The wishes of MEPs seem to have been granted: the European Commission is expected to propose a regulation to “prohibit economic operators from placing, making available on the EU market or exporting from the EU products made with forced labour”, according to a draft version of the regulation seen by EUROPE on Friday 9 September.
The European Commission is expected to present the proposed regulation on Tuesday 13 September, in connection with European Commission President Ursula von der Leyen’s speech to the European Parliament in Strasbourg (see other news). EUROPE was able to see a draft version of the document, which is about 40 pages long.
The definition of forced labour is that set out by the International Labour Organization (ILO) in Article 2 of the Forced Labour Convention. Article 3 of the regulation is “prohibiting economic operators from placing and making available on the union market or exporting from the Union market, products made with forced labour”.
However, the regulation does not aim to reach products already purchased by consumers, the first article states. The Commission considers that the term “products made with forced labour” includes manufacturing, extraction and harvesting.
This definition excludes services and therefore transport, as we reported in our news item (see EUROPE 13012/2).
The possibility of withdrawing products from the internal market
Chapter II is the centrepiece of the regulation. It describes the investigation process and the decision-making framework of the national competent authorities. Products will be withdrawn or blocked at the border following a decision by these authorities, which will have conducted an investigation.
It should be noted that the draft version does not mention a maximum time limit for the investigation, but the authorities must close the investigation and make a decision within a “reasonable period of time” (Article 6).
Each Member State is required to designate one or more competent authorities to enforce the obligations of the regulation. They can use a range of available evidence to initiate the preliminary phase of the investigation. This is what the Commission calls a ‘risk-based approach’.
An alert from an individual or an association, reports from NGOs, the ILO, available data, including that provided by the European Commission, (Article 11) are all elements on which a suspicion may be based.
On this basis, the competent authorities may ask the economic operator concerned to provide information and documents within 15 days to justify their decision as to whether or not to launch an investigation.
They must then decide, 30 days after receiving the requested documentation, whether there is a proven risk of violation. Where appropriate, they will be required to investigate suspected products and economic operators (Article 5).
During this investigation phase, the regulation specifies that the competent authorities will have to “take into account the size of the company and its resources, the quantity of products involved and the extent of the suspected forced labour” (Article 5).
After a “reasonable investigation period”, the authority may or may not establish that the economic operator is not complying with the provisions of Article 3. It must then ensure that the products concerned are withdrawn from the internal market (Article 6). The economic authorities must ensure that “any product remaining with the economic operator concerned is destroyed, rendered inoperable, donated or otherwise disposed at the expense of the economic operator”.
According to Article 7, the economic operator must be given a reasonable time to comply. The text sets a minimum duration of 30 working days.
The legislative proposal also includes an external component and assigns a role to customs services in Chapter III with regard to products entering or leaving the internal market. If the customs authorities identify a non-compliant product, they must stop it from being released for free movement or exported.
In such cases, the customs authorities shall immediately notify the suspension to the competent authorities concerned and provide them with all relevant information to enable them to verify whether the product is covered by a decision.
A new network to facilitate coordination
Coordination between the authorities of the 27 Member States should be facilitated through a new “Union network against forced labour products”. According to Article 24 of the text, the network will be composed of representatives of the competent authorities of the Member States, representatives of the European Commission and, potentially, experts from customs authorities.
This platform should enable the exchange of information between Member States, avoid double investigations and also publish guidelines for the proper implementation of the regulation.
In addition, the Commission will be required to publish guidelines for companies on due diligence, risk indicators on forced labour, etc. (Article 23).
Contrary to what the European Parliament called for in its resolution (see EUROPE 12968/23), the Commission does not provide for a redress mechanism for victims of forced labour. (Original version in French by Léa Marchal and Pascal Hansens)