On 26 June 2026, the European Commission adopted Guidelines on Regulation (EU) 2024/3015 (Forced Labour Regulation, or FLR), which prohibits products made with forced labour from entering the EU market. The Regulation reflects a deliberate legislative choice over how forced labour is to be established. Article 5 places the burden on competent authorities to prove the existence of forced labour before restrictive measures may be adopted, rejecting proposals that would have shifted that burden onto economic operators through rebuttable presumptions for high-risk regions. The Guidelines leave Article 5 formally unchanged but, in their treatment of state-imposed forced labour (SIFL), substantially reshape the evidentiary conditions under which that burden is discharged.
This contribution argues that, through the cumulative operation of rules governing the treatment of social audits and prior regional findings, the Guidelines create an evidentiary asymmetry that, in practical operation, comes to resemble the allocation of proof the co-legislators declined to adopt. More broadly, it argues that implementation guidance, that is, the guidelines, can reshape the evidentiary architecture through which the legislation operates without altering the formal legal effect of its provisions. While existing EU soft law doctrine primarily analyses the bindingness, legal effects, and reviewability of administrative measures, this contribution examines an additional, distinct question, on how post-legislative implementation guidance interacts with the specific legislative allocation of proof established by the co-legislators.
The Institutional Choice in Article 5
During negotiation, several stakeholders, including Anti-Slavery International, urged a rebuttable presumption modelled on the US Uyghur Forced Labor Prevention Act [UFLPA], under which products linked to Xinjiang would be presumed tainted absent contrary proof. The European Parliament supported presumptions of this kind for high-risk regions. The final text rejects that model. Instead, Article 5 requires the Commission, for production outside the Union, and national authorities, for production within it, to establish the existence of forced labour before restrictive measures are issued.
This was a deliberate choice between two competing models of transnational supply chain regulation, a choice on which Anti-Slavery International and the ECCHR have written at length. A presumption-based model treats an operator’s proximity to a high-risk region as sufficient grounds to shift evidentiary risk onto the operator, on the premise that operators are better placed than public authorities to obtain supply-chain information. An investigative model rejects that premise, placing the burden on the authority because the reliability of operator-supplied information cannot itself be assumed, particularly where the state controlling the territory has an interest in concealing the practice in question.
By anchoring Article 5 to an investigative model, the legislature allocated the primary task of factual verification to public authorities. However, by leaving the practical indicators of verification to post-legislative guidance, Article 5 left unresolved the secondary question of how this statutory allocation of proof would operate under the administrative realities of data collection in restrictive jurisdictions.
Two Evidentiary Rules and Why Their Combination Matters
The significance of the Guidelines lies in the evidentiary architecture they establish, that is, the rules governing how evidence is assessed and weighted, as distinct from Article 5’s allocation of the burden of proving forced labour. Individually, each rule established by the Commission is readily defensible. Together, however, they alter the practical conditions under which Article 5 operates.
The first evidentiary rule established by the guidelines governs the weight accorded to social audits in investigations of SIFL. The Guidelines recognise social audits as relevant evidence in principle but provide that, in SIFL investigations, they carry limited evidentiary value unless supported by unrestricted access to production facilities and unsupervised worker interviews. This approach reflects well-established scholarship — such as LeBaron and Lister’s work on audit failures and findings by Clean Clothes Campaign — showing that social auditing systematically failed to detect abuse in catastrophic cases like Rana Plaza. As an evidentiary rule, this is readily defensible. However, its practical effect extends beyond assigning less weight to compromised data. In authoritarian jurisdictions such as Xinjiang, unrestricted facility access and unsupervised worker interviews are unlikely to be available precisely because the state exercises pervasive control over information and labour conditions. The conditions required for an audit to carry meaningful evidentiary weight, therefore, cannot realistically be satisfied. Operators are consequently left with little usable audit evidence in the very regions where SIFL investigations are most likely to arise.
The second evidentiary rule governs the weight accorded to findings from earlier SIFL investigations. The Guidelines provide that findings made in one investigation possess “high relevance” in subsequent investigations concerning the same region, even where the operator concerned (the FLR’s term for the economic operator under investigation, used interchangeably here with “undertaking”) was not a party to the earlier proceedings and had no opportunity to contest the underlying evidence. Requiring authorities to establish the existence of a systemic state policy afresh in every proceeding would impose a significant administrative burden; thus, relying on prior findings of general fact is a familiar feature of administrative proof.
The significance of these rules lies in their interaction. Consider an operator sourcing from a region already subject to an adverse SIFL finding. When an investigation begins, the authority need not establish the regional context anew because earlier findings already carry substantial evidentiary weight. The operator’s natural response is to present its own localized social audits to demonstrate compliance within its specific supply chain. Yet those audits are accorded limited evidentiary value by the Guidelines’ strict criteria for verification, namely the requirement of unrestricted facility access and unsupervised worker interviews discussed above.
In other words, the two rules reinforce one another at the operator’s expense: the authority’s case is carried by prior findings it does not need to re-establish, at exactly the point where the operator’s own evidence, the social audit, is least able to contest it. Consequently, while Article 5 remains formally unchanged and the authority continues to bear the legal burden of establishing forced labour, the evidentiary conditions within which that burden is discharged come to resemble, in practical operation, the rebuttable presumption model the legislature declined to adopt. This misalignment raises the question whether implementation guidance can functionally alter the balance of a legislative choice while leaving its text pristine — a question that prompts a closer look at existing legal frameworks.
Implementation Guidance and Existing Soft Law Doctrine
The relationship between the evidentiary framework established by the Guidelines and the legislative choice embodied in Article 5 highlights a distinct aspect of post-legislative governance. Existing doctrine on EU soft law has primarily examined implementation guidance through the concepts of bindingness, legal effects, administrative discretion, and judicial reviewability.
The Court of Justice of the European Union has established a robust framework to analyze these properties. In Grimaldi, the Court of Justice held that the regulatory guidelines issued by the European Commission, alhough technically non-binding, should be taken into account when resolving disputes, by the national courts, particularly if they help interpret ambiguous national laws. In Dansk Rørindustri and Expedia, the Court held that a Commission notice, though not binding on national courts, may nonetheless bind the Commission itself: having announced the criteria it would apply, the Commission could not depart from them without breaching the principles of equal treatment and legitimate expectations. Guidelines thus structure and constrain the Commission’s future exercise of its own discretion. Likewise, in Kingdom of Belgium v Commission the Court confirmed that a formally non-binding measure may nevertheless be reviewable where, in substance, it is intended to produce legal effects. Together, these authorities identify the circumstances in which implementation guidance acquires legal relevance despite its formally non-binding status.
The next section considers that question through the example of an FLR investigation. It asks whether the evidentiary methodology prescribed by the Guidelines preserves the legislature’s choice to place the practical burden of establishing forced labour on the competent authority, or whether it substantially reshapes the operation of that choice while leaving Article 5 formally unchanged.
This blog proceeds on those same assumptions. It does not question whether the FLR Guidelines are correctly classified as non-binding, whether they may produce legal effects, or whether they are capable of judicial review. Instead, it examines a different aspect of implementation guidance. Assuming the legal status of the Guidelines is correctly understood, the question becomes what effect the implementation choices made within the Guidelines have on the operation of the legislation they administer.
The practical significance of this distinction becomes clear in the course of an investigation. Suppose an operator imports products from a region already subject to an adverse SIFL finding. At the outset of the investigation, the competent authority relies on that earlier regional finding, while the operator seeks to demonstrate compliance through localized social audits. Under the Guidelines, however, those audits carry limited evidentiary weight unless they satisfy the prescribed conditions of unrestricted facility access and unsupervised worker interviews. The evidentiary framework therefore shapes the factual record before the authority reaches any conclusion.
If the authority subsequently adopts restrictive measures, a reviewing court asks whether, on the evidentiary record before it, the authority lawfully discharged the burden imposed by Article 5. If the answer is yes, the decision may be upheld. That inquiry, however, proceeds on a factual record already produced through the evidentiary methodology prescribed by the Guidelines.
The point developed in this blog concerns the earlier stage. It asks what effect the Guidelines’ implementation choices have on the practical operation of Article 5 before the authority reaches its decision. The issue is not whether the authority correctly applied the evidentiary framework in an individual case, but how the evidentiary framework itself structures the investigation through which Article 5 is given practical effect.
The FLR in the Wider Due Diligence Landscape
This evidentiary asymmetry is worth situating within the broader business and human rights architecture the EU has built around it, because the FLR does not operate in isolation. The Corporate Sustainability Due Diligence Directive already requires many of the same operators to identify, prevent, and mitigate forced labour risk across their value chains, on pain of civil liability for failing to do so. The FLR, by contrast, does not ask whether an operator exercised due diligence at all; it asks a narrower factual question, whether forced labour was actually used in making a given product, and responds not with liability but with a market access ban. The two instruments therefore approach the same underlying conduct through different logics: 1) the CSDDD through a process-based, fault-oriented standard of conduct, and 2) the FLR through a product-based, strict prohibition triggered by proof of an underlying fact.
This complicates the relationship between the two regimes rather than simplifying it. If an operator’s own audit evidence carries diminished weight in an FLR investigation once its region has attracted an adverse SIFL finding, the same operator faces a difficult position under the CSDDD, where audits and monitoring are treated as legitimate, if imperfect, components of a due diligence process that courts and regulators are asked to assess for reasonableness rather than certainty. An operator could conceivably satisfy a CSDDD due diligence standard, showing that its process was reasonable given available information, while still losing an FLR proceeding in which that same process is effectively discounted by the evidentiary hierarchy the Guidelines establish. The compliance function is left managing two regimes that ask related but not identical questions, under evidentiary conditions that are not obviously reconcilable.
This is an important concern for BHR scholarship. Much of the recent debate on mandatory due diligence has centred on whether process-based obligations of the CSDDD variety can produce accountability for harms that have occurred, or whether they risk becoming a demonstration of reasonable effort that operates independently of outcomes on the ground. The FLR’s evidentiary framework, precisely because it is outcome-oriented rather than process-oriented, could in principle discipline that risk by anchoring corporate accountability to the fact of forced labour rather than to the adequacy of an operator’s paperwork. Whether the Guidelines actually perform that function, or instead import process-based habits, reliance on audits, and deference to prior administrative findings into what was designed as a fact-finding exercise, is a question the evidentiary asymmetry examined above largely answers in the latter direction. The Guidelines’ treatment of audits imports precisely the kind of proceduralised, effort-based reasoning the FLR’s designers sought to avoid by rejecting a presumption model in the first place, and reproduces it through the back door of implementation guidance rather than legislative choice.
The question raised by the FLR Guidelines is therefore not whether Article 5 continues, in formal terms, to place the burden of proving forced labour upon the competent authority. It plainly does. The more difficult question is whether implementation guidance can substantially reshape the practical conditions under which that burden is discharged, without formally disturbing the legislative settlement itself. By according diminished weight to operator-generated audits while permitting prior regional findings to perform much of the evidentiary work in subsequent investigations, the Guidelines illustrate how the design of evidentiary methodology may alter the operation of a statutory compromise while leaving its text untouched.
This dynamic also contrasts usefully with the approach the United States has adopted toward the same underlying problem. The U.S. Customs and Border Protection (CBP) Forced Labor Enforcement Operational Guidance for Importers consolidates UFLPA and CAATSA enforcement under Section 307 into a single evidentiary framework, centred on the documentation importers must produce to demonstrate that goods were not made with forced labour. It has been noted that the CBP guidance prioritises traceability and documentary substantiation, whereas the European Commission’s guidance is organised around human rights due diligence systems aligned with the UN Guiding Principles. The American model therefore asks whether an importer can prove a shipment clean, while the Union asks whether a company has established a credible system for identifying and addressing labour abuse. The FLR Guidelines occupy an uneasy position between these two models: formally an outcome-oriented investigative regime in the EU tradition, yet one whose evidentiary treatment of audits and prior findings pushes its practical operation toward the proof-based logic more characteristic of the US approach, without the CBP framework’s corresponding clarity about what documentation would actually satisfy that burden.
Seen in this light, the FLR Guidelines point towards a question that extends beyond the law of forced labour. Existing analyses of EU soft law have largely been concerned with the familiar questions of legal effects, bindingness, and judicial review. The present example suggests that implementation guidance also warrants attention for a different reason: its capacity to reconstruct the evidentiary architecture through which legislative choices are realised in practice. If legislative compromises are capable of being reshaped not by amendment, but by the administrative organisation of proof, then the relationship between legislation and implementation guidance requires closer scrutiny than prevailing accounts of EU soft law have thus far afforded.
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