La lucha contra la migración en cadena: restricciones del derecho a elegir a la pareja

The discussion between regulators at the workshop indicated that GSCM fits within the new regulatory paradigm, moving away from pure ‘command and control’ solutions towards a more integrated approach. There is an overall recognition that the inspection process could allow consideration of GSCM at some stages, provided that its benefits are recognised and that there is an appropriate level of confidence in such systems, and their assessment and verification processes.

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In order to assess the stages of the inspection process at which it could be possible to integrate GSCM, reference is made to the IMPEL Project (2007) “Doing the right things II” which provides step-by-step guidance for the planning of environmental inspections. Based on this process, there is recognition that existing procedures for prioritising and executing inspections may already allow consideration of GSCM. In addition, communication and promotion activities are a fundamental element of the enforcement process where GSCM could have a role. The ways GSCM could be included within the existing inspection process are presented below: a) Setting priorities for inspection:

Priorities for carrying out inspections are currently set using the outcome of a risk assessment, which could be a list or an overview of all the identified/selected installations and activities and their respective risks. The risk criteria used for prioritisation and their assigned weights are defined by each inspection authority and may require gathering information on aspects such as the compliance rating or history of the facility, the implementation of a (certified) EMS or the public perception of the facility. In a similar way to these aspects, project team members agree that there could be scope to include GSCM

questions or elements in the risk assessment process of sites for inspection.

As an example, reference was made to the Dutch province of Noord-Brabant, which has defined four levels of compliance management with differentiation of preventive inspection (both in quality and in quality) and less stringent penalties. As indicated in the IMPEL project Compliance assurance through company compliance management systems (2012), whereas in level one a company does not have a management system in operation, in level four the company has in place a proven management system which has shown good results for several years and which is specifically aimed at assuring compliance. The study notes that the competent authority within the province holds the opinion that companies with a good record in compliance management deserve more trust. In order to assess and verify this, an audit is performed by specially trained and educated inspectors. The audit, which includes physical and documentary checks, uses a checklist27 with forty-nine questions and verification items, but none of these refer specifically to supplier management. In this context, the potential for inclusion of additional items focusing on GSCM could be further explored. For example, one of the items asks if there is an accepted written code of conduct which clarifies how the private body expresses the vision on legal compliance in the behaviour of employees and management. Companies might also be requested to provide information on whether there is a code of conduct for suppliers.

The issue at discussion here is whether companies with a good record in compliance management not only of their own operations but also of those of their suppliers deserve more trust. Could supervision be less frequent when this is the case? Could this enable inspectors to focus on companies with poor compliance? As indicated previously, more evidence and research is needed in this area but it could be reasonable to consider that if a regulated company is managing regulatory compliance across its supply chain by using an effective dedicated management system, the risk of non-compliance might be lower (e.g. reduced risk of receiving non-compliant materials from its suppliers).

In addition, regulators may consider the impact on the compliance behaviour of the supplying companies which are subject to GSCM requirements by their customers. This

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http://www.brabant.nl/dossiers/dossiers-op-thema/veiligheid-en-handhaving/handhaving/- /media/5C04E3E037AB48988AF10D0C5800686C.pdf

could be particularly relevant in the case of SMEs supplying to corporations with ambitious systems to control supplier´s compliance. GSCM may provide more confidence that these

SMEs are closer to compliance.

Finally, GSCM could be a tool for identifying cases for reactive inspection, based on non-

compliance issues detected by customers among their suppliers through their GSCM processes. However, further research is needed on the legal implications of using

information exchanged between suppliers, particularly if disclosed under a Data Sharing Agreement,

b) Executing inspections:

It has been recognised that GSCM may be a subject that benefits from inspectors trained in

‘smart questioning’ during the execution phase. As such, inspectors could take into account

whether a company has been already subject to monitoring and auditing practices by its customers, which may include the requirement to fulfill performance assessments or questionnaires and auditing. Outputs of this process could provide an important source of information on the environmental performance of the company and may avoid duplicating effort. For example, this could involve taking into account the fact that the company has already established a corrective action plan to address non-compliance in response to a customer requirement.

Figure 4.1 GSCM and execution of inspections

(Source: AMEC)

c) Compliance promotion and communication

Monitoring and inspection activities should be complemented with appropriate compliance promotion and communication, especially in the context of REACH and CLP, where the number of regulated targets exceeds the resources available for enforcement (ECHA, 2011). Compliance promotion should try to stimulate target groups to achieve better compliance and cooperation between them, and can include actions for the provision of education, legal and technical assistance, building public support and building expertise and administrative/managerial capacity within the regulated community (ECHA, 2011).

Industry and representative trade bodies can support the regulator’s role in providing information and assistance on environmental obligations (e.g. REACH), especially to SMEs (i.e. training courses). Therefore, regulators could liaise with industry and take into

4.2.5 What are the limitations to the consideration of GSCM by regulators?