BAN ON PRODUCTS COMING FROM FORCED LABOUR IN THE UNION MARKET

Autor: Suderow Fernandez Abogadas SLP

Article 2 of the International Labour Organization (ILO) Forced Labour Convention No. 29 from 1930, defines forced labour as “all work or service which is exacted from any person under the menace of a penalty and for which that person has not offered himself or herself voluntarily”.

 

In addressing the issue of forced labour in international supply chains, on 14 September 2022, the European Commission put forward a legislative proposal (COM (2022) 453) in the form of a regulation that would prohibit products made with forced labour on the EU market. In the face of an estimated 27.6 million people affected by the forced labour internationally, the September 2022 proposal addressed both, products made in the EU for either domestic consumption and/or exports, as well as imported goods, covering all sectors.

 

Now, on 13 March 2024, the European Parliament and the Council reached a provisional agreement on new rules that ban products made with forced labour from being placed or being made available on the European Union market or exporting from the Union market products made with forced labour.

 

According to the legislative proposal, ‘due diligence in relation to forced labour’ refers to the efforts by economic operators to implement mandatory requirements, voluntary guidelines, recommendations or practices to identify, prevent, mitigate or bring to an end the use of forced labour with respect to products that are to be made available on the Union market or to be exported.

 

In order to support the work of the Commission and national competent authorities and following international best practices, in assessing possible breaches of the regulation, the proposal introduces the establishment of a database of forced labour risk areas or products that will contain verifiable and updated information, including reports from international organizations. Moreover, the Commission will set up and regularly update a forced labour single website available to the public containing, among others, the list and contacts of the designated national competent authorities; the guidelines for economic operators, competent authorities and Member States foreseen in Article 11 of the proposal; the aforementioned database; a list of publicly available information sources of relevance for the implementation of the regulation; and any decision to ban a product or to withdraw a ban.

 

The proposed regulation establishes a risk-based approach that competent authorities will follow in assessing the likelihood of economic operators placing, making available or exporting products that are made with forced labour. Upon a substantiated concern of a violation of the regulation, the competent authorities will decide to initiate an investigation on the products and economic operators concerned. As regards the competent authority to conduct the investigation, the European Commission will lead the investigations outside of the EU territory, and designated national authorities will lead the investigations where the risks are found in the territory of a member state (Article 15 of the proposal).

 

The final decision to ban, withdraw and dispose of a product made with forced labour will be taken by the authority that led the investigation, and shall be recognised and enforced by competent authorities in other member states in so far as they relate to products with the same identification and from the same supply chain for which forced labour has been found.

 

The provisional agreement reached with the European Parliament now needs to be endorsed and formally adopted by the Parliament and the Council of the European Union. An indicative plenary sitting date is foreseen for 22 April 2024 in this regard.

 

 

Written by Laura San José