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Paul Mertenskötter

Paul Mertenskötter is an associate in the firm’s Brussels office and a member of the Public Policy and International Trade practice groups. He advises multinational companies, governments, and other clients on a range of matters related to public policy, international trade, and new technologies. Mr. Mertenskötter’s practice encompasses advising clients on the European Commission’s Digital Single Market strategy, including on the Payment Services Directive (PSD 2).

Prior to joining the firm, Mr. Mertenskötter clerked at the International Court of Justice in The Hague, and was a Fellow at the Institute for International Law and Justice at NYU Law School. His work has been published with Oxford University Press and the Cornell Law Review.

In the early hours of December 14, 2023, the Council of the EU (“Council”) and the European Parliament (“Parliament”) reached a provisional political agreement on the Corporate Sustainability Due Diligence Directive (“CSDDD”). Described as a “historic breakthrough” by Lara Wolters, who has led this file for the Parliament, the CSDDD will require many companies in the EU and beyond to conduct environmental and human rights due diligence on their global operations and value chain, and oblige them to adopt a transition plan for climate change mitigation.

Given the CSDDD’s relevance for companies’ ongoing compliance planning on environmental and human rights matters, this blog aims to advise clients on the basic elements of the CSDDD agreement based on press releases from the CouncilParliament, and the European Commission (“Commission”), even if much uncertainty remains. Although a political agreement has been reached, the text of the agreement is not publicly available and a number of details of the legal text will need to be finalized in follow-up technical meetings. Covington will publish a more detailed alert on “how to prepare” for the CSDDD once the full text is available (likely in early 2024).

In Short

After intense negotiations since the Commission published its proposal in February 2022, the Directive is set to lay down significant due diligence obligations for large companies regarding actual and potential adverse impacts on human rights and the environment, with respect to their own operations, those of their subsidiaries, and those carried out by their business partners.Continue Reading Provisional Agreement on the EU’s Corporate Sustainability Due Diligence Directive (CSDDD): Key Elements of the Deal

What You Need to Know.

  • After two days of intense negotiations, world leaders adopted a draft decision that sets out international climate priorities in response to the findings of the first Global Stocktake under the Paris Agreement.  The decision covers several thematic areas, including mitigation of greenhouse gas emissions, adaptation and resilience in the face of climate change, financing and means of implementation and support for climate projects, and loss and damage funding for climate-vulnerable nations.  The text of the draft decision can be found on the UNFCCC’s website here.
  • The most highly scrutinized and heavily debated aspect of the agreement was the path forward on the use of fossil fuels, greenhouse gas emissions from which, the decision notes, have “unequivocally caused global warming of about 1.1 °C.”  Recognizing the need for deep, rapid, and sustained reductions in greenhouse gas emissions in line with 1.5 °C pathways, the decision calls on Parties to contribute to the following efforts related to the energy transition and fossil fuel use:
    • Tripling renewable energy capacity globally and doubling the global average annual rate of energy efficiency improvements by 2030;
    • Accelerating efforts towards the phase-down of unabated coal power;
    • Accelerating efforts globally towards net zero emission energy systems, utilizing zero- and low-carbon fuels well before or by around mid-century;
    • Transitioning away from fossil fuels in energy systems, in a just, orderly and equitable manner, accelerating action in this critical decade, so as to achieve net zero by 2050 in keeping with the science;”
    • Accelerating zero- and low-emission technologies, including, inter alia, renewables, nuclear, abatement and removal technologies such as carbon capture and utilization and storage, particularly in hard-to-abate sectors, and low-carbon hydrogen production;
    • Accelerating and substantially reducing non-carbon-dioxide emissions globally, including in particular methane emissions by 2030;
    • Accelerating the reduction of emissions from road transport on a range of pathways, including through development of infrastructure and rapid deployment of zero and low-emission vehicles; and
    • Phasing out inefficient fossil fuel subsidies that do not address energy poverty or just transitions, as soon as possible;
  • While coal has been mentioned in previous COP decisions, the language on “transitioning away from fossil fuels” represents the first time that countries have agreed to language that explicitly curtails all fossil fuels in the nearly three-decades-long history of the UN climate summit.  Though hailed by COP28 President Al Jaber and other world leaders as a “historic package to accelerate climate action,” the decision, and how it was adopted, was not without its critics.
    • UN Climate Change Executive Secretary Simon Stiell pushed the world to strive for more action.  “COP 28 also needed to signal a hard stop to humanity’s core climate problem—fossil fuels and their planet-burning pollution.  Whilst we didn’t turn the page on the fossil fuel era in Dubai, this outcome is the beginning of the end.”
    • Anne Rasmussen, lead delegate for Samoa, complained that delegates of the small island nation nations weren’t even in the room when President Al Jaber announced the deal was done.  Garnering the longest applause of the session, Rasmussen declared that “the course correction that is needed has not been secured” and that the deal could “potentially take us backward rather than forward.”

Continue Reading COP28 Final Negotiations Recap: A Global Agreement to Transition Away from Fossil Fuels

 What You Need to Know.

  • Azerbaijan is poised to host COP29 next year after receiving regional backing.  If formally confirmed, Azerbaijan’s COP Presidency would resolve months of deadlock.  It will also trigger criticism that next year’s COP will again be hosted by a nation heavily dependent on fossil fuel exports.
  • Brazil has been formally chosen to host COP30 in 2025.  The venue will be the city of Belém, located in the Amazon rainforest.  As Brazil’s Minister of the Environment and Climate Change, Marina Silva, commented: “With its immense biodiversity and vast territory threatened by climate change, the Amazon will show us the way.”
  • The UNFCCC has released a revised draft text of the negotiated outcome of the first Global Stocktake under the Paris Agreement.  The revised draft no longer mentions the “phase out” of fossil fuels and instead mentions the “substitution of unabated fossil fuels” and “tripling renewable energy capacity . . . by 2030.”
  • The inclusion of “phase out” language in the final agreement has been one of the yardsticks by which commentators have suggested the success or failure of COP28 should be measured.  Accordingly, the new draft was met by significant criticism, including by the European Union’s representatives who called elements of the text “unacceptable.”  Negotiations now center on finding a compromise, almost guaranteeing that discussions at COP28 will continue beyond the official close of the conference on Tuesday, December 12.
  • Following the official theme of the day, 154 nations signed the COP28 UAE Declaration on Sustainable Agriculture, Resilient Food Systems, and Climate Action.  The Declaration commits to “expedite the integration of agriculture and food systems into our climate action” and to “scaling-up adaptation and resilience activities and responses in order to reduce the vulnerability of all farmers, fisherfolk, and other food producers to the impacts of climate change.”  The contributions of the agriculture and forestry sectors, both as a source of emissions and as carbon sinks, are continuing to gain attention as an important part of the global efforts on climate change.

Continue Reading COP28 Day 10 Recap: Food in Focus, and a Look Ahead to COP29 and COP30

What You Need to Know.

  • The UNFCCC has released a draft text of the negotiated outcome of the first Global Stocktake under the Paris Agreement.  The draft text currently includes four options to address the question of “phasing out” versus “phasing down” the use of fossil fuels, with the strongest option’s wording being “[a] phase out of fossil fuels in line with best available science.”  Options with weaker wording would call on the Parties to the Paris Agreement to take action towards “phasing out unabated fossil fuels and to rapidly reducing their use so as to achieve net-zero CO2 in energy systems by or around mid-century.”
  • The distinction between “abated” and “unabated” fossil fuels and the meaning of “abated” are being hotly debated, with many commentators warning about the potential of creating a loophole through legal ambiguity.  This draft text will form the basis of intense high-level negotiations between global leaders over the next days.
  • Vanuatu and Tuvalu have renewed calls for a Fossil Fuel Non-Proliferation treaty to address the climate crisis.  Such a treaty is being promoted by supporters as an alternative to the COP process if world leaders cannot agree to phase out fossil fuels.
  • The governments of Armenia and Azerbaijan—until recently at war with each other—issued a joint statement acknowledging not only a “historical chance to achieve long-awaited peace in the region” but confirming that as a “sign of good gesture” Armenia would support Azerbaijan’s bid to host COP29.  Hours later, Russia reportedly blocked Azerbaijan’s bid, according to EU diplomats.  If countries cannot agree, Germany will be the default host country.  Looking further ahead, COP30 in 2025 is widely expected to be hosted by Brazil.
  • December 8 was “Youth Day,” and featured events focused on empowering and elevating the voices of young people in the climate negotiation process.  Shamma Al Mazrui, COP28’s “Youth Climate Champion” and the UAE’s Minister of Community Development, stated in remarks, “when young people have a seat at the table and a voice in decision making they become agents of change.”
  • Leading up to COP28, a “Global Youth Statement” that synthesizes collective climate policy demands and proposals of young people, was provided to the UNFCCC and COP28 Presidency by YOUNGO, the official children and youth constituency of the UNFCCC.  The statement includes demands for a “just, equitable and secure transition to a fossil fuel phase-out” and more financial support for vulnerable communities to address the impacts of climate change.

Continue Reading COP28 Day 8 Recap: Empowering Global Youth and a Look Towards Final Negotiations

What You Need to Know. 

  • “We very much believe and respect the science,” said COP28 President Al Jaber on Monday after it had been reported that he had earlier commented that there was “no science” behind requiring the phase-out of fossil fuels to limit global warming to 1.5C. President Al Jaber went on to say that “the phase down and the phase out of fossil fuel is inevitable.”  This statement comes after heavy criticism from climate activists and scientists of President Al Jaber’s earlier comments, further emphasizing the centrality of the “phase down” vs. “phase out” debate as a wedge issue at this COP.
  • According to the UAE COP Presidency, the first four days of COP28 have seen a collective commitment of USD $57 billion in climate finance from governments, businesses, investors, and philanthropies.  Although still falling short of the global investment needs, these collective pledges show the continuing growth in climate-focused capital around the globe.
  • The U.S. Commodity Futures Trading Commission (“CFTC”) has issued proposed guidance regarding the listing of voluntary carbon credit derivative contracts, the first guidance specifically targeting the voluntary carbon market (“VCM”) by a federal U.S. regulator.  The proposed guidance outlines certain factors a CFTC-regulated exchange, or designated contract market, should consider when addressing requirements of the Commodity Exchange Act (“CEA”) and CFTC regulations that are relevant to the contract design and listing process.  The proposed guidance will be open to public comments until February 16, 2024.

Continue Reading COP28 Day 5 Recap: Climate Finance Continues to Grow and Carbon Offsets Face More Regulation

Those in the business of fast‑moving consumer goods (“FMCGs”) are likely aware of the plethora of environmental and product stewardship regulations applicable to the FMCG sector.  These laws are set to increase and expand in application.  What FMCG companies also need to get to grips with are a range of broader (and also fast‑moving!) environmental, social and governance (“ESG”) developments and consequent risks and opportunities.  Companies need to understand how the new world of ESG impacts their supply chains, key ingredients and components, consumer choice and confidence, competitive advantage, market accessibility, and marketing. 

Designed as a ‘primer’ for FMCG companies, in this piece, we cover a range of key trends in the emerging UK and EU ESG legal landscape as relevant for the FMCG sector, from farmers to Food Business Operators (“FBOs”) and from manufacturers to retailers.  We also discuss some key legal and reputational risks; as well as pointers to help companies decipher and prepare for the ESG storm.

We focus on the UK and the EU (first movers on many ESG issues), but the landscape in other jurisdictions (including, for example, the US) is also evolving and becoming more complex.

Key ESG Issues for FMCGs

We think there are four categories of key ESG developments for FMCGs to watch: (I) corporate reporting and disclosure regimes; (II) green/sustainability claims and labelling; (III) supply chain obligations; and (IV) product packaging and presentation.

Many emerging ESG frameworks cut across sectors.  This may be efficient for regulators, but can make identifying sector-specific risks and opportunities more challenging.  We have sought to do that below.Continue Reading Green Groceries: Key ESG Issues for the FMCG Industry (including FBOs)

UN General Assembly Adopts Resolution Requesting Advisory Opinion on States’ Obligations Concerning Climate Change

On March 29, 2023, the UN General Assembly (“UNGA”) adopted by consensus a resolution (A/77/L.58) requesting an advisory opinion from the International Court of Justice (“ICJ” or “Court”) on the obligations of states in respect of climate change. The resolution results from coordinated efforts by the Republic of Vanuatu, along with a “Core Group” of states, including Antigua and Barbuda, Bangladesh, Costa Rica, the Federated States of Micronesia, Morocco, Mozambique, New Zealand, Portugal, Samoa, Sierra Leone, Singapore, Uganda, and Viet Nam. The efforts of the Core Group drew on grassroots and civil society support, and the resolution was ultimately co-sponsored by more than 130 UN member states (although not the United States, Brazil, India, China, or Russia).

This marks the latest effort to ask international courts and tribunals to clarify the legal obligations of states in relation to climate change. In the last few months, similar requests for advisory opinions have been submitted to the International Tribunal for the Law of the Sea (“ITLOS”) and the Inter-American Court of Human Rights (“IACHR”).

Questions in the UNGA Resolution

The UNGA resolution observes that “as temperatures rise, impacts from climate and weather extremes […] will pose an ever-greater social, cultural, economic and environmental threat.” It asks the ICJ to issue its opinion on the following questions:

a) What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations;Continue Reading The World Court Set to Become the Latest Venue for Climate Change Jurisprudence

There have been several recent developments in international efforts to combat trade in goods made with forced labor, with important implications for responsible sourcing and global trade compliance programs.

On September 14, 2022, the European Commission (“Commission”) published a proposal to ban products made with forced labor from the EU market. The proposal notably goes beyond banning the importation of such products and would also create a ban on the export of products produced with forced labor and require their withdrawal from the EU market.

Meanwhile, enforcement by U.S. Customs and Border Protection (“CBP”) of the U.S. forced labor import prohibition has continued to intensify, including under the Uyghur Forced Labor Prevention Act (“UFLPA”). In early August 2022, CBP clarified the process for updating the UFLPA Entity List. In addition, CBP recently announced that it intends to integrate forced labor compliance requirements into the Customs Trade Partnership Against Terrorism (“CTPAT”) “trusted trader” program.

We discuss these developments and their implications below.

EU Forced Labor Product Ban

The European Commission has proposed a Regulation prohibiting products made with forced labor from being imported to, exported from, or sold in the EU, following an announcement by Commission President Ursula von der Leyen during her State of the Union address in September 2021.

The Commission’s proposal is the first step in the EU’s formal legislative process. The Regulation will now have to be agreed by the European Parliament and Council to become law, following which there will be an agreed delay—the Commission has proposed two years—before it applies in EU Member States. As it usually takes at least 12 months, and often closer to 18 months, for the European Parliament and Council to agree on a legislative text after a proposal by the Commission is published, it is unlikely that the Regulation will be adopted before the end of 2023, and it is therefore unlikely to become applicable earlier than late 2025.Continue Reading Breaking Developments in Forced Labor Trade Enforcement—the EU’s Proposed Forced Labor Product Ban and Recent Developments in U.S. Customs Enforcement

The European Commission is currently discussing a draft of a proposal for a Carbon Border Adjustment Mechanism (“CBAM”) Regulation that it is expected to present on July 14, 2021.  A CBAM was already announced in the European Commission’s Communication for a Green Deal  and is intended to protect the EU’s domestic industry that is at risk of carbon leakage—to create a level playing field—and to serve as a policy tool to encourage third countries to reduce their greenhouse gas (“GHG”) emissions.

The CBAM draft proposal is subject to intense negotiations among the different Directorates-General of the European Commission, and it is likely that it will be amended several times before the Commission finally presents it on July 14.  Nevertheless, the draft already suggests that the CBAM proposal will require importers of covered goods into the EU to purchase and surrender a number of CBAM certificates that reflect the goods’ embedded emissions.  In line with the European Parliament’s resolution, the CBAM would be linked to the EU Emissions Trading System (“EU ETS”) as the price of the CBAM certificates would reflect the average price of the ETS allowances.
Continue Reading Twelve Things to Know About the Upcoming EU Carbon Border Adjustment Mechanism

The UK Government recently announced that it is developing legislation that would make it illegal for large businesses operating in the UK to use certain commodities that have not been produced in line with local laws, and require in-scope companies to conduct due diligence to ensure that their supply chains are free from illegal deforestation