At around 2am on Tuesday 5 March, after very long hours of negotiations, the European Parliament and the Council of the EU reached a provisional agreement on the text of the regulation banning products produced using forced labour.
The text had been under negotiation since 30 January and had undergone several major changes on both sides. MEPs had introduced a reversal of the burden of proof, compensation measures for potential victims and greater flexibility for small and medium-sized enterprises (see EUROPE 13271/10).
The EU27, who had taken several weeks to agree on their compromise, have, for their part, strengthened the Commission’s powers of control and action and clarified the notion of “European Union interest” (see EUROPE 13337/2).
The text of the provisional agreement incorporates the objectives of the Commission’s proposal: it will prohibit access to the EU market for all products worldwide manufactured with forced labour, sanctioning these products with an import and export ban as well as mandatory withdrawal from the market and, in many cases, an obligation to recycle or dispose of them.
The Commission’s role and powers in the investigation and sanction process have been clarified. The provisional agreement requires the Commission to conduct investigations outside the EU and the Member States to conduct them within the Union.
The final decision (ban, withdrawal or disposal of a product) will be taken by the authority that carried out the investigation and will apply in all other Member States.
Forced labour imposed by a State is not explicitly taken into account in the text, as it is in the EU Council’s version. The regulation does not create a rebuttable presumption of forced labour for products from regions where forced labour is imposed by the State, but does provide for creating a list of ‘high-risk’ areas and products that the authorities will have to consider when assessing risks.
These assessments are based on certain criteria, which consider the probable presence of state-imposed forced labour, the quantity or volume of the final product likely to be manufactured using forced labour, the company’s proximity to suspected risks in its supply chain and the means it has to remedy them.
The reversal of the burden of proof, so dear to the hearts of the Parliament’s co-rapporteurs, has not been incorporated into the compromise. Similarly, compensation is only provided on a voluntary basis by the companies concerned.
Companies that fail to comply with the legislation could be fined. However, if they succeed in eliminating forced labour from their supply chains, the banned products could once again be admitted to the European market.
Many NGOs have praised the quality of the text, in particular its ability to achieve its objectives. Anti-Slavery International welcomed this “vital” regulation, a “very strong demonstration by the EU”.
The two co-rapporteurs of the text, Samira Rafaela (Renew Europe, Dutch) and Maria-Manuel Leitão-Marques (S&D, Portuguese), expressed their great satisfaction at the outcome of the trilogues, welcoming “the step forward towards fair trade and cleaner supply chains, while giving priority to human rights”.
The provisional text still has to be validated by the MEPs, in committee and then in plenary session, as well as by the permanent representatives of the Member States. (Original version in French by Isalia Stieffatre)