GERMANY Law and Practice Contributed by: Jan-Ove Becker and Lukas Heber, Littler
ber of the management towards a third party – is controversial and currently fairly uncommon. Like normal individuals, under the terms of Ger- man liability principles, members of manage - ment are in general also liable, and this extends to criminal liability and civil liability (eg, in dam - age compensations). 3.3 Parent Company Liability So far, there is no indication that, in Germany, the courts have held a parent company liable for acts or omissions of a subsidiary regarding human rights claims. However, in expert litera - ture, the direct liability of parent companies for human rights violations committed by subsidiar - ies is a controversial matter. Such liability is still largely rejected, as subsidiaries do not establish any liability on the part of the parent company due to their lack of dependence. However, it cannot be ruled that parent company liability will become a reality in the future. The state-based enforcement activities relat - ing to BHR primarily consist of monitoring and enforcing compliance with the obligations under the LkSG by the Federal Office for Eco - nomic Affairs and Export Control ( Bundesamt für Wirtschaft und Ausfuhrkontrolle , BAFA). This is a German authority that is in general independent but subject to the legal and functional supervi - sion of the Federal Ministry for Economic Affairs and Energy. 4. Enforcement and Litigation 4.1 Enforcement Activities In order to fulfil its monitoring and enforcement tasks, BAFA may enter the business rooms of the company concerned, inspect and examine business documents and records located there,
summon persons and request information and the handover of documents. The BAFA is also entitled to order the company concerned to submit a plan of remedial measures within three months, setting clear deadlines for their imple - mentation. Furthermore, the BAFA may require the company to take specific measures to fulfil its due diligence obligations according to the LkSG. If the company fails to comply with the BAFA’s orders, the BAFA may impose a forced payment ( Zwangsgeld ) of up to EUR50,000. In addition, the BAFA is entitled to impose the sanctions specified in 2.2.2 Corporate Human Rights Due Diligence Legislation in the event of identified violations. 4.2 Case Law There is currently no leading case law/judicial consideration relating to BHR in Germany. Also, not much is known about any noteworthy inves - tigations and sanctions imposed by BAFA as the competent authority for violations against the LkSG. 4.3 Grievance Mechanisms In Germany, the LkSG stipulates that a person (including associations) who is affected or will be affected by a human rights violation must be able to report this violation to BAFA, provided that the complaint is based on a violation of the provisions of the LkSG. Therefore, BAFA offers a complaints procedure. In addition to being per - sonally affected, the complaint must be substan - tiated. There is no specific procedure or deadline to be observed. If the complaint is rejected, the person can submit an appeal to BAFA. If this appeal is also rejected, the person can file a law - suit in court. The obligation (mentioned above) to transpose the CSDDD into national law will further expand
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