EU’s Forced Labor Proposal Still Needs Improvement, Rights Groups Say
The European Union might be gearing up for final negotiations over a much-anticipated regulation that would bar products made with forced labor from the world’s largest single market, but several “key” issues still need to be considered to make it a success, dozens of civil society groups and trade unions said this week.
Writing in an open letter to the 28-member bloc’s lead negotiators, including co-rapporteurs Maria-Manuel Leitao-Marques and Samira Rafaela, Committee on International Trade chair Bernd Lange and Committee on the Internal Market and Consumer Protection chair Anna Cavazzini, organizations such as Anti-Slavery International, the Clean Clothes Campaign, IndustriALL Global Union and Human Rights Watch argued for a more robust approach to delivering the forced labor regulation.
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First, a need for remediation, which the European Parliament expressed support for in its common position in January. The rule, the letter said, needs to be worker-centered, requiring not only remediation for workers who have been subjected to modern slavery but also proof of remediation throughout the investigation. Remediation should also be a condition of withdrawing a product ban since failure to do so would “merely incentivize companies to disengage, in contradiction to the corporate sustainability due diligence directive’s objectives and obligations,” it added.
State-imposed forced labor, as described in Turkmenistan, Uzbekistan, North Korea and China’s Xinjiang Uyghur Autonomous Region, should be treated differently from other forms of forced labor, the organizations said. The European Commission’s proposal, the letter noted, doesn’t entail any explicit investigative or enforcement measures to tackle cases of state-imposed forced labor, making it “impractical and difficult to investigate and address efficiently such cases at scale.” The European Parliament’s position, on the other hand, offers a “considerable” improvement by empowering the European Commission to flag high-risk geographies and economic sectors where such practices exist, even suggesting a shift in the burden of proof similar to the rebuttable presumption on Xinjiang-origin goods under the Uyghur Forced Labor Prevention Act in the United States.
But even better would be the ability to outlaw not only single products but groups of products from entire entities where forced labor is widespread or state-imposed, such as at a specific production location, the letter said, adding that “allowing decisions to ban defined groups of products would simultaneously provide a stronger deterrent against the use of forced labor at that entity and ease the administrative burden for competent authorities.”
The organizations noted that the European Council and Parliament have proposed a single-window EU-wide complaints mechanism, one that they said is “preferable” to the “decentralized and fragmented” version suggested by the European Commission. Any such mechanism, however, should be accessible outside the bloc as well, allowing any workers experiencing forced labor and their representatives outside the region to access information and participate in proceedings.
Another concern the latter raises is transparency and the right to equal and informed participation by forced labor complainants. The regulation, it said, must strike a “better balance” between commercial confidentiality, due process for companies facing investigation, the right to information of complainants, the need to protect victims from retaliation and public interest. In short, the regulation should allow the publication of all proceedings and decisions, redacting only commercially sensitive information and anything that will identify victims.
The regulation should “better balance the opportunities given to complainants, victims and their representatives during the investigation proceedings to respond to counterarguments made in response to initial allegations,” it said, noting that the European Council’s position, at present, is “skewed” toward economic operators, who have many opportunities to respond to allegations or preliminary findings.
“Economic operators alone cannot be given procedural rights to participate to the exclusion of comparable procedural rights to complainants,” the letter added. “The procedure for amending or changing product ban/withdrawal decisions should be evidence-based, including based on information from civil society organizations and labor unions.”
Finally, the signatories seek an “evidentiary regime” adapted to forced labor. Both the European Commission and Parliament have proposed a “high level” of evidence before an investigation can begin, they said. This must be lowered to take into consideration any evidentiary struggles experienced by victims of modern slavery, many of whom don’t have access to all the relevant documentation and evidence that may be demanded of them during proceedings.
“Making even the opening of such an investigation contingent on such a level of proof would render the instrument inefficient,” the letter said. Currently, it noted, the evidentiary threshold required to kick-start an investigation under both the European Parliament and Commission’s proposals is higher than what U.S. customs authorities need to issue a Withhold Release Order.
All three—European Commission, Council and Parliament—proposals envision a single threshold of proof, meaning conclusive evidence, for sanctions ranging from import restrictions to disposal of goods, the letter said. The U.S.’s approach, which considers “reasonable but not conclusive” evidence sufficient for issuing import restrictions, is a better one, it said. It’s only where there is a “probable” cause of forced labor when Customs and Border Protection issues a “finding” of forced labor, which includes additional penalties.
While it isn’t clear when the European Commission, Council and Parliament will hash out any differences in their proposals, the Council said last month that “interinstitutional negotiations will start as soon as possible.” All eyes right now are on the CSDDD, which faces a critical vote on Friday. So far Finland and Germany have declared their intent to abstain, creating what some have described as essentially “no” votes that could torpedo what many thought was a done deal and, in the process, endangering related measures such as the forced labor regulation.
On Thursday, 20 Nordic businesses, including Bestseller, Lindex and Nudie Jeans, published an open letter of their own to urge their governments to support the rule, which they said has a “unique opportunity” to “harness the transformative power of the UN Guiding Principles on Business and Human Rights” and “further strengthen the relationship between business and society and the realization of sustainable development.”
“A mandatory human rights and environmental due diligence law that is applicable throughout the EU would serve as an international benchmark for advancing responsible business conduct,” they said. “It would also create a level playing field across the EU to drive much-needed action. Nordic states have always shown leadership on matters of corporate sustainability and respect for human rights. We call upon our governments to continue to play a leadership role by supporting the CSDDD in the final stages of the legislative process.”
