that are merely transporting goods are exempt from this requirement.

Anyone whose interests are affected by the actions or omissions of a company failing to comply with the provisions under the DCLDDA (2019) can submit a complaint to the public supervising authority (art. 3.2) on the basis of concrete evidence of non-compliance (art. 3.3), after having submitted it first to the company which has six months to address it (art. 3.4).

Although an important step towards addressing human rights harms in global supply chains, the DCLDDA (2019) suffers from various limitations. First of all, the law applies to companies (wherever they are registered) supplying goods and providing services to Dutch end-users, but does not cover the goods sold and services provided in the Netherlands as part of valueaddition [i.e. excluding the pre-Original Equipment Manufacturer (OEM) level]. In addition, it does not cover the goods and services sold or provided by Dutch companies outside of the Netherlands (Bright, 2021). For these last two categories, issues of child labour remain unaddressed by the legislation.

Secondly, the human rights due diligence obligation can be discharged simply by receiving goods or services from a company which has issued a statement indicating that it exercised due diligence. However, the reporting requirement is a one-off exercise, which does not need to be repeated annually (Bright & Macchi, 2020), whereas the UNGPs call for a continuous exercise of human rights due diligence.

Finally, in terms of enforcement mechanisms, the DCLDDA provides for the possibility for the public supervisory authority to issue administrative fines, but the public supervising authority does not have pro-active powers in this respect as only complaints submitted by third parties can trigger enforcement (MVO Platform, 2019). In addition, the legislation does not contain any civil liability mechanisms. Although administrative fines could, arguably at least, play a deterrent function, they do not provide actual remedy for victims of child labour. In this respect, it has been noted that “companies might do the absolute minimum to meet the law’s requirements. For example, they may quickly get rid of child labourers if discovered without taking responsibility for remediation of impacts that have already occurred” (MVO Platform, 2019).

In addition to the DCLDDA, a legislative proposal in the Netherlands calling for a bill on Responsible and Sustainable International Business Conduct was launched by four major political parties in the Dutch parliament on the 11th of March 2021 (MVO Platform, 2021; “New Bill Could Force Dutch Companies,” 2021). The bill provides for a duty of care on all companies registered in the Netherlands or selling goods or providing services on the Dutch market whereby “any enterprise that knows or can reasonably suspect that its activities may have negative impacts on human rights, labour rights or the environment in countries outside the Netherlands must take all measures that may be reasonably required of it to prevent such impacts, ” or mitigate or reverse them, or refrain from the relevant activity, and, where necessary, to enable remediation.44 In addition, the bill would impose a duty to exercise human rights due diligence (overarching and not limited to child labour) for companies which exceed two of three thresholds: a balance sheet total of 20 million, a net

44 See Unofficial Translation of Dutch Bill for Responsible and Sustainable International Business Conduct, Section 1.2. (n.d.)