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27th Feb 2024

Two big omissions risk making EU forced-labour ban toothless

  • Some 3.9 million people are estimated to be in state-imposed forced labour worldwide (Photo: Unsplash)
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Member states last week failed to agree on a common position on the EU forced labour regulation, as concerns over 'ownership' of national investigations could not be resolved, EUobserver has learned.

In 2022, the EU Commission proposed legislation to create a framework for investigating and eliminating products made with forced labour in companies' supply chains — both manufactured in the EU or imported into the EU.

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The EU executive initially proposed that the authorities of the 27 member states would be in charge of the investigation and enforcement system, an issue that continues to cause concern among national capitals because of the resource implications.

The Council draft text instead gave the commission a greater role in coordinating, harmonising and monitoring cases.

But in the end, no common ground could be found among member states on this point, and the possibility of starting inter-institutional negotiations — almost a year-and-a-half after the proposal was made — was lost.

An EU diplomat told EUobserver that member states are "close to an adapted mandate", but some adjustments are still needed before an agreement can be reached, so EU ambassadors will meet again on Wednesday (24 January).

And as time is running out to close the deal, some organisations now fear that the regulation will end up being less ambitious than it could be.

"We must see urgency throughout the trilogue to reach a decision before spring, but not at the expense to a meaningful legislation," Hélène de Rengervé, senior EU adviser at the NGO Anti-Slavery International said.

"It is imperative that the EU governments reach a joint position on this file at their meeting this week," Steve Trent, CEO and founder of the Environmental Justice Foundation (EJF) told EUobserver.

"If member states fail to agree now, they will lose important momentum, with real human impacts as a result," he added.

Two omissions

In particular, two major omissions in the council's latest draft risk leading to a regulation that does not tackle the problem at its roots.

The first one would be the removal of any reference to remediation for the victims of forced labour, an omission that would destroy any chance of systemic change, according to Anti-Slavery International.

"The reality now is that we are going to pretend [as the EU] to have an instrument that is supposed to tackle forced labour which won't even address the situation of the victims, and won't create any leverage for companies to actually act," de Rengervé told EUobserver.

The second major black hole is the removal of any reference to state-imposed forced labour, which accounts for 3.9 million people worldwide.

The commission's original proposal did not explicitly mention any specific geographical area, but the lead MEP on the file, Samira Rafaela (Renew Europe), previously cited the example of the Chinese fishing industry, where the Outlaw Ocean project has exposed the use of massive forced labour in the processing of seafood entering European and US markets.

Back in October, MEPs called on the EU executive to draw up a list of high-risk geographical areas and sectors where forced labour would be presumed, with the onus on companies to prove otherwise.

Now, member states are more keen to support the creation of a database, an EU-wide one-stop-shop complaints mechanism which would make inspections easier for competent authorities and information more accessible to victims and organisations.

However, it is not a systemic way of tackling the problem, as victims or organisations would have to show, product-by-product, where everything in them is made.

"In terms of impact, it is meaningless. Administratively, it is also completely absurd," argued de Rengervé.

Another concern has arisen recently, with member states proposing that third countries should be responsible for inspecting forced labour on their own territory, which could effectively render the ban pointless.

In particular, governments of third countries suspected of using or being complicit in state-imposed forced labour cannot be trusted to carry out "impartial investigations", a source familiar with the draft text told EUobserver on condition of anonymity.

The parliament agreed to its position in October and has since been urging the council to speed up negotiations on the product-based regulation.

But some member states, including Lithuania, Estonia and the Czech Republic, have been more reluctant to move the discussions forward.

"We believe it is not manageable to conclude this file with the necessary legal precision within this institutional period," the Czech delegation said during a competitiveness council debate on the forced labour regulation in early December.

Given doubts and concerns about the resource implications of inspection procedures for national authorities or the possibility of reversing the burden of proof from victims to companies, NGOs prefer to have a text in 2024 rather than no text at all.

"If we don't get it agreed before the end of the legislature, there is a real risk that we will not have a text at all," de Rengervé told EUobserver.

Civil society organisations pointed to the fact that the Hungarian delegation (which will lead the next EU presidency and thus the council negotiations) has not been active on this file, as well as the likely changes in the composition of the EU institutions after the June elections.

"The fight is going to be tougher," de Rengervé added, noting that her NGO is more interested in having a text before the EU elections and improving it through the implementation process and the next review of the regulation, which will take place in a few years.

This article has been updated

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