RE: Minerals Legislation3 Feb 2020 09:31
That said, if a member State does take that course of action, lawyers might argue against any penalties on the grounds that there is no basis in the regulations for imposing them.
While the US rules are limited to minerals sourced from the Democratic Republic of Congo (DRC) and contiguous countries, the EU rules cover all countries exporting 3TG minerals into the EU – a broader scope, but one which seems slightly meaningless given the lack of penalties for infringement, the partners note.
However, the EU regulations expressly limits its scope to "tin, tantalum and tungsten, their ores, and gold".
Another positive from an ethical perspective is that the EU has the opportunity to review the legislation and toughen it up before the January 1, 2023, compliance deadline.
According to the law firm, the regulation was passed by the previous EU Commission, so “it is possible that the new Commission, which took office on December 1, 2019, under the Presidency of Ursula von der Leyen, may decide to take a firmer stance on this issue”.
The law firm, however, mentions that “this will be no easy task” given the struggle to pass the legislation initially and the numerous concessions that were made to industry to get the regulations over the line.
More broadly, the regulation has brought the matter of conflict minerals to the attention of EU consumers, the partners say, adding that the regulations “still have room to become tougher”.
Harder-hitting provisions will most likely be effected in response to pressure from civil society, as opposed to regulators – a trend that is already manifesting itself in the rise of ethical consumerism and investor emphasis on environmental, social and corporate governance (ESG) credentials.
While many multinational organisations will already be more than prepared for the EU's conflict minerals regulations, the law firm says “there are undoubtedly businesses which will have to develop the necessary compliance procedures for the first time”.
Fortunately, the partners believe there is enough guidance and expertise available from existing voluntary initiatives, industry bodies and professional advisers to make this a relatively smooth process.
Companies will also understand the commercial sense in complying with and demonstrating their compliance with the regulations in light of the ever-increasing focus by customers and investors on good ESG practice.
The law firm notes that ESG in the mining sector is expected to be among the most important topics to be discussed at this year’s Investing in Mining Indaba event, being held in Cape Town, South Africa, this week.