Following a flawed procedure, civil society organisations from several countries have rejected an offer of mediation from the German National Contact Point (NCP) for the OECD Guidelines for Multinational Enterprises. The NCP had previously dismissed key points of their complaint against the agrochemical company Bayer. The complaint documents serious human rights and environmental harm caused by Bayer’s business model for glyphosate-based pesticides and genetically modified soya in South America – and yet the company continues to evade all responsibility.

In April 2024, an alliance of six organisations – Centro de Estudios Legales y Sociales (CELS, Argentina), Terra de Direitos (Brazil), BASE-IS (Paraguay), Fundación TIERRA (Bolivia), Misereor and the European Centre for Constitution and Human Rights (ECCHR) – lodged the OECD complaint. This mechanism enables the National Contact Points of the OECD to examine compliance with the OECD Guidelines for Multinational Enterprises and to act as out-of-court complaint mechanisms. The complaint documents serious health impacts, the contamination of water and food, deforestation and land disputes experienced by local communities in the areas affected by Bayer’s business model.

After a delay of more than two years, the NCP has now closed the proceedings. In its final statement, whilst acknowledging that a link between Bayer’s products and the negative impacts documented in the complaint cannot be ruled out, it refused to address the violations of the affected communities’ rights to health, food, land, water and a healthy environment. On this basis, the NKS nevertheless offered mediation between the organisations and Bayer – limited solely to Bayer’s general due diligence obligations, without taking into account the specific harm suffered by the affected communities.

“We reject the mediation because discussing abstract guidelines does nothing to change the situation of the people who are still unlawfully losing their land and falling seriously ill as a result of the pesticides used by Bayer. Mediation on these terms would merely have allowed Bayer to exploit the affected communities for its corporate greenwashing, rather than bringing about genuine change,” explains Silvia Rojas Castro, Senior Legal Advisor at the ECCHR. “The violations and negative impacts on the communities continue unabated. Bayer’s due diligence measures have proven to be demonstrably ineffective, yet the company refuses to take responsibility,” says Daisy Ribeiro, a lawyer with the Brazilian human rights organisation Terra de Direitos.

During the grievance procedure, Bayer repeatedly attempted to contact affected communities outside the official process – thereby seeking to avoid a formal finding of responsibility under the OECD Guidelines. The organisations lodging the complaint made it clear that only the NCS’s complaint mechanism provides the appropriate framework for a serious dialogue. It was therefore all the more surprising that, after the offer of mediation had been rejected, the NCS called on both sides to engage in informal talks. The organisations rejected this too – as such talks would have delivered precisely what Bayer had been working towards from the outset: an exchange without formal obligations or consequences.

Urgent need for binding legislation

The decision by the National Contact Point (NCP) once again highlights the systemic failure of existing so-called ‘soft law’ mechanisms. “Non-binding regulations do not provide effective access to justice for communities in the Global South affected by human rights violations committed by German companies,” says Sarah Schneider, an expert on agriculture and global food security at Misereor. “Instead of holding companies to account, the German OECD National Contact Point imposes a disproportionately high burden of proof on those affected and only reaches a decision after two years – a decision that prioritises the corporation’s interests over human rights, whilst serious human rights violations in the affected countries continue unabated.”

This case highlights the urgent need for binding due diligence laws covering the entire value chain. UN experts are already calling for stricter rules in the agricultural sector to protect the rights of farmers and indigenous communities. However, the German Supply Chain Act (LkSG) is currently under massive political pressure, and the EU Corporate Sustainability Due Diligence Directive (CSDDD) has been significantly watered down in the European Parliament. The organisations are calling for the effective implementation of the EU directive in Germany – including civil liability, the full involvement of those affected and civil society, and an implementing authority independent of government influence. 

Notes for editors

• The complaint was submitted in April 2024 and documents four specific cases of serious health impacts, environmental pollution and land rights violations.
• The German NKS took over two years to reach its final decision, which is available on the NKS website.
• Over 50% of agricultural land in Argentina, Brazil, Paraguay and Bolivia is cultivated with genetically modified soya that is resistant to glyphosate. Bayer states that it holds a market share of around 30 per cent for glyphosate-containing products in the region.