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Remedy mechanisms
Access to justice and sound remedies - State-based mechanisms
Intro
Access to justice is a human right which aims to ensure that individuals can seek and obtain effective remedies when their rights are violated, through transparent, independent and impartial legal processes. States have the duty to ensure access to justice to uphold accountability, promote social cohesion and foster peaceful societies. At the country level, companies must respect human rights, including access to justice wherever they operate. That way, they prevent disputes from escalating, improve their social licence to operate, align their practices with global standards on responsible business conduct, reduce litigation and reputational risks, and build stakeholder trust. In addition, companies are encouraged to align their OLGMs with international standards, ensuring that they are available and that they do not interfere with the state-based remedy mechanisms when rightsholders need to ask for support.
Normative grounds
Access to justice is grounded in international law, including the Universal Declaration of Human Rights (Article 8), the International Covenant on Civil and Political Rights (Article 2). The European Convention on Human Rights (articles 6,13, 35 and 46), the EU Charter of Fundamental Rights (articles 47, 51 and 52.3) and the TEU (articles 4 and 19), recognise the right to get access to justice. For environmental issues, the Aarhus Convention, the corresponding EU Regulation1367/2006, Regulation (EU) 2021/1767 and the Seveso III Directive (2012/18/EU) provide for access to justice in environmental matters such as when major accidents involving dangerous substances occur.
The UNGPs (Principles 27 and 31) set out the criteria for the effectiveness of non-judicial mechanisms, provided mainly through administrative measures. These mechanisms complement judicial systems and can offer faster, more accessible, and less adversarial pathways for resolving grievances. In turn, Principle 26 calls on states to remove legal, practical, and other barriers to use judicial mechanisms to avoid a denial of access to a remedy. Additional criteria by which to evaluate these mechanisms include integrity, the ability to accord due process and the availability of impartial, independent (i.e. free from economic or political pressures) and non-corrupt courts. The Council of Europe (CoE) law and EU law also define criteria to evaluate the effectiveness of judicial mechanisms to provide access to justice (See Handbook on Access to Justice, 2016):
- The judiciary bodies must have competence to issue binding decisions
- Their competences and procedures must be predetermined by the law
- They must have permanent jurisdiction and include an inter-partes procedure that grants a fair trial.
Useful resources:
At the level of the UN, four documents developed by The Office of the United Nations High Commissioner for Human Rights (OHCHR) provide guidance on the UNGPs third pillar:
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UN Access to Remedy in Cases of Business-Related Human Rights Abuse: A Practical Guide for State-Based Non-Judicial Mechanisms (OHCHR Practical Guide, 2024)
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The UN Access to Remedy in Case of Business-related Human Rights abuse- An Interpretive Guide (2024), from the UN Office of the High Commissioner for Human Rights.
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Access to Remedy in Cases of Business-Related Human Rights Abuse: A Practical Guide for State-Based Judicial Mechanisms, 2024.
Other important documents on access to justice and remedy are:
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The CoE Recommendation CM/Rec(2016)3 of the Committee of Ministers to member states (MS) on human rights and business
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The Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime
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The EU Fundamental Rights Agency (FRA) documents on access to remedy in the framework of responsible business conduct
Access to justice (and to sound remedy) is essential for upholding human rights in business contexts because it ensures that individuals and communities harmed by business activities can seek redress and accountability. Understanding that access to remedy is as such a human right is important when companies assess risks and impacts. Engaging with sound and preventive OLGMs is an essential step to protect rightsholders and stakeholders. However, businesses are also expected to proactively engage with state-based remedy mechanisms to avoid more serious harms for communities and rightsholders. Businesses that engage constructively with such mechanisms demonstrate a commitment to human rights, reducing the risk of prolonged disputes, litigation and reputational damage. When businesses understand and align with international human rights and environmental standards, they can manage risks more effectively, demonstrate responsible conduct and build trust with rightsholders, stakeholders, investors and regulators.
Although it is the state's fundamental obligation to ensure these mechanisms, businesses must also be aware of them to remove obstacles and contribute to obtaining remedies for those affected by their operations. That way, they collaborate rather than hinder the reparation or restitution process. This attitude is essential for achieving a solution that benefits those affected, has minimal impact on business operations, and ultimately promotes peaceful and sustainable societies.
The remedy landscape is changing, with greater expectations that companies will provide remedy for harms they have caused and contributed to—even if those harms were in the distant past. There are increased calls by stakeholders for companies to remedy the impacts of legacy issues and provide effective remedy. BSR, August 2021
Access to a remedy means achieving an outcome (substantive remedy) that satisfies those affected by business-related human rights abuses, by triggering state-based mechanisms. The following sections describe state-based mechanisms in Belgium that rightsholders and stakeholders can use, and the most significant international mechanisms that can be triggered when national remedies are insufficient or have been exhausted without achieving an effective remedy.
State-based judicial mechanisms
National judicial mechanisms
When rightsholders or stakeholders with a demonstrated interest in the claim do not obtain an effective remedy through administrative mechanisms, they can sue companies or the state when they allegedly caused or contributed to the human rights abuse or the environmental harm. Judicial mechanisms can be directed against companies for actions or omissions, or against the state when it acts as an economic actor (e.g. in public procurement processes or export subsidies). Some legal actions can be used exclusively against the state in its capacity as a regulatory body or controller (i.e. the exercise of state authority, or acta iure imperii), such as judicial review of laws or administrative acts. They can also result in effective remedies when these acts provide a legal basis for business conduct that could potentially violate human rights.
The first step is to identify the competent court that can hear the case, i.e. the court with material and territorial jurisdiction (Judicial Code, art.624).
Material jurisdiction
The nature of the claim and its value define the competent court. The court of first instance has 'full jurisdiction', i.e. it can hear all cases, including those that could be filed before other courts (except for cases within the exclusive jurisdiction of the Court of Appeal and the Court of Cassation) (Judicial Code, art.568). Four criteria determine the material jurisdiction:
- If this subject falls under the competence of a specific court;
- The value of the claim (see Judicial Code, art. 557-562);
- The urgent nature of the claim (injunctive relief);
- The status of the parties: The commercial court has a general competence to deal with cases if both parties are companies or at least the respondent is (Judicial Code, art. 573).
Territorial jurisdiction
Generally, claimants are free to choose a court, but the most common choice is the court of the defendant's place of residence. These are the options (Judicial Code; art. 624):
- The court of the plaintiff's own place of residence. For a company: the place where its head office is located or where it has its administrative seat.
- The court with jurisdiction over the place where the obligations or the conflict originated.
- For contracts, the court where the obligations were (or should have been) executed, unless another place has been selected by the parties.
- For defendants not domiciled in Belgium, the place where the bailiff found him/her.
The exceptions to the principle of freedom of choice are defined by the Judicial Code (art. 627-629quater). For instance, exclusive territorial competences (Judicial Code, art. 632-633decies) such as seizure procedures (Judicial Code, art. 633), or various economic proceedings (Code of Economic Law art. XX.12 and Judicial Code (arts. 632, 605bis-quarter, 633bis-quinquies)).
Jurisdiction in cross-border cases
Parent companies may be held liable (secondary liability) for human rights abuses committed by their subsidiaries and/or partners (primary liability) in third countries. For cross-border cases, the jurisdiction and applicable law rules may provide an alternative to victims when they cannot sue a company in the state where the harm occurred, or when no remedy is possible. Under certain conditions, Belgian courts may have jurisdiction to hear claims of human rights abuses perpetrated by Belgian corporate groups in third countries, when the consequences occurred abroad, or when the victims or defendants are foreigners. Some points of attention are:
- The EU Brussels Ibis Regulation defines competent courts and regulates the recognition and enforcement of judgments in civil and commercial matters, including labour and consumer claims. For cases involving non-EU member states, other international conventions may apply, e.g. the Lugano Convention (between the EU, Iceland, Norway and Switzerland), the conventions of the Hague Conference on Private International Law or other related conventions. If none of these agreements apply, the Belgian Code of International Private Law applies.
- If the defendant is not domiciled in the EU, courts of member states may accept cases against parent companies, but the CJEU has established three conditions for this:
- the claimant should not have as her/his only purpose "to bring the case of the foreign subsidiary into European jurisdiction";
- "a prior relationship amongst the defendants" should be demonstrated; and
- for exclusive distribution agreement.
- The forum non conveniens doctrine is not accepted by the CJEU. This doctrine allows courts to reject cases when another jurisdiction is more "convenient" for the parties, without considering the lack of possibilities for obtaining a remedy (e.g. due to a lack of institutional capacity or the security of victims).
- The forum necessitatis doctrine applies in Belgium to avoid cases of denial of justice, when:
- the claimant cannot sue in any other country; or
- the foreign competent court does not guarantee a fair trial, such as in cases of war, discrimination, or excessive costs that obstruct access to justice; or
- it is impossible to enforce the judgment.
The choice of applicable law is relevant particularly when the third country tort law is not as favourable as Belgian tort law. This is regulated by:
- Rome I Regulation for contractual disputes (e.g. employment or consumer contracts). Some exceptions apply:
- All connections to the case are located in a country other than that of the chosen law or the imperative law of that country where all the connections remain in effect.
- All connections are in the EU but the choice is for the law of a third state (non-derogable rules of EU law stay in effect).
- Rome II Regulation for tort cases apply when no contract existed between the victims and the company (except for some cases of labour and consumer protection).
Interlocutory proceedings for urgent interim injunctions
Courts of first instance, the commercial court and labour tribunals can hear expedited procedures in urgent cases to issue interim injunctions in cases within their competence (Judicial Code, art.584-589).
Outcome: These procedures mainly have a preventive character and can be effective in cases of ongoing or imminent business-related human rights abuses. These mechanisms can also be used when necessary to allow relevant evidence to be collected (including assessment of the damage and its causes), and to protect the rights of persons who are incapable of defending themselves.
Injunctive relief
Where an interlocutory claim cannot be filed because of a lack of urgency, injunctive claims can serve to obtain an order to cease threats and/or damages produced by business-related human rights abuses. This procedure can be used against discriminatory acts, violations of social legislation, threats to consumers, unfair practices against companies, environmental damage and data processing violations. Sometimes, injunctive relief can also be requested as a collective redress. To use these claims, the rightsholder or stakeholder must demonstrate the illegality of the act and their interest in stopping it. Some injunctions can only be lodged by specific claimants. Administrative authorities may file injunctions when the human rights abuse falls within their area of competence.
Outcome: Injunctive claims provide temporary relief, but without solving the problem in a definitive manner, imposing any sanction or ordering compensation.
The Judicial Code (Part IV - Book II) regulates how to present judicial actions other than criminal or administrative actions: who has standing, when rightsholders or stakeholders may appear in person, and when the representation of a lawyer is necessary. In general, the claimant should have the capacity to initiate the action and a legal interest in doing so. The existing interest should be concrete, although it is possible to admit claims seeking to prevent serious rights violations. When stakeholders can demonstrate such an interest, they can have standing.
Conciliation is a way to conclude judicial procedures which have already started before a judge, under certain conditions:
- The claimant may settle the dispute in a confidential way (Judicial Code, art.731/1-732).
- Non-negotiable rights cannot be the object of conciliation.
- Conciliation has the same binding character as a judgment and is mandatory in labour cases (Judicial Code, art. 734).
Outcome: The remedy could be a compensation or an end to the abuse.
Civil courts
Civil tort disputes are the most prominent judicial route for victims to get compensation from companies and/or the state in tort cases, when the human rights abuse occurs outside any contractual relationship. Three conditions are essential to trigger courts:
- Fault (Civil Code, art.6.6) This can be either an act or an omission resulting in a breach of a legal rule imposing or prohibiting certain behaviour, or of the general standard of care applicable to social interactions.
- Harm covers the economic and the non-economic consequences of the infringement of a legally protected personal interest (Civil Code, art. 6.24, 6.26)).
- Causal link between the two (Civil Code, art.6.18). If the likelihood of the harm occurring without a fault is unclear, or if multiple parties may be liable for the same harm, a proportional liability with partial compensation can be recognised. See the degree of likelihood of the causal link at (Civil Code art. 6.22, 6.23).
Claims against state authorities follow the same judicial path as tort cases against companies, when the state fails to comply with its duty to regulate corporate conduct, when it acts as an economic agent (e.g. through state-owned companies or public procurement), or when it grants subsidies to companies allegedly perpetrating human rights abuses. Victims may choose between challenging a damaging administrative act, regulation or implicit act before the Council of State, or suing the state by using the civil tort procedure. The latter is the only possibility if the damage was caused by a lack of state action, or if compensation is claimed from both a company and the state. A civil court cannot annul administrative acts but it can avoid the application of unlawful administrative acts through the application of the exception of unlawfulness (Belgian Constitution, art. 159). When the objective is the judicial review of an administrative act, the Council of State is the only competent court.
Normative grounds of corporate liability
- Company managers can be held directly liable for extra-contractual responsibility in the execution of their function: Professional liability occurs when the manager acts beyond the scope of how a reasonable, normal and careful manager would reasonably act under the same circumstances (Companies and Associations Code, art. 2:56). The compensation to be paid by the manager when found liable has a monetary cap for certain faults (Companies and Associations Code, art. 2:57).
- Employees can be held directly liable, but only insofar as they fall under one of the categories of the Law on Employment Contracts (art. 18).
- Strict liability of legal persons exists where harms are caused by management bodies or their members, if this is the result of a fault on behalf of its management or another liability-giving fact (Civil Code, art.6.15).
- Public law legal persons also have strict liability for harms caused by their organs or the members of their organs that are not a part of their staff (Civil Code, art.6.15).
- Companies can be held liable through the liability of the appointer (Civil Code, art.6.14) for harms caused by other employees of a company.
The Directors' and Officers' Liability Insurance Policy ("D&O") is crucial for ensuring corporate coverage and providing redress for victims of environmental and human rights violations. D&O insurance protects senior management and the company from legal claims arising from decisions or actions taken in the course of their duties. This includes claims related to regulatory non-compliance, negligence or ethical misconduct. By covering defence costs, legal fees and sometimes fines, D&O insurance enables companies to respond effectively to claims while safeguarding the personal assets of directors and officers. It promotes accountability and enables affected stakeholders to seek redress, even years after the alleged harm occurred. See more here.
Prescription term: for complaints lodged before civil courts, five years is the prescription term following the day upon which the victim becomes aware of both the damage and the identity of the responsible party. Regardless of the victim's awareness, the claim will expire if twenty years have passed since the day upon which the damaging act was committed.
Outcome: Affected persons can claim full compensation or redress (Civil Code, art. 6.31). For non-economic damages, a fair and reasonable compensation is possible. The restitution can be in kind and/or be a monetary compensation. When there is an established or imminent threat of a violation of a legal rule, a judicial order or prohibition to prevent harm from occurring is possible (Civil Code, art. 6.40).
Class Actions
To the extent that a human rights abuse also violates consumer rights, a collective claim may be considered. There are two types of class actions:
- Class action on behalf of consumers has exclusive jurisdiction: The commercial court in Brussels (Judicial Code, art. 633ter).
Class actions (Code of Economic Law, art. XVII.36-39) can be triggered when businesses incur an actual or potential breach of their contractual obligations or of European and Belgian competition and consumer protection rules. It should be shown that this procedure is more effective than a procedure under civil law. Only specific organisations can act as a group representative for a group of consumers.
Outcome: Parties can obtain a reparation agreement concluded after up to six-months of negotiations between the parties (Code of Economic Law, art. XVII.43-48) and approved by the judge. This does not constitute a recognition of guilt or liability by the business (Code of Economic Law, art. XVII.51). The agreement must contain a decision on the applicable option system for consumers to potentially join in on the agreement. The "opt in" system always applies for people who do not normally reside in Belgium or when redress of physical or moral harms is requested (Code of Economic Law, art. XVII.45).
If no agreement is reached, the judge renders a judgement granting or rejecting the collective redress. When granted, consumers have a period of four months to join the group and benefit from the decision (Code of Economic Law, art. XVII.54-55/1). A claims assessor will be appointed to execute the agreement or judgment that can consist of a restitution in kind or by equivalent (Code of Economic Law, art. XVII.54).
- Class actions on behalf of SMEs
SMEs can file a class action when they are confronted with collective damages from the same cause. The same conditions as consumer class actions apply. Only SMEs, which are natural or legal persons who carry out an economic activity, employ less than 250 people and have an annual revenue of less than 50 million euro or a balance sheet total of less than 43 million euro, can join this legal action.
Criminal Courts
When the human rights abuse is also a criminal offence, victims can choose between being recognised as a civil party in the criminal procedure or asking for compensation before civil courts after the criminal court renders a conviction. In Belgium, legal entities' criminal liability exists for crimes that are either intrinsically linked to the achievement of its objective or the representation of its interests, or which were committed on its behalf (New Criminal Code, art.18). The claim can be brought before the criminal court directly by the public prosecutor. An affected person or any person with evidence of the alleged crime can file a complaint. If the prosecutor does not take any initiative, the affected person can present a complaint for non-serious crimes but must pay a guarantee. In principle, only victims can be recognised as civil parties.
Amicable settlements can be reached in exchange for an amount of money before a final judgment is reached, as approved by the Council Chamber or the court (Code of Criminal Procedure, art. 216bis). This is only possible when the punishment for the alleged crime is not of more than two years of imprisonment. For legal entities, this is converted into a limited monetary fine (Penal Code, art. 41bis).
In addition, before the settlement, victims must have been fully compensated for the harms suffered, or the perpetrators must have recognised their civil liability in writing and must have already compensated the non-disputed harms, constituting an irrefutable presumption of fault that can be used by the victims before a civil court (Code of Criminal Procedure, art. 216bis).
Cross-border business-related human rights crimes
In cross-border cases, Belgian criminal courts have more restricted jurisdiction than in civil claims. They can only act if the crime has close connections to Belgian businesses, if victims cannot be reasonably expected to present the claim in another jurisdiction, or if the offences are an (international) crime.
Conditions:
- The human rights abuse should be a crime in the host country and in Belgium.
- For non-Belgian victims, the public prosecutor can only start the criminal investigation after a claim has been filed by victims, their relatives or by an official communication of the authorities of the state where the crime was perpetrated, and only if the accused is on Belgian territory.
- Persons acting on behalf of a legal entity with its registered office in Belgium can be prosecuted in Belgium when the victim has the Belgian nationality, and the act is punishable in the host country with a maximum sentence of at least five years imprisonment or it concerns a serious violation of international humanitarian law (Code of Criminal Procedure, arts.7, 12-3)).
Universal jurisdiction is the most far-reaching cross-border criminal action. It can be used for violations of international humanitarian law and for terrorism (Code of Criminal Procedure, art.8).
Outcomes: The civil party can receive a compensation by a criminal court where the civil claim was linked to this procedure (Code of Criminal Procedure, art. 4). Otherwise, a tort claim can be filed before the civil courts to execute the criminal judgment. Other outcomes depend on the convicted:
- For natural persons, convictions can consist of fines, imprisonment, electronic monitoring, community service to special forfeiture and disqualification from political and civil rights (Criminal Code, art.7).
- For legal entities, criminal sanctions can consist of fines, special forfeiture, prohibition to perform an activity that forms part of the corporate objective, the closure of one or more establishments or dissolution (Criminal Code, art. 7bis). For state-owned companies, dissolution and prohibitions or closures that impact their public service mandate are not possible.
- Public entities can also be held criminally liable but this remains limited to a simple declaration of guilt (New Criminal Code, art. 40).
The EU Environmental Crimes Directive (2024/1203) strengthens the legal framework for combating environmental harm across the EU. It expands the list of criminal offences, including cross-border crimes such as illegal waste shipment, unlawful ship recycling, illegal timber trade, and violations of EU chemicals, mercury, and anti-deforestation regulations. Serious offences, similar to ecocide, i.e. those causing widespread, long-term, or irreversible damage, are considered as qualified crimes, subject to heavy sanctions. Executives may also be held personally liable. The directive emphasises cross-border enforcement and cooperation, making it especially relevant for value chains involved in logistics, maritime, agriculture and chemicals sectors.
Labour tribunals
Labour tribunals may consider claims directly related to employment, accidents at work, occupational illness, social security, or the right to equality and non-discrimination at work. Workers may also be represented by a trade union delegate. Labour tribunals also rule on the application of administrative sanctions for violations of social administrative rules, and on asbestos victims' claims (Judicial Code, arts. 578-583). In these cases, insurance law, compensation funds and tort law can also be applied.
Compensatory Funds consist of a separate capital, with or without legal personality, whose purpose is to award compensation or financial redress to victims for serious events. The most important are:
- The Federal Agency for Occupational Risks (FEDRIS) compensates victims of both occupational accidents and occupational diseases.
- The Fund for the compensation of employees dismissed in the event of company closures.
- The Fund for medical accidents compensates victims of harm resulting from healthcare or their beneficiaries. It can apply both in the absence of fault or where there is a fault-based liability. It also provides mediation services.
- The regional disaster relief funds acts as security funds in the event of natural disasters.
- The Asbestos Fund provides compensation for professional and non-professional victims of certain diseases related to asbestos exposure in Belgium.
Outcome: Sometimes compensation can be secured without going to court. If the compensation offered is not satisfactory, victims can challenge the proposed amount before a labour tribunal.
The Council of State
The Council of State has jurisdiction for claims seeking to hold the state responsible. It hears claims that request the annulment of an administrative act, regulation or implicit decision that violates an overriding rule or legal principle (Coordinated laws on the Council of State, art. 14). In certain cases, claimants can also request compensation for damage caused by these administrative acts.
The Council of State can only hear tort lawsuits if no civil claim has already been filed to seek compensation for damage caused by the administrative act in question. Therefore, filing an administrative claim precludes the possibility of filing a civil claim later. If the compensation claim is addressed to both a business and the state, the lawsuit must be filed with a civil court. Victims should demonstrate the damage suffered as a consequence of the administrative acts, taking into account the public interest. The prescription term is of 60 days after notification of the challenged administrative act, or notification of the decision finalising the administrative recourse.
Outcome: This option is faster than civil tort lawsuits. However, the prescription term is shorter and there is no right of appeal, unlike in civil tort actions. In exchange, the Council of State may order provisional, preventive or corrective measures and, in certain cases, compensation. While provisional measures can prevent harm, the suspension of the act is not automatic and depends on the criteria of the relevant public entity. Therefore, in urgent cases, the suspension of the administrative act must be requested alongside challenging the administrative act.
The procedure of extreme urgency before the Council of State applies for claims seeking the suspension of an administrative act against public procurement processes. Rightsholders or stakeholders do not need to prove damage. The public procurement administrative act can only be struck down when European, constitutional or legal rules have been violated.
Judicial review
Judicial review by the Constitutional Court verifies whether legislation respects constitutional rights and freedoms. It can be used to annul legislation adopted by the federal parliament (statutes) and by the parliaments of the communities and regions (decrees and ordinances) when they violate constitutional fundamental rights, including the rights of non-citizens. The Court cannot directly review compliance with international treaties. Any authority designated by statute or any person with a justifiable interest may challenge such acts. The scope of "any person with justifiable interest" covers natural or legal persons, whether private or public, and of any nationality that can be affected by the challenged law. The prescription term is six months after publication of the legislative act in the Official Journal.
Outcome: This mechanism does not provide direct compensation to victims. However, it seeks to redress structural failures at the root of business-related human rights abuses. Challenging laws that allow business-related human rights abuses can be a more effective remedy and avoid future abuses. The Court may maintain certain effects of the act that was struck down (Special Law on the Constitutional Court, art.8) but the legislator cannot adopt the same provision again (Special Law on the Constitutional Court, art. 20).
Referral decisions (preliminary rulings) in Belgium (and before the CJEU)
Any tribunal can refer preliminary questions to the Constitutional Court on the compatibility of legal rules with constitutional human rights provisions. The Constitutional Court may also refer preliminary rulings to the CJEU, to decide whether national rules respect EU law, including the EU Treaties and the Charter of Fundamental Rights. The CJEU preliminary ruling does not decide the case. If the CJEU finds that the national statute violates EU law, the Constitutional Court must strike down the challenged statute. Preliminary rulings of the CJEU have res judicata effect, i.e. this judicial way cannot be triggered if there has already been a ruling on the same issue. They are also binding on all member states of the EU. If an EU law is struck down, national laws based on it are also invalidated. This mechanism has protected human rights related to access to justice in environmental issues, consumer protection, etc.
State-based non-judicial mechanisms
Usually, state-based non-judicial mechanisms (SBN-JM) are the first step for affected persons and communities when grievance mechanisms did not provide an effective remedy. Administrative authorities could provide faster and less costly remedies than courts. Sometimes, these options should be exhausted before seeking judicial remedies.
National non-judicial mechanisms
Supervisory authorities have investigating powers to initiate proceedings and impose sanctions. These outcomes are not an immediate solution for affected rightsholders or stakeholders, but they have a deterrent effect and, in some cases, can provide guarantees of non-repetition if the sanction is the closure of the company or withdrawal of a permit to operate.
Normative grounds of EU value chain supervisory authority
- The Corporate Sustainability Due Diligence Directive requires member states to designate a supervisory authority to monitor compliance and investigate non-compliance (art.24-6). This authority can also impose penalties, adopt interim measures and order the ceasing of infringements, refraining from repetition and remediation (art.25). A European Network of Supervisory Authorities will be created to facilitate cooperation and coordination (art. 28). The CSDDD also requires member states to provide for civil liability for companies for breaches of due diligence obligations and a right to full compensation for victims (art. 29).
Supervisory competences concerning sustainability reporting
The Financial Services and Markets Authority (FSMA) has specific supervisory competences regarding the binding norms on sustainability reporting. Concretely, FSMA
- monitors the information required by the Taxonomy Regulation when it requires the 'periodic' information of listed companies;
- monitors compliance with the Corporate Sustainability Reporting Directive (CSRD) by companies listed on the regulated market Euronext Brussels (except for micro-enterprises); FSMA can also sanction non-compliance (See website for current and future obligations);
- uses a risk model to verify that the sustainability information published by companies bound by the Sustainable Finance Reporting Directive (SFRD) is correct, clear, not misleading, sufficient and transparent, to avoid any risk of greenwashing.
Outcomes: the FSMA can investigate, impose sanctions and publish relevant information for consumers and stakeholders. Transposition into Belgian law can be found here.
Supervisory competences over certain mining-related value chains
For some sector-specific regulations enacted by the EU, Belgium has given competences to establish rules on infringements, ensure compliance with the regulations through checks that may be carried out retrospectively to the Ministry of Economy, SMEs, Self-employed and Energy. The areas of competence are the following:
- Conflict Minerals Regulation: The Ministry has a dedicated site for importers of gold, tin, tantalum and tungsten, from Conflict-Affected and High-Risk Areas (CAHRAS), that defines their obligations.
- Batteries Regulation: The Ministry together with the Ministry of Health, Food Chain Safety and Environment monitor compliance. When non-compliance persists, the batteries in question must be restricted or prohibited (art. 83-4). For certain breaches, fines can be imposed or even criminal proceedings can be triggered (Product Standards Law art. 17).
Outcome: The enforcement of these Regulations is variated as well as the possibilities to impose sanctions. For imports of these products, customs services also have supervisory competences. Regarding the Critical Raw Materials Act Belgium must establish a single point of contact for every relevant administrative level and stage of the critical raw materials value chain (art. 9). Belgium can also determine the applicable penalties for infringements (art. 47) and require a conformity assessment procedure for certain products (art. 28 j° 33).
Inspections of dangers or nuisances that affect the environment
Companies with a potential negative impact on the environment may be obliged to apply for a license before starting their activities. In some cases, an environmental impact assessment (EIA) is required to obtain the license and interested citizens can present observations and remarks to the authorities. The final decision should be public, to allow citizens to present an appeal before competent courts or bodies, including the Council of State. A claim can also be filed before an ombudsman.
When an activity in Belgium may produce negative environmental impacts in another country, cross-border EIA procedures at the European and international levels apply, e.g. those under the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention).
When companies are already operating under a license, severe damage is a condition for requesting suspension or withdrawal of a license after an EIA. In any event, when companies cause environmental damage, they must take preventive or remedial action and bear the related costs. The Belgian federal and subnational levels (Flanders, Wallonia and Brussels Capital) are competent to protect victims of human rights abuses caused by environmental damage. Environmental damage can also be a criminal offence.
At the federal level: the Directorate for the Environment of the FPS Health, for the following issues:
- Environmental damage in the Belgian North Sea.
- Introduction of a GMO on the Belgian market.
- Misuse of the Ecolabel for environmentally-friendly consumer products.
At the subnational level:
- Wallonia: Environnement-Nature provide information to ask for an injunction in certain cases; the Directorate for Natural Resources and Environment or competent local authorities (for other claims); appeals to the Commission de Recourse.
- Flanders: local authorities oversee the protection of the environment and their decisions on environmental permits can be appealed before the Council for the contestation of permits (Raad voor Vergunningsbetwistingen).
- Brussels Capital Region: local authorities have supervisory powers and appeals are possible before the Collège d'Environnement.
Outcome: Companies can be required to adopt preventive measures when there is an imminent threat of damage. When the damage has occurred, companies can be ordered to prevent additional damage and threats and to provide an appropriate remedy. The latter may include sanctions and fines, the cancellation of permits, or the closure of activities to restore the environment or avoid future damage. When affected persons and communities obtain no remedy, or are seeking compensation, they can sue the company and/or the state before civil courts (in tort cases) or criminal courts (if the human rights abuse amounts to a crime). They can also sue the state before the Council of State if the damage is related to an administrative act.
In Belgium the Ministry of Health, Food Chain Safety and Environment - Federal Environmental Inspection Service (Unit deforestation-free products) is in charge of implementing:
- the Timber Regulation (EUTR). The customs services can impose fines and seize products for breaches of the EUTR.
- The Regulation on deforestation-free products (EUDR). They can conduct risk-based checks, take interim measures and draft a public annual report (art. 16-23). They can also request economic operators to adopt corrective action and, where necessary impose fines (art. 24) and confiscation (art. 25). Belgian law prescribes a prison sentence and/or fines for violations of this regulation (Product Standards Law art.17)
Well-being at work and social security
Various authorities can conduct inspections and impose sanctions related to well-being at work. The Federal Ministries of Employment, and Social Security, the National Employment Office, the Federal Office for Social Security, the Federal Institute for Sickness and Invalidity Insurance and the Police have supervisory powers. Other social inspection services of subnational authorities include the Department of Work and Social Economy for (Flanders), the Brussels Regional Public Service for Economy and Employment and the Directorate of Employment, Economy and Research (Wallonia). They can conduct inspections on their own initiative, following a complaint by a stakeholder (employer, employee or their representatives), at the request of an administrative authority, or after an application by the public prosecutor's office or the investigating judge (See Social Criminal Code, art. 22-49). These individual complaints must relate to an employment situation and cannot concern social fraud, e.g. unpaid wages and working in an unsafe or unhealthy environment.
Outcome: Inspections can result in the implementation of preventive measures or sanctions, such as, prohibition to operate, prohibition to practice or closure of the business, and in investigations of administrative or criminal offences (Social Criminal code (art. 21) and ILO Labour Inspection Convention No. 81). Affected persons need to trigger courts to obtain compensation. The Point of Contact for Fair Competition receives complaints of citizens, companies, employers' and workers' organisations, social service departments, cities and municipalities, other public institutions and other organisations. The point of contact can release a report when they suspect that a citizen or a company is committing social fraud (social dumping, undeclared work, work-related discrimination, economic exploitation or human trafficking).
Forced Labour Regulation: Belgium has to designate a competent authority to implement the regulation. They will conduct investigations and make decisions on risks within the country, while the Commission is competent outside the EU territory (art. 14-20). The decision can be enforced if there is a failure to comply (art. 23) and impose penalties determined by national law (art. 37). A database will also be established to map risk areas (art. 8), and a single information submission point in all languages of the EU (art. 9). Customs services also have supervisory competences to check products at the border (art. 26-31).
Data Protection Authority (DPA)
This mechanism allows persons affected by the violation of the duty to protect their personal data to request:
- Information for specific questions. When there are serious indications of breach of data protection rules, the DPA can ex officio start an investigation that might result in sanctions.
- A mediation procedure.
- A complaint procedure. The DPA has a margin of appreciation to examine an admissible complaint. Other bodies are competent where the complaint concerns police or intelligence services.
Outcome: The DPA can impose sanctions that depend on the seriousness of the infringement, including fines, but it does not have the ability to award compensation. Victims need to trigger tort actions.
Digital Services Coordinators
The Digital Services Act (DSA) regulates online intermediaries and platforms such as marketplaces, social networks, content-sharing platforms, app stores, and online travel and accommodation platforms. It seeks to prevent illegal and harmful activities online and the spread of disinformation that may affect safety and fundamental rights. In Belgium, the Belgian Institute for Postal Services and Telecommunications is the main coordinator and can receive complaints filed by users of online platforms on structural problems with the provider or online platform. The European Commission has exclusive powers to supervise and enforce all obligations of very large online platforms and search engines.
Outcome: The coordinators can impose administrative fines or adopt various measures (e.g. require action plans to stop violations or suspend the service).
Surveillance authority for Artificial Intelligence (AI)
The AI Act requires member states to appoint conformity assessment bodies, particularly for high-risk AI systems, as well as a market surveillance authority. The latter receives complaints from individuals and organisations affected by a decision from a high-risk AI system. At the European level, the AI Office can investigate possible infringements and request corrective actions, as well as monitor compliance with the regulation. The AI Board deals with effective implementation. In Belgium, the FPS Economy, S.M.E.s, Self-employed and Energy is the general coordinator for the implementation of the AI Act. Other institutions that protect fundamental rights such as UNIA remain competent to deal with fundamental rights protection and AI in their areas (art. 77).
Outcome: When a breach is reported, a period of time will be given to end non-compliance, and if this is not done, measures to end it may be enforced and fines may be imposed by the specific authorities.
The Federal Institute for the protection and promotion of Human Rights (FIHR)
The FIHR has a residual mandate that covers all matters relating to fundamental rights except those dealt with by the sectoral bodies for the promotion and protection of human rights. The FIHR mandate also comprises the acts and omissions of both public authorities, private bodies and individuals, within the limits of the exercise of the residual federal competences. Currently the FIHR can only advise, monitor implementation of international human rights obligations by Belgium, and promote human rights compliance. The FIHR does not hold a mandate to deal with individual complaints. Although one of the topics is Business and Human Rights, its competence is limited to monitoring these developments at both international and national levels and to advise the federal legislature on appropriate legislation, and proper transposition of international standards and regulations.
The Flemish Human Rights Institute
The Flemish Human Rights Institute (Het Vlaams Mensenrechteninstituut) offers first-line assistance to persons affected by human rights violations. Its mandate is to mediate and hear reported claims of discrimination and other human rights. When mediation does not work, affected persons can trigger the Dispute Resolution Chamber to rule on the case.
Outcome: The Flemish institute can conclude the mediation procedure with a settlement. If the mediation does not work, the complaint procedure can conclude with recommendations.
Federal Migration Centre – Myria
Myria is an independent body with three mandates: promoting the fight against trafficking and smuggling of human beings, informing the authorities about the nature and extent of migratory flows, and protecting the fundamental rights of foreign nationals. It is the Belgian independent National Rapporteur on trafficking in human beings. Myria has monitoring competences and can file civil actions on trafficking human beings. It has an important role in the fight against Trafficking in human beings that includes abuses such as labour exploitation or contemporary forms of slavery.
Outcome: Myria offers first line legal aid and can lodge civil complaints and intervene in labour courts to get the wages paid for employees. Myria can also realise third party interventions or present amicus curiae before national and international courts. The reception centres Pag-Asa in Brussels, Sürya in Wallonia and Payoke also provide first line support and can file a claim as a civil party in their own name or on behalf of victims. Administrative authorities in charge of social regulations should also seek to cease the abuse and impose sanctions. If the abuse is a criminal offence, the complaint should be lodged before the prosecutor and victims should receive psychological and medical support. Victims and/or NGOs supporting victims of THB cannot be criminalised.
International mechanisms
If none of the national mechanisms provide access to an effective remedy in Belgium, rightsholders and stakeholders can trigger international mechanisms.
Proceedings against member states for failure to fulfil their obligations under EU law
Lawsuits can be filed by the European Commission after a preliminary procedure where it establishes non-compliance with EU law (TFEU, art. 258). Member states can sue other member states after a preliminary procedure before the Commission (TFEU, art.259). EU institutions, offices or agencies can also be sued (TFEU, arts. 263, 265) by member states, EU institutions, natural or legal person for acts addressed to them or which are of direct and individual concern to them.
Outcome: The court can annul the act or declare that there has been a failure to act, and require the member state or the EU institution at fault to take measures (TFEU, art.266).
The European Court of Human Rights (ECtHR) hear two types of human rights lawsuits
- Inter-state complaints (ECHR, art.33) can be filed by state parties when a breach of the ECHR and its Protocols is attributed to another state party (Rule 46 Rules of Court).
- Individual complaints (ECHR, art.34) can be filed by any natural or legal person, NGO or group of individuals who claim to be a victim of a violation by a state party of the ECHR or its Protocols (Rule 47 Rules of Court). NGOs can also intervene as amicus curiae (friend of the court) to offer information. Collective actions are not admissible.
Complaints can only be directed against a member states of the Council of Europe for abuses committed within its jurisdiction. Exceptionally, extraterritorial complaints have been admitted. Lawsuits are only admissible when all available domestic legal remedies were exhausted. The prescription term is six months after the final decision of the national court has been notified, or from the moment the applicant has knowledge of the final national decision. Victims should be nationals of a state party or be in the territory of a state party at the moment of the abuse. Victims can also challenge laws or administrative acts when they violate human rights, but this should not be a general complaint against the regulation.
Outcome: The Court may seek for a friendly settlement under confidential proceedings (ECHR, art.39). If a violation is found and the state law only allows for partial reparation, the Court shall afford just satisfaction (art. 41 ECHR). The state can be required to redress the situation, pay compensation or enact new laws to avoid repetition of human rights abuses.
Interim measures can be requested when urgent measures are necessary against an imminent risk of irreparable harm. The victims should demonstrate that they could suffer serious and irreversible harm. Interim measures last, as a maximum, for the duration of the proceedings before the Court. They have mostly been ordered in cases of threats to life and threats of torture or inhuman or degrading treatment or punishment. See also the factsheet of the ECtHR.
The collective complaints procedure before the European Committee of Social Rights
This mechanism protects human rights incorporated in the European Social Charter, which means that only this Charter can be invoked in the complaint. Exhaustion of domestic remedies is not necessary and complainants need not prove victimhood. However, only specific organisations have standing to file the complaint.
Outcome (Additional Protocol,1995, arts.8-9): The Committee can draft a reasoned report on the merits. The Committee of Ministers can then adopt a resolution or a recommendation and follow-up is done through state-reporting. The committee can also adopt immediate measures to avoid irreparable harm from occurring at any stage of the proceedings at the motivated request of a party or proprio motu (Rule 36 Rules of the European Committee of Social Rights).
The individual complaints
Eight of the UN treaties, i.e. the CCPR- OP1, CERD (14), CAT (22), CEDAW-OP, CRPD-OP, CED (31), CESCR-OP and CRC-OP, authorise individual complaints against state parties that have violated the rights these treaties protect. For the corresponding committee to hear an individual complaint, the state party concerned must have recognised its competence.
Each UN Committee has some particularities, but the most relevant admissibility criteria are that:
- Victims should file the complaint, unless they give a third party written consent to do so, or consent is impossible to obtain. Groups of victims can file a complaint but not as a collective action.
- The violations should have occurred after its entry into force, except for continuing violations.
- The complaint should not have been submitted to another international body.
- All domestic remedies should have been exhausted, except when there is solid evidence that national procedures were unreasonably prolonged or would be ineffective.
Outcome: The corresponding Committee decides whether a violation has occurred and issues recommendations to the State party. The Committee monitors compliance with the recommendations.
Rightsholders can file special interim measures against a state party to the relevant Convention to avoid irreparable damage to victims.
Other mechanisms
Structural reforms or redress can also be sought through other international mechanisms. Two organisations can provide business-related human rights remedies.
- The International Labour Organisation (ILO) mechanisms have been established for the protection of social rights and other related human rights as incorporated in the various ILO Conventions in force. The users are mainly employers' and workers' organisations as individuals are not entitled to lodge complaints. Complaints can only be addressed against States even if the abuse is perpetrated by businesses
- The International Criminal Court (ICC) can hear business-related human rights abuses when they are typified as one of the four crimes defined by the the Rome Statute: genocide, crimes against humanity, war crimes, and crime of aggression. The crimes must be committed by a state party national, or in the territory of a state party, or in a state that has accepted the jurisdiction of the ICC. The crimes can be referred to the ICC Prosecutor by the United Nations Security Council (UNSC) as a result of a resolution adopted under the UN Charter. The ICC is a subsidiary mechanism of national criminal systems, when states are unwilling or unable to prosecute these crimes.
How to meet expectations?
This section outlines key aspects and mechanisms that aim to ensure access to justice and effective remedies when business-related human rights impacts occur. First, it sets out the minimum requirements for guaranteeing access to justice and effective remedies, which states are obliged to provide. Second, it describes how states must enforce judicial decisions, ensuring that remedies granted by courts are realised. Third, it explains how businesses can ensure that rightsholders can obtain effective remedies.
Three aspects are essential to enable the obtention of effective remedy when state-based mechanisms are triggered.
Legal aid and assistance
Legal aid aims at covering the cost of litigation (lawyer's fees, expert fees, bailiffs' fees, translation, legalisation, etc.) for claimants lacking financial means and technical knowledge. The effectiveness of this aid needs to be assessed on a case-by-case basis, but some objective parameters have been identified to enable access to remedy. States are expected to allocate sufficient means for victims of business-related human rights abuses. In Belgium, this aid can be granted to both Belgian nationals and those from other EU member states and of the CoE. For other foreigners, additional conditions or procedures apply (Judicial Code, art. 668). Legal aid has to be requested and either the judge adjudicating the case or a Legal Aid Bureau grant it. Victims without financial means to pay for proceedings can also cover litigation costs by insurances.
Primary legal assistance provides general information about legal procedures and rights.
It is available to any person (resident in Belgium or the EU) regardless of income or legal interest in a case. Lawyers of the 'Legal Aid Commissions' organised by the bar associations, justice houses, and other institutions such as local administrations, justices of the peace, social institutions (e.g. OCMW/CPAS, Agentschap Integratie en Inburgering, or specialized human rights protection bodies such as UNIA, or Myria provide this assistance.
Secondary legal assistance provides legal assistance and representation in judicial or administrative procedures, as well as in mediation by accredited mediators.
Only persons who have a legal interest in appearing before a court and have a proven lack of financial resources (except in exceptional circumstances provided by law) can request it. Legal assistance is provided by the 'Legal Aid Bureaus' organised by the bar associations.
Legal assistance and aid in cross-border disputes
Legal aid, assistance and representation can be requested to seek a remedy for cross-border business-related human rights abuses. The European Judicial Network outlines the most important elements of legal aid that apply in the EU jurisdictions for civil and commercial matters.
For victims of human trafficking (particularly labour exploitation) administrative and legal assistance, shelter, housing and psychological assistance can be provided. In Belgium, Pag-Asa in Brussels, Sürya in Wallonia or Payoke in Flanders provide this support.
The Commission for Financial Support for Victims of Intentional Acts of Violence provides financial support for victims of crimes committed on Belgian territory. This support covers physical, material and moral damage. This financial support does not have a compensatory character, because it does not recognise any liability of the state. Based on the solidarity principle, the Commission provides monetary support to victims who do not have any other financial sources of reparation, such as insurance or compensation from the offender.
Guarantee to access relevant information
To obtain an effective remedy, affected persons and communities need information about their rights or need to gather evidence to demonstrate liability.
Normative grounds
The CoE Convention on Access to Official Documents (CETS 205/2020) recognises a general right of access to official documents held by public authorities that guarantees the exercise of fundamental rights. Belgium has not ratified it. The EU Directive on victim's rights highlights that access to information is a necessary condition to guarantee effective access to remedy. In environmental issues, the Aarhus Convention and the Aarhus Regulations also recognise this right. The EU Charter, art.42 protects the right of access to documents from European institutions. The Belgian Constitution, art.28 recognises the right to request information, to consult documents by addressing petitions, or request a copy, except for cases stipulated by laws (Art. 32, 34).
Some businesses must report certain non-financial information which can be useful in filing a claim for a business-related human rights abuse.
Collect evidence to file complaints in Belgium
Rightsholders and stakeholders or the judiciary may request bailiffs to record material facts (Judicial Code, art. 519). This option allows evidence and material facts to be gathered for a future procedure against a business and/or the state.
Protection of defenders and whistle-blowers.
Reporters of breaches of EU law play an important role by raising awareness of actual or potential events that may result in human rights or environmental harms. In Belgium, the Federal Institute for the protection and promotion of human rights (FIHR) has a dedicated site for whistleblowers and the corresponding legislation that transposed Directive (EU) 2019/1937.
Defenders also play a vital role in implementing Pillar III of the UNGPs. They support victims in documenting violations and initiating legal proceedings against companies or states for human rights abuses or environmental harm or hazards. Directive (EU) 2024/1069 is an important step towards protecting defenders from manifestly unfounded claims or abusive court proceedings ('strategic lawsuits against public participation': SLAPPS).
How to get the enforcement of a judgment?
Rightsholder or stakeholders that received a favourable judgment must ask for the enforcement. In Belgium the Judicial Code, art. 1386, foresees enforcement measures that can be taken in both injunctive and ordinary processes. The attachment courts of Belgium can impose a penalty to put pressure on the convicted to comply with a judgment, (Judicial Code, art.1385bis), with some exceptions; order a precautionary attachment for reasons of urgency (Judicial Code, art. 1413), or an attachment in execution of a judgment, when a debtor's goods are sold and the proceeds are given to the claimant (Judicial Code, art. 1489-1494).
Outcome: The enforcement of judgements materialises effective remedies such as restitution, compensation or sanctions.
Execution of judgments in cross-border cases
If the human rights abuse was committed outside the EU, and a favourable judgment delivered outside the EU must be enforced in Belgium, the judgment may need to follow an exequatur, which is the procedure to enforce a foreign judgment in Belgium.
- "Brussels I bis" (Art. 36.1 and 39) stipulates that judgments pronounced in EU member states are recognised in other member states without the need to follow any special procedure.
- The European Enforcement Order for uncontested claims and the EU Regulation on mutual recognition of protection measures in civil matters may also apply.
- The enforcement of cross-border non-EU judgments is regulated by international conventions in force in Belgium and the state rendering the judgment, e.g. the Lugano Convention, conventions of the Hague Conference on Private International Law, or other related conventions.
- If there are no conventions in force, an exequatur should follow the rules of the Belgian Code of Private International Law (art. 22 et seq.), together with the rules of the Judicial Code and the Belgian Consular Code.
Companies are expected to support host states to ensure that when adverse business-related human rights impacts occur, sound remedies are effective. That way they can avoid lengthy cross-border court cases and difficulties in gathering evidence. Some important measures can be implemented:
- Support local authorities in host countries. By providing complete information and participating in consultations or mediation procedures, companies can enable that administrative and judicial authorities provide effective remedies in line with international standards.
- Design their grievance mechanisms in a way that are complementary with state-based systems, allowing for referral or escalation when necessary, and reducing the burden on legal processes.
- Report how they identify and address risks, sharing relevant data with the rightsholders, stakeholders and authorities, and supporting independent investigations, especially in cases involving cross-border activities developed by complex supply chains.
- Organise training programmes for workers, local communities and suppliers to improve understanding of rights, legal processes and available remedies. By making people more aware of the law and human rights, companies can enable settlements and prevent long and costly court cases.