How would the EU’s proposed ban on products made with forced labour work?

The European Commission has proposed a crack down on forced labour worldwide by banning products in part or completely made as a result of it from being sold in the European Union.

The European Commission’s Forced Labour Product Ban regulation would not only target products made abroad and imported into the 27-country bloc but also clamp down on forced labour practices within the EU.

It would also not specifically put any country, region, company or specific industry in its crosshair.

This “non-discriminatory” approach is at the heart of the Commission’s communication on its proposed legislation, with China not mentioned specifically once in any of the Commission’s material.

Yet Beijing’s treatment of the Uyghur Muslim minority in its north-western province of Xinjiang has been central to the debate over forced labour over the past two years.

Some 100,000 people are estimated to be working in forced labour conditions there following detention in so-called re-education camps, according to the US Bureau of International Labour Affairs, where they produced a range of goods ranging from textiles, fair products, tomato products as well as polysilicon, an essential material for the photovoltaic industry.

National authorities to investigate

Commissioner for Trade Valdis Dombrovskis said he expects the proposal to make a “real difference in tackling modern-day slavery” while Thierry Breton, the Commissioner for Internal Market, argued that “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 labour from circulating in the EU, and a lever to promote more sustainability across the globe,” he added.

But criticism has already abounded, with some warning the EU regulation doesn’t go far enough.

Under the Commission’s proposal, national authorities in the EU would be tasked with investigating whether a product has been made partly or completely with forced labour. This would likely fall under the purview of either customs or market surveillance agencies.

These investigations would be assisted by a database the Commission plans to build and maintain that would include submissions from third parties, including civil society, of forced labour risks focussing on specific products and geographic areas as well as by a new EU Forced Labour Product Network whose aim will be to enhance cooperation and data sharing between member states.

The authorities would then demand data that covers their supply chains from the companies marketing the product and/or state authorities and make a risk assessment as to whether forced labour was used. If this is ruled to be the case, the product will have to be withdrawn from sale or blocked from entering the EU market.

In the event companies or state authorities under investigation take too long to reply or refuse to cooperate, EU authorities will be able to close their investigation on the basis of a lower evidentiary threshold.

An EU official said this should provide a “strong incentive” for companies to cooperate with EU authorities as it would give them “more of a chance to make their case”.

The official stressed that the ban is not an end in and of itself and that a product ban doesn’t mean “the cooperation with the company ends”. The hope is that companies will clean up their act and remove forced labour from their supply chain to get the EU ban lifted.

This may lead to a “certain economic impact”, the official conceded, arguing that in the long run this economic impact could be positive as the reduced use of forced labour would lead to a more level playing field.

Burden of proof should be on companies, critics say

The regulation would however not look into forced labour used in services which would limit its scope.

Yannick Jadot, a French Greens MEP and member of the International Trade Committee, meanwhile deplored that the Commission’s proposal does not put a blanket ban on certain regions, similar to what Washington did with its Uyghur Forced Labour Prevention Act.

“We must do what the United States and Canada did so that when there is a suspicion of forced labour, it is up to the company to prove that it does not use forced labour in its production,” he told Euronews.

“So for example when it comes from North Korea, we know it, when it comes from a certain number of mines in Africa, or from a certain number of regions with agriculture and where children work and obviously when it comes from the Uyghur Autonomous Region, there is a suspicion of forced labour, it’s proven, we ban the imports except if the company proves that even in this region it did not use forced labour,” he explained.

Dilnur Reyhan, President of the European Uyghur Institute, also present at the parliament in Strasbourg on Monday night, stressed that “hundreds of international brands are implicated in this slave work” citing Huawei on the Chinese side.

“Among the Western brands, we know brands like Apple, Volkswagen, Nike, Zara, Uniqlo – they are very much implicated in Uyghur forced labour,” she said.

The Commission considers its measure to be “much larger” than the American legislation, an official said because it targets all products sold in the EU, irrelevant or where they come from, describing Washington’s law more as “an import ban”.

The Commission’s proposal has to be backed by the parliament and European Council. The regulation would come into force 24 months after the final green light has been granted.

About 27.6 million people worldwide were in 2021 victims of forced labour, according to the latest report released on Monday by the International Labour Organisation (ILO), a United Nations agency.

This is up nearly three million from 2016.

The vast majority (86%) occurs in the private sector with forced commercial sexual exploitation accounting for 23% of all forced labour. Almost one in eight of those in forced labour are children with migrants particularly vulnerable.