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Conflict Minerals: Towards a Revision of a Failed Regulation.

Anyone who has visited a mining area in Africa must have been struck by the negative impact that the activities of extractive companies have on the land, as well as the lack of security around the mines, the health consequences and the displacement of populations.

At a glance, one recognises how mining activity changes the landscape; the traffic on the adjacent roads flooded with heavy trucks that destroy the roads; and there are comings and goings of people attracted by the crumbs that mining companies leave behind and mountains of mineral wastes. In addition, it is common to find crowds of people (including children) scavenging for scraps of minerals among the excavated rocks that are discarded for their low yield but which nevertheless provide them with means to of earning some money to live on.

These scavengers, as well as artisanal miners, find (irregular) mineral markets as a means of livelihood. And if these activities are carried out in conflict-affected and high-risk areas, the economic benefits of this mining activity often end up in the hands of armed groups.

In order to prevent the profits of buying and selling minerals ending up in the hands of rebel and armed groups, the European Union adopted the European Conflict Minerals Regulation that entered into force on January 1, 2017. The original spirit of this Regulation required mineral importing companies of the EU to trace minerals throughout the supply chain of their providers.

In addition, the European Directive would sanction companies that purchase minerals from business groups (smelters and refiners) that have bought these minerals from armed groups.

As with other legal provisions, the business lobby did not miss the opportunity to water down the content of the Conflict Mineral Regulation. First of all, the mining companies succeeded in making the Directive transitional.

The implementation of the Directive started as voluntary regulation in 2017 and entered into force as mandatory in January 2021. The implementation of the Conflict Mineral Regulation has not improved the situation in places where rebel groups control mining areas. Thus, in 2020, 44% of investigated companies were unable to make a final determination on conflict mineral origins.

The laxity of companies in their implementation of the Directive requires greater attention from the EU in the control of its multinationals and it is necessary to establish homogeneous measures to accompany the implementation of the Directive.

Secondly, the conflict minerals directive was insufficiently and unwillingly drafted by the EU. Its scope was reduced to certain minerals such as tin, tungsten, tantalum and gold (3TG) and excluded other minerals of equal relevance for new technologies such as cobalt and nickel.

In addition, in recent years the EU has developed new needs for rare metals that are necessary for the transformation of energy production through renewable energies, such as lithium, indium, lanthanum, yttrium and europium.  For the revision of the Directive planned for 2023, the directive should include all rare minerals and metals essential for developing the transition to a green economy.

Thirdly, the business lobby of mineral importers influenced the process of creating the Directive to limit it to certain geographical areas and got the EU to draw up lists of “reliable” companies so that importing companies would deposit the civil liability of their imports with third parties’ companies (through external auditing) that would have to guarantee the traceability of minerals.

The lack of transparency on the part of the Member States in making public the lists of companies that must be subjected to the directive, and the fact that the companies exempt their responsibility in the audits carried out by third parties, make the directive doubly ineffective.

In this way, civil society has no access to the control of the mandatory reports that could indicate risks and cannot act in coordination with the competent authorities in each country to monitor the implementation
of the directive.

The Directive requires accompanying measures to enforce the ban on imports of minerals that finance armed groups in conflict-affected and high-risk areas. Member States do not agree on these measures to implement the Directive and offer varying and undemanding solutions in case of infringement of the Directive.

The revision of the Directive should include sanctioning mechanisms by Member States in order to ensure unity of coordinated action and to prevent states from reducing the effectiveness of the Directive.

The Directive allows Member States the possibility of choosing sanctioning measures in the event of company infringements. Thus, while most EU countries consider that companies importing minerals from conflict zones that do not comply with the Directive should be subjected to a financial penalty, countries such as Finland and France support the idea of banning imports from such companies for a certain period of time, ranging from one month to one year.

Other countries such as The Netherlands, Sweden or Czech Republic choose to make public the names of companies in breach of the Directive as a coercive measure to encourage companies
to comply with the law.

There is no unanimity on the part of the Member States to fine companies that infringe the Directive, and the countries that opt for a monetary sanction also disagree on the amount of the sanction, which ranges from the ridiculous amount of 726 Euros in Austria to 100,000 Euros in Luxembourg.
In some cases, these penalties can even be made conditional on the mining companies’ commitment to rectify their mistakes.

The variety of corrective measures for breaches of the Directive by member states and the lack of severity of sanctions for serious acts of financing armed groups highlight the EU’s lack of political control. The solidarity so often touted by the EU in its negotiations for the extension of the post-Cotonou agreement should start with something as basic as supporting African states in their fight against the terrorism of armed rebel groups and preventing any human rights violations.

The change from a voluntary to a mandatory directive is a positive factor in the fight against the impunity of large companies operating in Africa, but it is clearly insufficient. The transpositions of the directive by the member states do not even include penalties for companies that repeatedly import minerals from conflict zones without justifying their traceability. It is sufficient to justify that the imports have been carried out through qualified intermediaries (the so-called white list) in order to exempt any kind of civil liability.

José Luis Gutiérrez Aranda,
Trade Policy Officer,
Africa Europe Faith and Justice Network (AEFJN)

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