Risk-based approach
1. The Commission and the competent authorities of Member States shall 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.
2. In their assessment of the likelihood of a violation of Article 3, the Commission and the competent authorities shall use the following criteria, as appropriate, in order to prioritise products suspected to have been made with forced labour:
(a)
the scale and severity of the suspected forced labour, including whether forced labour imposed by state authorities could be a concern;
(b)
the quantity or volume of products placed or made available on the Union market;
(c)
the share of the part of the product suspected to have been made with forced labour in the final product.
3. The assessment of the likelihood of a violation of Article 3 shall be based on all relevant, factual, and verifiable information available to the Commission and competent authorities, including, but not limited to, the following:
(a)
information and decisions encoded in the information and communication system referred to in Article 7(1), including any previous cases of compliance or non-compliance of an economic operator with Article 3;
(b)
the database referred to in Article 8;
(c)
the risk indicators and other information pursuant to Article 11, point (e);
(d)
submissions of information made pursuant to Article 9;
(e)
information received by the Commission or the competent authority from other authorities relevant for the implementation of this Regulation, such as Member States’ due diligence, labour, health or fiscal authorities, on the products and economic operators under assessment;
(f)
any issues arising from meaningful consultations with relevant stakeholders, such as civil society organisations and trade unions.
4. When initiating a preliminary investigation pursuant to Article 17, the lead competent authority shall, to the extent possible, focus on the economic operators and, where relevant, product suppliers involved in the steps of the supply chain as close as possible to where the forced labour is likely occurring, and with the highest leverage to prevent, mitigate and bring to an end the use of forced labour. The lead competent authority shall also take into account the size and economic resources of the economic operators concerned, in particular whether the economic operator is an SME, and the complexity of the supply chain.
Allocation of investigations
1. Where the suspected forced labour is taking place outside the territory of the Union, the Commission shall act as the lead competent authority.
2. Where the suspected forced labour is taking place in the territory of a Member State, a competent authority of that Member State shall act as the lead competent authority.
Coordination of investigations and mutual assistance
1. The Commission and competent authorities shall cooperate closely with each other and provide each other with mutual assistance in order to implement this Regulation in a consistent and efficient manner.
2. The lead competent authority shall respect the right of the economic operator to be heard at all stages of the process.
3. The lead competent authority shall, at any time and without undue delay, communicate via the information and communication system referred to in Article 7(1) in the event that it discovers new information about suspected forced labour taking place in a territory for which it is not competent pursuant to Article 15.
4. The lead competent authority may request the support of other relevant competent authorities. This may include requesting support in order to contact economic operators whose place of establishment is within the territory of that Member State or whose language of operation is that of a Member State. Other competent authorities that have an interest in the investigation may request to be closely involved in the investigation.
5. A competent authority that has received, through the information and communication system referred to in Article 7(1), a request for information from another competent authority shall provide an answer within 20 working days of the date of receipt of the request.
6. The competent authority that has received a request for information may ask the requesting competent authority to complement the information contained in the request if it concludes that the information provided initially is not sufficient.
7. The competent authority that has received a request for information may refuse to comply with that request only if it demonstrates that complying with the request would substantially impair the execution of its own activities.
Preliminary phase of investigations
1. Before initiating an investigation in accordance with Article 18(1), the lead competent authority shall request information from the economic operators under assessment and, where relevant, other product suppliers, on the relevant actions they have taken in order to identify, prevent, mitigate, bring to an end or remediate risks of forced labour in their operations and supply chains with respect to the products under assessment, including on the basis of any of the following, unless it would jeopardise the outcome of the assessment:
(a)
applicable Union or national law setting out due diligence and transparency requirements with respect to forced labour;
(b)
the guidelines issued by the Commission;
(c)
due diligence guidelines or recommendations of the UN, ILO, OECD or other relevant international organisations, in particular guidelines and recommendations relating to geographic areas, production sites and economic activities in certain sectors in which there are systematic and widespread forced labour practices;
(d)
any other meaningful due diligence or other information in relation to forced labour in their supply chain.
The lead competent authority may request information on those actions from other relevant stakeholders, including the persons or associations that have submitted relevant, factual, and verifiable information pursuant to Article 9 and any other natural or legal persons related to the products and geographical areas under assessment, as well as from the European External Action Service and Union delegations in relevant third countries.
2. Economic operators shall respond to the request referred to in paragraph 1 of this Article within 30 working days of the day they received such request. Economic operators may provide any other information they may deem useful for the purposes of this Article. Where necessary, economic operators may request support from a contact point referred to in Article 10, on how to engage with the lead competent authority.
3. Within 30 working days from the date of receipt of the information submitted by economic operators pursuant to paragraph 2 of this Article, the lead competent authority shall conclude the preliminary phase of its investigation regarding whether there is a substantiated concern that there has been a violation of Article 3, on the basis of the assessment referred to in Article 14(3) and the information submitted by economic operators pursuant to paragraph 2 of this Article.
4. Notwithstanding paragraph 3 of this Article, the lead competent authority may conclude that there is a substantiated concern that there has been a violation of Article 3 on the basis of any other facts available, where a lead competent authority has refrained from requesting information in accordance with paragraph 1 of this Article or in the situations referred to in Article 20(2), points (a) to (e).
5. The lead competent authority shall not initiate an investigation pursuant to Article 18, and shall inform the economic operators under assessment accordingly, where, on the basis of the assessment referred to in Article 14(3) and, if any, of the information submitted by economic operators pursuant to paragraph 2 of this Article, it considers that there is no substantiated concern that there has been a violation of Article 3, or that the reasons that motivated the existence of 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 as referred to in paragraph 1 of this Article being applied in a way that mitigates, prevents and brings to an end the risk of forced labour.
6. The lead competent authority shall communicate, through the information and communication system referred to in Article 7(1), the outcome of its assessment pursuant to paragraph 5 of this Article.
Investigations
1. The lead competent authority that determines, pursuant to paragraphs 3 or 4 of Article 17, that there is a substantiated concern that there has been a violation of Article 3, shall initiate an investigation on the products and economic operators concerned and inform the economic operators subject to the investigation, within 3 working days of the date of the decision to initiate such investigation, of the following:
(a)
the initiation of the investigation and the possible consequences thereof;
(b)
the products subject to the investigation;
(c)
the reasons for the initiation of the investigation, unless it would jeopardise the outcome of the investigation;
(d)
the right of the economic operators to submit documents or information to the lead competent authority, and the date by which such information is to be submitted.
2. The lead competent authority shall communicate, through the information and communication system referred to in Article 7(1), that an investigation has been initiated pursuant to paragraph 1 of this Article.
3. Where requested by the lead competent authority, economic operators under investigation shall submit any information that is relevant and necessary for the investigation, including information identifying the products under investigation and, where appropriate, identifying the part of the product to which the investigation should be limited, as well as the manufacturer, producer, product supplier, the importer or the exporter of those products or parts thereof. In requesting such information, the lead competent authority shall, to the extent possible, prioritise the economic operators under investigation involved in the steps of the supply chain as close as possible to where the forced labour is likely occurring, and take into account the size and economic resources of the economic operators, in particular whether the economic operator is an SME, the quantity of products concerned, the complexity of the supply chain, as well as the scale of suspected forced labour. Where necessary, economic operators may request support from a contact point referred to in Article 10 on how to engage with the lead competent authority.
4. The lead competent authority shall set a deadline of at least 30 working days and no longer than 60 working days for economic operators to submit the information referred to in paragraph 3. Economic operators may request an extension of that deadline with a justification. When deciding whether to grant such an extension, the lead competent authority shall consider the size and economic resources of the economic operators concerned, including whether the economic operator is an SME.
5. The lead competent authority may collect information from or interview any relevant natural or legal person who consents to be interviewed for the purpose of collecting information relating to the subject matter of the investigation, including relevant economic operators or any other stakeholders.
6. The lead competent authority may, where necessary, carry out all necessary checks and inspections in accordance with Article 19.
Field inspections
1. In exceptional situations where the lead competent authority deems it necessary to conduct field inspections, it shall do so taking into consideration where the risk of forced labour is located.
2. Where the risk of forced labour is located in the territory of the Member State, the lead competent authority may conduct its own inspections, in accordance with national law in compliance with Union law. If necessary, the lead competent authority may request cooperation from other national authorities relevant for the implementation of this Regulation, such as labour, health or fiscal authorities.
3. Where the risk of forced labour is located outside the territory of the Union, the Commission acting as lead competent authority may carry out all necessary checks and inspections provided that the economic operators concerned give their consent and that the government of the third country in which the inspections are to take place has been officially notified and raises no objection. The Commission may request assistance from the European External Action Service, as appropriate, to facilitate such contacts.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
