SMEunited – Crafts & SMEs in Europe

The entity states that: ‘SMEunited welcomes the reality check and the roundtable discussion on simplification. Even though the Commission and stakeholders keep referring to an exemption or lighter regime for SMEs, our entrepreneurs paint a completely different picture. They are confronted with multiple data requests from large clients or banks, while the tool that should provide them relief is not ready yet’. Specifically regarding the CS3D, it states that, ‘we support the request from our entrepreneurs to provide a presumption of compliance for value chains within the European Union. Moreover, in its current version, entrepreneurs do not know what they have to do under CS3D. They are asked by their supply chain to comply with sustainability plans they do not have the means to implement. SMEs already had to close down complete production lines out of fear of penalties. The Commission must clarify interlinks with other due diligence policies, e.g. the ban of products made with forced labour and deforestation, and ensure SMEs have the resources and guidelines ready before having to comply’.

The entity indicates that: ‘SMEunited welcomes the effort made in the Omnibus proposal to reduce the burden for SMEs stemming from reporting requirements for large companies under the CSRD and CS3D’. It adds: ‘The proposal should offer breathing space for SMEs. With safeguards put in place, the Omnibus proposes amendments that should tackle the unintended trickle-down effects for SMEs’. Also: ‘SMEunited invites policy makers to reflect on other tools than reporting to reach policy objectives. ... To deliver on the Green Deal objectives, companies need to act, not to report’.

The entity indicates that, ‘SMEunited warmly welcomes the simplification communication, which aligns with its Fit for Future opinion on reducing regulatory burdens’.

The entity indicates that, ‘SMEunited welcomes the clarification brought by some of the Omnibus proposals on certain aspects of CS3D. ... SMEunited supports the extension of the maximum harmonisation clause of the directive. The Omnibus proposal extends the scope of maximum harmonisation to the identification duty, the duties to address adverse impacts that have been or should have been identified and the duty to provide for a complaints and notification mechanism. Such an extension provides legal clarity to SMEs, guarantees a level playing field across Member States as more provisions are aligned and ultimately, avoids gold-plating’.

The document states that, 'The Corporate Sustainability Due Diligence Directive (“CS3D”), undoubtedly the flagship legislation adopted under the Green Deal, is particularly ambitious in terms of its scope thereby creating challenging and impactful new obligations for businesses with global value chains and in some instances rife unintended repercussions for the real economy in the EU and in third countries. ... We, the undersigned European associations representing companies and sectors impacted by the CS3D, welcome the European Commission’s intention to put administrative burden relief and simplification at the heart of its agenda'. It also calls for extending the implementation phase: 'Guidelines and implementing legislation should be adopted at least two years before compliance with legislation becomes mandatory or the transition period should be extended'.

The entity states that: 'The most important element of the proposal should be full harmonisation. This is necessary to avoid fragmentation of the EU single market and ensure a level playing field. This can be achieved by using, for instance, an “internal market clause”. If the EU wishes its model to be used as a reference elsewhere in the world, it cannot rely on the limited harmonisation provided by the directive that would potentially lead to 27 different frameworks'.

The JBS indicates that: 'European business remains supportive of the objectives of the proposed directive ... and we urge co-legislators to work on a reasonable approach that is manageable for companies in practice'. It also states that 'we strongly call for full harmonization to ensure a level playing field and avoid further internal market fragmentation' and that 'legal clarity is paramount for the success of this initiative'.

The entity indicates that: ‘SMEunited welcomes the Commission’s pragmatic and balanced approach. ... Mr Salminen President fears the negative effects on SMEs since enterprises in the scope of the Directive will have to identify potential adverse effects in their supply chain’. It adds ‘the obligation to produce a yearly assessment report detailing the implementation of the due diligence obligations will have a serious impact on SMEs and imposes additional administrative burdens in addition to the reporting obligations of the CSRD’.

The entity indicates that: ‘The Due Diligence Directive leaves too much freedom to the Member States to legislate further, said Luc Hendrickx, SMEunited Enterprise Policy Director ... it won’t be possible to create a level playing field and a harmonised due diligence framework within the Internal Market. ... the provisions in the directive that should shield SMEs from disproportionate requirements don’t provide any certainty’.

The entity indicates that: ‘Mr Hendrickx Policy Director stressed that SMEunited is in favour of European due diligence legislation that works and is workable, is proportional to the limited possibilities of SMEs to conduct due diligence, and effectively shields SMEs that conducted due diligence from unfair liability claims. Legislation should ensure a level playing field, both within the EU and with external actors. To guarantee a level playing field in the EU, regulatory fragmentation through national initiatives should be avoided. The European draft Directive also leaves too much discretion to the Member States’.

The entity indicates that: ‘SMEunited is in favour of a European due diligence legislation that works and is workable, is proportional to the limited possibilities of SMEs to do due diligence, and effectively shields SMEs who did their due diligence against unfair liability claims. Legislation should ensure a level playing field, both within the EU and with external actors. ... The proposal should be a regulation rather than a directive’. However, it adds ‘SME should be exempted from the obligation in article 11 to report on the matters covered by this Directive and publish an annual statement on their website. ... In our opinion, this draft directive needs major improvements before it can be implemented by companies in practice. Moreover, in these difficult times, it is important companies are not put at a competitive disadvantage by disproportionate additional administrative burdens’.

Enterprise Policy Director of SMEunited – Crafts & SMEs in Europe, Luc Hendrickx stated: ‘SMEunited is in favour of European due diligence legislation that works and is workable, and proportionate to the limited possibilities of SMEs to carry out due diligence’, although, while discussing the impact and consequences of the proposal for SMEs, ‘Mr Hendrickx stressed that there are many uncertainties. ... the proposal leaves too much room for manoeuvre for the member states’. Moreover: ‘All SMEs in the value chain will be seriously affected by the due diligence obligation and the trickle-down effect from larger companies and the Commission’s extensive approach to certain definitions’.

The entity indicates that, ‘a balanced European due diligence obligation could have a positive impact given certain issues are being taken into consideration’. It adds: ‘While the Commission has publicly committed to fight against administrative burdens for SMEs, unless carefully designed this proposal could have the opposite effect. Indeed the Inception Impact assessment states that “the obligation to set up due diligence procedures is estimated to be less than 0.14% of the revenues for SMEs and 0.009% for large companies”. Nevertheless this means concretely potential new measures that will entail costs that are 15 times higher for SMEs than for big enterprises’.

The entity indicates that: ‘In the CS3D, the Omnibus Regulation should highlight that exempted SMEs are not required to comply with the same level of requirements than companies in scope. This would reduce the burden on SMEs, rebuild trust in European entrepreneurs and make EU policy clearer and simpler to comply with’.

The entity indicates that the entity’s entrepreneurs, ‘are confronted with multiple data requests from large clients or banks, while the tool that should provide them relief is not ready yet. Moreover, by adding more reporting to tackle failing enforcement, we suffocate bona fide entrepreneurs and will not realise to get those with wrong intentions out of the market .... We have 24.2 million companies with less than 10 employees in Europe, that is why any policy should start based on their specific characteristics’.

The entity indicates that: ‘The upcoming Omnibus legislation must bring tangible simplification and reduce regulatory burden for entrepreneurs to grow their businesses sustainably, while considering the specific characteristics of SMEs. SMEs are out of scope of the legislation and hence cannot be subject to the same stringent requirements as companies in scope’.

The entity indicates that: ‘SMEunited strongly welcomes the introduction in the CSRD and CS3D of the VSME as the maximum amount of information companies in scope can ask to SMEs. ... The proposal nevertheless requires companies to go beyond partners if they have plausible information suggesting an adverse impact at the level of an indirect business partner. ... De facto, the VSME includes information on all relevant impacts. ... The possibility to go beyond the VSME should be therefore deleted, or strictly limited’.

The entity indicates that: ‘SMEunited demands to prioritise a geographical risk-based approach for this legislation. Indeed, European supply chains must be generally considered as low risk and the obligations of European SMEs need to be adapted in consequence’.

The JBS seem to show support for the inclusion of SMEs, although it reiterates that: "The European economy, included SMEs which will be impacted even if formally out of the scope, need a workable due diligence framework that is drafted in a balanced and proportionate way."

SMEunited President, Mr Salminen stated: ‘The European Commission rightly opted to exclude SMEs from the scope of the Directive. ... As SMEunited stressed already in the past, the financial and administrative burden to set up and implement a due diligence process would be extremely high and impact SMEs disproportionally. In addition, they do not have the necessary know-how and market power. We appreciate that the Commission recognises this’. In addition, Mr Salminen welcomes that Member States and the Commission will have to provide accompanying measures and tools for SMEs.

The entity indicates that: ‘The obligations would apply to EU companies with more than 500 employees and a worldwide turnover of more than EUR 150 million and to EU companies operating in high-risk industries with more than 250 employees and a worldwide turnover of more than EUR 40 million. The thresholds for EU companies are substantially lower and the scope broader than the existing French and German laws and the advice of the Dutch Social Economic Council. ... It is appropriate to exclude SMEs from the actual scope’.

The entity indicates that: ‘SMEunited welcomes that the inception impact assessment stated that “due consideration will need to be given to limiting and alleviating the burden for SMEs, for instance by the inclusion of exemptions from certain substantive and possible reporting obligations and/or by simplified standard(s), according to the proportionality principle based on the size and impact of the company.” However, SMEunited highlights that possible impacts on SMEs need to be considered more broadly’. It further explains: ‘SMEs have less capacity, knowledge, information and resources to build on diversified supply chains and to effectively implement the proposed obligations in their operations. ... SMEs are dependent on the information provided by their suppliers as they often do not have the means or capacity to conduct extensive research on suppliers’ backgrounds’. It warns that there could be, ‘many unintended secondary effects’, such as, ‘disproportionate legislation’, and shares the concern that, ‘larger contractual partners will pass on their own due diligence obligations along the supply chain’. It concludes: ‘A system must be created which genuinely shelters SMEs against unreasonable demands, not only in theory but also in practice, and not only from stakeholders and authorities, but also from business relationships. The OECD Guidelines do this with voluntary norms and extensive flexibility provisions’.

The JBS states that: 'regulating directors' duties does not belong in a due diligence framework. It will have negative side-effects, including the disruption of existing, well-established governance models of the member states, without added value to the ability of companies to apply effective due diligence'.

The entity states that: 'Regulating directors’, duties is unnecessary to reach the objectives of the proposal and does not belong in a due diligence framework. It will have negative side-effects, e.g. interfering with national company law systems and creating legal uncertainty, without added value to the ability of companies to apply effective due diligence'.

Regarding the article 25 on the Directors’ duty of care, it indicates: ‘The Member States' regulatory systems differ significantly to make this possible. Any effort to harmonise the regulations may lead to significant changes in company law structures and also to legal uncertainty. The obligations of company directors formulated in this article are much too broad. Long-term estimates of the effects of actions are likely to founder on the impossibility of valid forecasts. ... The obligation to act in the best interests of the company is standing law. We consider that the provision regarding directors’ duty of care (Article 25) should not be included in the directive. ... The objectives set out in the regulation of directors’ duty of care can be achieved more effectively and appropriately through specific legislation than by interfering with fundamental company law structures’.

The entity indicates that: ‘SMEunited supports the deletion of the provisions on civil liability, as the Omnibus proposal foresees that companies should only be liable in accordance with existing national liability provisions’.

The joint statement indicates that: 'Legal liability provisions, including sanctions, need to be balanced, follow legal traditions around breach-damage-causality and truly incorporate the widely accepted principle that due diligence is first and foremost an obligation of means. The complexity of value chains cannot be underestimated when analysing impacts which can have multiple competing causes, players and dynamics. Therefore, companies cannot be made liable for damages they have not -intentionally or negligently - caused'.

The entity states that: 'Legal liability provisions need to be balanced and truly incorporate the widely accepted principle that due diligence is first and foremost an obligation of means and that companies cannot be made liable for damages they have not caused or directly contributed to (intentionally or negligently)'

The entity indicates that: ‘The provisions regarding civil liability (Article 22) ... should not be included in the directive. ... Companies should not be held liable for damage in their supply chain if they did not directly cause it or contribute to it, could not reasonably have known about it, or if they took the appropriate due diligence measures to prevent it. ... It should be made clear that the party liable to pay compensation must also be at fault for causing the damage’.

The entity indicates that: ‘Companies can be expected to draft a due diligence plan, carry it out, report on it, evaluate and if possible improve on it and allow for access to remedy. If a company fulfils these obligations, they cannot be held liable for the actions of others’. It adds: ‘The proposed "responsibility regime" bears the inadvertent risk of handing competitors (from third countries), non-European governments and non-governmental organisations a powerful tool to put European companies under pressure. ... Due diligence duties can and should be discussed independently of damage compensation. ... In addition, new compensation rules could establish highly problematic incentive systems (e.g., ‘risk-free’ cross-border litigation with legal aid). Moreover, to avoid floods of lawsuits any liability for (independent) third parties along the supply chain is firmly rejected’.

The entity indicates that: ‘Concerning the CS3D we support the request from our entrepreneurs to provide a presumption of compliance for value chains within the European Union’.

The entity indicates that: ‘The assessment of the geographical risk factor should provide for a presumption of compliance for exclusively European value chains. To ensure human rights protection in the EU without overlaps in legislation, the Omnibus must reinforce existing market surveillance based on existing high EU standards’.

The entity indicates that: ‘Talking about the limitation to tier one, Secretary General Willems explained her concerns on the possibility to go further in case of ‘plausible information’. While it can provide for a risk-based approach, there is no clarity of what plausible information means. We have to be careful to provide companies with legal certainty, or we will end up in the same situation where in scope companies ask a lot of different question’, she said. It is not in tier one that the main issues arise, as European SMEs in supply chain comply with EU law’.

The entity indicates that: ‘Limiting the assessment of impact to tier one makes the due diligence legislation more feasible for SMEs in the supply chain. ... First, SMEunited reminds that companies within the EU are already operating under a strict legal framework regarding human rights and environmental rights. Therefore, there should be a presumption of compliance for European SMEs. ... SMEunited strongly welcomes the introduction in the CSRD and CS3D of the VSME as the maximum amount of information companies in scope can ask to SMEs. ... The proposal nevertheless requires companies to go beyond partners if they have plausible information suggesting an adverse impact at the level of an indirect business partner. ... De facto, the VSME includes information on all relevant impacts. ... The possibility to go beyond the VSME should be therefore deleted, or strictly limited’.

The entity indicates that: ‘The VSME voluntary standard for SMEs is a compromise between what companies in scope of the CSRD need, and what SMEs can do. This is why it must be the cap in the value chain, as suggested in the Omnibus I proposal. ... With a real risk-based approach, companies would then carry out in-depth impact assessments where significant risks are, therefore avoiding that European SMEs receive different questionnaires and sustainability contracts when they already comply with EU rules’.

The entity indicates that: ‘SMEunited demands to prioritise a geographical risk-based approach for this legislation. Indeed, European supply chains must be generally considered as low risk and the obligations of European SMEs need to be adapted in consequence’.

The joint statement states that: 'To ensure that the future Directive is truly consistent with a risk-based approach, widely supported in international instruments in the UN and OECD, companies cannot be expected to focus on every single element of their value chains. The ability to prioritise the identification of and action to address the most salient risks is a necessity that must have a crucial impact on compliance with the due diligence process and its consequences'. It also points out that, 'we call for revisiting and shortening the annex to only include those conventions and treaties that create concrete obligations on companies so not to mix up their roles with the one of states'.

The entity states that: 'Focusing on all aspects within the whole value chain is neither manageable nor realistic. Supply chains alone can comprise multiple tiers with hundreds or thousands of locations, product lines and entities. Companies should be able to prioritise the most salient risks and have the freedom to take appropriate actions to cease, prevent or mitigate identified adverse impacts in accordance with a risk based approach. Without this ability to prioritise, companies cannot realistically implement due diligence requirements in an efficient way'. It also points out that: 'The list of norms/conventions in the Annex is too far reaching and generates legal uncertainty. Most of the norms in the annex are only applicable to states and not legal private entities like companies. To be workable, this list should be reviewed and shortened, clearly indicating what are the requirements directly applicable to companies'.

The entity indicates that: ‘Extending the due diligence obligation to the entire value chain, upstream and downstream, is a huge extension compared to supply chain (upstream) due diligence. Especially for SMEs this is unmanageable. We propose to limit the scope of obligations. ... responsibility for the entire value chain. This goes far beyond the direct sphere of influence of a company. For the sake of legal certainty and the practical possibility of exerting influence, due diligence obligations must at least be limited to this sphere of influence. ... If any due diligence requirements are imposed at all, they should be limited to selected and clearly defined high-risk industries and direct contractual partners (“first tier only”). ... While the general exemption of SMEs following the thresholds is important, all SMEs in the value chain will be severely affected by the obligation to do due diligence and by the trickle-down effect, as many of them operate in the supply chain of large companies and the Commission takes an extensive approach to certain definitions. ... Supply chains within the EU should be exempted from the directive’.

The entity indicates that: ‘Due diligence is not limited to the first tier, i.e. the first stage of the supply chain, but covers the entire value chain. This goes far beyond the direct sphere of influence of SMEs. For the sake of legal certainty and the practical possibility of exerting influence, due diligence obligations must at least be limited to this sphere of influence and exclude the distribution chain to the final customer’.

The entity indicates that: ‘All SMEs will be greatly impacted by the “trickle-down” effect as many of them are in the supply chain of large companies. ... If any due diligence requirements are imposed at all, they should be limited to selected and clearly defined high-risk industries and direct contractual partners (“first tier only”)’.

The statement indicates that, 'competitiveness assessment that leads to the new simplification should ensure that upcoming implementing legislation and guidance … are co-developed to address gaps or excessively burdensome provisions, rather than introduce additional layers of complexity or de facto extend the scope of the CS3D'.

The entity indicates that ‘The proposed model clauses also leave a lot of room for interpretation. There are fears that large enterprises will shift their due diligence obligations to their SMEs providers’.

The entity indicates that: ‘the Directive evidently shows that it expects the whole value chain to be bound by contractual clauses to do due diligence; equally, contracts may contain civil law fines. Different key provisions in the proposal show that SMEs will be fully affected by this Directive. ... There is a risk that under the guise of the obligation to seek contractual assurances the larger companies will transfer their own obligations and burden to SMEs. Therefore, it is important that the company seeking contractual assurances has an obligation to provide targeted and proportionate support to the SME with which it has an established business relationship. ... In practice, contractual assurances and contractual cascading are highly problematic as far as monitoring and enforcing of assurances is concerned’.