Designed to track the CSDDD and promote shared responsibility for human rights and environmental due diligence, the EMCs aim to improve the use of contracts as tools for preventing and addressing human rights and environmental impacts in global supply chains.
The EMCs are the product of the European Working Group, which is composed primarily of European legal experts from practice and academia. A preliminary version of the EMCs was released for consultation in October 2023. Feedback from this initial phase informed the development of the "Zero Draft", which was workshopped through an inclusive consultation process coordinated by RCP.
The consultations were made possible with generous financial support from the Initiative for Global Solidarity (IGS), which is implemented by Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) GmbH on behalf of the German Federal Ministry for Economic Cooperation and Development.
The European Model Clauses (EMCs)
The European Model Clauses (EMCs) are a set of model clauses designed to align with the EU Corporate Sustainability Due Diligence Directive (CSDDD, which entered into force in July of 2024.
The first official version of the EMCs is expected to be published in Winter 2025.
The EU CSDDD and Contracts
The EMCs aim to serve as a key reference for the European Commission as it prepares the guidance on model contractual clauses contemplated under Article 18 of the CSDDD. The guidance and the EMCs are distinct instruments that are being developed independently, but the European Working Group is cooperating with the Commission to ensure that the instruments are in alignment.
Article 18 of the CSDDD contemplates that the EU Commission will, within 30 months of the Directive’s entry into force, develop guidance on voluntary model contractual clauses that companies can use to meet the new requirements. While the EMCs were not developed at the EU Commission's request, the Working Group hopes that they will serve as a helpful resource for the Commission as it develops its guidance.
The EMCs include clauses that can support companies’ HREDD processes, including on cooperation, stakeholder engagement, information sharing, responsible purchasing practices, internal grievance mechanisms, human rights remediation, and the “exit as a last resort” principle reflected in the UNGPs, the OECD guidance, and the new mHREDD laws.
The EMCs seek to improve the effectiveness of contracts as tools for HREDD by moving away from a risk-shifting, one-sided, perfect compliance model of contracting toward a shared-responsibility model where the parties cooperate, on an on-going basis, to prevent and, when needed, remedy adverse human rights and environmental (HRE) impacts.
In this way, the EMCs track the new mHREDD laws, which identify contracts as important preventive and corrective measures that must be appropriate and effective for addressing adverse HRE impacts. The CSDDD specifies that contracts should not be used simply to transfer due diligence obligations to business partners, such as suppliers.*
*Article 18 on Model Contractual Clauses and the accompanying Recital 66 contemplate clarify that the forthcoming European Commission guidance on contracts "should aim to facilitate a clear allocation of tasks between contracting parties and ongoing cooperation, in a way that avoids the transfer of the obligations provided for in this Directive to a business partner and automatically rendering the contract void in case of a breach. The guidance should reflect the principle that the mere use of contractual assurances cannot, on its own, satisfy the due diligence standards provided for in this Directive.".
More information
✔ For more information on the EMCs, you may refer to this video and accompanying slides.
✔ For analysis of the content of mandatory due diligence laws with respect to contracts, see the RCP Policy Brief: What the EU CSDDD Says About Contracts (July 2024) and Complying with Mandatory Human Rights Due Diligence Legislation through Shared-Responsibility Contracting: The Example of Germany’s Supply Chain Act (LkSG), (2023) (2023) (Ch. 14 in ABA Book available here).
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