Commission Delegated Regulation (EU) 2020/550 of 12 February 2020 amending Annexes II and IV to Regulation (EU) No 978/2012 of the European Parliament and of the Council as regards the temporary withdrawal of the arrangements referred to in Article 1(2) of Regulation (EU) No 978/2012 in respect of certain products originating in the Kingdom of Cambodia

(54) Cambodia confirms its commitment to review the LANGO and states that consultations with CSOs are underway and that in any democratic country such a process requires time.

(55) Cambodia adds that the preparatory work on a draft Access to Information Law is taking place in full cooperation with UN organizations such as the OHCHR and Unesco office in Phnom Penh. Cambodia has furthermore extended deadlines for tax registration and tax obligations for CSOs.

2.3.3.

Assessment

(56) Concerns about the LANGO and its implications on the ability of CSOs and individuals to act in defence of human rights and to promote transparency and accountability were expressed by the OHCHR already in 2015, and by the OHCHR spokesperson in August 2017. The shortcomings of the LANGO were raised by the Commission and the European External Action Service (EEAS), including during the 2018 monitoring mission, and by the international community, e.g. in the 2019 UPR and by the UN Secretary-General and UN Special Rapporteur.

(57) Despite the fact that Cambodia has taken certain positive steps, such as initiating a process to review the LANGO, holding dialogues with CSOs, and repealing the requirement of a three-day advance notice for civil society events, the Commission considers, based on its findings, that those steps are insufficient to overcome the existing shortcomings. In particular, Cambodia’s legal framework remains unchanged and there is no concrete implementation of policies and statements regarding the promotion and protection of civil society space. Moreover, reports about monitoring, surveillance, harassment, arrests and detention of civil society representatives and activists continue

See in this regard the statement by the UN Special Rapporteur of 8 November 2019 calling on the government to respect the rights to freedom of opinion, expression and assembly. See also the joint civil society letter to the Prime Minister of Cambodia of 8 December 2019 expressing alarm at the repression that results in silencing independent and critical opinions and at the current environment for labour rights advocates, trade union leaders and civil society activists.

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(58) On 3 December 2018, Cambodia issued a statement committing itself to promoting genuine partnership with CSOs. Yet in July 2019, the UN Secretary-General continued to urge Cambodia to strengthen guarantees with respect to the unhindered work of CSOs and by consolidating and broadening the space for these organizations to operate. The UN Secretary-General also highlighted the importance of the review of LANGO in this regard

A/HRC/42/31 of 31 July 2019.

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(59) Based on international human rights law and Human Rights Committee (HRC) jurisprudence, the Commission finds that Articles 8 and Article 25 together with Article 30 of the LANGO violate Article 22(2) of the ICCPR. Articles 9, 20 and 24 of the LANGO also violate Article 22(2) of the ICCPR due the serious concerns regarding their application.

An analysis of the LANGO with respect to human rights standards is available on the Website of the Cambodia Office of the OHCHR since 2015. See for instance the OHCHR’s conclusions on pages 17 and 18 that Article 24 infringes on freedom of expression and other human rights and that Article 25, combined with Article 30, place limitations on the right of freedom of association beyond what is permissible under Article 22(2) ICCPR.

(60) More specifically, the Commission finds that the grounds for restricting the registration of associations under Article 8 of the LANGO go beyond what is permitted under Article 22(2) of the ICCPR. The Commission also finds that Article 25 of the LANGO combined with its Article 30, imposes reporting requirements on CSOs going beyond those permissible under Article 22(2) of the ICCPR. In addition the vague formulation and unclear application of the neutrality requirement set out in Article 24 of the LANGO do not meet the requirements of Article 22(2) of the ICCPR.

2.3.4.

Conclusions on Articles 21 and 22 of the ICCPR

(61) Having regard to the nature of the rights infringed, the duration, the scale and the impact of the violations, the Commission finds that Cambodia’s use of its laws and its judicial and administrative actions to restrict the right to freedom of association and peaceful assembly and its failure to take effective steps to ensure a free civic space, constitutes a serious and systemic violation of the principles laid down in Articles 21 and 22 of the ICCPR, within the meaning of Article 19(1)(a) of the GSP Regulation.

(62) The Commission recalls that whilst the right to freedom of association and peaceful assembly may be subject to certain restrictions, such restrictions have to satisfy the conditions set out in Article 22(2) of the ICCPR, including the condition that any restriction be necessary in a democratic society and proportionate. However, the Commission finds that Cambodia has not sufficiently demonstrated that the restrictions on the right to freedom of association and peaceful assembly provided under its laws or imposed meet the conditions set out in Article 22 of the ICCPR

Id.

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1. REMAINING ISSUES UNDER ILO CONVENTIONS 87 AND 98 AS WELL AS THE ICESCR

3.1.

Labour rights – freedom of association, right to organise and collective bargaining (Articles 2, 3, 4 and 7 of ILO Convention 87; Articles 1 and 3 of ILO Convention 98; Articles 19, 21 and 22 ICCPR; Articles 7 and 8 ICESCR)

(63) The Commission takes note of the information and update provided by Cambodia regarding the labour right issues set out in the Notice of Initiation.

(64) The Commission notes that the actions taken by Cambodia since the launch of the temporary withdrawal procedure in February 2019 show that some improvements have been made on labour right issues. However, serious shortcomings and violations remain on two issues, namely the conclusion of the civil and criminal cases against trade union leaders and the investigations of the murders of trade union leaders, as recommended by the ILO.

(65) The Commission finds that irrespective of considerable progress in the settlement of the numerous criminal, civil and un-resolved labour dispute cases concerning trade union leaders, activists and workers, all the remaining open cases should be resolved without delay. The settlement of many cases, while commendable, does not negate the prior occurrence of arbitrary arrests, even if their duration was brief.

(66) The Commission notes the lack of concrete results in the investigations of the murders of trade union leaders committed in 2004 and 2007. Moreover, despite Cambodia’s commitment to bring the perpetrators to justice as quickly as possible, and the organisation of the ad hoc tripartite meeting convened by the National Commission on Reviewing the Application of International Labour Conventions Ratified by Cambodia in January 2019 and the inter-ministerial meeting on February 2019, those investigations are still open.

(67) The Commission finds that the unresolved civil and criminal cases against trade union leaders, and failure to conclude the independent investigations of the murders of trade union leaders, are in serious violation of the principles of the right to freedom of association enshrined in the fundamental ILO Conventions 87 and 98, and also of Articles 19, 21 and 22 of the ICCPR.

(68) The Commission also considers that a new round of negotiations with the social partners to continue the revision of the Law on Trade Unions (LTU) should be launched without delay. The revision should prioritise the opening of the scope of the LTU to all workers and civil servants, the additional provisions to facilitate the registration of trade unions and employer associations, and the protection against all acts of anti-union discrimination with the objective of ensuring full compliance of the LTU with ILO Conventions 87 and 98.

3.2.

Non-discrimination, land and housing rights (Articles 2(2) and 11(1) of the ICESCR)

(69) The Commission takes note of the information and update provided by Cambodia regarding land titles, including recognising the situation of the indigenous peoples in the country. The Commission notes that tangible progress has been made by Cambodia in resolving land disputes concerning economic land concessions in the sugar sector since the launch of the temporary withdrawal procedure. However, shortcomings still exist in the areas of land registration, titling provisions and the lack of appropriate and impartial review as well as addressing issues regarding the rights of the indigenous communities. Further efforts are needed in order to establish an appropriate legal framework to ensure transparent and inclusive mechanisms for the resolution of land disputes.

1. CONCLUSIONS

(70) Pursuant to Article 19(1)(a) of the GSP Regulation, tariff preferences under the preferential arrangements referred to in Article 1(2) of that Regulation may be withdrawn temporarily for reason of serious and systematic violation of principles laid down in the core human and labour rights UN/ILO conventions.

(71) Given the facts and considerations described under sections 2.1, 2.2 and 2.3, the nature of the rights infringed, and the duration, scale and the impact of Cambodia’s actions and omissions, the Commission finds serious and systematic violations by Cambodia of the principles laid down in Articles 19, 21, 22 and 25 of the ICCPR.

(72) Consequently, and having considered Cambodia’s comments and views, the Commission considers that the preferential arrangement granted to Cambodia should be withdrawn temporarily until it is decided that the reasons for justifying the withdrawal no longer apply.

(73) In assessing which products should be affected, the Commission takes into account the economic development needs of Cambodia and the objectives of the GSP Regulation, including the need for Cambodia to diversify its export base. The Commission furthermore takes into account the socioeconomic impact of the withdrawal, including the impact on workers and industries.

(74) The Commission also takes into account the progress made by Cambodia since the initiation of the temporary withdrawal procedure. Finally, the Commission notes the positive cooperation with Cambodia throughout the process.

(75) Therefore, the Commission concludes that tariff preferences under the GSP Regulation should be withdrawn in respect of certain products originating in Cambodia. These products fall under the following Harmonized System (HS) codes: 121293, 420100, 4202, 4203, 420500, 420600, 610341, 610343, 610349, 6105, 6107, 6109, 611510, 611521, 611522, 611529, 611595, 611596, 611599, 620341, 620343, 620349, 6205, 6207, 621132, 621133, 621139, 621142, 621143, 621149, 6212, 640319, 640320, 640340, 640351, 640359, 640391, 640399, 6405 and 6406.

(76) The Commission will continue to monitor the situation in Cambodia, including on the issues of civil and political rights, labour rights, and land and housing rights. The Commission may amend the withdrawal of tariff preferences. Should Cambodia fully address the issues raised in this delegated regulation, the Commission may reinstate the tariff preferences in accordance with Article 20 of the GSP Regulation,

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EU) No 978/2012 is amended as follows:

(1) In Annex II, under the heading Beneficiary countries of the general arrangement referred to in point (a) of Article 1(2) which have been temporarily withdrawn from that arrangement, in respect of all or of certain products originating in these countries the text and table are replaced by the following:

Column A: alphabetical code, in accordance with the nomenclature of countries and territories for the Union external trade statistics

Column B: name

Column C: HS Codes of the products in respect of which the tariff preferences referred to in point (a) of Article 1(2) have been temporarily withdrawn

ABCKHCambodia

420100, 4202, 4203, 420500, 420600, 610341, 610343, 610349, 6105, 6107, 6109, 611510, 611521, 611522, 611529, 611595, 611596, 611599, 620341, 620343, 620349, 6205, 6207, 621132, 621133, 621139, 621142, 621143, 621149, 6212, 640319, 640320, 640340, 640351, 640359, 640391, 640399, 6405, 6406

(2) In Annex IV, after the first table under the heading Beneficiary countries of the special arrangement for the least-developed countries referred to in point (c) of Article 1(2), the text and table are replaced by the following:

Beneficiary countries of the special arrangement for the least-developed countries referred to in point (c) of Article 1(2) which have been temporarily withdrawn from that arrangement, in respect of all or of certain products originating in these countries

Column A: alphabetical code, in accordance with the nomenclature of countries and territories for the Union external trade statistics

Column B: name

Column C: HS Codes of the products in respect of which the tariff preferences referred to in point (c) of Article 1(2) have been temporarily withdrawn:

ABCKHCambodia

121293, 420100, 4202, 4203, 420500, 420600, 610341, 610343, 610349, 6105, 6107, 6109, 611510, 611521, 611522, 611529, 611595, 611596, 611599, 620341, 620343, 620349, 6205, 6207, 621132, 621133, 621139, 621142, 621143, 621149, 6212, 640319, 640320, 640340, 640351, 640359, 640391, 640399, 6405, 6406

Article 2

The temporary withdrawal referred to in points (1) and (2) of Article 1 does not apply with respect to imports of products that are already on the way to the Union on 12 August 2020, provided that the destination of such products cannot be changed. In this case, a valid supporting document under the form of a bill of lading will be required.

Article 3

This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Union.

It shall apply from 12 August 2020.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 12 February 2020.

For the Commission

The President

Ursula von der Leyen