2021: a new year marked by new rules against conflict minerals in the EU

While the news did not make the headlines, 1 January 2021 marked the culmination of a long civil society campaign as new European legislation on the responsible sourcing of minerals came into force. Since that date, European Union based companies that import minerals have been officially required to ensure due diligence. But what does this imply concretely? And what will this really change in Europe and in the conflict zones?

The regulation has been a long standing demand of both civil society and the European Parliament, both of which have regularly highlighted the absence of any obligation for European companies to verify where the minerals they buy come from. It was finally adopted in 2017.

The new regulation is based on legislation and recommendations that have been existence since 2010 in the United States (see Title XV of the Dodd-Frank Wall Street Reform and Consumer Act) and member states of the Organisation for Economic Co-operation and Development (OECD). It aims to better regulate the importation of four specific minerals on European soil: tin, tantalum, tungsten and gold (collectively known as ‘3TG’). These four minerals (or metals depending on their composition) are particularly targeted, because in some countries their exploitation helps to finance armed groups or leads to violations of human rights, including labour rights. However, they are found in many everyday consumer products, especially in electronics.

Concretely, since 1 January, companies importing a certain quantity of one of these four minerals into the EU must now exercise ‘due diligence’ – that is to say they must constantly, in a proactive and reactive way, verify and manage their purchases and sales in order to ensure that they do not contribute to financing or fuelling armed conflicts or other illegal activities.

This diligence primarily concerns procurement from ‘conflict or high risk areas’. This means areas weakened by an armed conflict, current or recent, those suffering from weak or non-existent governance or security, or from current and systematic violations of international law, including human rights. They are theoretically not limited to a particular continent or geographic region. An indicative and non-exhaustive list published by the European Commission currently lists 27 countries, including for example the Democratic Republic of the Congo, Colombia and Afghanistan. The list is produced by a research office and is to be updated every quarter.

Important rules – but too weak

While the objectives pursued are laudable, some may wonder if the content of the law lives up to the EU’s stated aims, or even if it is really capable of making a lasting difference. Indeed, although the adoption of the legislation has been welcomed by civil society, many organisations still find it too weak.

The scope, for example, is too narrow. It imposes strict obligations only on actors at the bottom of the supply chain, that is, those who extract, process and refine raw materials or those who import products at the metal stage. Companies which import products beyond this stage, that is to say in the form of a finished product, like the vast majority of European companies, do not have to meet the obligations in the regulation. They are simply encouraged to do so, as is already the case through voluntary rules that have existed for several years but which have so far proved ineffective. Even the European Commission recognises this today, following the publication in 2020 of a study on the subject. The chain of responsibility that would assure consumers that the phone they have in their hands is the product of responsible procurement is therefore only partial and hence ineffective. Moreover, it is important to remember that during the consultations and negotiations of the text of the law, even the organisations representing the investors had advocated binding obligations for all companies.

Ultimately, the regulation will certainly have little impact on companies in the EU.

On the contrary, the burden of traceability will continue to rest primarily at the beginning of the chain, that is, on extractive companies, artisanal miners, commodity traders, foundries and refineries. The regulation could thus have the side effect of encouraging companies to stop sourcing from artisanal miners who find it more difficult to comply with legal requirements, and rely solely on large companies (e.g. Chinese-owned companies). This would have disastrous consequences for those who depend on this essential income. Given the informality of the sector, it is very difficult to obtain exact figures, but in the Democratic Republic of the Congo (DRC) for example, the artisanal mining sector has no less than two million workers who directly or indirectly support 10 to 20 per cent of the Congolese population.

As the Member of the European Parliament (MEP) Marie Arena, a spokesperson for the Socialists and Democrats (S&D) Group, said in 2017: “We have taken a necessary step in the right direction. However, much remains to be done, particularly in terms of accompanying measures to help small enterprises to comply with the regulations but also with measures to help the countries of origin to ensure traceability, which involves supporting local artisanal miners and improving their working conditions.”

Trade unions clearly have a major role to play. According to the President of the Kolwezi Provincial Mining Committee in the DRC: “The diggers encounter a lot of problems. In Mutoshi, for example, they do not have a suitable mining site even though the provincial government had a duty to allocate one for them so that they could navigate their daily lives.” The Trade Union Confederation of the Congo (Confédération syndicale du Congo, CSC) supports workers, represents them at all levels and seeks solutions with government and business. “As a union there is indeed a lot of work to be done to give voice to their grievances.”

Finally, other technical elements such as import thresholds, the certification of certain due diligence mechanisms and a white list of responsible international smelters and refiners may further limit the effects of the law. The actual positive impact for populations affected by conflict may therefore be minimal. In the eyes of civil society, by yielding once again to the lobby of European industry associations, the European Union has missed an opportunity to be truly committed to human rights.

And afterwards?

The report which member states will submit each year to the European Commission should provide more information on the actual implementation of the regulation and the controls carried out when risks have been identified or brought to the attention of the competent authorities. For this, it is essential that civil society organisations, such as trade unions and NGOs, continue their monitoring work, and also to raise awareness among workers who do not know or do not trust the international rules.

As Jan Franco, international secretary of the Belgian CSC’s Building, Industry and Energy union (CSC-BIE) underlines: “Years of cooperation with trade unions in producing countries, mainly in Africa, have taught us that one of the biggest problems is the mistrust of informal miners with regard to controls and regulations.
Trade unionists, NGO representatives and inspection services represent for them a direct threat to mining activities and the income generated, on which they and their families depend. Part of the solution lies in building the capacity of unions and social movements to formalise work as much as possible and to take action, with miners, to achieve decent work with a living wage and adequate social protection.

“But until they feel ownership of such measures, through binding and enforceable collective agreements, that mistrust of informal workers will not disappear and oversight will remain minimal in practice.”

Furthermore, the independent evaluation, which is to take place no later than 2023 and every three years thereafter, should make it possible to analyse the actual effectiveness of the regulation as well as its effects on the ground. If it is deemed insufficient, the European Commission will then be able to make new legislative proposals, including binding ones. This is highly desirable. In the face of regular violations, the difficulty, if not impossibility, of accessing justice for those affected by mining activities and corporate impunity, means the need for effective rules is increasingly felt. International civil society is mobilising and must continue to do so if companies are to respect human rights, including labour and trade union rights, and the environment, throughout their global value chains.

This article has been translated from French.