ECCHR European Cases ENG

8/2/2019 ECCHR European Cases ENG

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Prerequisites or the successul use o legal instru-ments against transnational corporation and board

members responsible or human rights violations is

both a careul analysis o the legal situation in the

aected jurisdictions and a systematic analysis o

previous legal practice.

Up to now, there were no attempts at the European

level to systematically record and evaluate procee-

dings concerned with human rights violations o

corporations with headquarters in Europe. Some

databases record proceedings across Europe5, butthese databases neither record all proceedings,

nor do they provide an analysis o the proceedings.

The present study o ECCHR aims to remedy this

unsatisactory situation. However, our intention is not

to permanently maintain and update this database,

but rather to review and analyze previous legal work

in order to learn lessons or uture cases.

The present study addresses the ollowing questions:

Are some European jurisdictions particularly sui-

table to hold transnational corporations legally res-

ponsible or human rights violations?

Are there any particularly promising case-scenarios?

What are the typical problems of holding transnatio-

nal corporations legally accountable or their actions?

2. Methodology

The European Cases Database comprises all cases

which were made known through publications and

inquiries at human rights organizations, and which

comply with the ollowing criteria:

a) The cases are concerned with human rights

violations committed by transnational corporations

or their employees.

b) The cases are related to Europe.

c) The cases entail at least one lawsuit.

EUROPEAN CENTER FOR CONSTITUTIONAL AND HUMAN RIGHTS

ECCHR! CASES

EuropEan CasEs DatabasEI. Introduction

1. Objective ECCHR European

Cases Database

The European Center or Constitutional and Human

Rights (ECCHR) aims to protect human rights by

legal means and to hold those responsible or human

rights violations legally accountable.

Our task is to resolve human rights violations, give

victims access to legal remedies, and provide them

with compensation and justice. Traditional concep-

tualizations ocus on the human rights violations

o states. In todays world, however, human rights

are increasingly endangered by other actors, such

as transnational corporations1, and thus become

subject to public debate.

Nowadays, the earnings o several transnational cor-

porations exceed the GDP o some states.2 Hence,

these corporations become increasingly powerul

and challenge states in certain core dimensions.

Particularly in regions with political and economical

instabilities, transnational corporations can have a

substantial impact on economic, ecological, politi-

cal, social and cultural spheres. This impact oten

includes the violation o political and civil as well as

economical, social and cultural human rights. In the

opinion o ECCHR, other civil society organizations

and parts o academia, legal responsibilities ariserom the actual power o transnational corpora-

tions. The responsibility to respect human rights is

independent o the obligations o states3, as John

Ruggie, Special Representative o the UN Secretary-

General on Business and Human Rights, stressed

in his recent report.4

As a European organization, ECCHR aims to identify

human rights violations o European corporations

and tries to hold these corporations responsible or

their actions.


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All proceedings are recorded by means of a cohe-

rent scheme in order to guarantee a basic level o

comparability despite obvious heterogeneities in

regard to jurisdictions and cases. Hence, in each

case the aected jurisdiction and the respectiveeld o law are listed separately. The actual case is

displayed in its dierent proceedings, and despite

the scarcity o sources (in some cases only secon-

dary sources were available), the European Cases

Database provides legal analyses and legal outlooks.

All cases are supplemented with le names and

ocial case names in order to enable practitioners

and the interested public to easily use the database.

This applies to the list o sources as well.

All publicly available sources, for instance pub-lished verdicts, academic essays, inormation o

cooperating lawyers and civil society organizations,

reports o human rights organizations and media

coverage, have been used in order to record as

many proceedings as possible. As already menti-

oned, in some cases only secondary sources were

available whereore it was not always possible to

veriy testimony o third Parties by means o court

documents. Reerences are provided or all inor-

mation in order to make the study as traceable and

transparent as possible.

II. Analysis

The ollowing analysis provides an overview o

Europe-related proceedings against transnational

corporations on the basis o human rights violations.

Subsequently, typical patterns o human rights vi-

olations through transnational corporations will be

revealed. The ECCHR European Cases Databaseprovides urther inormation in regard to each case.

7

Currently8, the European Cases Database is com-

prised o 69 lawsuits, which can be assigned to

46 cases.

1. Number o Proceedings

As compared with numerous reports of civil soci-

ety organizations about human rights violations o

transnational corporations, 69 proceedings9 appear

to be rather small in number.10

We consider a human rights violation to be the viola-

tion o a right confrmed by the Universal Declaration

o Human Rights, the International Covenant on

Civil and Political Rights, the International Covenant

on Economical, Social and Cultural Rights, as wellas the European Convention on Human Rights.

Environmental crimes are recorded as ar as they

constitute human rights violations, or instance, i

they aect the right to lie and physical integrity.6

A relation to Europe is given i proceedings take

place under the jurisdiction o a European country,

for instance a French criminal court. A relation to

Europe is also given i one o the Parties involved

(plainti or respondent) is European, i a legal entity

(or instance a transnational corporation) has its

headquarters in Europe, or i the action in question

took place in Europe.

The restriction o the database to European pro-

ceedings can be explained by the act that ECCHR

is a European organization and that US-American

academia (besides Europe, the US is the second

ocal point o the legal debate about human rights

violations o transnational corporations) deals much

more intensively with current US-proceedings.

Proceedings comprise both national proceedings

(criminal proceedings, civil proceedings etc.) and

international proceedings (or instance under the

jurisdiction o the International Tribunal o the Law

of the Sea). Although so-called soft law mecha-

nisms, or instance the OECD- complaints, are quite

similar to regular court proceedings; they are not

proceedings in the proper meaning o the word and

are thereore not recorded.

It is common practice that one case entails multiple

proceedings consecutively or even in parallel with

one another. This is possible i victims and supportive

organizations take dierent legal actions and/or take

legal actions in multiple jurisdictions.

The so-called Mercedes Benz-Case, concerned with

the disappearance o several trade unionists during

the military dictatorship in Argentina, exemplies

this practice. This case entailed three proceedings: a

criminal proceeding in Argentina, a criminal procee-

ding in Germany and a civil proceeding in the US.


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Europe. In Latin America and Europe, many envi-

ronmentally-related human rights violations were

documented.13

4. Thematic Focus o Proceedings

Thematically, the majority o cases can be assigned

to one o three categories:

(1) War crimes, genocide and crimes against huma-

nity (most o them dealing with crimes committed

under the Nazi regime rom 1933-1945)

(2) Cases concerning the environment

(or instance: contamination o water and soil; ge-netically modied ood)

(3) Cases concerning labor

(or instance: inhumane working conditions, perse-

cution o trade unionists; child labor; orced labor)

5. Patterns o Human Rights Violations

Three cases (Kouwenhouven, van Anraat, and Ndas-

hykirwa & Nzabonimana) are concerned with war

crimes regarding arms trade in armed conficts.

Outside o confict situations, the right to lie, and

the right to liberty and the security of persons (Art.

2(5) ECHR; Art. 3 UDHR) are often violated through

homicide, assault and battery. Health deects resul-

ting rom environmental pollution are also subsumed

in this category.14

In regard to child labor, orced labor, disappearance

o trade unionists, and inhumane working conditions,several human rights are violated: the Prohibition o

Slavery / Forced Labor (Art. 4 ECHR; Art. 4 UDHR),

the Prohibition o Torture / Inhuman and Degrading

Treatment (Art. 3 ECHR; Art. 5 UDHR), the Principles

of Equality (Art. 7, 14 ECHR; Art. 2, 23 UDHR), the

Right to Rest and Leisure (Art. 24 UDHR), the Free-

dom o Movement and Residence, respectively the

Protection against Disappearance (Art. 13 UDHR),

the Freedom of Expression (Art. 10 ECHR; Art. 19

UDHR), and the Freedom of Assembly (Art. 11

ECHR; Art. 17 UDHR).

However, this number can partly be explained by

considering class actions with up to ten thousand

plaintis, or instance the English civil proceeding in

the case Tragura Beheer. In cases o class actions,

many victims are represented in one proceeding.Unortunately, the possibility o class actions is re-

stricted or even absent in some European countries,

such as in Germany.11

2. Regional Focus o Proceedings

Even in European cases, the proceedings oten take

place in the US.

The reason for this stems from the Alien Tort ClaimsAct (ATCA), a US statute enacted in 1789.12 Accor-

ding to the ATCA, US district courts have jurisdiction

over civil proceedings in which individuals assert

violations o international (customary) law. Thereby,

it is irrelevant where the human rights violation took

place, as long as the violation is severe enough to

constitute the perpetrator as an enemy o mankind,

a hostis humani generis. After a long and progres-

sive legal development in regard to responsibilities

of individuals for human rights violations, the ATCA

was or the rst time extended to transnational cor-

porations in the case Unocal/Burma (USA) 1997.

In Europe, most proceedings against transnational

corporations take place in the Netherlands, France,

and Great Britain. However, it is difcult to conclude

that this is due to a particularly benefcial legal situati-

on in these jurisdictions. Whether or not a proceeding

takes place is oten due to the actors involved. Not all

civil society representatives working on human rights

and transnational corporations regard recourse tolegal action to be the best approach. In some regions,

the approach to enorce human rights by taking legal

actions is simply more prominent than in others.

3. Regional Focus o HumanRights Violations

Apart from cases dealing with the Nazi regime (1933-

1945), the majority o human rights violations took

place in Africa, followed by Latin America and then


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a. Regarding criminal law, the legal situation is

incoherent within Europe.

In countries like Germany, it is generally impossible

to initiate criminal proceedings against corporationsas a whole, since German law does not provide or

criminal responsibility o corporations.

In Great Britain, corporations have a duty to report

according to the 2003 Corporate Responsibility Act.16

Thus, corporations are obliged to report regularly

about their business activities.

In other countries, corporations have ull criminal

responsibility, or instance in Switzerland (Swiss

Criminal Code) and Austria (Austrian Federal Code ofCriminal Responsibility of Associations).17 However,

even in these countries the regulations are oten not

applied. In Switzerland, there are three reasons or

this. Firstly, corporate responsibility is secondary to

individual responsibility. Secondly, the constituent ele-

ment o organized irresponsibility has to be present.

Thirdly, a lack o organization at the corporations

headquarters has to be demonstrated.18There must

be legal evidence or all three elements. Moreover,

law enorcement agencies are oten hesitant to deal

with these cases, so the claimant has to provide the

evidence. This requires personal as well as organi-

zational and nancial resources, which claimants

and their representatives do not have in most cases.

b. Regarding civil law, there is no such law as the

American Alien Tort Claims Act, connecting a liability

in tort with violations o international law. Thereo-

re, one has to revert to compensation rules rom

regular civil law, which are not adjusted to deal with

transnational relations in general, and human rightsproblems in particular.

Moreover, countries with a common law tradition have

the problem o lengthy procedural struggles, due to

the so-called Forum Non Conveniens Doctrine.19

On the basis of this doctrine, British and American

courts oten claimed to not be responsible in cases

o human rights violation that took place on another

states territory.

Contrarily, civil law countries do not witness lengthy

struggles or jurisdiction, as the question o juris-

The Nestl-Case provides an extreme example or

this pattern of human rights violations. According to

representatives o the victims, Malian children were

kidnapped and brought to Cote DIvoire, where they

were violently orced to work on cacao plantations wi-thout payment. Hence, not only were the reedom o

movement and residence and the protection against

disappearance violated, but also the prohibition o

slavery and orced labor.

6. Status Quo o the Proceedings

More than one hal o the recorded cases are already

closed, some o them just recently (or instance: the

case Tragura Beheer [Cote DIvoire] September

2008).

The other proceedings are still pending, some already

on appeal (or instance: the case Kouvenhoven, the

Mercedes Benz case, the case Watermeters/ Johan-

nesburg and the French case Total/ Gul von Biskaya).

The cases Neumann- Kaee Group (Mubende),

Aurul, AngloPlatinum, and Total/ Gulf of Biskaya are

expected to be completed soon.

The plaintis prospects o receiving nancial com-

pensation by taking legal action are rather small.

Many proceedings are supported by developmental

agencies, human rights organizations, and trade

unions, for instance FIAN in the case Neumann/

Kaffee Group (Mubende). Apart from Greenpeace

(in the cases Total/ Russia, Total/ Gul o Biskaya,

Euronav), civil society organizations did not appear

themselves as plaintis.15

Next, typical problems o holding transnational corpo-rations legally accountable or human rights violations

will be analyzed.

7. Legal Situation and ImplementationInsufcient in Europe

In Europe, the legal systems are not adjusted to

deal with human rights violations o transnational

corporations and it is thus dicult to adequately

address them in legal ora. This is true or both civil

proceedings and criminal proceedings.


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This is true or the legal relation o a corporation and

its suppliers, as well as the legal attribution o acts

o subsidiary companies to the parent company.

Germany, or instance, applies the so-called princip-le o separation, according to which parent compa-

nies and their subsidiaries are legally independent

rom each other. The parent company oten reers

to this principle when a daughter company o the

transnational corporation commits a human rights

violation. Despite the act that European headquar-

ters oten ully control the subsidiaries and want

consumers to perceive the entire company as one

entity with uniorm products, it is oten impossible to

legally attribute human rights violations o subsidiary

companies in the global south to parent companiesin Europe. However, the principle o separation does

not apply regarding the relation o transnational

corporations and their suppliers. Thus, it is easier to

hold suppliers legally accountable than subsidiaries.

9. Difculties in Attributing

Legal Breaches in CasesConcerning the Environment

Cases concerning the environment are oten proble-

matic in regard to the attribution o breaches o duty.

As in many cases, accidents caused environmental

disasters which in turn caused physical injuries and

the death o human beings (Total/ Gul o Biskaya,

Amoco Cadiz, Total/ France, Bayer/Peru, Boliden

Shell/ Brazil, Aurul, Sellaeld). In such cases, the

proo o negligence o a corporation, respective

to its employees, is crucially important (i.e. the

attribution o breaches o duty.) In many cases, the

duty to inormation (Sellaeld-Case) or the duty omaintenance (Total/ France, Total/ Gul o Biskaya,

Boliden, Total/ Russia) is aected.

10. Court-Imposed Sanctions

It is difcult to compare the scale o compensations

and penalties as dierent legal systems provide

or a dierent extent o compensations and penal-

ties (sometimes just symbolically, or instance 680

Euros or each joint plainti in the Netherlands;

diction is clearly structured by law. However, in

countries like Germany, procedural regulations oten

oreclose the application o German law.20

Hence,

the theoretical possibility o receiving compensa-

tion oten has no practical relevance i the case istransnational in nature.

Furthermore, recent European regulations regarding

the question o which national law is applicable in

cases in which several jurisdictions are concerned

might worsen the plaintiffs situation. According to

the Rome-II-Regulation,21

the law o the state in

which the damage occurs is applicable, not the

law o the state in which the damage was caused.

Decisions leading to human rights violations are

oten taken in Europe, as transnational corpora-

tions have their headquarters in Europe. The actual

human rights violations, however, occur in other

countries, mostly in the global south. Consequent-

ly, the law o European countries is not applicable

in these cases. Thus, recourse to legal actions

becomes more dicult as legal regulations in the

global south are oten less strict than the regulati-

ons o European countries. It is dicult to predict

how European regulations will impact the work o

European courts.

8. Proceedings againstIndividuals more Successul

Proceedings against individuals were more suc-

cessul than proceedings against legal entities,

like transnational corporations. Regarding criminal

law, this is due to a lack in criminal responsibility

o corporations in some European countries. Inthese countries, criminal responsibility applies to

individuals only.

Regarding civil law, it is oten dicult to attribute

harmul acts to the accused corporations. The so-

called corporate veil, i.e. the complex corporate

structure, eectively protects transnational corpo-

rations as it makes it extremely dicult to legally

attribute responsibility or actions and decisions

within a corporation. That makes it dicult to hold

corporations liable or their actions.


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human rights are regularly violated by private actors

in the global economy. However, in these cases it is

oten impossible to take legal action when it comes

to serious human rights violations (i.e. breaches o

international criminal law.) Moreover, it is extremelydicult to assert violations o economical, social

and cultural human rights.

The guiding questions mentioned in the beginning

can only partly be answered due to the limited

number o proceedings.

Undoubtedly, the main diculties in the assertion

o human rights violations are the attribution o

human rights violations to corporations as well as

the proo a culpable breach o duty.

Even though the database reveals a regional ac-

cumulation o proceedings in Great Britain, the

Netherlands and France, it is dicult to conclude

that one European jurisdiction is particularly suitable

to hold transnational corporations legally responsible

or the liability o human rights violations. Even the

proceedings that took place revealed difculties and

did not always end in adequate compensation or

the victims. Moreover, there are not enough procee-

dings to draw statistical conclusions. The regional

accumulation o proceedings is at least partly due

to the strategies o the organizations involved, as

some organizations preer to take political rather

than legal action.

The ATCA proceedings in the US only partly mitigate

the deciencies in existing law. For two reasons,

legal proceedings in the US do not provide an ade-

quate and permanent remedy or the insucient

situation in Europe. Firstly, it is dicult to asserteconomical, social and cultural human rights in

the US. Secondly, recent decisions o US courts

indicate a shit in judicature in avor o transnational

corporations.

This unsatisactory situation has to be improved

through changes in European legal systems. Trans-

national corporations have to be legally accountable

or human rights violations. The development o a

uniorm and coherent criminal law o corporations

and enterprises would contribute to such eorts.

van Anraat-Case). Moreover, the magnitude of the

violations diers rom case to case and the num-

ber o plaintis in the case o class actions diers

substantially.

The transnational corporations Total,

22Bayer, and

Shell-Group are not the only subjects o several

public campaigns, but also appear at least ve

times in the recorded proceedings. These three

corporations together are involved in more than one

ourth o all recorded proceedings.23

The imposed

penalties are insufcient to deter these corporations

rom urther human rights violations.

The case Total/ France extensively demonstrates this

phenomenon. As a consequence of twelve yearso inadequate maintenance, an explosion let six

persons dead and one person badly injured. Those

responsible or the accident were only sentenced

to 18 months on probation and ned 4.500. The

company Total, however, received 400 million US$

rom its insurance as compensation or lost prots

and to rebuild the destroyed acility.

III. Conclusions

Currently, European legal systems do not provide

comprehensive protection rom human rights vio-

lations o transnational corporations. Moreover, the

implementation o existing law through courts and

law enorcement agencies is insucient. Neither

existing law nor law enorcement agencies and

courts are adjusted to deal with human rights vi-

olations through compensation and criminal pro-

ceedings. The aorementioned diculty in legally

attributing harmul acts to European corporationsdemonstrates this problem. Traditional legal inst-

ruments have difculties dealing with transnational

business activities, diverse legal states o corpora-

tions, opaque corporate structures and complicated

supplier conditions.

European legal systems do not address Europes

societal realities and the structures o a rapidly

globalizing world economy. Trac accidents and

breaches o contract constitute everyday violations o

rights leading to claims or compensations. Likewise,


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ment o the law, and are thereore indispensible in

tackling existing legal loopholes and insucienci-

es. In particular, the enorcement o economical,

social and cultural human rights should get more

attention, as debates too oten ocus exclusively oninternational crimes.

Moreover, the work on single cases enables victims

o human rights violations to become prosecutors.

This remains an important personal and political

implication, despite the obvious shortcomings o

current legal instruments.

Proceedings concerned with human rights and

the economy have to consider political and social

strategies o the organizations involved. Legal inst-ruments and legal actions can contribute to societal

change, i they are coordinated with victims and

social movements. Recourse to legal action in ge-

neral and work on single cases in particular have

the ability to demonstrate and exempliy general

problems o society.

In the uture, it should not make a legal dierence

whether a corporation has its headquarters in Aus-

tria or Germany, as the unjustness o human rights

violations remains the same.

Furthermore, an insufcient legal situation and im-

plementation should cause more and not less civil

and criminal proceedings. Human rights violations

o transnational corporations are not only political

and social scandals, but also violate universally

accepted norms.

The violation o human rights norms has to have

legal consequences or the perpetrators. Exemplary

proceedings could contribute to strengthen the uni-

versality and justiciability o human rights. Humanrights have to be enorced through national and

international courts and orums, as transnational

corporations operate globally. Only the restless pro-

secution o human rights violations sets important

legal precedents and triggers academic discourse.

Both elements contribute to a progressive develop-

1The term transnational corporation reers to a corpo-

ration with oreign branches and subsidiary companies.

Transnational corporations are networks with multiple

centers, which are mutually dependent but geographicallydispersed. They are integrated by common strategies,

norms and exchanges o inormation, experiences and

resources (Quelle: Bundeszentrale r politische Bildung:

www.bpb.de/publikationen/TTRFX1,1,0, Globalisie-rung_

als_Chance_f%FCr_Wohlstand_und_Arbeitspl%E4tze.

html). According to the United Nations Conference on

Trade and Development (UNCTAD), there are currently

around 79.000 transnational corpo-rations operating

across the globe. (Quelle: United Nations Conerence on

Trade and Development (UNCTAD) World Investement

Report 2008: Transnational Corporations and the Inra-

structure Challenge, Seite XVI).

2 According to the Washington Institute for Policy Studies,

there are already more corporations than states among the

worlds 100 largest economic entities (see Klaus Werner/

Hans Weiss: Das neue Schwarzbuch Markenrmen DieMachenschaften der Weltkonzerne, 3rd edition, 2007,

p. 62f.). In 2007, the earnings of Wal-Mart (378 billion

$US), BP (291 billion $US) and Shell (256 billion $US)

exceeded the GDP of South Africa (252 billion $US),

Saudi-Arabia (376 billion $US), and Denmark (311 billion

$US). Source: Wikipedia from 22.01.2009.

3 "The corporate responsibility to respect exists inde-

pendently o States' duties" (Report rom the Special

Representative o the UN Secretary General on Business

and Human Rights: John Ruggie, Protect, Respect and

Remedy: a Framework or Business and Human Rights,

2008, Paragraph 5.).


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12 Chapter 28, Section 1350 o the US Code.13 In Latin America: the cases Botina, Puma, Shell/

Brasil, and Aventis/ Rhodia. In Europe: the cases Amoco

Cadiz, Total/ Gulf of Biskaya, Aurul, and Sellaeld. Asia

shows relatively ew cases o human rights violations, inspite o numerous reports about human rights violations,

especially in local supplier actories. This is due to the

act that many transnational corporations operating in

Asia have their headquarters in the US and not in Europe.14 In most cases, environmental pollution is caused by

contamination o soil, particularly through toxic waste,

pesticides, and leaking pipelines (See: Total/ Russia,

BP, Tragura Beheer, ICI, and Aventis/ Rhodia), or con-

tamination o water, or instance through damn ailures,

pesticides, or accidents of tankers (Amoco Cadiz, Total/

Gul o Biskaya).15 In the Sellaeld-Case, Greenpeace is the respondent.16 Art. 3 in conjunction with Art. 5 of the 2003 Corporate

Responsibility Act, whose application is not impaired by

the 2006 Companies Act.

17 According to the Austrian Federal Law of the Crimi-

nal Responsibility o Corporations, a corporation can be

sanctioned i an individual belonging to the corporation

committed criminal actions. The Austrian Federal Law

o the Criminal Responsibility o Corporations distin-

guishes between two cases (Para. 2 and Para. 3, each

in conjunction with Para. 1) triggering a responsibility

o associations. However, the precondition or this is

that the criminal action was committed in avor o the

corporation, or that the criminal action violated duties o

the corporation.

18 The Syngenta-Case exemplifes this comprehensively,

in: Wolfgang Kaleck/ Miriam Saage-Maa: Transnationale

Unternehmen vor Gericht ber die Gefhrdung der

Menschenrechte durch europische Firmen in Latein-

amerika, 2008, p. 97-99).

19 According to the Forum Non Conveniens Doctrine,national courts reject cases i a oreign court is more sui-

table to deal with the case. The criteria or that decision

are not coherent.

20 Human rights violations o transnational corporations

oten aect labor rights. I employer and employee do

not explicitly agree to apply German law (which almost

never happens in transnational cases), the applicability o

German law is precluded according to Art. 30 ff. EGBGB.

21 Art. 4 (1) of the Rome-II-Regulation which applies in

cases o non-contractual obligations (Regula-tion (EC) No.

864/2007 o the European Parliament and o the Council

o 11 July 2007, available at: http://eur-lex.europa.eu/

4 Report des UN Special Representative on Business

and Human Rights: John Ruggie, "Protect, Respect and

Remedy: a Framework or Business and Human Rights,

A/HRC/8/5, 7 April 2008, available at www.reports-and-

materials.org/Ruggie-report-7-Apr-2008.pdf. An overviewo the work o the UN Special Representative is available

at: www.reports-and-materials.org/Ruggie-docs-list-8-

Jan-2009.pd.

5 See or instance the database o the Business and

Human Rights Resource Centre, available at www.busi-

ness-humanrights.org/Categories/Lawlawsuits/Lawsuits-

regulatoryaction/LawsuitsSelectedcases, or the database

o the Castan Centre or Human Rights Law at Monash

University, available at www.law.monash.edu.au/castan-

centre/projects/mchr/trans-hr-litigation.html.

6 An overview of environmental crimes of transnationalcorporations is provided in the ollowing publication o

Greenpeace International: Marcelo Futado, Von Hernan-

dez, Eco Matser, Andreas Bernstorff, Um-weltverbrechen

multinationaler Konzerne Zur Notwendigkeit einer in-

ternationalen bereinkunft zur Unternehmensverantwor-

tung, Amsterdam 2002.

7 This document can be ordered via e-mail at ECCHR.

Please write an e-mail to [email protected].

8 November 2008.9 Civil proceedings (comprising common as well as civil

law countries) consti tute more than hal o all cases. This

is due to the numerous ATCA-Cases. Criminal proceedings

account or less than one third. The remaining proceedings

account or 15 % o all recorded proceedings.

10 This applies to environmental degradation as well

(see: Greenpeace International: Marcelo Futado, Von

Hernandez, Eco Matser, Andreas Bernstorff, Umweltver-

brechen multinationaler Konzerne Zur Notwendigkeit

einer internationalen bereinkunft zur Unternehmens-

verantwortung, Amsterdam 2002.)

11 Class actions are taken by several plaintis against oneor more respondents. The possibility to le class actions

exists only in some countries, or instance in the US and

Great Britain. In case o class actions, the US takes a legal

decision unitarily or all plaintis. Thus, it is no longer

necessary that each claimant provide ull evidence or his

aectedness. Claimants only have to prove an aliation

to the aected group. Decisions are legally binding or

all participants o the class action. However, the option

o taking class actions does not exist in Germany and

other European countries (See: Stephanie Eichholtz:

Die US-amerikanische Class Action und ihre deutschen

Funktionsquivalente).


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LexUriServ/LexUriServ.do?uri=OJ:L:2007:199:0040:00

49:EN:PDF.

The Rome-I-Regulation, dealing with contractual obli-

gations is expected to be completed soon.

22

In 1985, the Compagnie Francaise des Petroles (CFP)was renamed into Total CFP. In 1991, it was named

Total. In 1999 the merger o Total and Petrona created

TotalFina. In 2000, TotalFina merged with Elaquitaine

and became ToltalFinaEl. Since 2003, the corporation

is again called Total.

23 The repeated violation o human rights by these cor-

porations raises the question o whether the actions o

these transnational corporations involve criminal intention.


10/10

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Publisher: European Center or Constitutional and Human Rights

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D - 10405 BerlinTel: +49 (0) 30 40 04 85 90

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Responsible or content: Wolfgang Kaleck

Editor: Denise Bentele, Dr. Miriam Saage-Maa

Translation into English: Ruben Reike

Revisions by: Dustin Miller, Kenina Lee, Kamil Majchrzak

Acknowledgement: We would like to thank Nadja Aschmoneit, Katharina Camerer, Lisa Dahlke, Sarah Ehlers,Elizabeth Grossmann, Nicolai Growe, milie Guilleminault, Pari Hosseinipour, Alexander Kamieth, Carolin

Kieling, Melanie Kler, Alena Krtt, Juliana Martnez, Dennis Mitra, Jan-Christian Niebank, Ulrike Mller,

Natalya Pak, Anna-Maria Pawliczek, Luisel Jesus Pea, Cydney Peterson, Simon Pletsch, Katja Porzucek,

Miriam Saage-Maa, Julia Schlter, Lukas Theune and Anna von Gall for their assistance and cooperation

in the completion o the European Cases Database. Their expertise served as crucial elements in leading to

our nal work.

Disclaimer: It is not in the intention of the ECCHR to wrongly discredit corporations or individuals. We apolo-

gize or any inaccuracies and appreciate any identication o errors in our work. ECCHR is not liable or any

erroneous inormation presented in this study. (Updated: November 30, 2008)

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