Workers dismissed by the quinine-producing company Pharmakina, S.A. in the Democratic Republic of Congo (DRC) submitted a complaint to the Luxembourg NCP arguing that Pharmakina S.A. and its Luxembourg-incorporated holding company, Pharmeg S.A., had breached the OECD Guidelines Employment and Industrial Relations, Human Rights, and other chapters when it fired workers seeking to be paid a legal wage. According to the complaint, the law of the DRC requires workers to be paid at least $5 per day, a rate not paid by Pharmakina. When eight worker leaders at Pharmakina sought to mobilize all the workers to demand payment of $5 per day, the company boss at first agreed to meet with workers to discuss their demands, but then fired the eight workers. The workers filed a complaint to the Luxembourg NCP seeking mediation to help them secure compensation for their loss of work and address the underlying wage dispute. Their complaint also alleges that Pharmakina is allowing discharge from production to pollute nearby Lake Kivu, to the detriment of the health of workers and nearby communities, and that Pharmakina is engaged in corruption, including by making regular illegal payments to illegal rebel groups formerly involved in committing atrocities against people in the DRC.
Relevant OECD Guidelines
According to complainants, while the NCP complaint was underway, Pharmakina sought the arrest of one of the worker representatives. Pharmakina asked the Congolese Prosecutor to file charges against the worker, including for defamation in relation to filing the NCP complaint. The prosecutor did file charges, initially seeking the death penalty for the worker and later reducing the demand to one for life imprisonment. The Congolese court held in favor of the Prosecutor, but reduced the worker’s sentence to 4.5 years in prison and payment of two fines: $10,000 to the boss of Pharmakina in his personal capacity, and $10,000 to the company itself, for defamation. The worker is to be held in prison from 2019 to 2023.
On 21 November 2019, the Luxembourg NCP rejected the complaint on grounds that it had no territorial jurisdiction over Pharmeg, the holding company of Pharmakina. The NCP stated that the “Luxembourg incorporated holding company’s only purpose – as it inherently should be for a holding company – consisted in a legal vehicle for raising capital as well as transferring and holding ownership, in order to protect the resulting investment by settling in a stable and safe country at the time of the troubles in Congo in 1998-1999. As a result, PHARMEG SA has no – and cannot have – operational activity in Luxembourg, has no decision-making activity there – not even a strategic one – and consequently employs no workforce. In fact, all the activities, all operations and decisions take place in Congo, as the complainants’ claims and griefs themselves make clear.”