22 November 2023

De Brauw advises Amnesty International on draft EU Forced Labour Regulation

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Adding to the growing list of EU initiatives in the business and human rights field, the EU's proposed Forced Labour Regulation aims to ban products for sale in the EU market that are made using forced labour. Given that the proposal concerns salient human rights risks, it is of great interest to a variety of stakeholders, including NGOs like Amnesty International that advocate for human rights and could push for changes to the proposal. The Forced Labour Regulation would have broad implications for our clients' supply chains and the products they intend to sell in the EU market. Amnesty International approached De Brauw for advice, with the aim to lobby for an amendment to cover victim redress.

Proposed regulation

The proposed regulation – published by the European Commission on 14 September 2022 – aims to ban the "placing" or "making available" of products in the EU market made with forced labour. The regulation would cover forced labour occurring at any stage of a company's supply chain, such as the "extraction, harvest, production or manufacture, including working or processing related to a product". If passed, there will be significant implications for companies operating within the EU, particularly those with supply chains that trickle into high-risk jurisdictions, or into jurisdictions prone to committing human rights violations.

Request for advice on victim redress

Amnesty International approached us to address the existing tension between the goals of the proposed regulation: to ban certain products, and to protect fundamental human rights that are breached through forced labour. More specifically, the proposed regulation does not provide any sort of remedy for those individuals that have been affected by forced labour. In reality, the proposed regulation is what is known in the sector as "product surveillance".

We advised Amnesty International that there may still be ways for victims to claim redress under other instruments. For instance, by looking to the Proposed Directive on Corporate Sustainability Due Diligence; the Victims' Rights Directive; the Employers Sanctions Directive; and the Anti-Trafficking Directive, as each may provide some guidance. But because of the nature of EU law and the fact that EU directives need to be transposed into national law, the right to recovery depends on what each national system allows, especially for victims outside of the EU.

If the jurisdiction in question allows for companies to be held accountable for human rights violations occurring down the supply chain, then it may be easier to establish a right to recovery under that specific national system. In the Netherlands, for instance, tort law could be a possible avenue for victims to claim redress, and a right might be possible under article 273 Dutch Criminal Code. However, the current legislative landscape still makes it difficult for a victim of forced labour in a third country outside of the EU to hold a company with significant business activity in the EU accountable, especially if the violations are committed lower in the supply chain.

Current status

On 16 October 2023, MEPs in Strasbourg gave the first green light at the committee level. The proposed regulation will now follow the customary channels of the legislative process, with the European Parliament having to approve it as a negotiating mandate next. Once the European Council has also decided on its position, the final version of the regulation will take shape. Whether the final draft addresses remedies for victims remains to be seen.