The European Commission said on Wednesday that it’s planning to outlaw all products made with forced labor, though it stopped short of identifying companies, industries or geographical areas that could face stepped-up scrutiny, leaving a sense of indeterminateness that some experts say could undermine the proposed law’s effectiveness.
While the plan follows a European Parliament call in June to address reports of China’s human-rights abuses against Muslim minorities in the Xinjiang Uyghur Autonomous Region, it skirted any direct references to the province, possibly to avoid breaching the World Trade Organization’s rules on non-discrimination but just as likely because doing so would draw the full force of Beijing’s ire.
Ursula von der Leyen, president of the European Commission, broached the idea of a ban a year ago.
“We can never accept that [people are] forced to make products and that these products then end up for sale here in shops in Europe,” she said. “Global trade around the world, that is good and necessary, but this can never, ever be done at the expense of people’s dignity and freedom.”
Unlike the Uyghur Forced Labor Prevention Act in the United States, which targets goods from Xinjiang, the measure would apply to any products made within or imported into the European Union. There is no rebuttable presumption, either. The burden of proof, the commission said, would fall on national authorities, though they would be “empowered” to withdraw offending products from the 27-member bloc or bar them from its borders following an investigation.
To help them identify risks, member states could employ submissions from civil society, companies’ own due-diligence assessments or a coordinated public database that flags product or geographic hotspots for forced labor. If they’re unable to amass all the necessary evidence because of a lack of cooperation by a company or non-EU state authority, they would be allowed to make a decision based on “available facts.”
National authorities, the proposal added, would apply the principles of risk-based assessment and proportionality throughout the process. Small and medium-sized businesses, for instance, could receive a “tailored approach,” including additional support tools, due to their size and economic resources.
“Our aim is to eliminate all products made with forced labor from the EU market, irrespective of where they have been made,” said Valdis Dombrovskis, the EU’s executive vice president and commissioner for trade. “Our ban will apply to domestic products, exports and imports alike. Competent authorities and customs will work hand in hand to make the system robust.”
Before it becomes law, the bill will need to be hashed out by the European Parliament and the Council of the European Union. And even if it gets the green light, it would take another two years before it can take effect. Before that, the European Commission will issue guidelines on forced labor due diligence and how to identify risk indicators of forced labor.
The proposal has also been criticized for floundering in certain areas: Its failure to mention state-induced modern slavery, for instance, and the absence of a redress or compensation scheme when harm has taken place.
“While we are pleased to see the proposal cover all products from all regions, it falls far short of its potential and fails to put workers at its heart,” said Hélène de Rengerve, senior EU advisor at Anti-Slavery International. “The proposal lacks explicit requirement of companies to remedy workers—that is, for example, to provide them with pay, passports and protection. The ambiguity of the proposal surrounding state-imposed forced labor, such as Uyghur forced labor, is deeply concerning. The absence of clear procedures vastly reduces its power to compel companies to remove state-imposed forced labor from their supply chains.”
The European Coalition for Global Justice was concerned that placing the onus of evidence on national authorities could also overstretch “underresourced” member states. In addition, the would-be regulation “is weak” on supply chain mapping and disclosure, which is an “essential requirement needed for civil society and EU authorities to determine whether forced labor has occurred somewhere in the chain.”
Ben Vanpeperstrate, senior legal advisor at the European Center for Constitutional and Human Rights, a Berlin-based group that has filed legal complaints against brands such as C&A and Hugo Boss for allegedly profiting from forced labor in Xinjiang, said that investigations under the proposal are focused on actors placing products on the market rather than entities where forced labor occurs.
“It’s good to have a proposal making products made by forced labor illegal in the EU, but we need an enforceable regulation that effectively stops products entering the market,” he said. “Adjustments are clearly necessary for a real ban of products made by forced labor.”
Writing on Twitter, Member of European Parliament Raphael Glucksmann was wary of the “risk of disparity in application” among different national authorities. Two years, he said, was also too long to wait. But Glucksman also said that the proposal formed a solid enough foundation to build on, which itself was worth celebrating. “The fight therefore continues, but we now have a good basis to carry it out in Parliament,” he added.
A confluence of crises, including the Covid-19 pandemic, armed conflicts and climate change, has led to a sharp increase in modern slavery in recent years, according to the International Labour Organization. In new estimates released Monday, the United Nations agency said that 27.6 million people toil in situations of forced labor on “any given day.” This translates to 3.5 people in forced labor for every thousand people in the world. Women and girls make up 11.8 million of that number, and children more than 3.3 million. Textiles, agriculture and mining are among the worst-affected industries.
The forced labor ban would be distinct from the European Commission’s proposal for a directive on corporate sustainability due diligence. The latter focuses on establishing a system within company law and corporate governance to address human-rights and environmental abuses in companies’ supply chains but doesn‘t provide for measures specifically intended to prevent products made with forced labor from infiltrating the EU market.
But the two are interlinked, the commission said. If a company has carried out effective due diligence that allows it to root out, prevent or mitigate modern slavery in its supply chains, those efforts would be taken into account should “well-founded suspicions” place it under investigation.
“In today’s geopolitics, we need both secure and sustainable supply chains,” said Thierry Breton, EU commissioner for internal market. “We cannot maintain a model of consumption of goods produced unsustainably. Being industrial and technological leaders presupposes being more assertive in defending our values and in setting our rules and standards. Our single market is a formidable asset to prevent products made with forced labor from circulating in the EU, and a lever to promote more sustainability across the globe.”