Denmark

By Daniel Morris | 28. November 2017

2. The state duty to protect human rights

2.3 Actions taken

Companies owned or controlled by the state [page 13]

“The Danish Government believes that public authorities, including companies owned or controlled by the state, should live up to the same requirements that private companies are expected to fulfill. Therefore, the non-judicial remedy mechanism can also examine complaints involving public authorities (GP 4).”

4. Access to remedy

4.1 UNGPs on access to remedy [page 19]

As part of their duty to protect against business-related human rights abuse, States must take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when such abuses occur within their territory and/or jurisdiction those affected have access to effective remedy (GP 25).

This includes providing effective and appropriate judicial and non-judicial grievance mechanisms, alongside judicial mechanisms, as part of a comprehensive State-based system for the remedy of business-related human rights abuse.

In order to ensure their effectiveness, non-judicial grievance mechanisms, both State based and non-State-based, should be:

a) Legitimate: enabling trust from the stakeholder groups for whose use they are intended, and being accountable for the fair conduct of grievance processes;

b) Accessible: being known to all stakeholder groups for whose use they are intended, and providing adequate assistance for those who may face particular barriers to access;

c) Predictable: providing a clear and known procedure with an indicative timeframe for each stage, and clarity on the types of process and outcome available and means of monitoring implementation;

d) Equitable: seeking to ensure that aggrieved parties have reasonable access to sources of information, advice and expertise necessary to engage in a grievance process on fair, informed and respectful terms;

e) Transparent: keeping parties to a grievance informed about its progress, and providing sufficient information about the mechanism’s performance to build confidence in its effectiveness and meet any public interest at stake;

f) Rights-compatible: ensuring that outcomes and remedies accord with internationally recognized human rights;

g) A source of continuous learning: drawing on relevant measures to identify lessons for improving the mechanism and preventing future grievances and harms;

The effectiveness criteria in the UNGPs largely coincide with those recommended in the OECD guidelines for the national contact points, which also stress visibility and accountability.

4.2 Recommendations from the Council for CSR on access to judicial and nonjudicial remedy [page 20]

“In November 2010, the Council for CSR established a working group who would be able to work intensively on the recommendations for implementing remedy as described in the UN Protect, Respect, and Remedy-framework. The working group was composed by a representative from the Confederation of Danish Industry, the Danish Confederation of Trade Unions, the Danish 92 Group, the Danish Shipowners’ Association and the chair of the Council.

The working group followed closely the final work of the SRSG John Ruggie on the development of the Guiding Principles for the implementation of the Protect, Respect and Remedy framework as well as the work of the OECD Investment Committee on the revision of the OECD guidelines for multinational enterprises. …”

Recommendations on non-judicial remedy

“The Council recommended that a Danish non-judicial mediation and grievance mechanism for responsible business conduct should be based on the OECD Guidelines on Responsible Business Conduct, which incorporate the UN’s recommendations on business and human rights. The mechanism should also be established in accordance with the UN and OECD criteria for non-judicial mediation and grievance mechanisms, including legitimacy, accessibility, transparency and predictability. Furthermore, the Council’s recommendations included the following unique features:

  • The institution should be established by Danish law;
  • The institution should be able to take up cases on its own initiative;
  • The institution should be able to handle cases involving not only private companies but also public authorities and private organisation, like NGO’s;
  • The company which is subject to a complaint should be given a period of two months to solve the conflict with the complainant without the involvement of the national institution.

The recommendations on non-judicial remedy from the Council for CSR was for the most part implemented by the Danish Government (see section 4.4).

The recommendations from the council on a Danish mediation and grievance mechanism can be found here: http://www.csrcouncil.dk/documents”

4.3 Actions taken [page 20-21]

Access to non-judicial remedy

“In the second national action plan for CSR from March 2012, the Danish Government announced the establishment of a Mediation and Complaints-Handling Institution for Responsible Business Conduct. The institution was established by Danish law, which was passed through parliament and approved on June 12, 2012. The Danish Government wanted to ensure that a non-judicial remedy has a maximum of legitimacy and authority. The purpose of the institution is to investigate cases involving potential adverse impacts by Danish companies on international CSR guidelines as described in the OECD Guidelines for Multinational Enterprises. The mediation and complaints-handling institution is established in accordance with the international effectiveness criteria for non-judicial mediation and grievance mechanisms as described in the UNGPs and the OECD Guidelines for Multinational Enterprises (GP 31). The institution will base its assessments on the OECD Guidelines for Multinational Enterprises, which incorporate the UN Guiding Principles on Business and Human Rights, including in particular the due diligence concept as described in the UN Guiding Principles, when looking at a complaint.

The institution focuses on mediation to solve complaints – both on company level and if that is not possible, assisted by the Mediation and Complaints-Handling Institution. If mediation is not possible, the institution can initiate an investigation of the matter and based on the result, make a public statement. The institution can examine complaints involving not only Danish private companies but also public authorities and private organisation, like NGO’s. It can also take up cases on its own initiative, which will allow the institution to be proactive in cases of substantive importance. As a first step in the case handling procedure the institution gives the company two months to solve the conflict with the complainant without the involvement of the institution itself. If the company does not solve the matter on its own, the institution undertakes an initial assessment and based on the result the institution can offer mediation or investigation. The institution which has existed since November 1st, 2012 is composed of five members – one chairman, one expert and three members appointed on the recommendation of the following organisations; Confederations of Danish Industries, the Danish Confederation of Trade Unions and the Danish 92 Group which is an association of 23 different Danish NGO’s. For more information on the member of the institution see: www.businessconduct.dk.

The institution is also working to promote the respect for the OECD Guidelines and the knowledge of the institution. So far the promotional activities have included among other:

  • Homepage in Danish and English; www.businessconduct.dk;
  • Survey among Danish companies on the knowledge of the institution and of the OECD Guidelines in order to be able to measure the progress in the coming years;
  • Information leaflet in Danish, English, French and Spanish; the leaflet has been distributed through 112 Danish embassies for audiences abroad;
  • Translation of the OECD Guidelines for Multinational Enterprises into Danish;
  • Briefings, presentations and dialogue with interest groups, NGOs, etc. in order to raise awareness of the institution and the OECD guidelines for multinational enterprises and the UN Guiding Principles;
  • Development of guidance on due diligence in the supply chain and company-based conflict resolution;
  • Instruction for Danish Embassies encouraging them to raise awareness about the Danish National Contact Point to local stakeholders.

Other examples of non-judicial institutions which contribute to remedy for victims of business-related human rights abuses, include Employment Tribunals, national Ombudsman, and Consumer tribunal. Furthermore, Denmark has mechanisms for dealing with cases of race, gender, disability, age, religious discrimination in employment or services, etc.”

Appendix 2, GP 29

Access to remedy [page 35]

“To make it possible for grievances to be addressed early and remediated directly, business enterprises should establish or participate in effective operational-level grievance mechanisms for individuals and communities who may be adversely impacted.”

Initiatives taken or planned as a dedicated measure to implement the UNGPs [page 35]

“The state-based grievance mechanism includes the operational-level as part of its complaintshandling process. When a complaint is approved for further consideration, the Mediation and
Grievance Mechanism for Responsible Business Conduct encourages the parties (petitioner and respondent) to resolve the matter themselves. This serves to create the basis for a dialogue between the parties. If the parties succeed in resolving the matter on their own, the Institution has no further involvement. The parties must simply notify the Mediation and Complaints-Handling Institution for Responsible Business Conduct within three months from submission of the complaint to indicate whether or not they have found a solution. Matters resolved between the parties are not subject to any form of publication by the Institution.”

Appendix 2, GP 31

Access to remedy [page 35]

Effectiveness criteria for non-judicial grievance mechanisms

In order to ensure their effectiveness, non-judicial grievance mechanisms, both State based and non-State-based, should be:
a) Legitimate:
b) Accessible:
c) Predictable:
d) Equitable:
e) Transparent:
f) Rights-compatible:
g) A source of continuous learning:

Operational-level mechanisms should also be:
h) Based on engagement and dialogue:

Status in Denmark (initiatives implemented before the UN ratification of the Guiding Principles)  [page 36]

The Danish Mediation and Complaint Handling Institution has been established in accordance with the international criteria for non-judicial mediation and grievance mechanisms (UNGPs) as well as the criteria for national contact points as stated in the OECD Guidelines for Multinational Enterprises (Visibility, Accessibility, Transparency, Accountability):

a) To ensure legitimacy the institution has been established in Danish law

b) Anyone can submit a complaint to the Mediation and Complaints-Handling Institution

c) A description of the complaint handling procedure has been made public along with an indicative timeframe for each step in the process

d) The chairman shall assist the weaker party that may require special support, but also assist companies, for example, so that the chairman can help to conclude a case quickly and in a way that also takes the company’s situation into account. The Mediation and Complaints Handling Institution for Responsible Business Conduct may allocate advisers to one or both
parties. The purpose is to ensure that the mediation outcome is in the interests of both parties.

e) The institution will inform the public of the cases the institution is handling. For every step in the case handling the institution will make a statement which will be made publicly available on the institution’s website. Information from a case is subject to the access to information act once the case has been concluded. Finally, the Institution will prepare an annual report that is published and also discussed with the Council forCorporate Social Responsibility and the OECD’s Investment Committee, in order to improve the work of the Institution.
f) The purpose of the institution is to help solve conflicts in accordance with the OECD Guidelines for Multinational Enterprises.

g) In addition to considering concrete incidences of infringement, the Mediation and ComplaintsHandling Institution also has the object of promoting the implementation of the OECD Guidelines for Multinational Enterprises, and compliance by Danish companies, authorities and organisations. The Mediation and Complaints-Handling Institution will also conduct activities that support the CSR efforts of Danish companies, authorities and organisations, for example as guidance in relation to the consideration of concrete cases, or in information and education activities. The institution will also work with other national contact points and the OECD Investment Committee in terms of concrete complaint handling as well as promotional activities.

h) Dialogue and mediation play a central role in the complaint handling.