Specific Instances Procedure

Who can submit an instance?

Any interested party, domestic or foreign, an individual or a legal entity (the ‘submitter’), can submit an instance regarding the implementation of the OECD Guidelines for Multinational Enterprises on Responsible Business Conduct with regard to a company operating or based in the Republic of Croatia or operating from the Republic of Croatia assumed to conduct their operations in a manner not compliant with the Guidelines. The submitter can act on behalf of third identified parties.

Is representation required?

It is not mandatory to have a lawyer represent you when submitting an instance to the NCP or when participating as a company in a specific instance. However, it is permitted; in practice, submitters and companies can be represented or assisted by lawyers or other organisations such as NGOs or unions.

BIAC, TUAC and OECD Watch are associations representing business entities, trade unions and civil society at the OECD and can provide guidance or assistance regarding specific instances.

Is there a fee for submitting an instance?

No, there is no fee.

Are you afraid of retaliation (retaliation may include threats of harm to individuals, their families or other loved ones, inappropriate threats of termination of employment or services, or unjustified threats of legal action)?

If you fear retaliation, the NCP can take measures to protect your identity in the procedure.

How is an instance submitted to the NCP?

Submitting an instance to the NCP is very simple. An instance can be submitted via a specific form. Specific instances may be submitted in either Croatian or English.

The submission form must include:

• Information on the basis of which the parties can be identified, as well as the submitter’s legitimate interest;
• Sufficient information on the basis of which it can be determined whether the request falls under the scope of the Guidelines, if so, under which chapter, and whether the NCP has mandate;
• A description of the desired outcome in resolving the issue and the subject of the instance submitted;
• An indication of whether any of the submitted information is confidential (due to legal restrictions or personal security reasons).

The submitter should also include any additional details they wish to bring to the NCP’s attention.

OECD Watch instructions on how to submit an instance

An instance can be submitted:

• Electronically, to the Secretariat’s e-mail:

nkt-oecd@mvep.hr / oecd-nkt@mingo.hr;

• In paper form, by hand or by mail, to the address of the Secretariat:

OECD — NATIONAL CONTACT POINT
Trg N. Š. Zrinskog 7 – 8, HR-10000 Zagreb

(indicative deadline for completion – one month from the filing of the specific instance. This period can be extended if coordination with NCPs of other countries is needed)

The NCP Secretariat will check whether it has the mandate to review the issue in accordance with the scope of the OECD Guidelines, particularly:

• Whether the identity of the submitter and the enterprise to which the specific instance is related can be established;
• Whether the issue falls under the scope of the Guidelines;
• Whether the NCP has mandate.

Since the Guidelines are addressed by Adherents (countries adhering to the OECD Guidelines) to enterprises operating in or from their territories, NCPs may receive specific instances regarding issues taking place in their countries or alternatively regarding issues concerning enterprises established in their countries.

During the administrative check, the NCP Secretariat does not delve into the merits of the instance. The Secretariat may ask the submitter to provide additional clarification within a reasonable period to determine whether the NCP has mandate. If the submitter does not file the requested additional clarification within the given deadline, the submitted specific instance will be considered withdrawn.

If the NCP Secretariat finds that the submitted specific instance is not related to the Guidelines issues or that it is not within its mandate, it will inform the submitter. The NCP Secretariat will publish a statement on the submitted specific instance and any findings of inappropriateness or lack of mandate.

If the NCP Secretariat finds that the submitted specific instance relates to the Guidelines issues and involves circumstances occurring in or affecting different home or host countries of the enterprises or relates to activities that have an impact on or take place in other countries, the NCP Secretariat will inform the NCPs in these countries regarding coordination and determining the leading and supporting NCPs.

Coordination with other NCPs

Certain specific instances may concern the NCPs of several Adherents, for example:

• where a specific instance concerns different home and host adhering countries (e.g. concerning the activities of an enterprise headquartered in one Adherent, having impacts in another Adherent, or an enterprise with separate headquarters in multiple Adherents);
• where the issues raised in a specific instance take place in several Adherents, or concern several enterprises established in several Adherents;
• where the same specific instance or related specific instances (such as specific instances involving different enterprises active on the same project or in the same supply chain) are submitted to several NCPs.

The NCP Secretariat will inform the submitter about the coordination with the NCPs in other countries and about any decisions to transfer the case to another NCP as the leading NCP. The leading NCP is responsible for all aspects of resolving a specific instance.

If it has been established that the Croatian NCP has mandate over the instance and/or is the lead NCP, its Secretariat will inform the enterprise against whom a case has been brought about the submitted specific instance and request a response within 14 days. If necessary, the Secretariat may also hold a meeting with the enterprise to explain the Guidelines and the rules for handling specific instances.

Upon receiving the enterprise’s response, the Secretariat will provide all documentation to the NCP’s External Body for review and initial assessment. The enterprise’s response will also be provided to the submitter.

(within an indicative deadline of three months from the submission of the documents to the External Body)

In the course of the initial assessment to determine whether the issues raised merit further examination, the NCP’s External Body will assess whether the procedure was filed in good faith and if the submitted specific instance is relevant to the application of the Guidelines. This involves:

• the identity of the party concerned and their interest in the matter;
• whether the issue is material, i.e. relevant to the implementation of the Guidelines; and substantiated, i.e. supported by sufficient and credible information;
• whether the enterprise is covered by the Guidelines;
• whether a link exists between the enterprise’s activities and the issue raised in the specific instance;
• the extent to which applicable law and/or parallel proceedings limit the NCP’s ability to contribute to the resolution of the issue and/or the implementation of the Guidelines. If parallel proceedings have been conducted, are under way or are available to the parties concerned, this does not preclude the NCP from offering good offices to the parties. NCPs should evaluate whether an offer of good offices could make a positive contribution to the resolution of the issues raised and/or the implementation of the Guidelines going forward and would not create serious prejudice for either of the parties involved in these other proceedings or cause a situation of contempt of court;
• whether the examination of the issue would contribute to the purposes and effectiveness of the Guidelines.

The NCP External Body, while reviewing the case, will hear both parties and may consult with relevant bodies, organisations, experts, business representatives, labour organisations as well as other state NCPs, and seek advice from the Secretariat or guidance from the WPRBC if it has doubts about the interpretation of the Guidelines. In handling sensitive information, a balance between transparency and confidentiality will be maintained.

In order to effectively resolve the specific instance, if it has been recognised that there are special circumstances in which it would be justified to preserve the confidentiality of certain facts and arguments presented by the parties, the NCP External Body will warn the parties and take appropriate action to protect sensitive information, bearing in mind the need to strike a balance between the transparency and confidentiality of the procedure.

The NCP External Body will inform the parties at the beginning of the procedure that without the consent of the other party or the NCP, they may not disclose facts and arguments not already in the public domain that are presented in the course of the procedure by the other party or the NCP itself. The NCP External Body can request written guarantees from the parties for this.

If it determines that the instance does not merit further investigation, the NCP External Body will inform the parties of the reasons for such a decision and issue a statement to be published by the Secretariat after consultation with the parties, taking into account the need to preserve the confidentiality of sensitive business and other data. The statement will consist of a description of the instance, as appropriate, the views of the parties involved, the steps taken by the NCP and the parties, and the explanation of the decision of the NCP External Body.

If the NCP External Body determines that the issues raised do merit further examination, it will offer the parties involved good offices to resolve the issues. At the proposal of the NCP External Body, the Secretariat will publish the NCP External Body’s decision on the presented instance meriting further examination, as well as on its offer of good offices to the parties.

Offering good offices means that the External Body considers that it has enough information to justify further examination of the instance in accordance with the Guidelines. This does not mean that the External Body has made a finding as to whether or not the company acted in accordance with the Guidelines.

(indicative completion time – six months from the start of good offices)

If the parties accept the NCP External Body’s good offices to resolve the issue, the External Body will establish a timeline and procedure with the parties to reach an agreement in line with the Guidelines and resolve the issue in a reasonable time frame.

If one or all parties decline the good offices, the External Body will prepare a statement after consultation with the involved parties and submit it to the NCP Secretariat for publication.

During the provision of good offices, the External Body may consult with the involved parties and, as appropriate, seek opinions from relevant bodies, organisations, experts, business and labour representatives, as well as other NCPs, and request guidance from the Secretariat or from the WPRBC if it has doubts concerning the interpretation of the Guidelines.

The good offices procedure is informal and confidential, to encourage open discussion and dialogue. Parties agree to maintain confidentiality, except when it becomes necessary to seek expert advice or guidance within their organisation.

If the parties do not reach an agreement, or the External Body concludes that one or more parties involved are not willing to act or participate in good faith, it will consult with the parties about the usefulness of continuing the procedure. If the parties or the NCP External Body conclude that continuing the procedure will not effectively contribute to resolving the issue, the NCP External Body will conclude the procedure.

Upon completion, if the parties have not reached an agreement, they may communicate with the public regarding the case. However, information and views presented by one party during the procedure remain confidential unless that party consents to their disclosure or if their remaining so would be contrary to relevant national law provisions.

(within an indicative deadline of three months after the completion of the proceedings)

Upon concluding the procedure and having consulted with the parties involved, the NCP will make the results public, ensuring the confidentiality of sensitive business and other information.

If an agreement is reached, the NCP External Body will prepare a statement in consultation with the parties and submit it to the NCP Secretariat for publication.

The statement will include the identities of the parties, the issues involved, the date on which the issues were filed with the NCP, the actions taken, the parties’ views, steps the NCP External Body has taken to assist, the agreement date, and, as appropriate, follow-up deadlines. Agreement content is included only with both parties’ consent. The statement might also contain recommendations for implementing the Guidelines in the specific instance.

If no agreement is reached, or if one or both parties withdraw or are unwilling to participate in good faith, the NCP External Body will prepare a statement and submit it for publication. The statement will outline the identities of the parties, the issues involved, the date on which the issues were filed with the NCP, and, as appropriate, the positions of the parties involved, the reasons why the NCP External Body determined that the presented instance merited further examination and the steps taken to assist the parties, including information on the engagement of the parties in the procedure. As appropriate, the statement may contain recommendations on the implementation of the Guidelines in a specific instance, if it is applicable and relevant. If necessary, the statement may contain the reasons why no agreement was reached.

The NCP External Body allows parties to comment on the statement draft during the 14 days before its publication, retaining the discretion to modify it.

Information such as the identity of individuals involved in the proceedings may be considered confidential, especially if their disclosure would lead to risk of retaliation, including in relation to persons associated with the parties to the procedure. In such cases, the NCP External Body may decide not to disclose the identity of any of the parties in the procedure in the statement and other forms of public communication of the specific instance.

The NCP will also inform in a timely manner the relevant OECD Investment Committee about the instance resolution results.

The NCP will enable a follow-up regarding the agreement reached in a specific instance and the recommendations  has made on the implementation of the Guidelines.

At least one year after the agreement is reached, the NCP will request a written report from the parties or a meeting with the parties, which can be held simultaneously with both parties or with the parties separately, in order to assess the progress of the implementation of the commitments from the agreement or recommendations.

The NCP will publish a follow-up statement after conducting its follow-up.