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Demande directe (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

Convention (n° 29) sur le travail forcé, 1930 - Allemagne (Ratification: 1956)
Protocole de 2014 relatif à la convention sur le travail forcé, 1930 - Allemagne (Ratification: 2019)

Autre commentaire sur C029

Observation
  1. 2023
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  11. 1996
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  14. 1991
Demande directe
  1. 2023
  2. 2018
  3. 2016
  4. 1992

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The Committee welcomes the ratification by Germany of the Protocol of 2014 to the Forced Labour Convention, 1930, and takes due note of the Government’s first report as well as the information provided in reply to its previous comments under the Convention.
Article 1 of the Convention and Articles 1(1) and (2) of the Protocol. National policy and systematic action. Implementation and assessment. The Committee notes that the Government indicates in its report that the Federal Ministry of Labour and Social Affairs (BMAS) is developing a National Action Plan (NAP) against labour exploitation and forced labour. It also notes that in September 2023, the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth (BMFSFJ) published a discussion paper containing proposals for a NAP against human trafficking to gather inputs from the social partners and civil society groups. According to the BMFSFJ, both NAPs shall address different areas of action but are intended to be complementary. Whereas the NAP on labour exploitation and forced labour will primarily focus on improving prevention of forced labour in the labour market, the NAP against trafficking in persons shall focus on strengthening criminal prosecution and protection of victims of all forms of exploitation, including sexual exploitation (BMFSFJ, press release 9 September 2023).
The Committee also notes the adoption in 2017 by the Federal Government-Länder Working Group on Trafficking in Persons for the Purpose of Labour Exploitation of a Joint Strategy to combat human trafficking for the purpose of labour exploitation. The joint strategy is based on six objectives: (i) expanding prevention, (ii) improving the awareness of the authorities and the identification of affected persons, (iii) expanding advisory and support structures, (iv) strengthening law enforcement, (v) improving data, and (vi) raising public awareness. The implementation of the strategy will be monitored by the Service Unit against Labour Exploitation, Forced Labour and Human Trafficking within the BMAS.
The Committee welcomes the comprehensive approach taken by the Government to combat all forms of forced labour and requests the Government to provide information on the measures taken under the National Action Plan against labour exploitation and the National Action Plan against trafficking in persons, indicating how the implementation of the two Action Plans is coordinated. The Committee also requests the Government to provide information on the activities carried out by the Federal Government-Länder Working Group on Trafficking in Persons for the Purpose of Labour Exploitation under its 2017 Joint Strategy. Please provide summarized information on any monitoring undertaken by the working group, including on the findings and recommendations made.
Article 2 of the Protocol. Prevention. Clauses (b) and (e). Educating and informing employers. Supporting due diligence. The Committee notes that the Service Unit against Labour Exploitation, Forced Labour and Human Trafficking of the BMAS has issued guidance on risk-analyses for the branches of the industry with a higher risk of forced labour and exploitative working conditions, including the logistic and meat production industries.
The Committee notes with interest that the Act on Corporate Due Diligence in Supply Chain, which entered into force in January 2023, provides for due diligence obligations for companies to prevent and respond to risks of forced labour in the supply chain with respect to both direct and indirect suppliers. These obligations include establishing a risk management system, performing regular risk analysis, taking remedial action, and establishing complaint mechanisms. The Act applies to all enterprises which have the central administration, the principal place of business, the administrative headquarters, or the statutory seat in Germany, and have at least 1,000 employees. The companies covered by the Act have the obligation to prepare an annual report on the fulfillment of their due diligence duties and make it publicly available. The monitoring of the implementation of the Act lies with the Federal Ministry for Economic Cooperation and Development. The Committee welcomes these measures and encourages the Government to continue to support the private sector to prevent and respond to risks of forced labour. The Committee requests the Government to provide information on the activities undertaken by the Ministry for Economic Cooperation and Development to monitor the application of the Act on Corporate Due Diligence in Supply Chain and to support companies in meeting their due diligence obligations. It also requests the Government to provide any assessment made in this regard.
Clauses (c) and (d). Protecting migrant workers from abusive and fraudulent practices. Labour inspection. The Committee notes that the 2016 Act on Temporary Agency Work sets out the obligation to guarantee temporary workers the same basic working conditions, including remuneration, applicable to a comparable employee of the user undertaking (section 8(1)). Pursuant to section 15(1) of the Act, any person who acting on behalf of a temporary work agency assigns to a third party a foreign national who does not possess a residence permit or authorization to work is liable to a penalty of imprisonment of up to three years or a fine. The Government indicates that, since January 2022, private recruitment agencies are obliged to inform employees recruited from abroad on the terms of their employment in Germany (duration of the labour relation, specific tasks, working time, holidays, and so on) pursuant to section 299 of Book III of the Social Code. Moreover, within the framework of the “Fair Integration” programme under the responsibility of the BMAS, all foreign nationals can receive information about labour rights in Germany, including in relation to the work permits.
With respect to inspections, the Committee notes that, pursuant to section 23(3) of the Act on the Implementation of Measures of Occupational Safety and Health to Encourage Improvements in the Safety and Health Protection of Workers at Work, if, as a result of an inspection, the employer is found to be responsible for hiring foreigners without a permit, or for failing to pay social security contributions, the competent authority shall report the situation to the criminal justice authorities for further investigation of potential cases of forced labour. The Government further indicates that with the adoption in 2020 of the Act to improve enforcement of occupational health and safety, the competent authorities have to comply with a minimum number of inspections per calendar year from 2026 (section 1(2)(b)), which could increase the number of detected cases of forced labour.
The Committee encourages the Government to continue to take measures to protect migrant workers from abusive and fraudulent practices and to provide information in this respect. It also requests the Government to provide information on the inspection undertaken and the cases amounting to forced labour that have been identified and reported by labour inspectors to the criminal justice authorities.
Article 3 of the Protocol. Identification and protection of victims. The Committee notes the Government’s indication that the BKA operates an information portal which contains guidelines and tools for the investigation of cases of trafficking in persons and labour exploitation, and exchanges information with the Länder and the NGO Network Against Trafficking in Persons (KOK) for better identification of victims. According to the BKA’s 2022 Report on Trafficking in Persons and Exploitation, as a result of the 346 investigation proceedings of trafficking in persons for sexual exploitation and forced prostitution, a total of 476 victims were identified (453 women and 16 men). Most of them were German nationals, followed by victims from Bulgaria, Romania and China. The same year, 1,019 victims of labour exploitation, including by means of forced labour and trafficking in persons, were identified out of the 34 investigation proceedings, which represented an increase of 593,2 per cent compared to the victims identified in 2021 which amounted to 147. The economic sectors most concerned were the meat industry (301 victims); the logistic sector (226 victims) and construction (48 victims).
As regards protection of victims, the Service Unit against Labour Exploitation, Forced Labour and Trafficking in Persons offers support to victims depending on their specific needs. The support can include accommodation, social benefits, medical care, psychosocial support and legal advice on residence regulations and labour rights. In addition, the BMAS and the German Trade Union Federation (DGB) have signed a framework agreement to provide training on victim protection and to increase practical awareness of the needs of victims of forced labour.
The Committee further notes that under the Federal Residence Act, victims of a crime who do not hold a German residence permit are granted a 3-month reflection period, during which they cannot be expelled from the country, to decide whether they would testify as witnesses in a criminal trial (section 59(7)). Moreover, section 25(4a) of the Act provides for a special temporary residence permit for victims of trafficking in persons and forced labour if the public prosecutor’s office or the criminal court considers the foreigner’s presence appropriate in connection with criminal proceedings relating to the said criminal offences; the foreigner has broken off contact from the persons accused of having committed the offence; and the foreigner has declared his or her willingness to testify in the proceeding relating to the offence. After the criminal proceedings have ended, the residence permit can be extended for humanitarian or public interest reasons.
The Committee requests the Government to continue to provide updated statistical information on the number of victims of forced labour, including trafficking in persons for both sexual and labour exploitation, who have been identified (if possible disaggregated by gender, country of origin, and economic sector concerned). The Committee also requests the Governmentto provide information on the number of victims, who have applied for a temporary residence permit under section 25 (4a) of the Federal Residence Act indicating if there are cases when the applications have been refused and the reasons for such refusal. Please provide information on the protection of victims who refuse to cooperate in the investigations.
Article 4(1) of the Protocol. Access to effective remedies, including compensation. The Committee notes the Government’s indication that every victim of forced labour can initiate a criminal proceeding against the offender and can receive the assistance of a lawyer (section 406(f) of the Code of Criminal Procedure). In the context of this proceeding, the victim can claim compensation from the offender. The Committee takes due note that, under section 1 of the Act on Compensation to Victims of Violent Crime, as amended in 2021, victims of forced labour can claim compensation from the State on account of the resulting health or economic damage. According to the information provided in 2023 by the German Government to the Group of Experts on Action against Trafficking in Human Beings of the Council of Europe (GRETA), it is also possible for foreign victims to file an application for compensation under the Act from abroad without additional conditions. The Committee requests the Government to provide information onthe number of victims who have received compensation under section 1 of the Victim Compensation Act as well as the number of those who have received compensation from the offender. In this regard, the Committee also requests the Government to provide information on the measures taken to assist victims of forced labour on the different options available to obtain compensation as well as on any challenges faced by the victims or the justice administration in this regard.
Article 25 of the Convention and Article 1(3) of the Protocol. Prosecution and application of dissuasive sanctions. The Committee recalls that the Criminal Code prohibits forced labour in its different forms and provides for penalties of imprisonment for the offenders: Trafficking in persons (section 232); forced prostitution (section 232(a)); forced labour (section 232(b)); labour exploitation (section 233); exploitation involving deprivation of liberty (section 233(a)).
1. Trafficking in persons for sexual exploitation and forced prostitution. The Committee takes due note of the annual report (2022) on trafficking in persons and exploitation published by the BKA, which contains detailed statistical information on the application of the above-mentioned provisions of the Criminal Code. According to the report, in 2022, a total of 346 investigative procedures related to sexual exploitation (including trafficking in persons for sexual exploitation, forced prostitution and exploitation involving deprivation of liberty) were closed, which represented an increase of 18.9 per cent compared to 2021. As a result of the investigations, 488 suspected offenders were arrested, which also represented an increase of 24.8 per cent compared to 2021. The BKA’s report also highlights that sexual exploitation has shifted from the classical form of bar, brothel, and street prostitution to prostitution at home or in a hotel. Women from Eastern Europe, China, Thailand, and Vietnam are among the most common victims of sexual exploitation. The Committee requests the Government to continue to ensure proper investigation and prosecution of cases of trafficking in persons for sexual exploitation and forced prostitution (sections 232 and 232(a) of the Criminal Code), and to provide statistical data in this regard, indicating how many of the investigation procedures have concluded in convictions.
2. Forced labour and labour exploitation. The Committee notes the adoption in 2019 of the Act to Combat Unlawful Employment and Benefit Fraud which confers on the Customs Administration’s Financial Control Office for Undeclared Work (Finanzkontrolle Schwarzarbeit – FKS) additional powers to autonomously undertake inspections and carry out investigations of situations of undeclared work. The Government indicates in this regard that, under this legislation, it would be possible for the Customs Administration to review all employment conditions to ascertain whether workers are employed on terms that represent a conspicuous discrepancy compared with those of workers who are in the same or an equivalent job. According to the information provided in 2023 by the Government to the GRETA, the Government is planning to create 3,500 additional posts in the FKS to ensure the effective application of this Act.
The Committee notes from the 2022 BKA’s report that, since the involvement of the FKS in the identification of cases of undeclared work, there has been a gradual increase of investigation procedures concluded related to forced labour and labour exploitation (from 21 procedures in 2018 to 34 in 2022). It also notes from the 14th Report by the German Federal Government on the Impact of the Act to Combat Unlawful Employment for the period 2017–20, submitted to the German Parliament, that the number of investigations initiated and the number of proceedings completed with regard to trafficking in persons for labour exploitation still remains low. According to the report, one of the reasons for this trend is that the standards applied under the case law for the constituent elements for this crime is very high and pose considerable challenges for investigations. Moreover, investigations were discontinued due to the unwillingness of the victims to testify. The Committee requests the Government to continue to strengthen the capacities of law enforcement bodies, including the labour inspectorate to detect, investigate and prosecute cases of labour exploitation amounting to forced labour and to provide information on the measures taken to overcome existing challenges faced by these authorities. It also requests the Government to continue to provide information on the number of investigations, prosecutions and convictions related to crimes of trafficking in persons (section 232), forced labour (section 232(b)) and labour exploitation (section 233).
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