Proposal for a COUNCIL DECISION authorising Member States to ratify, in the interest of the European Union, the Protocol of 2014 to the Forced Labour Convention, 1930, of the International Labour Organisation with regard to matters related to judicial cooperation in criminal matters
Date: 2014-09-11
Institutions: European Commission
Subjects: EU Member State, International Labour Organisation, judicial cooperation in criminal matters in the EU, protocol to an agreement, ratification of an agreement, slavery

EUROPEAN 
COMMISSION 

Brussels, 11.9.2014  
COM(2014) 559 final 

2014/0258 (NLE) 

Proposal for a 

COUNCIL DECISION 

authorising Member States to ratify, in the interest of the European Union, the Protocol 
of 2014 to the Forced Labour Convention, 1930, of the International Labour 
Organisation with regard to matters related to judicial cooperation in criminal matters

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

The  proposed  Council  Decisions  will  enable  Member  States  to  ratify  the  Protocol  to  the 
Forced Labour Convention, 1930, of the International Labour Organisation (ILO), hereinafter 
‘the Protocol’. 

The  Forced  Labour  Convention,  1930  (No  29)  of  the  ILO  (‘the  Convention’)  is  one  of  the 
ILO’s  eight  fundamental  Conventions  that  make  up  the  core  international  labour  standards, 
and  it  is  considered  a  human  rights  instrument.  In  adopting  the  Convention  in  1930,  the 
International  Labour  Conference  (‘the  Conference’)  called  upon  States  to  end  the  use  of 
forced  labour  within  the  shortest  possible  period,  and  to  criminalise  the  offence.  Yet,  more 
than 80 years later, 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.  The  ILO  estimates  that  at  least  20.9  million  people  globally  are  victims  of  forced 
labour. 

The  Protocol,  adopted  by  the  103rd  session  of  the  Conference,  seeks  to  address  gaps  in 
implementation  and  to  make  progress  on  preventing  trafficking  for  labour  exploitation  and 
protecting and compensating victims of forced labour. 

The European Union (EU) is committed to promoting human rights and decent work and to 
eradicating  trafficking  in  human  beings,  both  internally  and  in  its  external  relations.  Of 
particular importance in the context of the Protocol is also the commitment of the EU to the 
promotion of the protection of the rights of the child and gender equality, as women may be 
particularly  vulnerable  to  some  forms  of  forced  labour.  Rights  at  work  are  a  key  pillar  of 
decent work. In ratifying ILO Conventions and related Protocols, EU Member States send an 
important signal on the coherence of the EU’s policy in promoting fundamental principles and 
rights at work and improving working conditions worldwide. 
In  addition,  as  part  of  the  EU’s  strategy  on  eradicating  trafficking  in  human  beings1,  the 
Commission  urged  EU  Member  States  to  ratify  all  relevant  international  instruments, 
agreements and legal obligations. This will help address trafficking in human beings in a more 
effective, coordinated and coherent manner. Strengthening victims' rights in the EU has also 
been a strategic priority of the Commission over the past few years. The horizontal Victims' 
Rights Directive will ensure that victims of crime benefit from common minimum standards 
of rights during police investigations and court proceedings. The Protocol should be seen as 
part of this work. 

It is therefore necessary that any legal impediments at EU level to ratification of the Protocol 
by EU Member States be removed at EU level. The Protocol’s substance does not cause any 
concern in the light of the existing EU acquis. 

The  Protocol’s  provisions  strengthen  the  international  legal  framework  by  establishing 
obligations  to  prevent  forced  labour  and  to  provide  victims  with  protection  and  access  to 
remedies, such as compensation. 

The Protocol, in its Articles 1 and 6, requires ILO Member States to develop a national policy 
and  plan  of  action  for  the  effective  and  sustained  suppression  of  forced  labour  and  to  take 
measures  to  apply  the  Protocol’s  provisions,  in  consultation  with  employers’  and  workers’ 
organisations. 

1 

EU  strategy  towards  the  eradication  of  trafficking  in  human  beings  2012-2016,  COM(2012) 286  of 
19.6.2012. 

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Article 2 of the Protocol sets out the measures that ILO Member States must take to prevent 
forced labour, namely: 

• 

• 

• 

• 

• 

educating  and  informing  people,  especially  those  who  are  particularly 
vulnerable, and employers; 

making  efforts  to  ensure  that  the  coverage  and  enforcement  of  legislation 
relevant to the prevention of forced labour apply to all workers and all sectors 
of the economy and that labour inspection services are strengthened; 

protecting  people,  especially  migrant  workers,  from  potentially  abusive  and 
fraudulent recruitment and placement practices; 

supporting due diligence by both the public and private sectors; and 

addressing the root causes heightening the risks of forced labour. 

As regards the victims of forced labour, Article 3 provides that effective measures are to be 
taken for their identification, release, protection, recovery and rehabilitation and other forms 
of  assistance  and  support.  Article  4  requires  ILO  Member  States  to  ensure  that  all  victims 
have access to remedies, such as compensation, and that competent authorities are entitled not 
to prosecute victims for unlawful activities that they have been compelled to commit. 

In  addition,  Article  5  provides  for  international  cooperation  to  prevent  and  eliminate  forced 
labour and Article 7 deletes the transitional provisions from the Convention. 

The  Protocol  addresses  areas  of  EU  law  that  are  already  subject  to  an  advanced  degree  of 
regulation. 

In its provisions on preventing forced labour, the Protocol deals with aspects covered by EU 
social policy, in respect of which EU law sets minimum rules on working conditions2. 

In  its  provisions  on  protection  of  victims  and  access  to  remedies,  the  Protocol  deals  with 
aspects relating to judicial cooperation in criminal  matters, in respect of which EU law sets 
minimum standards on anti-trafficking and victims’ rights3. 
Parts  of  the  Protocol  also  interplay  with  freedom  of  movement  for  workers4  and  rules  on 
asylum and immigration5. 

In  addition,  the  Protocol  interplays  with  rules  under  the  common  commercial  policy,  EU 
international agreements, development cooperation and trade instruments that make reference 
to core labour standards and the ratification and effective implementation of fundamental ILO 
Conventions by third countries and in the EU. 

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4 
5 

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. 
Directive 2011/36/EU (‘anti-trafficking’); Directive 2012/29/EU (‘victims’ rights’). 
Article 45 TFEU and Regulation 492/2011 on freedom of movement for workers within the Union. 
Directive  2004/81/EC  (‘residence  permit  for  victims’)  and  Directive  2009/52/EC  (‘employers’ 
sanctions’).  Directive  2008/115/EC  (‘return’),  Directive  2011/98/EU  (‘single  permit’)  and  Directive 
2014/36/EU  (‘seasonal  workers’)  are  also  concerned  by  selected  provisions  of  the  Protocol  and  the 
related Recommendation. 

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2. 

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND 
IMPACT ASSESSMENTS 

Not applicable. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

The Protocol is a binding international agreement, subject to ratification, and is linked to the 
Convention. It creates legal obligations applicable to ratifying States and can only be ratified 
by States that have ratified the Convention. 

At the ILO, a Protocol is used to partially revise or add to a Convention, allowing it to adapt 
to changing conditions, and making it more relevant. Article 19(4) of the ILO Constitution, on 
the adoption and ratification of Conventions, also applies to a Protocol. 
In accordance with case law of the Court of Justice of the European Union (ECJ)6, and more 
specifically on concluding and ratifying an ILO Convention7, Member States are not able to 
decide  to  ratify  the  Protocol  outside  the  framework  of  the  EU’s  institutions,  as  parts  of  the 
Protocol fall into areas of EU competence. 

However,  the  EU  as  such  cannot  ratify  an  ILO  Protocol,  because  under  the  ILO  rules  only 
States can be parties to such Protocols. 

As the subject matter of this Protocol falls partly within areas of EU competence and partly 
within  those  of  Member  States,  the  EU  institutions  and  Member  States  must  take  the 
necessary measures to cooperate in ratifying the Protocol and in implementing commitments 
resulting from that Protocol8. 

Over  the  last  decade,  the  Council  has  already  authorised  Member  States  to  ratify,  in  the 
interests of the EU, five ILO Conventions, parts of which fell into areas of EU competence9. 

With  reference  to  the  Protocol,  regulation  is  at  an  advanced  stage  in  the  various  aspects  of 
anti-trafficking, victims’ protection and labour policies covered by the Protocol, to the point 
where Member States are no longer able to act as sovereign in dealing with external parties in 
this regard10. Article 82(2) and 153 of the Treaty on the Functioning of the European Union 

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AETR judgment of the ECJ, case 22/70 of 31 March 1971, ECR 1971, 263; see also Article 3(2) TFEU 
which codified these principles. 
Opinion 2/91 of the ECJ of 19 March 1993 relating to the Chemicals Convention No 170, ECR 1993-I, 
page 1061. 
Opinion 2/91 of the ECJ (ibid), para. 36, 37 and 38. 
Council Decision of 14 April 2005 authorising Member States to ratify, in the interests of the European 
Community,  the  Seafarers’  Identity  Documents  Convention  of  the  International  Labour  Organisation 
(Convention no 185), OJ L 136/1 of 30.5.2005; 
Council Decision of 7 June 2007 authorising Member States to ratify, in the interests of the European 
Community,  the  Maritime  Labour  Convention,  2006,  of  the  International  Labour  Organisation  (OJ  L 
161/63 of 22.6.2007); 
Council Decision of 7 June 2010 authorising Member States to ratify, in the interests of the European 
Union,  the  Work  in  Fishing  Convention,  2007,  of  the  International  Labour  Organisation  (Convention 
No 188), OJ 145/12 of 11.6.2010; 
Council  Decision  of  28  January  2014  authorising  Member  States  to  ratify,  in  the  interests  of  the 
European  Union,  the  Convention  concerning  Safety  in  the  Use  of  Chemicals  at  Work,  1990,  of  the 
International Labour Organisation (Convention No 170) (2014/52/EU);  
Council  Decision  of  28  January  2014  authorising  Member  States  to  ratify,  in  the  interests  of  the 
European  Union,  the  Convention  concerning  decent  work  for  domestic  workers,  2011,  of  the 
International Labour Organisation (Convention No 189) (2014/51/EU). 
Opinion 2/91 of the ECJ, para 25 and 26. 

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(TFEU) constitute the main legal basis for the relevant EU legislation, which is more detailed 
than the general principles established in the Protocol. 

There  is  no  incompatibility  between  the  provisions  of  the  Protocol  and  the  minimum 
requirements in these areas laid down in the EU acquis. 

In line with Article 19(8) of the ILO Constitution, the Protocol sets out minimum standards. 
The EU acquis takes the same approach. This means that EU law may be more stringent than 
the ILO standards, and vice versa11. 

The  proposed  Council  Decisions  will  therefore  authorise  Member  States  to  ratify,  in  the 
interest  of  the  EU,  those  parts  of  the  Protocol  that  fall  into  areas  of  EU  competence,  and 
recommend them to make efforts to do so by the end of 2016. 

The  proposed  Council  Decisions  are  based  on  the  one  hand  on  Article  218(6)  TFEU,  in 
conjunction with Article 82(2) TFEU, which provides the main legal basis for EU legislation 
on judicial cooperation in criminal matters relevant to addressing trafficking in human beings 
and victims’ rights, and on the other hand on Article 153(2) second subparagraph TFEU, in 
conjunction with Article 218(6) TFEU, which provides the main legal basis for EU legislation 
on protecting and improving working conditions, relevant to preventing forced labour. 

The  Protocol  pursues  several  objectives  which  are  inseparably  linked  without  one  being 
secondary  and  indirect  in  relation  to  the  other.  In  particular,  the  Protocol  aims  at  achieving 
decent  working  conditions  on  the  one  hand  and  protecting  the  victims  of  forced  or 
compulsory work and sanctioning the perpetrators on the other. Therefore, it must be founded 
both on Article 82(2) TFEU and 153(1) (a) and (b). A single decision cannot be adopted on a 
dual legal basis where the procedures required by each legal basis are incompatible with each 
other.12 Such is the case here in view of the fact that matters related to judicial cooperation in 
criminal matters do not bind Denmark, which leads to diverging voting rights in the Council. 
Consequently, two separate Council decisions are required.  

As  regards  the  objective  of  protecting  the  victims  of  forced  or  compulsory  work  and 
sanctioning  the  perpetrators,  Article  82(2)  TFEU  is  the  single  legal  basis  that  the  present 
proposal  should  be  founded  on.  It  is  true  that  the  Protocol  also  touches  upon  the  residence 
status of victims of forced or compulsory labour to the extent that this is required to enable 
these victims to have access to appropriate and effective remedies (see, in particular, Article 4 
of  the  Protocol).  However,  this  purpose  relating  to  Article  79  TFEU  is  merely  incidental 
whilst the objectives of preventing and combating trafficking in human beings and protecting 
victims  relating  to  Article  82(2)  TFEU13  are  identifiable  as  the  predominant  purpose  and 
component. 

The Commission recalls in that context that on 14 April 2014, pursuant to Article 218(3) and 
(4)  TFEU,  it  has  submitted  to  the  Council  a  Recommendation  for  a  Council  Decision 
authorising the opening of negotiations and negotiating directives at the 103rd session of the 
International  Labour  Conference  on  a  Protocol  to  supplement  the  forced  labour  Convention 
n°29,  1930,  of  the  International  Labour  Organisation  (COM(2014)238  of  14.4.2014).  The 
Commission further recalls that this recommendation has been discussed in Council Working 

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Opinion 2/91 of the ECJ, para 18. 
See, most recently, ECJ, judgment of 11 June 2014, Case C-377/12, para 34. 
See, in particular, Directive 2012/29/EU of the European Parliament and of the Council of 25 October 
2012 establishing minimum standards on the rights, support and protection of victims of crime, which is 
based on Article 82(2) TFEU, and 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, 
which is based on Articles 82(2) and 83(1) TFEU. Articles 1(1), 1(2), 1(3), 2(a), 2(c), 3, 4(1) and 4(2) 
of the Protocol are of direct concern to the matters governed by these Directives. 

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Party meetings of 5 May, 14 May and 16 May 2014 and that, despite several attempts to reach 
an agreeable solution, it was decided at the Coreper meeting of 23 May 2014 not to pursue the 
matter further and, therefore, not to submit the draft decision to the Council for adoption. As a 
consequence,  the  Commission  issued  the  following  declaration  which  was  recorded  in 
Coreper minutes: 

"The  Commission  recalls  the  obligation  of  sincere  cooperation  between  Member  States  and 
the Commission in all circumstances. The absence of these decisions will lead to a situation 
which is not in compliance with the Treaties as Member States are legally not free to make 
legal  commitments  on  issues  of  Union  competence  in  international  negotiations  without  the 
framework of Union decisions. The Commission will assess the appropriate measures to take 
in this regard. The Commission recalls the need to respect Union competences, to avoid any 
incompatibility between the Union acquis and the ILO instruments to be negotiated and for 
Member States to act in the interests of the EU at the ILO." 

The  Commission  further  notes  that,  despite  the  absence  of  the  adoption  of  the  said  draft 
decision, Member States have proceeded to the negotiation and adoption, within the ILO, of 
the  Protocol  2014  to  the  Forced  Labour  Convention.  Given  the  importance  of  the  Protocol 
2014 to the Forced Labour Convention, the Commission hereby proceeds to propose, on the 
basis of Article 218(6) TFEU, that Member States are authorised to ratify the said Protocol, 
acting jointly in the interest of the Union. The Commission at the same time highlights that 
this  proposal  cannot  in  any  way  be  considered  as  an  acceptation  by  the  Commission  of  the 
legality of the procedure which has led to the adoption of the said Protocol within the ILO. 

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2014/0258 (NLE) 

Proposal for a 

COUNCIL DECISION 

authorising Member States to ratify, in the interest of the European Union, the Protocol 
of 2014 to the Forced Labour Convention, 1930, of the International Labour 
Organisation with regard to matters related to judicial cooperation in criminal matters 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 82(2) in conjunction with Article 218(6)(a)(v) thereof, 

Having regard to the proposal from the European Commission, 
Having regard to the consent of the European Parliament14,  

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

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15 

16 

The European Union is promoting the ratification of international labour conventions 
that  have  been  classified  by  the  International  Labour  Organisation  as  up-to-date,  to 
contribute to the European Union’s efforts to promote human rights and decent work 
for all as well as to eradicate trafficking in human beings both inside and outside the 
EU,  of  which  the  protection  of  fundamental  principles  and  rights  at  work  is  a  key 
aspect. 

Parts of the rules under the Protocol of 2014 to the Forced Labour Convention, 1930, 
of the International Labour Organisation (ILO), hereinafter ‘the Protocol’, falls within 
the competences of the Union, as laid down in Article 82(2) TFEU. Furthermore some 
of the rules of the Protocol are already covered by EU acquis in the areas of judicial 
cooperation in criminal matters.15  

As a consequence, Member States may not enter into commitments in relation to these 
parts outside the framework of the European Union’s institutions16. 

Article 19(4) of the ILO Constitution, on the adoption and ratification of Conventions, 
similarly applies to a Protocol, which is a binding international agreement, subject to 
ratification and linked to a Convention. 

The European Union cannot ratify the Protocol, as only States can be parties thereto. 

It  is  therefore  necessary  that  Member  States  are  authorised  to  ratify  the  Protocol, 
acting  jointly  in  the  interests  of  the  European  Union,  for  the  parts  falling  under 
European Union competence in accordance with Article 82(2) TFEU. 

OJ C , , p. . 
Several  provisions  of  the  Protocol  were  the  subject  of  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’). 
ECJ,  Case  22/70  Commission  vs  Council  ("AETR")  [ECR]  1971,  263,  paragraph  22,  Opinion  2/91 
("ILO"), ECR 1993-I, 1061, paragraph 26 and Case C-45/07, Commission vs Greece [ECR] 2009 I-701, 
paragraph 31. 

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(7) 

(8) 

(9) 

Article  82(2)  TFEU  is  the  single  legal  basis  that  the  present  decision  should  be 
founded  on.  It  is  true  that  the  Protocol  also  touches  upon  the  residence  status  of 
victims  of  forced  or  compulsory  labour  to  the  extent  that  this  is  required  to  enable 
these victims to have access to appropriate and effective remedies (see, in particular, 
Article  4  of  the  Protocol).  However,  this  purpose  relating  to  Article  79  TFEU  is 
merely incidental whilst the objectives relating to Article 82(2) TFEU are identifiable 
as the predominant purpose and component. 

In  accordance  with  Articles  1  and  2  of  the  Protocol  on  the  position  of  Denmark, 
annexed to the Treaty on European Union and to the Treaty on the Functioning of the 
European  Union,  Denmark  is  not  bound  by  this  Decision  and  is  not  subject  to  its 
application to judicial cooperation in criminal matters. 

The  United  Kingdom  and  Ireland  are  bound  by  Directive  2011/36/EU  on  preventing 
and  combating  trafficking  in  human  beings  and  protecting  its  victims  and  Directive 
2012/29/EU establishing minimum standards on the rights, support and protection of 
victims of crime, and are therefore taking part in the adoption of this decision, 

(10)  The  provisions  of  the  draft  Protocol  other  than  the  provisions  related  to  judicial 
cooperation in criminal matters will be subject to a Decision adopted in parallel to this 
Decision. 

HAS ADOPTED THIS DECISION:  

Member  States  are  hereby  authorised  to  ratify,  for  the  parts  falling  under  the  competence 
conferred  upon  the  European  Union  in  Article  82(2)  TFEU,  the  Protocol  of  2014  to  the 
Forced Labour Convention, 1930, of the International Labour Organisation. 

Article 1 

Member States should take the necessary steps to deposit their instruments of ratification of 
the Protocol with the Director-General of the International Labour Office as soon as possible, 
preferably by 31 December 2016.  

Article 2 

This Decision is addressed to the Member States. 

Article 3 

Article 4 

In this Decision, the term "Member State" shall mean any Member State with the exception of 
Denmark. 

Done at Brussels, 

For the Council 
The President 

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