Considerations on COM(2022)453 - Prohibiting products made with forced labour on the Union market

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dossier COM(2022)453 - Prohibiting products made with forced labour on the Union market.
document COM(2022)453 EN
date November 27, 2024
 
(1) As recognised in the Preamble to the 2014 Protocol to Convention No 29 on forced labour (ILO Convention No 29) of the International Labour Organization (ILO), forced labour constitutes a serious violation of human dignity and fundamental human rights, contributes to the perpetuation of poverty and stands in the way of the achievement of decent work for all. The ILO declared the elimination of all forms of forced or compulsory labour as a principle of fundamental rights. The ILO classifies ILO Convention No 29, including the supplementing 2014 Protocol to Convention No 29 and the ILO Convention No 105 on the abolition of forced labour (ILO Convention No 105) as fundamental ILO conventions and issues recommendations to prevent, eliminate, and remedy forced labour, such as the Forced Labour (Supplementary Measures) Recommendation No 203. The ILO has developed several indicators used to identify and indicate cases of forced labour, such as threats and actual physical and sexual harm, abuse of vulnerability, abuse of working and living conditions and excessive overtime, deception, restriction of movement or confinement to the workplace or a limited area, isolation, debt bondages, withholding wages or excessive wage reduction, retention of passports and identity documents or threat of denunciation to the authorities when the worker has an irregular immigration status. Forced labour is very often linked to poverty and discrimination. The manipulation of credit and debt, either by employers or by recruiting agents, is still a key factor that traps vulnerable workers in forced labour situations. According to the ILO supervisory bodies, prison labour, including where it is performed for private companies, does not in itself constitute forced labour, provided that it is done on a voluntary basis, for the benefit of the prisoner and is comparable to the conditions of a free labour relationship. Community work as an alternative penal sanction to imprisonment should always be in the public interest and should, under no circumstances, be abused by states as a means to degrade the convicted person or deprive that person of their dignity. In cases in which work or service is imposed by exploiting the worker’s vulnerability under the threat of a penalty, that threat does not need to take the form of a penal sanction but might take the form of a loss of rights or benefits.


(2) The use of forced labour is widespread in the world. It is estimated that about 27,6 million people were in situations of forced labour in 2021. Vulnerable and marginalised groups in society are particularly susceptible to being pressured into performing forced labour. Such groups include women, children, ethnic minorities, persons with disabilities, lower casters, indigenous and tribal people, and migrants, especially undocumented migrants, who have a precarious status and operate in the informal economy. Even when it is not state imposed, forced labour is often a consequence of the absence or lack of good governance with regard to certain economic operators and a demonstration of a state’s failure to enforce social and labour rights, particularly for vulnerable and marginalised groups. Forced labour can also take place as a result of authorities’ tacit consent. 86 % of all forced labour cases


(1) OJ C 140, 21.4.2023, p. 75.


(2) Position of the European Parliament of 23 April 2024 (not yet published in the Official Journal) and decision of the Council of 19 November 2024.

occur in the private sector, in particular through the forced labour exploitation of 17,3 million people. The obligations of economic operators set out in this Regulation should be predictable and clear in order to ensure full and effective compliance and contribute to bringing forced labour to an end.


(3) The eradication of forced labour in all its forms, including state imposed forced labour, is a priority for the Union. Respect for human dignity and the universality and indivisibility of human rights are firmly enshrined in Article 21 of the Treaty on European Union (TEU). In order to achieve Target 8.7 of the United Nations’ Sustainable Development Goals, the Union should uphold and promote its values and contribute to the protection of human rights, in particular the rights of the child. Article 5 of the Charter of Fundamental Rights of the European Union (the ‘Charter’) explicitly prohibits slavery, servitude, forced or compulsory labour and trafficking in human beings, and Article 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides that no one is to be required to perform forced or compulsory labour. The European Court of Human Rights has repeatedly interpreted Article 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as requiring Member States to penalise and effectively prosecute any act maintaining a person in the situations set out in that Article. The right to effective remedies for violations of fundamental rights is a human right, and a fundamental element in the process of effective prosecution of crimes. Existing Union law, the United Nations Guiding Principles on the Business and Human Rights (UNGPs), the Council of Europe recommendation on human rights and business and the Organisation for Economic Cooperation and Development (OECD) guidelines, such as the Guidelines for Multinational Enterprises on Responsible Business Conduct, affirm that victims have the right to an effective remedy for business-related human rights violations or abuses, including forced labour.


(4) All Member States have ratified the fundamental ILO conventions in the area of forced labour, namely ILO Convention No 29 and ILO Convention No 105, and ILO Convention No 182 on the Worst Forms of Child Labour (ILO Convention No 182). They are therefore legally obliged to prevent and eliminate the use of forced labour and to report regularly to the ILO.


(5) Through its policies and legislative initiatives, the Union seeks to eradicate the use of forced labour and promote decent work and labour rights worldwide. The Union promotes due diligence in line with international guidelines and principles established by international organisations, including the ILO, the OECD and the United Nations, to ensure that forced labour does not have a place in the supply chains of undertakings established in the Union.


(6) Union trade policy supports the fight against forced labour in both unilateral and bilateral trade relationships. The trade and sustainable development chapters of Union trade agreements contain a commitment to ratify and effectively implement the fundamental ILO conventions, which include ILO Convention No 29 and ILO Convention No 105, whereas trade and gender provisions establish a gender lens that is essential for the economic empowerment of women in order to combat gendered forced labour. Moreover, unilateral tariff preferences under the Union’s Generalised Scheme of Preferences may be withdrawn for serious and systematic violations of ILO Convention No 29 and ILO Convention No 105.


(7) Forced labour has a distinct impact on vulnerable and marginalised groups, such as children, women, migrants, refugees or indigenous peoples, and therefore an intersectional and gender-sensitive approach is essential to combat forced labour effectively. This Regulation is therefore expected to contribute to the objectives of relevant international agreements and conventions, such as ILO Convention No 182, the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence, the Beijing Declaration of September

1995, the Global Compact for Safe, Orderly and Regular Migration, the Geneva Convention Relating to the Status of Refugees, the United Nations Declaration on the Rights of Indigenous Peoples and ILO Convention No 169 on indigenous and tribal peoples.


(8) Directive 2011/36/EU of the European Parliament and of the Council (3) harmonises the definition of trafficking in human beings, including forced labour or services, and establishes rules on minimum penalties. Any rules laid down concerning the prohibition of placing and making available on the Union market domestic or imported products made with forced labour, or exporting such products, and the obligation to ensure that such products are withdrawn


(3) Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in

human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA (OJ L 101, 15.4.2011, p. 1).

from the Union market (prohibition of products made with forced labour), should be without prejudice to that Directive, and in particular to the competence of law enforcement and judicial authorities to investigate and prosecute offences related to trafficking in human beings, including labour exploitation.


(9) Regulation (EU) 2017/821 of the European Parliament and of the Council (4) requires Union importers of minerals or metals falling under the scope of that Regulation to carry out due diligence obligations consistent with Annex II to the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas, and the due diligence recommendations set out therein. Regulation (EU) 2023/1542 of the European Parliament and of the Council (5) contains obligations for economic operators to carry out due diligence in their supply chains, including with respect to labour rights. Regulation (EU) 2023/1115 of the European Parliament and of the Council (6) requires due diligence regarding certain commodities and products associated with deforestation and forest degradation, including with respect to human rights.

(10)

Directive 2013/34/EU of the European Parliament and of the Council (7) requires Member States to ensure that certain economic operators annually publish non-financial statements in which they report on the impact of their activity on environmental, social and employee matters and on respect for human rights, including on forced labour, anti-corruption and bribery matters. Furthermore, Directive (EU) 2022/2464 of the European Parliament and of the Council (8) on corporate sustainability reporting amended that requirement by introducing detailed reporting requirements for companies falling within the scope of that Directive regarding respect for human rights,

in global supply chains. The information that undertakings disclose about human rights should include, where relevant, information about forced labour in their value chains.


(11) As a member of the World Trade Organisation (WTO), the Union is committed to promoting a rules-based, open, multilateral trading system. Any measures introduced by the Union that affect trade should be WTO compliant.


(12) In July 2021, the Commission and the European External Action Service published guidance on due diligence for EU businesses to address the risk of forced labour in their operations and supply chains.


(13) As recognised in the communication of the Commission of 23 February 2022 on decent work worldwide for a global just transition and a sustainable recovery, notwithstanding the current policies and legislative framework, further action is needed to achieve the objectives of eliminating forced-labour products from the Union market and, hence, further contributing to the fight against forced labour worldwide.


(14) Core priorities of the Union, as enshrined in the EU Action Plan on Human Rights and Democracy 2020-2024, include promoting decent work and a human-centred future of work ensuring respect for fundamental principles and human rights, promoting social dialogue, as well as the ratification and effective implementation of relevant ILO conventions and protocols, strengthening responsible management in global supply chains and access to social protection.


(15) In its resolutions of 9 June 2022 on a new trade instrument to ban products made by forced labour (9), of

17 December 2020 on forced labour and the situation of the Uyghurs in the Xinjiang Uyghur Autonomous Region (10) and of 16 December 2021 on forced labour in the Linglong factory and environmental protests in


(4) Regulation (EU) 2017/821 of the European Parliament and of the Council of 17 May 2017 laying down supply chain due diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and high-risk areas (OJ L 130, 19.5.2017, p. 1).


(5) Regulation (EU) 2023/1542 of the European Parliament and of the Council of 12 July 2023 concerning batteries and waste batteries, amending Directive 2008/98/EC and Regulation (EU) 2019/1020 and repealing Directive 2006/66/EC (OJ L 191, 28.7.2023, p. 1).


(6) Regulation (EU) 2023/1115 of the European Parliament and of the Council of 31 May 2023 on the making available on the Union market and the export from the Union of certain commodities and products associated with deforestation and forest degradation and repealing Regulation (EU) No 995/2010 (OJ L 150, 9.6.2023, p. 206).


(7) Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC (OJ L 182, 29.6.2013, p. 19).


(8) Directive (EU) 2022/2464 of the European Parliament and of the Council of 14 December 2022 amending Regulation (EU) No 537/2014, Directive 2004/109/EC, Directive 2006/43/EC and Directive 2013/34/EU, as regards corporate sustainability reporting (OJ L 322, 16.12.2022, p. 15).


(9) OJ C 493, 27.12.2022, p. 132.


(10) OJ C 445, 29.10.2021, p. 114.

Serbia (11), the European Parliament strongly condemned forced labour and called for a ban on products made with forced labour. It is therefore a matter of public moral concern that products made with forced labour could be available on the Union market or exported to third countries without an effective mechanism to ban or withdraw such products.


(16) To complete the Union legislative and policy framework on forced labour, the placing and making available on the Union market of products made with forced labour or exporting domestically produced or imported products made with forced labour should be prohibited and it should be ensured that those products are withdrawn from the Union market.


(17) Currently there is no Union law that empowers Member States’ authorities to directly detain, seize, or order the withdrawal of a product on the basis of a finding that it was made, whether in whole or in part, with forced labour.


(18) In order to ensure the effectiveness of this Regulation, the prohibition of products made with forced labour should apply to products for which forced labour has been used at any stage of the production, manufacture, harvest or extraction of those products, including in the working or processing related to such products. The prohibition of products made with forced labour should apply to all products, of any type, including their components, and should apply to products regardless of the sector, the origin, whether they are domestic or imported, or placed or made available on the Union market or exported. This Regulation does not apply to the provision of transport services.


(19) The prohibition of products made with forced labour should contribute to the international efforts to abolish forced labour. The definition of ‘forced labour’ should therefore be aligned with the definition laid down in ILO Convention No 29 stating that forced or compulsory labour means all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily, with the exclusion of any work or service exacted in virtue of compulsory military service laws for work of a purely military character; any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country; any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations; any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population; and minor communal services of a kind which, being performed by the members of the community in the direct interest of the said community, can therefore be considered to be normal civic obligations incumbent upon the members of the community, provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services.


(20) Based on the definition of forced labour specified in ILO Convention No 29 and used in this Regulation, the ILO indicators of forced labour and the ILO guidelines entitled ‘Hard to See, Harder to Count’ set out the most common signs that point to the possible existence of forced labour and should be taken into account when implementing this Regulation. However, those indicators may be insufficient for the identification of forced labour imposed by state authorities, which is based on systemic and global coercive policies that require additional, specifically designed indicators.


(21) The definition of ‘forced labour imposed by state authorities’ should be aligned with ILO Convention No 105, which specifically prohibits the use of forced labour or compulsory labour as a means of political coercion or education or as punishment for the expression of political views or views ideologically opposed to the established political, social or economic system. It also prohibits the use of forced labour as a method of mobilising and using it for the purposes of economic development, as a means of labour discipline, as a punishment for having participated in strikes, or as a means of racial, social, national or religious discrimination.


(22) Distance sales, including online selling, should also fall within the scope of this Regulation. In the case of a product offered for sale online or through other means of distance sales, the product should be considered to be made available on the market if the offer for sale is targeted at end users in the Union. In line with the applicable Union law on private international law, a case-by-case analysis should be carried out in order to establish whether an offer is


(11) OJ C 251, 30.6.2022, p. 124.

targeted at end users in the Union. An offer for sale should be considered to be targeted at end users in the Union if the relevant economic operator directs, by any means, its activities to a Member State. For the case-by-case analyses, relevant factors, such as the geographical areas to which dispatch is possible, the languages available and used for the offer or for ordering, means of payment, the use of currency of the Member State or a domain name registered in one of the Member States should be taken into consideration in this regard. In the case of online sales, the mere fact that the interface of economic operators or the interface of providers of online marketplaces is accessible in the Member State in which the end users is established or domiciled is insufficient. The fact that products offered for sale online or through other means of distance sales are deemed to be made available on the Union market if the offer for sale is targeted at end users in the Union empowers competent authorities to check and take the necessary actions in relation to such products pursuant to this Regulation, even though they are not yet actually placed on the Union market at the moment of the offer for sale online or through other means of distance sales. Such products are to comply with the relevant Union law in force at the moment when they are actually placed on the Union market and, in the case of products entering the Union, when they are placed under the customs procedure ‘release for free circulation’. The fact that the product, offered for sale online or through other means of distance sales, is deemed to be made available on the market if the offer for sale is targeted at end users in the Union should be without prejudice to rules regarding products entering or leaving the Union market.


(23) There has been an increase in the use of intermediary services, in particular online marketplaces, for the sale of products. In this regard, any information related to the sale of products contravening the prohibition of products made with forced labour established in this Regulation should be considered to be illegal content within the meaning of Article 3, point (h), of Regulation (EU) 2022/2065 of the European Parliament and of the Council (12) and should be subject to the obligations and measures set out in that Regulation.


(24) The Commission and the competent authorities of the Member States should identify violations of the prohibition of products made with forced labour. In designating the competent authorities, Member States should ensure that those authorities have sufficient human and financial resources and that their staff have the necessary competences and knowledge, especially with regard to human rights, labour rights, gender equality, supply chain management and due diligence processes. Competent authorities should coordinate closely with national labour inspection authorities and judicial and law enforcement authorities, including those responsible for the fight against trafficking in human beings in such a way as to avoid jeopardising investigations by such authorities.


(25) In order to ensure the effective implementation of its tasks under this Regulation, in particular with regard to carrying out investigations, the Commission should be able to request the assistance of other Union bodies, offices or agencies with an appropriate mandate. Those tasks could include: processing submissions of information, supporting the allocation of investigations, conducting the preliminary investigations and investigations, facilitating cooperation with and among authorities of Member States, facilitating international cooperation, supporting the development of support tools and, if appropriate, supporting implementation by customs authorities and supporting the Commission in preparing decisions to ban products made with forced labour. This is without prejudice to the Commission’s task, in its role as a lead competent authority, to take decisions to prohibit the placing on the market of products made with forced labour. The Commission, in its role as a lead competent authority, should exercise its powers impartially, transparently and with due respect for obligations of professional secrecy and should have the necessary expertise. The Commission should have the means to finance the necessary staff and related costs to carry out the tasks entrusted to it under this Regulation and build the required expertise.


(26) Competent authorities and the Commission should be guided by the principle of proportionality when implementing this Regulation. Competent authorities and the Commission should ensure, in particular, that all the measures and actions carried out during the preliminary phase of the investigation and during the investigation and those set out in the decision are suitable and necessary to achieve the desired purpose and do not impose an excessive burden on economic operators.


(27) In order to ensure cooperation between the Commission and competent authorities designated under this Regulation and authorities designated under other relevant Union and national law and in order to ensure consistency in their actions and decisions, the Commission and competent authorities designated under this


(12) Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital

Services and amending Directive 2000/31/EC (Digital Services Act) (OJ L 277, 27.10.2022, p. 1).

Regulation should request information from other relevant authorities, where necessary, regarding whether economic operators under assessment are subject to and carry out due diligence in relation to forced labour in accordance with applicable Union or national law setting out due diligence and transparency requirements with respect to forced labour. When requesting information from economic operators, competent authorities should, where possible, follow the Commission’s once-only principle, through increased cooperation and dialogue between authorities who are engaged in overseeing product regulation. For the same purposes, and where appropriate, competent authorities designated under this Regulation should inform other relevant authorities, such as market surveillance authorities, of their actions and decisions.


(28) The uniform enforcement of the prohibition of products made with forced labour entering or leaving the Union market can only be achieved through a systematic exchange of information and cooperation amongst competent authorities, customs authorities and the Commission. Such information exchange and cooperation should be supported by the Commission.


(29) For the collection, processing and storage of information, in a structured form, on issues relating to the investigations, decision-making process, and enforcement of the prohibition of products made with forced labour, the competent authorities should use the information and communication system for market surveillance referred to in Article 34 of Regulation (EU) 2019/1020 of the European Parliament and of the Council (13), in accordance with the implementing act that the Commission should be empowered to adopt under this Regulation (the ‘ICSMS’). The Commission, competent authorities and customs authorities should have access to that system to carry out their respective duties under this Regulation. It is also possible for competent authorities to use other existing communication systems to communicate with other authorities within their own Member State, as long as it does not affect the obligation of using the ICSMS for the purposes of implementing this Regulation.


(30) In order to optimise and unburden the control process of products entering or leaving the Union market, it is necessary to allow for automated data transfer between the ICSMS and customs systems. Three different data transfers should be distinguished in view of their respective purposes. Firstly, decisions establishing a violation of the prohibition of products made with forced labour should be communicated from the ICSMS to the electronic Customs Risk Management System referred to in Article 36 of Commission Implementing Regulation (EU) 2015/2447 (14), without prejudice to any future evolution of the customs risk management environment, for use by customs authorities to identify products that may correspond to such a decision. The available interfaces of the customs environment should be used for those first data transfers. Secondly, where customs authorities identify such a product, case management will be necessary to, inter alia, transfer the notification of the suspension, the conclusion of competent authorities and the outcome of the actions taken by customs authorities. The EU Single Window Environment for Customs should support those second data transfers between the ICSMS and national customs systems. Thirdly, customs systems contain information on products entering and leaving the Union market that would be relevant for competent authorities to carry out their duties but that is not accessible to them. The relevant information should therefore be extracted and transmitted to the ICSMS. The three interconnections should be highly automated and easy-to-use, so as to limit any additional burden for customs authorities. The Commission should be empowered to adopt, in cooperation with customs authorities and competent authorities, the implementing acts necessary to determine the procedural rules, practical arrangements and data elements to be transferred between the ICSMS and customs systems and any other ancillary requirement.


(31) The Commission should establish an indicative and non-exhaustive database of forced labour risks to support the work of competent authorities in assessing potential violations of the prohibition of products made with forced labour and help economic operators identify possible forced labour risks in their supply chains. The Commission should be able to resort to external expertise to develop the database. The database should identify forced labour risks in specific geographic areas or with respect to specific products or product groups, with a particular focus on widespread and severe forced labour risks, based on reliable and verifiable information from international institutions, such as the ILO and the UN, and research or academic institutions. That database should be made publicly available through the Forced Labour Single Portal. Where there is reliable and verifiable evidence that products produced by specific economic sectors in specific geographic areas present a high risk of having been made


(13) Regulation (EU) 2019/1020 of the European Parliament and of the Council of 20 June 2019 on market surveillance and compliance of products and amending Directive 2004/42/EC and Regulations (EC) No 765/2008 and (EU) No 305/2011 (OJ L 169, 25.6.2019, p. 1).


(14) Commission Implementing Regulation (EU) 2015/2447 of 24 November 2015 laying down detailed rules for implementing certain provisions of Regulation (EU) No 952/2013 of the European Parliament and of the Council laying down the Union Customs Code (OJ L 343, 29.12.2015, p. 558).

with forced labour imposed by state authorities, those sectors in those areas should be identified in the database established pursuant to this Regulation.


(32) Micro, small and medium-sized enterprises (SMEs) can have limited resources and ability to ensure that the products they place or make available on the Union market are free from forced labour. The Commission should therefore issue guidelines on due diligence in relation to forced labour, which should also take into account the size and economic resources of economic operators. In addition, the Commission should issue guidelines on forced-labour risk indicators, including how to identify them, which should be based on independent and verifiable information, including reports from international organisations, in particular the ILO.


(33) The Commission should prevent an unnecessary administrative burden for SMEs. In addition, the Commission should develop accompanying measures to support the efforts of economic operators and their business partners in the same supply chain, in particular SMEs. Member States should designate contact points for SMEs for the purposes of this Regulation which can be existing business and human rights helpdesks or due diligence contact points. SMEs should be able to contact the competent authority of the Member State in which they are established, using the information provided in the Forced Labour Single Portal. They should, in particular, be able to liaise with a competent authority to support them throughout the course of an investigation. Sufficient support resources should also be made available online in a clear and understandable way for SMEs.


(34) The Commission should issue guidelines on how to engage in dialogue with competent authorities in order to help economic operators, and in particular SMEs, as well as other stakeholders, to comply with the prohibition of products made with forced labour. Furthermore, the Commission should also issue guidelines to assist any person or association in submitting information.


(35) Taking into account the variety of Union law dealing with forced labour issues, the Commission should provide guidance for economic operators, in particular SMEs, on how to apply the different obligations stemming from Union law.


(36) The Commission should issue guidelines in order to facilitate the implementation of this Regulation by economic operators and competent authorities. Guidelines for economic operators should include guidance on due diligence in relation to forced labour, including for different types of suppliers and sectors of activity, on best practices for bringing to an end and remediating forced labour and on responsible disengagement. Remediation is understood to be the restitution of the affected person or persons or communities to a situation equivalent or as close as possible to the situation they would be in had forced labour not occurred, proportionate to the company's involvement in the forced labour, including financial or non-financial compensation provided by the company to a person or persons affected by forced labour and, where applicable, reimbursement of the costs incurred by public authorities for any necessary remedial measures. Guidance for competent authorities should focus on information relevant for the practical implementation of this Regulation. The guidance on due diligence in relation to forced labour should build on the Guidance on due diligence for Union businesses to address the risk of forced labour in their operations and supply chains published by the Commission and the European External Action Service in July 2021. The guidelines should be consistent with other Commission guidelines in this regard and relevant international organisations' guidelines. The guidelines should be developed in consultation with relevant stakeholders and rely on experience and best practices from relevant Member State authorities. The reports from international organisations, in particular the ILO, as well as other independent and verifiable sources of information, should be considered for the identification of risk indicators.


(37) Since forced labour is a global problem and given the interlinkages of global supply chains, it is necessary to promote international cooperation against forced labour, which would also improve the efficiency of implementing this Regulation. The Commission should, as appropriate, cooperate and exchange information with authorities of third countries, international organisations and other relevant stakeholders to enhance the effective implementation of this Regulation. International cooperation with authorities of third countries, including with countries with similar legislation in place, should take place in a structured way as part of the existing dialogue structures with those countries, or, if necessary, specific dialogue structures that will be created on an ad hoc basis. This cooperation should be able to include exchanges of information on forced labour risks, such as those identified in the database, and on decisions to ban products, but should not include information on ongoing investigations. Union delegations can contribute to disseminating information about this Regulation and to facilitate the submission of information on forced labour risks by relevant stakeholders. International cooperation may also include the development of cooperation initiatives and accompanying measures to support relevant stakeholders in their efforts to eliminate forced labour from global supply chains, as well as the creation of enabling environments in third countries to promote and protect human rights.


(38) Any natural or legal person, or any association not having legal personality, should be allowed to submit information to the competent authorities when it considers that products made with forced labour are placed and made available on the Union market and should be informed of the outcome of the assessment of their submission of information. Submissions of information on alleged violations should be made via a single information submission point set up by the Commission and made available on the Forced Labour Single Portal. In order to ensure the ease of use of the submissions of information and the standardisation of the information provided, the Commission should issue guidance on the use of the single information submission point and should be able to adopt implementing acts to specify the procedural rules, templates and details of the submissions of information. Submissions of information that are manifestly incomplete, unfounded or made in bad faith should be discarded. Adequate measures should be put in place to ensure the protection of any person associated with the submission or the information contained therein including from retaliation.


(39) Whistleblowers can bring new information to the attention of competent authorities to help them to detect breaches of this Regulation and enable them to take action. In order to ensure that adequate arrangements are in place to enable whistleblowers to alert the competent authorities to actual or potential breaches of this Regulation and to protect the whistleblowers from retaliation, this Regulation should provide that Directive (EU) 2019/1937 of the European Parliament and of the Council (15) is applicable to the reporting of breaches of this Regulation and to the protection of persons reporting such breaches, insofar as they fall within the personal scope of that Directive.


(40) To enhance legal certainty, the applicability, pursuant to this Regulation, of Directive (EU) 2019/1937 regarding reports of breaches of this Regulation and the protection of persons reporting such breaches should be reflected in that Directive. The Annex to Directive (EU) 2019/1937 should therefore be amended accordingly. It is for the Member States to ensure that, from the date of application of this Regulation, that amendment is reflected in the transposition measures adopted in accordance with that Directive. However, the adoption of national transposition measures is not a condition for the applicability of that Directive regarding the reporting of breaches of this Regulation or the protection of reporting persons.


(41) To ensure ease of access to relevant information regarding this Regulation, the Commission should set up a single web portal at Union level, available to the public in all official languages of the institutions of the Union.


(42) When identifying potential violations of the prohibition of products made with forced labour, the Commission or the competent authorities should follow a risk-based approach and assess all of the information available to them. In order to implement the risk-based approach in the prioritisation of their investigations, the Commission and competent authorities should take into account the share of the part of the product suspected to have been made with forced labour in the final product, the quantity and volume of products concerned, and the scale and severity of the suspected forced labour, including whether forced labour imposed by state authorities could be a concern. The Commission and competent authorities should also take into account the size and economic resources of the economic operators and the complexity of the supply chain, and focus to the extent possible on the economic operators and where relevant product suppliers that are closer to the risk of forced labour and have the highest leverage to prevent, mitigate and bring to an end the use of forced labour.


(43) Before initiating an investigation, the lead competent authority should be able to request information from economic operators under assessment and also from other relevant stakeholders, including the persons or associations that have submitted relevant information to competent authorities. The lead competent authority should be able to choose not to request additional information from economic operators if it assesses that this could lead to an attempt by those economic operators to hide a situation of forced labour and thus jeopardise the investigation. The lead competent authority should initiate an investigation where, based on its assessment of all available information or on the basis of any other facts available where it was not possible to gather information and evidence during the preliminary phase of the investigation, it establishes that there is a substantiated concern that there has been a violation of the prohibition of products made with forced labour.


(15) Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who

report breaches of Union law (OJ L 305, 26.11.2019, p. 17).


(44) In order to increase the effectiveness of the prohibition of products made with forced labour, competent authorities should grant reasonable time to economic operators to identify, mitigate, prevent and bring to an end the risk of forced labour, taking into account, inter alia, the complexity of the process and the number of stakeholders involved.


(45) Before initiating an investigation, the lead competent authority should request the economic operators under assessment to provide information on actions taken to mitigate, prevent, bring to an end risks of forced labour or remediate forced labour cases in their operations and supply chains with respect to the products under assessment. Carrying out due diligence in relation to forced labour should contribute to helping the economic operator to be at a lower risk of having forced labour in its operations and supply chains. Appropriate due diligence in accordance with relevant Union law and international standards can help to identify and address forced labour in the supply chain. That implies that no investigation should be initiated where the lead competent authority considers that there is no substantiated concern of a violation of the prohibition of products made with forced labour, or that the reasons for a substantiated concern have been eliminated, for instance due to, but not limited to, the applicable legislation, guidelines, recommendations or any other due diligence in relation to forced labour being applied in a way that mitigates, prevents and brings to an end the risk of forced labour.


(46) The lead competent authority, when requesting information during the investigation, should prioritise to the extent possible and consistent with the effective conduct of the investigation, the economic operators under investigation that are involved in the steps of the supply chain as close as possible to where the risk of forced labour is likely to occur and take into account the size and economic resources of the economic operators and quantity of products concerned, as well as the scale of suspected forced labour.

(47)

The lead competent authorities should bear the burden of establishing whether forced labour has been used at any stage of the production, manufacture, harvest or extraction of a product placed or made available on the market or for export, including in the working or processing related to the product, on the basis of all information and evidence gathered during the investigation, including its preliminary phase. To ensure their right to due process, economic operators should have the opportunity to provide information in their defence to the competent authorities during the investigation. Where, in response to a request for information from a lead competent authority, an economic operator or a public authority refuses or fails, without a valid justification, to provide the information requested, provides incomplete or incorrect information with the objective of blocking the investigation, provides misleading information or otherwise impedes the investigation, including when a risk of forced labour imposed by state authorities is identified, the lead competent authority should be able to establish that the prohibition of products made with forced labour has been violated on the basis of any other relevant and verifiable information gathered during the preliminary phase of the investigation or during the investigation. The lead competent authority should also take those factors into account when reviewing a decision taken on that basis.


(48) Where the lead competent authority establishes that economic operators have violated the prohibition of products made with forced labour, it should without delay prohibit the placing and making available of such products on the Union market and their export from the Union, and require the economic operators that have been investigated to withdraw the products concerned already made available from the Union market and donate perishable products to charitable or public interest causes. In the case of non-perishable products, economic operators should recycle such products, and if that is not possible, they should have the product destroyed, rendered inoperable, or otherwise disposed of in accordance with national law in compliance with Union law, including Union law on waste management. Nevertheless, particular attention should be paid to preventing disruptions to supply chains of strategic or critical importance for the Union and, in this regard, to products, the disposal of which would alter the proper functioning of the internal market and of such supply chains. In those cases, by way of derogation from the obligation to impose an order to have the product concerned disposed of, the lead competent authority should, where appropriate, be able to order the product concerned to be withheld for a defined period, at the cost of the economic operators. When assessing the strategic or critical importance of a product for the Union, the lead competent authority should, in particular, take into account the list of sectors established in the Regulation (EU) 2024/1735 of the European Parliament and of the Council (16) and the Commission Recommendation (EU)


(16) Regulation (EU) 2024/1735 of the European Parliament and of the Council of 13 June 2024 on establishing a framework of

measures for strengthening Europe's net-zero technology manufacturing ecosystem and amending Regulation (EU) 2018/1724 (OJ L, 2024/1735, 28.6.2024, ELI: data.europa.eu/eli/reg/2024/1735/oj).

2023/2113 (17) as well as the products listed in the Regulation (EU) 2024/1252 of the European Parliament and of the Council (18). When assessing whether a derogation from the obligation to impose an order of disposal is appropriate, the lead competent authority should bear in mind the likelihood of the economic operators concerned complying with the conditions for the review of the decision establishing a violation of the prohibition of products made with forced labour within the period defined by the lead competent authority. The period set by the lead competent authority would allow the economic operators concerned to demonstrate that they have eliminated forced labour with regard to the product concerned, by having brought it to an end within their supply chain. Changing a supply chain, in the sense of relying on different suppliers, cannot be considered as a method of eliminating forced labour regarding the product concerned by that decision, since it would result in a different product. If the economic operators concerned provide the evidence demonstrating that they have eliminated forced labour with regard to the product concerned, the lead competent authority should review its decision prohibiting the placing and making available of such products on the Union market, leading to its withdrawal, and therefore lift the withholding of the products concerned. If the economic operators concerned do not provide such evidence, they should comply with the order to dispose of the products concerned after the expiry of the period included in the decision prohibiting the placing and making available of such products on the Union market, which contains the order to withhold the products for a defined period.


(49) In a decision establishing a violation of the prohibition of products made with forced labour, the lead competent authority should state the findings of the investigation, and the information underpinning the findings, and set a reasonable time limit within which the economic operators should comply with that decision, as well as information identifying the product to which the decision applies. The Commission should be empowered to adopt the implementing acts necessary to specify the details of the information to be contained in such decisions. The decisions of the lead competent authority should be made publicly available.


(50) In setting a reasonable time limit within which to comply with orders set out in a decision establishing a violation of the prohibition of products made with forced labour, the lead competent authority should take into account the size and economic resources of the economic operators concerned.


(51) To ensure effective enforcement, decisions taken by a lead competent authority in one Member State should be recognised and enforced by competent authorities in the other Member States regarding products with the same identification information from the same supply chain for which forced labour has been found.


(52) Economic operators should be able to request a review of the decisions of lead competent authorities pursuant to this Regulation, after having provided new substantial information which demonstrates that the products placed or made available on the Union market or intended to be exported from the Union market are in compliance with the prohibition of products made with forced labour. The lead competent authority should withdraw its decision for the future where the economic operators demonstrate that they have complied with that decision and eliminated forced labour from their operations or supply chains for the products concerned. Decisions of lead competent authorities pursuant to this Regulation should be subject to judicial review in accordance with the applicable Union and national law.


(53) If the economic operators fail to comply with the decision of the lead competent authority by the end of the established timeframe, the competent authorities should ensure that the products concerned are prohibited from being placed or made available on the Union market, or from being exported or are withdrawn from the Union market and that any perishable products remaining with the relevant economic operators are donated to charitable or public interest causes. Competent authorities should ensure that non-perishable products are recycled, or, if that is not possible, that they are destroyed, rendered inoperable, or otherwise disposed of in accordance with national law, consistent with Union law, including Union law on waste management and on ecodesign for sustainable products at the expense of the economic operators. Where possible, competent authorities should ensure that the disposal or destruction method chosen from all of the available options has the smallest environmental impact possible. Competent authorities of Member States should be responsible for the enforcement of decisions in their own


(17) Commission Recommendation (EU) 2023/2113 of 3 October 2023 on critical technology areas for the EU's economic security for further risk assessment with Member States (OJ L, 2023/2113, 11.10.2023, ELI: data.europa.eu/eli/reco/2023/2113/oj).


(18) Regulation (EU) 2024/1252 of the European Parliament and of the Council of 11 April 2024 establishing a framework for ensuring a secure and sustainable supply of critical raw materials and amending Regulations (EU) No 168/2013, (EU) No 2018/858, (EU) 2018/1724 and (EU) 2019/1020 (OJ L, 2024/1252, 3.5.2024, ELI: data.europa.eu/eli/reg/2024/1252/oj).

territory, including decisions adopted by the Commission. After a decision is communicated via the ICSMS, all competent authorities concerned with that decision should proceed with the relevant enforcement actions provided for in this Regulation.


(54) The effect on animal welfare should be considered when enforcing the prohibition of placing and making available on the market or exporting products made using forced labour in order to spare the animals concerned avoidable pain, distress or suffering. In addition, this Regulation should be without prejudice to Union law regarding animal welfare, such as Council Regulations (EC) No 1/2005 (19) and (EC) No 1099/2009 (20).


(55) Decisions of the lead competent authorities establishing a violation of the prohibition of products made with forced labour should be communicated to customs authorities, who should aim to identify the product concerned from products declared for release for free circulation or export. The competent authorities of the Member States should be responsible for the overall enforcement of the prohibition of products made with forced labour in the Union market as well as products entering or leaving that market. Since forced labour is part of the manufacturing process and does not leave any trace on the product, and as Regulation (EU) 2019/1020 covers only manufactured products and its scope is limited to release for free circulation, customs authorities would be unable to act autonomously under Regulation (EU) 2019/1020 in the application and enforcement of the prohibition of products made with forced labour. The specific organisation of controls of each Member State should be without prejudice to Regulation (EU) No 952/2013 of the European Parliament and of the Council (21) and its general provisions on the control and supervisory powers of customs authorities.


(56) The information currently provided or made available to customs authorities by economic operators includes only general information on products but lacks information on the manufacturer or producer and product suppliers as well as specific information on products. In order for customs authorities to be able to identify products entering or leaving the Union market that breach this Regulation and should accordingly be stopped at the external borders of the Union, economic operators should submit to customs authorities information allowing for the identification of products to which a decision of the lead competent authority relates. This should include information on the manufacturer or producer and the product suppliers as well as any other information on the product itself. To this end, the Commission should be empowered to adopt delegated acts identifying the products for which such information should be provided using, inter alia, the database established under this Regulation as well as the information and decisions of the lead competent authorities encoded in the ICSMS. Moreover, the Commission should be empowered to adopt implementing acts necessary to specify the details of the information to be provided or made available to customs authorities by the economic operators. Such information should include the description, name or brand of the product, specific requirements under Union law for the identification of the product, such as a type, reference, model, batch or serial number affixed on the product, or provided on the packaging or in a document accompanying the product, or the unique identifier of the digital product passport, as well as details on the manufacturer or producer and the product suppliers, including, for each of them, their name, trade name or registered trademark, their contact details, their unique identification number in the country they are established and, where available, their Economic Operators Registration and Identification number. The review of the Union Customs Code will consider introducing in customs legislation the information required to be provided or made available to customs authorities by economic operators for the enforcement of this Regulation and, more broadly, in order to strengthen the transparency of the supply chain. The Commission should issue guidance to and support economic operators, especially SMEs, on how to collect the required information.


(57) Customs authorities that identify a product that may be covered by a decision communicated by the lead competent authority establishing a violation of the prohibition of products made with forced labour should suspend the release of that product and notify the competent authorities immediately. Competent authorities should reach a conclusion within a reasonable timeframe on the case notified to them by the customs authorities, either by confirming or by denying that the product concerned is covered by a decision. Where necessary and duly justified, the competent authorities should be authorised to require maintaining the suspension of the release of the product concerned, taking into account the potential damage for the economic operator. In the absence of a conclusion by competent


(19) Council Regulation (EC) No 1/2005 of 22 December 2004 on the protection of animals during transport and related operations and amending Directives 64/432/EEC and 93/119/EC and Regulation (EC) No 1255/97 (OJ L 3, 5.1.2005, p. 1).


(20) Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing (OJ L 303, 18.11.2009, p. 1).


(21) Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ L 269, 10.10.2013, p. 1).

authorities within the specified time limit, customs authorities should release the products if all other applicable requirements and formalities are fulfilled. Generally, the release of a product for free circulation or export should not be deemed to be proof of compliance with Union law, since such a release does not necessarily include a complete assessment of such compliance.


(58) Where the competent authorities conclude that a product corresponds to a decision establishing a violation of the prohibition of products made with forced labour, they should immediately inform customs authorities which should refuse its release for free circulation or export. Customs authorities should be able, where a competent authority so requests and on behalf and under the responsibility of that competent authority, to alternatively seize that product and put it at the disposal of and under the authority of that competent authority. In such cases, the relevant competent authority should take all the necessary measures to ensure that the product concerned is disposed of appropriately, including by way of its donation to charitable or public interest causes, its recycling or otherwise its disposal in accordance with national law consistent with Union law at the expense of the relevant economic operator.


(59) The lead competent authority should take into due consideration the risk of disengagement by economic operators who are either related to products or regions in the database, or who have had their product removed from the Union market, as well as the consequences on affected workers. The lead competent authority should therefore, where appropriate, support economic operators in adopting and carrying out suitable and effective measures for bringing forced labour to an end. Responsible disengagement includes complying with collective agreements and articulating escalation measures.


(60) The conditions applicable to products during the suspension of their release for free circulation or export, including their storage or destruction and disposal of in case of a refusal to release such products for free circulation, should be determined by customs authorities, where applicable, pursuant to Regulation (EU) No 952/2013. Should products entering the Union market require further processing, they are to be placed under the appropriate customs procedure allowing such processing in accordance with Articles 220, 254, 256, 257 and 258 of Regulation (EU) No 952/2013.


(61) Where, in order to give effect to the prohibition of products made using forced labour, it is necessary to process personal data pursuant to this Regulation, such processing should be carried out in accordance with Union law on the protection of personal data. Any processing of personal data under the prohibition of products made with forced labour should be subject to Regulations (EU) 2016/679 (22) and (EU) 2018/1725 (23) of the European Parliament and of the Council.


(62) In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission as regards the procedural rules and the details of the arrangements for the use of the ICSMS; the procedural rules, templates and details for the submission of information on alleged violations of the prohibition on the placing or making available of products made with forced labour on the Union market or exporting them; the decisions adopted by the Commission establishing that the prohibition on the placing or making available of products made with forced labour on the Union market or exporting them has been violated; the withdrawal of those decisions; the details of the content of those decisions and of the equivalent decisions adopted by the lead competent authorities; and the arrangements and details for providing or making available to the customs authorities certain information on specific products or product groups. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (24).


(63) The Commission should adopt immediately applicable implementing acts where, in duly justified cases relating to the withdrawal of the decisions establishing that the prohibition on the placing or making available or exporting of products made with forced labour has been violated, imperative grounds of urgency so require.


(22) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).


(23) Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39).


(24) Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).


(64) In order to supplement or amend certain non-essential elements of this Regulation, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union (TFEU) should be delegated to the Commission. It is of particular importance that the Commission carries out appropriate consultations during its preparatory work, including at expert level and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (25). In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.


(65) In order to ensure that the customs authorities are able to act effectively, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of further specifying the additional information identifying the product concerned that economic operators should make available or provide to the customs authorities as regards products entering or leaving the Union market. That information should be information identifying the product concerned, information about the manufacturer or the producer and information about the product suppliers. Customs authorities need to be enabled to obtain information rapidly on specific products identified in the decisions of the lead competent authorities in order to take actions and measures effectively and swiftly. In such cases, delegated acts should be adopted pursuant to an urgent procedure.


(66) Member States should confer on their competent authorities the power to impose and implement effective, proportionate and dissuasive penalties in cases where the economic operator has failed to comply with a decision prohibiting the placing on the market of products made with forced labour. The rules on penalties, applicable in the event of non-compliance with a decision, should be established by Member States, giving due regard to elements such as the gravity and duration of the infringement, previous infringements by the economic operator, the degree of cooperation with competent authorities and any other mitigating or aggravating factor applicable to the circumstances of the particular case. The Commission should issue guidance for Member States on the method for calculating financial penalties and the thresholds applicable and the Union Network Against Forced Labour Products should promote best practices in the application of such penalties.


(67) The Commission should carry out an evaluation of the implementation and enforcement of this Regulation and submit a report thereon to the European Parliament, the Council and the European Economic and Social Committee. The report should assess the contribution of this Regulation to the elimination of products made with forced labour from the Union market and to the fight against forced labour as well as to the cooperation between competent authorities and international cooperation to eliminate forced labour. The report should also assess the impact of this Regulation on businesses, in particular SMEs, and on victims, as well as the overall costs and benefits of the prohibition of products made with forced labour. The report should further assess the alignment of this Regulation with other relevant Union law.


(68) This Regulation respects the right to good administration, enshrined in Article 41 of the Charter, which includes, inter alia, the right of every person to be heard, before any individual measure which would affect him or her adversely is taken. In this regard, the lead competent authority conducting the investigation should inform the economic operators concerned about the initiation of the investigation and the possible consequences thereof. To ensure their right to due process, economic operators should have the opportunity to provide information in their defence to the competent authorities upon their request during the investigation. Economic operators should have the possibility to request the lead competent authority to review the decision affecting them, by providing new substantial information. The decisions adopted by Member States’ competent authorities should be subject to judicial review foreseen in applicable national law. The decisions adopted by the Commission under this Regulation are subject to review by the Court of Justice of the European Union in accordance with Article 263 TFEU.


(69) Since the objective of this Regulation, namely, prohibiting economic operators from placing and making available on the Union market or exporting from the Union market products made with forced labour in order to improve the functioning of the internal market, while contributing to the fight against forced labour, cannot be sufficiently achieved by the Member States but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the TEU. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.


(25) OJ L 123, 12.5.2016, p. 1, ELI: data.europa.eu/eli/agree_interinstit/2016/512/oj.

(70)

In order to allow for the prompt application of the measures provided for in this Regulation, this Regulation should enter into force on the day following that of its publication in the Official Journal of the European Union,