EU conflict minerals legislation will enter into force on 7 July 2017 and affect all EU importers of gold, tin, tungsten and tantalum (metals and ores).
The new EU conflict minerals regulation (“CMR”) was officially published on 9 May 2017 and will enter into force on 7 July 2017. The CMR introduces new compliance rules for EU importers of gold, tin, tungsten and tantalum, as well as their ores (“metals and minerals”), which stem from conflict-affected and high-risk areas, among others. The CMR is based on the OECD Due Diligence Guidance for responsible supply chains of minerals from conflict-affected and high-risk areas (“OECD Due Diligence Guidance”), including the annexes and supplements thereto. The USA have already introduced their version of a conflict minerals regulation in Section 1502 of the Dodd-Frank Act. This memorandum provides an overview of the key features of the CRM.
The EU Conflicts Minerals Regulation covers gold, tin, tungsten and tantalum, as well as their ores, which stem from conflict-affected or high-risk areas, among others. The CMR will affect all EU importers (or third parties acting on their behalf) of gold, tin, tungsten and tantalum, and those involved in the EU supply chain of the import of these metals and minerals. EU importers or third parties acting on their behalf must comply with the following key obligations: the creation of management and risk management systems, third party audits, disclosure obligations and ex-post checks. Non-EU importers must ensure that EU importers can fulfil their obligations by providing the required information and data for supply chain traceability. The CMR will enter into force on 7 July 2017. Its key obligations will however only come into effect on 1 January 2021.
Who is affected?
The obligations of the CMR will mainly affect EU importers of metals and minerals. An “EU Importer” is any natural or legal person declaring metals or minerals for release for free circulation, or any natural or legal person on whose behalf such declaration is made. Non-EU goods intended to be put on the EU market or intended for private use or consumption within the customs territory of the EU shall be placed under release for free circulation. Release for free circulation entails:
- the collection of any import duties due
- the collection, as appropriate, of other charges, as provided for under relevant and effective provisions relating to the collection of such charges
- the application of commercial policy measures and prohibitions and restrictions insofar as they do not have to be applied at an earlier stage
- the completion of other formalities established in respect of the import of goods.
Release for free circulation shall confer the customs status of EU goods on non-EU goods.
It is important to note, however, that EU importers sourcing metals and minerals not stemming from areas deemed to be “conflict-affected or high-risk” must maintain their responsibility to comply with the due diligence obligations of the CMR. In other words, all EU importer of metals and minerals must comply with the requirements of the CMR. Commodities traders who are not EU importers of metals and minerals are still affected by the CMR because they are part of the supply chain. These traders must ensure that EU importers can fulfil their traceability obligations and other duties under the CMR.
Which metals and minerals are affected?
The CMR impacts gold, tin, tungsten and tantalum and their ores (“metals and minerals”) if they exceed a certain threshold volume. EU authorities have outlined the affected metals and minerals in their “Combined Customs Nomenclature”. Please find below an indicative table of the affected CN codes and exempted volumes.
|Description||EU CN code||TARIC subdivision||Exempted threshold volume (kg)|
|Tin ores and concentrates||2609 00 00||5,000|
|Tungsten ores and concentrates||2611 00 00||250,000|
|Tantalum or niobium ores and concentrates||ex 2615 90 00||10||To be communicated|
|Gold ores and concentrates||ex 2616 90 00||10||To be communicated|
|Gold, unwrought or in semi-manufactured form, or as a powder with a gold concentration lower than 99.5% that has not passed the refining stage||ex 7108||100|
|Description||CN code||TARIC subdivision||Threshold volume (kg)|
|Tungsten oxides and hydroxides||2825 90 40||100,000|
|Tin oxides and hydroxides||ex 2825 90 85||10||To be communicated|
|Tin chlorides||2827 39 10||10,000|
|Tungstates||2841 80 00||100,000|
|Tantalates||ex 2841 90 85||30||To be communicated|
|Carbides of tungsten||2849 90 30||10,000|
|Carbides of tantalum||ex 2849 90 50||10||To be communicated|
|Gold, unwrought or in semi-manufactured form, or as a powder with a gold concentration of 99.5% or higher that has passed the refining stage||ex 7108||100|
|Ferrotungsten and ferro-silico-tungsten||7202 80 00||25,000|
|Tin bars, rods, profiles and wires||8003 00 00||1,400|
|Tin, other articles||8007 00||2,100|
|Tungsten, powders||8101 10 00||2,500|
|Tungsten, unwrought, including bars and rods obtained by simple sintering||8101 94 00||500|
|Tungsten wire||8101 96 00||250|
|Tungsten bars and rods, other than those obtained by simple sintering, profiles, plates, sheets, strips and foil, and other||8101 99||350|
|Tantalum, unwrought including bars and rods, obtained by simple sintering; powders||8103 20 00||2,500|
|Tantalum bars and rods, other than those obtained by simple sintering, profiles, wire, plates, sheets, strips and foil, and other|
Which jurisdictions are concerned?
The CMR will affect all metals and minerals coming from areas in a state of armed conflict or fragile post conflict, as well as those areas witnessing weak or non-existent governance and security (such as failed states) and widespread and systematic violations of international law, including human rights abuses. It will be left to the discretion of the respective EU importer whether areas should be deemed “conflict-affected” or “high-risk”. An indicative, non-exhaustive, regularly updated list of conflict-affected and high-risk areas will be provided. This list will however not provide absolute clarity on the countries that are considered “conflict-affected” or “high-risk”. The authorities will prepare non-binding guidelines in the form of a handbook for economic operators, explaining how best to apply the criteria for the identification of conflict-affected and high-risk areas.
What are the obligations under the EU conflict minerals regulation?
EU importers of metals and minerals must comply with the supply chain due diligence obligations set out in the CMR, and keep documentation demonstrating their compliance with these obligations, including the results of independent third-party audits. The key obligations are the implementation of:
- Management system: A supply-chain policy for metals and minerals stemming from conflict-affected and high-risk areas must be created, adopted and overseen by senior management, and communicated to suppliers. A grievance mechanism as an early-warning risk-awareness system must also be implemented. A chain-of-custody or supply-chain traceability system must be developed that provides the following (and its respective documentation):
- description of the metal or mineral, including its trade name and type
- name and address of the supplier to the EU importer
- name and address of the smelters and refiners in the supply chain of the EU importer
- in the case of metals – records of the third-party audit reports of smelters and refiners, if available, or evidence of conformity with a supply chain due diligence scheme recognised by the European Commission
- in the case of minerals only – the country of origin of the minerals and if available, the quantities and dates of extraction, expressed in volume or weight
- in the case of metals or minerals originating from conflict-affected and high-risk areas – additional information in accordance with the specific recommendations for upstream economic operators, as outlined in the OECD Due Diligence Guidance.
- Risk management obligations: Identify and assess the risks of adverse impacts in the mineral supply chain on the basis of information provided on the standards of their supply chain policy. Implement a strategy to respond to identified risks, one that prevents or mitigates adverse impacts by:
- reporting findings of the supply chain risk assessment to senior management
- adopting risk management measures consistent with the OECD Due Diligence Guidance
- implementing a risk management plan and tracking its performance
- undertaking additional fact and risk assessments for risks requiring mitigation, or after a change of circumstances.
- Third party audit obligations: EU importers of metals or minerals shall have audits performed by an independent third party (‘third-party audit’). EU importers of metals shall be exempt from the obligation to carry out third-party audits provided they provide substantive evidence, including third-party audit reports, which demonstrate that all smelters and refiners in their supply chain comply with the CMR or that they source exclusively from smelters and refiners found on the “Globally-Responsible Smelters and Refiners” list (see below, “Acknowledged refiners and smelters”).
- Disclosure obligations: EU importers of metals and minerals shall provide reports of any third-party audits to the competent authorities, and provide their immediate downstream purchasers all information gained and maintained pursuant to their supply chain due diligence with regard to business confidentiality and other competitive concerns. Each year, they shall report as thoroughly as possible on their supply chain due diligence policies and practices for responsible sourcing, including on the Internet.
- Ex-post checks: The competent authorities will carry out appropriate ex-post checks in order to ensure that EU importers of metals and minerals comply with the established obligations. This includes the examination of the EU importer’s implementation of supply chain due diligence obligations, the examination of documentation and records demonstrating proper compliance and the verification of audit obligations. Ex-post checks will include on-the-spot inspections, such as those done on the premises of the EU importer.
What are the applicable exemptions?
There are multiple applicable exemptions, such as:
- Recycled metals: Where an EU importer can reasonably conclude that metals are derived only from recycled or scrap sources, and when it has, with due regard for business confidentiality and other competitive concerns, publicly disclosed its conclusion and described in reasonable detail the supply chain due diligence measures it exercised in reaching that conclusion.
- Stocks of affected minerals: When stocks were created in their current form on a verifiable date prior to 1 February 2013.
- Recognised due diligence schemes of industry associations and groups: Industry associations and groups may request recognition of their due diligence schemes from the European Commission.
- Acknowledged refiners and smelters: A list will be provided that contains the names and addresses of globally-responsible smelters and refiners.
When will the EU conflict minerals regulation and its obligations take effect?
The CMR will take effect on 9 July 2017. Its key provisions will however only enter into force on 1 January 2021. These key provisions are:
- Compliance with supply chain obligations
- Management systems obligations
- Risk management obligations
- Third-party audit obligations
- Disclosure obligations
- Ex-post checks on EU importers
What will be the impact?
The experience obtained from the enforcement of the conflict minerals regulations under Dodd-Frank has shown that it will take a considerable amount of time to plan, structure and implement the requirements set forth in the OECD Due Diligence Guidance. These requirements will affect corporate governance, risk management, supply chain and trading activities.
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