1. Introduction

Forced labour and child labour constitute serious human rights violations.  Regulation (EU) 2024/3015 on prohibiting products made with forced labour on the Union market (“the Regulation”) entered into force on 13th December 2024. It will apply from 14th December 2027, although a number of provisions took immediate effect. The measure will apply directly in its entirety and, unlike a Directive, will not require transposition by Member States into national law. This is the first part of a two-part blog that assesses the Regulation from a human rights perspective, analyzing its rationales as well as structural and operational features.  The second part of this blog analyses the Regulation with respect to burden of proof, due diligence, remediation, and international policy coherence.

2. Core substantive obligation

Article 3 enshrines the Regulation´s core substantive obligation which is the prohibition of products made with forced labour: “Economic operators shall not place or make available on the Union market products that are made with forced labour, nor shall they export such products.”  The Regulation imposes an absolute ban on products made with forced labour; it covers the sale, import and export of products made (in whole or in part) with forced labour, as well as distance-selling.   A product is considered to be made with forced labour if, at any point in its production process, including extraction, harvesting, manufacturing or any related work and processing, the presence of forced labour is identified: the Regulation therefore covers the entire supply chain.  It applies to all companies operating in the EU regardless of their size, revenue, or place of incorporation.

3. Bifurcated rationale: internal market and human rights

The goal of the Regulation is to effectively prohibit placing and making available on the EU market, and the export from the EU, products made with forced labour including child labour.

Like the Corporate Sustainability Due Diligence Directive (“CSDDD”) – which it complements –  the Regulation reflects a bifurcated rationale: to eliminate forced labour products “with a view to improving the functioning of the internal market and contributing to the fight against forced labour” (Article 1).   It therefore advances both the normative human rights goal of eliminating forced labour and the economic goal of ensuring the functioning of the internal market.

With respect to the internal market, and like the CSDDD, the Regulation has as one of its legal bases Article 114 TFEU relating to the functioning of the internal market (the other being Article 207 TFEU relating to the common commercial policy).  The Regulation aims to avoid obstacles to the free movement of goods and to remove the distortions of competition in the internal market that would result from divergences in national laws, regulations or administrative provisions regarding the placing and making available on the Union market of products made with forced labour.

From a fundamental rights perspective, the Regulation recognizes forced labour as a serious violation of human dignity and fundamental rights, and affirms that “through its policies and legislative initiatives, the Union seeks to eradicate the use of forced labour and promote decent work and labour rights worldwide.” (Recital 5).   The Regulation relies on the definition of forced labour enshrined in ILO Convention No. 29: “forced or compulsory labour shall mean 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.”

The Regulation further provides that the definition should be aligned with ILO Convention No. 105, prohibiting 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 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.

4. Structural and operational features

The Regulation adopts a risk-based approach and reflects the principles of subsidiarity and proportionality.

Article 5 provides that each Member State shall designate one or more competent authority to be responsible for carrying out the obligations set out in the Regulation. Such authorities will have inspection and investigative powers (Art. 14-15, 17-19) as well as the final decision at the conclusion of investigations. The Regulation nominates the Commission as the lead competent authority where suspected forced labour is taking place outside the EU (Art. 15(1)).

The Regulation stipulates that the Commission and competent authorities follow a risk-based approach when assessing the likelihood of a violation of Article 3, when initiating and conducting the preliminary phase of the investigations, and when identifying the products and economic operators concerned.  Investigations are to be based on a risk-based approach (Art. 14).

Consistent with proportionality and a risk-based approach, effective enforcement requires that competent authorities focus their efforts where the risks of forced labour are most prevalent and where the impact is the largest. Emphasis is therefore placed on larger economic operators at the early stages of the EU supply chain (importers, manufacturers, producers, or product suppliers).  Other factors include the scale and severity of the suspected forced labour, the quantity or volume of products placed on the EU market, and the share of the part of the product suspected to have been made with forced labour.

Under the Regulation, the Commission and competent authorities are required to work in close cooperation to ensure the effective and uniform implementation of the Regulation throughout the Union. The Regulation establishes a Union Network Against Forced Labour Products to serve as a platform for such cooperation and structured coordination. (Article 6). Moreover, decisions by competent authorities must be recognised and enforced across all Member States by other authorities, which further ensures a unified approach consistent with the principle of mutual recognition (Recital 51). The Regulation further requires Member States to implement effective, proportionate, and dissuasive penalties for non-compliance with enforcement decisions under their national laws.

What are the consequences of a finding of forced labour under the Regulation? Where forced labour is found in supply chains, custom authorities must ensure that the relevant product is not placed on the EU market. Products found to have been placed or made available on the market or which are being exported in violation of Article 3 must be withdrawn from the EU market and donated, recycled, or destroyed, in line with the decision of the competent authority. Non-compliance with the foregoing decisions should be subject to effective, proportionate, and dissuasive penalties.

See Part 2 of this blog here: The EU Forced Labour Regulation: reflections from a human rights perspective – Part 2 | OHRH