The duty of care is the central concept of the Act and of Directive (EU) 2024/1760, adopted by the European Union. This note therefore begins with what a duty of care means in general, before turning to how the Act regulates it and where the Act draws the limits.
What the duty of care means in general
A duty of care is the obligation to exercise the care and diligence needed to prevent harm arising within one’s own sphere of control. It requires a person, in the course of their activities, to take every measure that can objectively be demanded of them, and to exercise the care necessary to avoid a foreseeable infringement of rights.
The duty is objective in nature. Liability can arise under it even where the person’s conduct was not subjectively blameworthy; what all these forms of liability have in common is that the person has failed to fulfil their duty of care. Whether the duty has been fulfilled is assessed concretely, in light of all the circumstances. Where the duty is breached and the duty of supervision and oversight is thereby left unfulfilled, the person on whom the law imposes the duty is liable for the resulting harm. That is so even where the failure to supervise those living with them, or those under their orders and instructions, involved no fault on their part: a person must make good the harm they have caused even when they have committed no morally blameworthy error. The reason is that liability here has its source in the responsible person’s control over a particular person or persons, or over an object. Only a break in the adequate causal link removes it.
The meaning of the concept in the Act and the Directive
The constituent element of liability is the breach of the objective duty of care prescribed by law.
German law limits the scope of duties of care by reference to the objective standard of care: the person subject to the duty must take every measure that is objectively necessary, and that can be expected of them, to prevent or remove the dangers that may arise within their own sphere of control.
A person held liable under the duty owes compensation by operation of law even without fault. Care-based liability may arise from unexpected events occurring by chance, or from harm caused by the acts of a third party subordinate to the responsible person.
The standard of care owed is determined by the particular features of each case.
Turkish law contains no statutory definition of the duty of care either. Instead, the legislator has laid down rules and limits for the particular situations it chose to regulate: the parents’ duty of care over the child’s property, the duty of care of an agent and of a person to whom something has been entrusted, and the duty of care of a possessor.
The duty of care over supply chains is one such special form, introduced by a special statute. The Act does not define the obligation. Article 2 instead defines the concepts that fall within it and fixes the sense in which they are used; the conventions and international agreements listed in Article 2 are also reproduced as a list in an annex to the Act.
Article 3(1) explains what the duty of care means under the Act. It consists of the human-rights and environmental obligations the Act specifies, which companies must observe in order to prevent or minimise human-rights or environmental risks in their own supply chains, or to bring human-rights violations or breaches of environmental obligations to an end. The Act therefore confines companies’ duties of care over their supply chains to human-rights and environmental care — “companies” being itself defined in Article 1. And by providing that companies “must fulfil these appropriately”, the Act has for the time being kept the duty outside any liability to pay compensation and subjected it only to administrative fines.
In giving content to the duty as the Act regulates it, the texts of the international agreements set out in Article 2 will play an important part.
The Directive’s definitions of adverse impact
The European Union Directive ((EU) 2024/1760) likewise provides no definition of the duty of care. The human-rights and ecological obligations set out in Articles 5 to 11 of the Directive mark out the scope of the duty for the purposes of that Directive. Article 3, under the heading ‘Definitions’, identifies the situations that give rise to the duty as adverse environmental impact, adverse impacts on human rights, and severe adverse impacts:
“Adverse environmental impact” means the adverse impacts that arise where a prohibition or obligation under the international agreements set out in Part II of the Annex to the Directive is breached.
“Adverse impact on human rights” means the adverse impact that arises for the protected persons where the rights and prohibitions enumerated in Part I of the Annex to the Directive, or the international conventions listed in Part II of that Annex, are breached.
“Severe adverse impact” means an impact which, by the manner of its occurrence, gives rise to harm — environmentally or in the context of human rights — that is impossible or difficult to remedy for a group of persons that may be regarded as particularly numerous or large, or for a large region.
For the purposes of the Directive, then, the duty of care consists in taking measures to remedy or prevent the adverse impacts these definitions describe, and in the avoidance of any and all breaches of the international agreements identified or listed in Annexes I and II to the Directive.
The limits of the duty of care
To escape the sanctions attached to the duty, a company must show that it has not acted in breach of it and that there is no deficiency in its business organisation. It must also have complied with its duties to draw attention, warn, clarify and inform, and must not have breached the rule of the general duty of care in the situations the Act enumerates.
Article 3(1) limits the obligation by listing, one by one, what the duty of care covers — in other words, the acts of “doing” of which it consists. They are:
- Establishing risk management,
- Determining internal areas of responsibility within the company,
- Carrying out risk analyses on a regular basis,
- Preparing a policy statement of fundamental principles,
- Taking preventive measures within their own operations and at suppliers,
- Taking remedial measures,
- Establishing an effective complaints procedure,
- Applying the duty of care with respect to risks arising from indirect suppliers,
- Documentation and reporting, and
- Making the necessary arrangements and additions in contracts.
The Act sets out what must be done; the Directive, what must not
As can be seen, the German Supply Chain Due Diligence Act (LkSG) regulates what must be done. The EU Directive is built the other way round: its sentences are framed as what must not be done. It says “Do not cause harm!”, “Do not create an adverse impact!” and “Do not breach the international conventions!”.
