# EUR-Lex - 52014PC0239 - EN

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# 52014PC0239

**Proposal for a COUNCIL DECISION on the position to be adopted on behalf of the European Union at the 103rd session of the International Labour Conference concerning a Recommendation to supplement the Forced Labour Convention n° 29, 1930, of the International Labour Organisation /* COM/2014/0239 final - 2014/0131 (NLE) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

As part of the objective of continuing and
strengthening existing successful practices of cooperation between the Union
and its Member States and in line with the rules of the Treaties, this proposal
aims at establishing the Union position at the 103rd session of the
International Labour Conference, as regards a Recommendation to supplement the
Forced Labour Convention n°29, 1930 of the International Labour Organisation
(ILO).

The Forced Labour Convention n°29, 1930, of
the ILO, hereinafter "the Convention", is one of the eight
fundamental Conventions of the ILO -the core international labour standards-
and is considered as a Human Rights instrument. In adopting the convention in
1930, the International Labour Conference called upon member States to suppress
the use of forced labour within the shortest possible period, and to
criminalize the offence. Yet, over 80 years later, and despite almost universal
ratification of the Convention, the practice still exists, albeit in different
forms to those that provoked such concern in the early twentieth century, with
the ILO estimating that at least 20.9 million people are victims of forced
labour globally.

The aim of the ILO Recommendation to be
considered by the 103rd session of the International Labour
Conference, hereinafter "the Conference" is to address implementation
gaps to advance prevention of trafficking for labour exploitation as well as
protection and compensation of victims of forced labour.

The adoption of a Protocol on the same
subject is also on the agenda of the Conference and is subject to a separate
Recommendation for a Council Decision authorising the opening of negotiations.

1.1.        Consideration and possible
adoption of a Recommendation to supplement the ILO Forced Labour Convention
n°29, 1930, at the 103rd session of the International Labour
Conference on 28 May-12 June 2014

A standard setting item on "supplementing
the Forced Labour Convention n°29, 1930” is on the agenda of the 2014
International Labour Conference with a view to adopt a Protocol and/or a
Recommendation.

This Conference agenda item was selected by the
317th Session of the ILO Governing Body (March 2013) as a standard-setting,
single-discussion item for the 103rd Session of the Conference.[1] This decision follows
the recommendations of the February 2013 meeting of experts on forced labour
and trafficking for labour exploitation convened by the ILO Governing Body “to
identify gaps in existing coverage of ILO standards with a view to determining
whether there is a need for standard setting to: (i) complement the ILO’s
forced labour Conventions to address prevention and victim protection,
including compensation; and (ii) address human trafficking for labour
exploitation”[2].
The process forms part of the ILO framework for action for the effective and
universal respect, promotion and realization of fundamental principles and
rights at work 2012-2016[3].

The form of the instrument(s) submitted -
Protocol and/or Recommendation – is to be decided by the Conference itself, on
the basis of the proposals made by the International labour Office in the March
2014 report to the Conference, following the consultation of the ILO’s
tripartite constituents in late 2013[4].
Some constituents favour a Recommendation accompanying a Protocol, others a
Recommendation only and the outcome of the Conference’s decision to this regard
is uncertain[5].
A Recommendation will supplement the Convention and possibly the Protocol by
providing more detailed guidelines on how the basic principles of the
Convention and possibly the Protocol are to be applied. This proposal focuses
on the content of such Recommendation in either case, on the basis of the
report submitted to the Conference.

1.2.        Content of the proposed
Recommendation

The aim of the standard(s) under consideration
is “to address implementation gaps to advance prevention, protection and
compensation measures, to effectively achieve the elimination of forced
labour”.

The proposal for a Recommendation, which forms
the report IV (2B) submitted to the 103rd session of the ILC[6], addresses the
following aspects:

· 
National policies: including plans of action,
coordination and monitoring bodies, data collection;

· 
Prevention: strategies to address root causes of
forced labour, including empowering specific at-risk population groups,
coverage and enforcement of labour law, awareness raising, training programmes
and pre-departure orientation for migrants, use of languages/translation,
coherent migration policies and international cooperation on migration, social
protection floors, reduction of trade in and demand for goods and services
tainted by forced labour;

· 
Protection of victims on the basis of their
informed consent and not conditional to their willingness to cooperate in criminal
proceedings: providing immediate assistance and long-term recovery and
rehabilitation for all victims, healthcare, housing, material, social and
economic assistance, education and training, protection from intimidation and
retaliation and from punishment for crimes they have been compelled to commit,
specific protection for children with presumption of minor status and migrant
workers with reflection and recovery period, temporary or permanent residence
permit as appropriate as well as safe and preferably voluntary repatriation;
measures against fraudulent placement services;

· 
Compensation and access to justice: access to
appropriate remedies for all victims, right to obtain compensation and damages,
information and advice, possible representation of victims, access to legal
remedies irrespective of victims' nationality and legal status in the
territory, victims compensation funds;

· 
Enforcement: labour inspection, confiscation of
profits of forced labour, liability of legal persons, punishment of perpetrators,
indicators for identification of victims;

· 
International cooperation: technical
cooperation, mutual legal assistance, sharing of information and good practice.

The proposal for a Recommendation will be the
basis of the negotiations for the Recommendation to be adopted at the 103rd
session of the International Labour Conference.

1.3.        Division of competences in
the field of the Convention and the proposed Recommendation

The proposed provisions of the Recommendation
are in part covered by competences conferred upon the Union by the Treaties. In
addition, many of them address areas of Union law in which the degree of
regulation on the level of the EU has already reached an advanced stage.

The Recommendation deals with aspects relating
to anti-trafficking and protection of victims, which are aspects related primarily
to the judicial cooperation in criminal matters area[7] where rules are set by
Directive 2011/36/EU on preventing and combating trafficking in human beings
and protecting its victims (“anti-trafficking”) and Directive 2012/29/EU
establishing minimum standards on the rights, support and protection of victims
of crime (“victims’ rights”). These aspects are also dealt with by the UN
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children, supplementing the United Nations Convention against
Transnational Organized Crime, 2000, (“UN Trafficking Protocol”), to which the
EU is a party.

The Recommendation is to deal with aspects
related to the social policy area[8],
where requirements are notably set by Directive 91/533/EEC on an employer’s
obligation to inform employees on the conditions applicable to the contract or
employment relationship (“written statement”) and Directive 2008/104/EC on
temporary agency work, as well as by Directives on health and safety at work,
working time, protection of young people at work or maternity protection[9]..

The Recommendation is to deal with aspects
related to the asylum and immigration area[10]
where requirements are notably set by Directive 2004/81/EC in the residence
permit issued to third-country nationals who are victims of trafficking in
human beings or who have been the subject of an action to facilitate illegal
immigration, who cooperate with the competent authorities, Directive 2009/52/EC
on sanctions against employers who knowingly employ illegally staying third
country workers (“employers' sanctions”) providing for sanctions, including
criminal ones, against employers exploiting irregular migrants and containing
compensation measures for victims of such exploitation.

The Recommendation may, for the protection of
migrant workers, have an impact on the freedom of movement for workers secured
under Article 45 TFEU and Regulation 492/2011 on freedom of movement for
workers within the Union. The Recommendation is further to affect EU international
agreements, development cooperation and trade instruments making reference to
the core labour standards and the ratification and effective implementation of fundamental
ILO Conventions by third countries, enlargement countries and in the EU.

At the same time, the Recommendation will also
deal with matters which fall outside competences conferred upon the EU by the
Treaties.

2.           RESULTS OF CONSULTATIONS
WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS

Not applicable.

3.           LEGAL ELEMENTS OF THE
PROPOSAL

The 103rd session of the
International Labour Conference is to be entrusted to consider and adopt the
said proposal for a Recommendation to supplement the ILO Forced Labour
Convention, n°29, 1930.

A Recommendation has as such no binding
force and is not subject to ratification by ILO members. However, a
Recommendation is used by ILO standard supervisory bodies to assess the
application of the related labour standards and provides guidance as to national
policy, legislation and practice. In accordance with Article 19(6)(b) and (c)
of the ILO Constitution, the adoption of a Recommendation implies certain
obligations for the parties. In this respect, each Party has to launch
legislative or administrative procedures within a fixed period of time to
consider its implementation in its domestic legal order, must inform the ILO of
the measures taken to bring its legal order in line with the Recommendation
and, where it decides not to apply the Recommendation, must report to the ILO
in appropriate intervals the current state of domestic law and practice as
regards the matters dealt with by the Recommendation.

It follows that the envisaged
Recommendation will constitute an act of a body set up by an international
agreement which will produce legal effects in the sense of Article 218(9) TFEU.

Only States are members of the ILO, can
propose amendments and vote on the adoption of the Recommendation at the
International Labour Conference. The Union is invited to the Conference with an
observer status.

However, given that the Recommendation will
relate to issues covered both by competences conferred upon the Union by the
Treaties and sole national competences, the Union and Member States must act
together in the spirit of sincere cooperation, as provided for in Article 4(3)
TEU. To that effect, when acting in the ILO, Member States should also act
jointly in the interest of the Union.

At this stage, it appears that the proposed
Recommendation is in accordance with the orientations of Union law and policies
in this area. There is no contradiction between the general principles pursued
by the proposed Recommendation and Union law and policies, and there is prima facie no incompatibility between the
proposed Recommendation and the Union acquis.

However, amendements to the proposed text
during the Conference should only be proposed or accepted if they are
compatible with existing Union legislation.

4.           PRACTICALITIES

Member States should act within the bodies
of the ILO jointly in the interest of the Union in a coordinated manner. Given
the legal framework of the ILO, only Member States can propose amendments and
cast votes throughout the negotiation process. Therefore, Member States acting
both on national competences and jointly in the interest of the Union, and the Commission should act together in the spirit of sincere cooperation. To that
aim, Member States and the Commission should assist each other in carrying out
the tasks to ensure the best possible defence of the interests of the Union and
its Member States and should be supported, in the exercise of their tasks, by
the best available experts of both Member States and the Commission.

Because of the interplay between the
Protocol and the Recommendation subject the discussions and negotiations at the
conference in the same Committee, the detailed position of the Union should be taken after considering the negotiating position established for the
Protocol.

2014/0131 (NLE)

Proposal for a

COUNCIL DECISION

on the position to be adopted on behalf of
the European Union at the 103rd session of the International Labour Conference
concerning a Recommendation to supplement the Forced Labour Convention n° 29,
1930, of the International Labour Organisation

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union and, in particular, Articles 82(2), 83(1),
153 and 218(9) thereof,

Having regard to the proposal from the
European Commission,

Whereas:

(1) 
The Forced Labour Convention n°29, 1930, of the
International Labour Organisation (ILO), hereinafter ‘the Convention’, requires
its Parties to suppress the use of forced labour within the shortest possible
period, and to criminalize the offence.

(2) 
Proposals for a Recommendation to supplement the
Convention, hereinafter “the draft Recommendation”, are on the agenda of the
103rd session of the International Labour Conference on 28 May - 12
June 2014, hereinafter “the Conference”, for consideration and adoption.

(3) 
The aim of the draft Recommendation is to
address implementation gaps to advance prevention of trafficking for labour
exploitation as well as protection and compensation of victims of forced
labour.

(4) 
The rules under the Convention and the
provisions under the draft Recommendation are covered in part by competences
conferred upon the Union by the Treaties. In addition, the draft Recommendation
will interplay with existing acquis in the areas of social policy[11], asylum and
immigration[12],
freedom of movement for workers[13]
and fundamental rights[14].
In particular, most of the provisions of the draft Recommendation have been the
subject of Directive 2011/36/EU on preventing and combating trafficking in
human beings and protecting its victims (“anti-trafficking”), where
appropriate, and Directive 2012/29/EU establishing minimum standards on the
rights, support and protection of victims of crime (“victims’ rights”). These
aspects are also dealt with by the UN Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children, supplementing the United
Nations Convention against Transnational Organized Crime, 2000, (“UN
Trafficking Protocol”), to which the EU is a party. The draft Recommendation is
further to interplay with international agreements, development cooperation and
trade instruments making reference to core labour standards and the
ratification and effective implementation of fundamental ILO Conventions by
third countries, candidate countries and in the EU.

(5) 
In accordance with Article 19(6)(b) and (c) of
the ILO Constitution, the adoption of a Recommendation implies certain
obligations for the parties. A Recommendation further provides guidance as to
national policy, legislation and practice and is used by ILO standard
supervisory bodies to assess the application of the related labour standards.
It follows that the draft Recommendation will constitute an act of a body set
up by an international agreement which will produce legal effects.

(6) 
Given the above, in accordance with Article
218(9) TFEU, it is necessary that the Council adopts a decision to establish
the position to be adopted on the Union's behalf as regards matters falling
within the Union's competence. Member States will act jointly in the interest
of the Union, which is not a member of the ILO[15].

(7) 
Given that certain changes may be made to the
draft Recommendation before its adoption by the International Labour
Conference, it is necessary to provide that Member States, acting jointly in
the interest of the Union, may propose amendments or agree to amendments during
the course of the Conference as regards matters falling within the Union's
competence, as long as they are compatible with existing EU legislation.

HAS ADOPTED THIS DECISION:

Sole Article

1.           The position of the Union at the 103rd session of the International Labour Conference shall be to
support the approval of the envisaged draft Recommendation. The text of the
draft Recommendation forms the report IV (2B) submitted to the 103rd
session of the ILC[16].

2.           The position of the Union
as set out in paragraph 1 shall be taken by the Member States, acting jointly
in the interest of the Union when adopting the provisions of the Recommendation
at the 103rd session of the International Labour Conference.

3.           Non-substantial
changes to this position may be agreed to within the bodies of the ILO by the
Member States acting jointly in the interest of the Union, without further
decision of the Council.

Done at Brussels,

For
the Council

The
President

[1]               GB.317/INS/2(Rev.) and Record
of Decisions, 25 March 2013.

[2]               Tripartite Meeting of Experts
on Forced Labour and Trafficking for Labour Exploitation (Geneva, 11–15
February 2013), Report for discussion at the Tripartite Meeting of Experts
concerning the possible adoption of an ILO instrument to supplement the Forced
Labour Convention, 1930 (No. 29) (TMELE/2013); Final report (TMELE/2013/7);
Conclusions adopted by the Meeting (TMELE/2013/6).

[3]               ILO: Resolution concerning
the recurrent discussion on fundamental principles and rights at work,
International Labour Conference, 101st Session, Geneva, 2012, paras 8–31

[4]               http://www.ilo.org/ilc/ILCSessions/103/reports/reports-to-the-conference/lang--en/index.htm

[5]               See replies received to the consultation in the
report IV (2A) to the Conference http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_239813.pdf

[6]               Publicly available on ILO website at
http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_239814.pdf

[7]               Art 82(2) and 83(1)TFEU

[8]               Art.153
TFEU

[9]               Directive
89/391/EEC, Directive 94/33/EEC, Directive 2003/88/EC, Directive 92/85/EEC

[10]             Art.79 TFEU

[11]             Including Directive 91/533/EEC on an employer’s
obligation to inform employees on the conditions applicable to the contract or
employment relationship (“written statement”), Directive 2008/104/EC on temporary
agency work, as well as Directives on health and safety at work, including the
Framework Directive 89/391/EEC, the working time Directive 2003/88/EC, the protection of young people at work Directive
94/33/EEC and the maternity protection Directive 92/85/EEC.

[12]             In particular Directive 2004/81/EC on the residence
permit issued to third-country nationals who are victims of trafficking in
human beings or who have been the subject of an action to facilitate illegal
immigration, who cooperate with the competent authorities, employers' sanctions
Directive 2009/52/EC.

[13]             Article 45 TFEU and Regulation 492/2011 on freedom of
movement for workers within the Union.

[14]             Charter of fundamental rights of the EU articles 4
(prohibition of torture and inhuman or degrading treatment or punishment), 5
(prohibition of slavery and forced labour), 15 (freedom to choose an occupation
and right to engage in work), 24 (rights of the child), 31 (fair and just
working conditions) and 32 (prohibition of child labour and protection of young
people at work).

[15]             Opinion 2/91 of the European Court of Justice of 19
March 1993, ECR 1993-I, page 1061, para. 26.

[16]             Publicly available on ILO website at
http//www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocuments/wcms_239814.pdf