Abstract
This paper assesses the EU Timber Regulation since it entry into application on 3 March 2013. After examining the original content, scope and recent normative evolution of the EUTR’s regulatory system, it investigates both the Regulation’s very effectiveness in the light of its actual implementation by EU member countries in the period 2013–2017 and its recent enforcement by EU countries’ national courts. The paper also discusses the position of the Timber Regulation within the whole EU anti-illegal logging policy framework and the role that EUTR (as a unilateral EU trade regulatory measure) could possibly provide as a ‘model’ for other EU legislative regimes equally trying to ensure that EU trade with other countries may contribute to both sustainable development and the protection of human rights.
The author is indebted to Valentina Grado (Professore Associato of International Law, University of Naples ‘L’Orientale’) for her insightful comments on earlier drafts. This chapter is dedicated to the memory of Professor Ulrich Beyerlin.
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Notes
- 1.
In a broader sense, illegal logging covers a wide group of illegal activities, such as harvesting, transport, processing and trade of timber, and evasion of fees and taxes related to these activities.
- 2.
Brack D (2007) Illegal Logging. Chatham House Briefing Paper, London, pp. 1–2.
- 3.
See extensively Pontecorvo (2011), pp. 17–39. Compare also Nellermann C (2012) Green Carbon, Black Trade: Illegal Logging, Tax Fraud and Laundering in the World’s Tropical Forests. UNEP and INTERPOL.
- 4.
- 5.
See inter alia Food and Agriculture Organization (FAO) of the United Nations (2010) Global Forest Resources Assessment 2010. Rome, pp. 15–17.
- 6.
See for example National Geographic, ‘Deforestation’, available at https://www.nationalgeographic.com/environment/global-warming/deforestation/ (last accessed 6 August 2017).
- 7.
See Brown et al. (2008), pp. 5–6. Restricting imports to allow only timber that complies with relevant laws of the country where it was harvested should, in principle, eliminate illegal harvests driven by foreign demand and reduce the contribution of illegal logging to deforestation. Obviously, deforestation could continue even if all logging were done legally; but eradicating illegality from the sector would, at least, enhance the ability of governments to require sustainable practices.
- 8.
Commission Communication of 21 May 2003 on ‘Forest Law Enforcement, Governance and Trade (FLEGT): Proposal for an EU Action Plan’ COM (2003) 251 final (hereinafter FLEGT Action Plan (2003)).
- 9.
Council Regulation (EC) 2173/2005 of 20 December 2005 on the establishment of a FLEGT licensing scheme for imports of timber in the European Community, OJ L 347/1 (2005) (hereinafter FLEGT Regulation (2005)), adopted under article 133 TEC.
- 10.
Regulation (EU) 995/2010 of the European Parliament and of the Council of 20 October 2010 laying down the obligations of operators who place timber and timber products on the market, OJ L 295/23 (2010) (hereinafter Timber Regulation (2010)), adopted under article 192.1 TFEU.
- 11.
On this point see also Buckrell and Hoare (2011).
- 12.
According to FAO data, in 2008, 2009 and 2010 the EU accounted for, respectively, the 45%, 43% and 41% of global forest product imports (FAO, Forestry Trade Flows, FAOSTAT database, available at http://faostat.fao.org/site/628/default.aspx). However, only 20% of timber imports come from tropical countries, and this portion is declining rapidly because of the economic downturn in Europe and increasing barriers to trade in tropical timber products (see UN Economic Commission for Europe and FAO (2013) Forest Products Annual Market Review 2012–2013).
- 13.
However, it should be admitted that the EUTR’s value to the struggle against illegal logging actually depends on its ability to withstand a (at the moment only hypothetical) challenge in the World Trade Organization. To date, WTO Panels have never confronted a regulation quite like the EUTR. Unlike previously litigated regulations, the EUTR (as we will see) seeks to limit trade on the basis of foreign definitions of legality rather than imposing its own substantive requirements. On the issue of the EUTR Regulation’s consistency with WTO law (which is behind the scope of this study) see Geraets and Natens (2014), pp. 439–454; Fishman and Obidzinski (2014), pp. 265–274.
- 14.
For example, the G8 Group released an Action Programme on Forests in 1998, which simply obliged G8 members to reflect on their internal measures for combating illegal logging, make efforts to improve transparency in the international trade and work to realize international pledges to combat timber-related corruption: see G8 (1998) Report on the Implementation of the G8 Action Programme on Forests: Annex B—G8 Action Programme on Forests. In 2002 the United States announced a President’s Initiative against Illegal Logging, having the goal of assisting developing countries to address illegal logging within their borders but not including any firm commitments: see White House, President’s Initiative against Illegal Logging, 14 February 2002. On other initiatives see Brown et al. (2008), pp. 6–8.
- 15.
Launched in 2001, FLEG was comprised of regional processes in which governments joined together in making policy commitments to strengthen forest governance.
- 16.
See Brown et al. (2008), p. 8.
- 17.
As stated in the Commission’s communication establishing it, the ratio of the Action Plan is to address “the growing problem of illegal logging and the related trade” which is named as one of the Commission’s priorities.
- 18.
Brack (2005), pp. 33–37.
- 19.
Commission Regulation (EC) 1024/2008 of 17 October 2008 laying down detailed measures for the implementation of Council Regulation (EC) No 2173/2005 on the establishment of a FLEGT licensing scheme for imports of timber into the European Community, OJ L 277/23 (2008).
- 20.
FLEGT Regulation, art. 4.1.
- 21.
Exporting countries commit themselves in particular to establish national licensing schemes that verify the legality of their shipments of timber and timber products to the EU.
- 22.
The concept underlying such a scheme is that by granting ‘FLEGT licenses’ solely for timber whose legality could be verified, illegal timber from partner countries can be excluded from the European market. In one respect the VPAs system is similar to another trade scheme in which the EU is heavily involved: the Kimberly Process Certification Scheme (KPCS), seeking to eliminate trade in ‘conflict diamonds’. In a similar way that VPAs use FLEGT licenses to certify timber (as legal) and restrict trade between VPAs countries and the EU to certified timber, the KPCS certifies rough diamonds (as ‘conflict free’) and restricts participants to trading only in such diamonds. However, it should be also recognized that there are at least two important differences between the VPAs system and the KPCS. First, whereas the former regulates the timber trade only between the EU and countries with which it has negotiated agreements, the KPCS prohibits participants from trading rough diamonds with any country that does not meet the scheme’s minimum requirements. Second, while these minimum requirements are all set forth by the KPCS instrument, the FLEGT Regulation, on the other hand, provides a basic outline for VPAs (requiring, for example, the establishment of a timber legality standard and certain institutional structures) while most details are negotiated on an individual basis with partner countries.
- 23.
After the adoption of the FLEGT Regulation the European Commission has been given a mandate from the Council of Ministers of the EU to conduct negotiations in view of concluding such FLEGT VPAs. While the EU Commission is leading these negotiations, EU member States play a key role in supporting the negotiations and implementation.
- 24.
Annex II of the FLEGT Regulation lists a number of categories of timber products that are to be covered by all VPAs and their corresponding Harmonized System (HS) Tariff Classification headings. Individual VPAs may cover additional timber and timber products.
- 25.
The first VPA to be signed was with the Ghana, followed by the Republic of Congo, Cameroon, Indonesia, the Central African Republic and Liberia. Negotiations are ongoing with Côte d’Ivoire, Democratic Republic of the Congo, Gabon, Guyana, Honduras, Laos, Malaysia, Thailand and Vietnam.
- 26.
The loggers and other traders need to meet all applicable laws and regulations of the VPA country that regulate origin and production process, subsequent processing, transport and trade activities. The licensing authorities are to verify that the timber has been legally produced in accordance with the applicable legislation.
- 27.
Indonesia was the first country in the world start issuing ‘FLEGT Licenses’ on the 15 November 2016.
- 28.
To date the VPA with Indonesia is, however, the only one that started operating (at the end of 2016).
- 29.
As it was relatively easy to keep on putting illegally harvested timber on the EU market, the conclusion of VPAs was not an urgent matter for these countries.
- 30.
Compare the Regulation’s Preamble, explicitly recognising that the scale and urgency of illegal logging and related trade require “a complement to and strengthening of the system of VPAs” (italics added).
- 31.
- 32.
Timber Regulation, art. 2 (c).
- 33.
Timber Regulation, art. 2 (d). A Guidance Document, issued by the Commission in 2013, contains more detailed definitions of terms used in the Timber Regulation: see EU Commission, Guidance Document for the EU Timber Regulation September 2013 (hereinafter Commission’s Guidance Document (2013) available at http://ec.europa.eu/environment/forests/pdf/final%20Guidance%20document.pdf (last accessed 9 September 2017). The Guidance Document was updated by the Commission in February 2016: see Commission notice of 12 February 2016, C (2016) 755 final (hereinafter Commission’s Guidance Document (2016)) available at http://ec.europa.eu/environment/forests/pdf/eutr_guidance.zip (last accessed 9 September 2017).
- 34.
See Ankersmit et al. (2012), p. 59. It is important to consider that the Regulation does not prohibit importing illegally harvested timber as such; therefore, it is not, strictly speaking, a border measure. However, it is worth nothing that, contrary to the text of the Timber Regulation, the above-mentioned Commission’s Guidance Document uses the term ‘importing’ instead of ‘placing on the market’.
- 35.
See Timber Regulation, art. 2 (e)–(h). In this respect, according to art. 2 (g) the elements of the (national) legislation to be taken into account include: (1) the rights to harvest timber within legally gazetted boundaries, (2) due payments and duties, (3) environmental and forest legislation, (4) legal rights of third parties concerning land use and land tenure, and (5) trade and custom formalities.
- 36.
This may pose questions as to the WTO-consistency of the Regulation. On this point see Geraets and Natens (2014).
- 37.
As mentioned above, instead of imposing a blanket prohibition on all timber or timber products, the EUTR adopt a selective approach, specifying in its Annex which types of timber and timber products are subject to the regulation’s prohibition.
- 38.
Council Regulation (EC) 338/1997 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein, OJ L 61/1 (1997).
- 39.
The exemption of this category of timber from the EUTR’s application has to be seen within the broader context of wildlife protection and taking into account that the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is uniformly implemented by means of the Wildlife Regulation in all EU Member countries. While CITES encompasses three appendices (each of which contains a list of species and regulates their trade), the Wildlife Regulation contains four categories of species (listed in Annexes A–D). For species listed in its Annex A or B (corresponding to all CITES Appendix I and II species, some Appendix III species and some non-CITES species) the conditions for trade established by the Wildlife Regulation are more restrictive than those set forth by CITES.
- 40.
See Timber Regulation, art. 7, and art. 10–12.
- 41.
In this respect, art. 10.5 of the Timber Regulation specifies that where following the checks shortcomings have been detected by the competent authorities, they “may issue a notice of remedial actions to be taken by the operator”. The same provision also provides that “depending on the nature of the shortcomings detected, Member States may take immediate measures, including inter alia: a) seizure of timber and timber products; b) prohibition of marketing of timber and timber products”.
- 42.
Through information sharing and other means.
- 43.
Timber Regulation, art. 12.
- 44.
Timber Regulation, art. 20. A third (however only optional) obligation is established for Member countries by art. 13, under which these States may choose to facilitate non-State actor compliance with the Regulation by sharing information on illegal logging and by offering legal and other assistance.
- 45.
Timber Regulation, art. 5. The same provision states that any competent authority may request these information to traders and they must be prepared to provide it.
- 46.
Timber Regulation art. 4.2.
- 47.
The fact that due diligence is only required to ‘operators’ represents a concession by the Regulation’s drafters, who recognised that the due diligence provisions might prove quite burdensome to ‘traders’, and wished to avoid imposing on them unnecessary administrative costs (see in this respect article 4.2 of EUTR, at recital 15).
- 48.
The Regulation at its art. 8 provides for ‘Monitoring organisations’ (to be) recognised by the European Commission. These organisations, which are private entities, are established to provide EU ‘operators’ with operational due diligence systems. ‘Operators’ can thus develop their own system of due diligence or use one developed by a monitoring organisation.
- 49.
The fact that in art. 4.3 the Regulation gives ‘operators’ the choice to either maintain and apply their own due diligence system, or to use a due diligence system maintained by a recognized ‘monitoring organisation’ is (perhaps) another effort to lower the compliance costs. This flexibility mechanism is especially important, because the Regulation does not specify which laws an ‘operator’ must be familiar with to ensure that timber and timber products were harvested legally; it simply lists—as mentioned—the legislative areas that contain the particular laws that must be adhered to. Moreover, monitoring organisations may be better positioned than ‘operators’ to follow legal developments in multiple timber-exporting countries. The EUTR also provides in art. 8 the criteria to be followed in granting recognition to monitoring organisations, sets out the requirements they must follow and establishes a protocol by which competent authorities must audit monitoring organisations and (where necessary) withdraw recognition. Further details on the process of recognizing and withdrawing recognition from monitoring organisations are provided by the clarifying Commission Regulation 363/2012 of 23 February 2012, OJ L115/12 (2012) (hereinafter Commission Regulation 363/2012); while further direction as to the frequency and nature of the audits that must be conducted of monitoring organisations (and as to the detailed rules concerning the due diligence system) are provided by a second clarifying regulation, Commission Regulation 607/2012 of 6 July 2012, OJ L177/16 (2012) (hereinafter Commission Regulation 607/2012) on which see also below.
- 50.
That is, name and address of the supplier to the operator and name and address of the trader to whom the timber and timber products have been supplied.
- 51.
Timber Regulation, art. 6.1 (a). Similar to ‘traders’, ‘operators’ are under the obligation to keep relevant information for 5 years and available to competent authorities upon request.
- 52.
See Timber Regulation, art. 6.1 (b). The first group of criteria that must be considered is the information collected at the information-gathering stage, which is specific to the timber or timber product at issue. The second category of criteria concerns the context where the harvesting took place. With respect to this context, the specific criteria for the risk assessment enumerated in art. 6.1 (b) are: (a) assurance of compliance with applicable legislation (which may include certification or other third-party-verified schemes covering compliance with such legislation); (b) prevalence of illegal harvesting of specific tree species; (c) prevalence of illegal harvesting (or practices) in the country of harvest (and/or in the sub-national region where the timber was harvested), including consideration of prevalence of armed conflicts; (d) presence of sanctions on timber trade by the UN Security Council or the Council of the EU; and (e) complexity of the supply chain of the particular timber or timber product at issue.
- 53.
‘Negligible’ is not defined in the Timber Regulation; but (as we will see) it does so the above mentioned Guidance Document for the EUTR released by the Commission in September 2013 and revised in February 2016.
- 54.
See Timber Regulation, art. 6.1 (c).
- 55.
See Timber Regulation, art. 19.
- 56.
See Timber Regulation, art. 19.2.
- 57.
See Timber Regulation, art. 19.
- 58.
The establishment by Member States of severe penalties, eventually combined with the possibility that operators could be found liable for mere negligent violations (or—even—on the basis of strict liability) could significantly chilly timber imports from sources with even a hint of illegality.
- 59.
Such as, solid wood products, flooring, plywood, pulp and paper. As already mentioned, the timber products covered by the Regulation are listed in its Annex, using the EU Customs code nomenclature.
- 60.
On this point see, for instance, Drew C., Barker T. (2016) Analysis of potential European Union Timber Regulation scope changes. WWF Report, illustrating that 67% (by value, and 20% by volume) of products that contain or may contain wood do not fall under the scope of the Regulation.
- 61.
Under such a perspective, in March and April 2011 two stakeholder meetings were held in particular to discuss different options and best practices for the recognition of monitoring organisations. The two meetings were also an occasion to exchange views on best options for risk assessment and risk mitigation procedures.
- 62.
See EUTR’s Preamble, at recital 28 (“The Commission should be empowered to adopt delegated acts in accordance with article 290 of the TFEU concerning the procedures for the recognition and withdrawal of recognition of monitoring organisations, concerning further relevant risk assessment criteria that may be necessary to supplement those already provided for in this Regulation and concerning the list of timber and timber products to which the Regulation applies”, italics added).
- 63.
On the implementing powers conferred in this respect on the Commission see the EUTR’s Preamble, at recital 29.
- 64.
The FLEGT Committee includes officials of EU countries and works with the Commission (article 11 FLEGT Regulation (2005)).
- 65.
Commission’s Guidance Document (2013).
- 66.
These are: (1) the definition of ‘placing on the market’ (relevant to art. 2 EUTR); (2) the definition of ‘negligible risk’ (art. 6 (c) EUTR); (3) the clarification of ‘complexity in the supply chain’ (art. 6 (b) EUTR); (4) the clarification of the documents showing timber’s compliance with applicable legislation of the exporting country (art. 2 (f)–(h) and art. 6.1 (a) EUTR); (5) the clarification of the product scope of packaging materials (as referred to in art. 2 (a) EUTR and in its Annex), and of the “waste” and “recovered” products (as referred to in recital 11 and in art. 12 EUTR); (6) the role of third parties verified schemes in the process of risk assessment and risk mitigation (recital 9 of Preamble and art. 6 EUTR, art. 4 Commission’s implementation regulation n. 607/2012); (7) the regular evaluation of the due diligence system (art. 4 EUTR); (8) the concept of ‘composite products’ (art. 6.1 EUTR), (9) the concept of ‘forest sector’ (art. 2 EUTR); (10) the treatment of CITES and FLEGT-licensed timber (art. 3 EUTR).
- 67.
The two Annexes contain, respectively, an illustration of how the interpretation of ‘placing on the market’ provided by the guidelines would apply in practice and examples of information on ‘composite products’ that operators are required to collect under the due diligence system.
- 68.
Consequently, in February 2016 (3 years after the EUTR’s entry into application on 3 March 2013) the Commission published, as mentioned, a revised version of the Guidance Document for the EU Timber Regulation: see Commission’s Guidance Document (2016).
- 69.
According to the definition provided for in this respect by chapter 4 of the Guidance, timber is considered to be ‘placed on the market’ if it is (simultaneously) supplied: (a) “on the internal market” (which means that “timber must be physically present in the EU, either harvested there or imported and cleared by customs for free circulation…”), (b) “for the first time” (given that timber products already placed on the EU market or derived from timber products already placed on such a market are not covered by the Regulation) and (c) “in the course of a commercial activity” (that is, “for the purpose of processing or for distribution to commercial or non-commercial consumers or for use in the business of the operator itself”). Consequently, according to the Guidance ‘placing on the market’ should be understood as occurring “when an operator first makes timber or timber products available on the EU market for distribution or for use in the course of his commercial activity”. Moreover, to enable clear, logical and consistent identification of the ‘operators’ involved in the ‘placing’ on the EU internal market, the same chapter of the Guidance first recognises that “it is necessary to define ‘operators’ according to how their timber is made available on such market” (which vary depending on whether the timber is harvested inside or outside the EU); then provides for three different definitions in this respect (1) for timber harvested within the EU, (2) for timber harvested outside the EU, and (3) for timber or timber products imported to the EU. Finally, it underlines that all ‘operators’ (whether EU or non-EU based) must comply with the prohibition on placing illegally harvested timber on the market and the obligation to exercise due diligence. Furthermore, in Annex I a series of examples outlining how the interpretation of ‘placing on the market’ works in practice is included.
- 70.
Chapter 6 defines it as a finding that “no cause for concern can be discerned” following a full risk assessment. Admittedly, in spite of the non-legally binding nature of the Commission’s guidelines, courts might well find this definition very useful when interpreting the EUTR in the course of a litigation. More in general, on the actual relevance of the Commission’s guidelines in recent case-law on EUTR see amplius below.
- 71.
See for details Annex I to the Guidance Document (2013).
- 72.
Chapter 4 specifies that such documents must be collected “for the purpose of the risk assessment and should not be viewed as a self-standing requirement”. It also provides that “the obligation to obtain documents (or other information) should be interpreted broadly”, as different regulatory regimes exist in different countries and not all of them require issuing specific documentation. Therefore, according to the Guidance such obligation “should be read as including: ì) official documents issued by competent authorities, ii) documents demonstrating contractual obligations, iii) documents showing company policies, iv) codes of conducts; v) certificates issued by third party verified schemes, etc. …”.
- 73.
In EUTR art. 6 complexity of supply chain is explicitly listed among the risk assessment criteria and it is therefore relevant to the risk assessment and risk mitigation part of the due diligence exercise. The Guidance Document in its chapter 3 stresses that the timber tracking back to its place of harvest may be more difficult if the supply chain is complex and that “failure to establish necessary information at any point in the supply chain can increase the possibility of illegally harvested timber entering the chain”. However, it also underlines that “it is not the length of the supply chain that makes it difficult to identify the information requires by art. 6.1 (a)-(b) EUTR” and that the complexity of the supply chain in fact “increases with the number of processors and middlemen between the place of harvest and the operator… or when more than one species or timber sources are used in the product”. The Guidance also includes a list of questions, which operators might use in order to assess the complexity of the supply chain.
- 74.
See for details Guidance Document (2013) at Chapter 6.
- 75.
See Guidance Document (2013) at chapter 8.
- 76.
Cf. the revised Guidance document (2016), at chapter 4.
- 77.
Cf. the revised Guidance document (2016), at chapter 10 b.
- 78.
Revised Guidance document (2016), chapter 11.
- 79.
Revised Guidance document (2016), chapter 12.
- 80.
See the revised Guidance document (2016), at chapter 4, p. 7 (italics added). Examples of such additional evidence provided for by the Guidance document include: third-party-verified schemes, independent or self-conducted audits or timber-tracking technologies (e.g., with genetic markers or with stable isotopes).
- 81.
Defined as a representative working in the name of, and for the account of, a principal to a contract.
- 82.
See the revised Guidance document (2016), at chapter 11, pp. 13–14 (italics added).
- 83.
The issue arises from the fact that some operators have been presented with certificates issued by non-EU sister companies of monitoring organisations and in some cases the operators (seem to) have been informed that these certificates relieve them from the obligation to exercise due diligence; but, the legislation does not explicitly address the treatment of such certificates.
- 84.
See the revised Guidance document (2016), at chapter 12, pp. 14–15 (italics added).
- 85.
Commission’s Guidance Document (2013), p. 1.
- 86.
Commission’s Guidance Document (2013), italics added. See also footnote 1 at p. 1 of the revised Guidance document (2016) (stating however that “Nothing in this guidance document either replaces or substitutes direct reference to the instruments described”, and reiterating also that “only the European Court of Justice can make final judgments on the Regulation’s interpretation”).
- 87.
Given, as mentioned, the very limited interest of timber-exporting countries in entering into these agreements in absence of an explicit prohibition to place ‘illegal timber’ on the EU internal market.
- 88.
Above all in certain highly ‘fragile States’ (that is, politically unstable and economically backward African countries—such as the Democratic Republic of Congo or the Central African Republic), where illegal timber harvesting and the related trade are often a significant financing instrument for armed groups (with or without the involvement of transnational organized crime networks and, possibly, of terrorist groups): see Lawson S (2014) Illegal Logging in the Democratic Republic of the Congo. Chatham House Energy, Environment and Resources Paper PP 2014/03, Global Witness (2017) The EU’s Responsibility to Act on Conflict Timber. Briefing, June 2017 (available at https://www.globalwitness.org/en/reports/eus-responsibility-act-conflict-timber-new-framework-action/ last accessed 3 September 2017), and Global Witness (2015) Blood Timber. Report, July 2015 (available at: www.globalwitness.org/en-gb/campaigns/forests/bloodtimber/ last accessed 3 September 2017).
- 89.
United Nations (2011), ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’ (developed by the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises and included in UNSRSG Final report to the Human Rights Council—A/HRC/17/31). The UN Human Rights Council endorsed the Guiding Principles in its resolution 17/4 of 16 June 2011.
- 90.
Regulation (EU) 821/2017 of the European Parliament and of the Council of 17 May 2017 laying down supply chain due diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and high-risk areas, OJ L 130/1 (2017). See for a comment Grado (2019); van der Velde S (2017) The End of Conflict Minerals on the EU Market? ASSER Policy Brief No 3 2017-01, Asser Institute, March 2017.
- 91.
Directive (EU) 1513/2015 of the European Parliament and of the Council of 9 September 2015 amending Directive (EC) 70/1998 relating to the quality of petrol and diesel fuels and amending Directive (EC) 28/2009 on the promotion of the use of energy from renewable sources, OJ L 239/1 (2015).
- 92.
Regulation (EU) 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information of food information to consumers, OJ L 304/18 (2011).
- 93.
A table with information (as at 22 February 2017) on the state of implementation of the Regulation by EU Member countries (showing whether and how they comply with their obligations) can be found at http://ec.europa.eu/environment/forests/pdf/EUTR_implementation_scoreboard_22_02_17.pdf last accessed 15 September 2017. The table does not include, however, an assessment whether the penalties applicable to infringements of the provisions of the Regulation laid down by the Member States are effective, proportionate and dissuasive.
- 94.
The implementation review was made on the basis of Member States’ biennial reports and inputs received through a public consultation and direct contacts with a broad range of stakeholders (including private sector and civil society). The results of the consultation are publicly available at the link http://ec.europe.eu/environment/forests/eutr_report.htm, where the individual Member States’ implementation reports are also available. The latter reports cover however only the period March 2013–March 2015 (while the progress recorded after March 2015 is not included).
- 95.
EU Commission, ‘EUTR Implementation Report’ of 18.2.2016, COM (2016) 74 final (equally available at http://ec.europe.eu/environment/forests/eu-report.htm). According to EUTR’s art. 20, the results of the evaluation will be used by the Commission to further improve the implementation and application of the Regulation.
- 96.
EUTR Implementation Report, at p. 4.
- 97.
EUTR Implementation Report, at p. 12.
- 98.
I.e. Sweden, the Netherlands, Germany, France and Great Britain.
- 99.
In cases brought before them by national timber-importing companies sanctioned by governmental competent authorities for violating EUTR’s provisions.
- 100.
As mentioned, according to EUTR and its implementing legislation and guidelines, the operators should have ensured that the timber they trade in was logged in compliance with the legislation of the country of harvest, should have provided extensive evidence of this (above all in countries of harvesting prone to corruption) and should have adopted risk mitigation measures.
- 101.
Mainly, from Myanmar, Cameroon, Brazil and the Democratic Republic of Congo.
- 102.
In October 2016 the London based NGO Environmental Investigation Agency (EIA), on the basis of the findings and substantiated concerns emerged from its investigations on Myanmar’s teak exports to the EU (see EIA (2016), Overdue Diligence. Teak export from Myanmar in breach of EU rules, October 2016, available at https://eia-international.org/wp-content/uploads/EIA-Overdue-Diligence-FINAL.pdf), submitted legal complaints in five EU Member countries (Belgium, Denmark, Germany, Italy and the Netherlands) on placements of Burmese teak from Myanmar into the EU. These complaints regarded alleged insufficient due diligence process carried out by nine operators under the EUTR. The EIA ascribed the lack of compliance to insufficient information provided to the operators by the Myanmar Timber Enterprise (MTE). Moreover, in January 2017 EIA raised further substantiated concerns regarding also import of teak from Myanmar by operators in Belgium and the UK. Consequently to EIA’s complaints, the relevant competent national authorities started investigating on the substantiated concerns raised by the EIA’s report on the placement of teak from Myanmar into the EU. For instance, in March 2017 the Danish authorities issued an injunction to all Danish operators importing from Myanmar; on 21 March 2017 the German authorities issued an injunction to 11 companies known to have imported timber from Myanmar in recent years, informing them on the necessity to provide more detailed information on the supply chain and proof. Furthermore, a search warrant was issued by the German Public Prosecutor’s office in Kiel (for two shipyards in Rendsburg and Kiel, in order to aid investigation into the use of teak from Myanmar) while in April 2017 the same Prosecutor’s Office found that the German shipyard Nobiskrug used illegally sourced teak in the construction of “Sailing Yatch A”. At the time of writing, national competent authorities (or, as we will see, even courts) in the Netherlands, Denmark, Sweden, Belgium, Germany and the UK have ruled that teak imports from Myanmar are unable to comply with EUTR. Cases submitted by EIA to national competent authorities are still pending in Italy and Spain. On 5 October 2017, the Italian competent authority (Ministry of Agricultural, Food and Forestry Policies, Ministero delle politiche agricole, alimentari e forestali MIPAAF) issued a guidance document specifically aimed at assisting operators and control authorities in the proper interpretation of EUTR’s provisions—and particularly those of its due diligence system—in relation to the import of timber from Myanmar (‘Guidelines for direct import of wood from Myanmar’).
- 103.
Förvaltningsrätten Jönköping (Administrative Court Jönköping), case n. 2985-16, Almträ Nordic AB v. Skogsstyrelsen) 5 October 2016.
- 104.
These folders are compiled by the company Myanmar Forest Products Merchants’ Federation (MFPMF) and include the permits issued by the State-owned company Myanmar Timber Enterprise (MTE, the sole official seller of timber and timber products from the country) and other official documents.
- 105.
Even if the areas where timber had been harvested were identified by the ‘Green Folder’, the latter according to the Forest Authority did not include the (required) documentation clearly tracking the timber supply chain (from MTE back to the forest of harvest).
- 106.
See e.g. EIA (2016).
- 107.
As mentioned, the Commission Document clearly explains (inter alia) that shortcomings in national governance significantly undermine the actual reliability of the documents proving compliance with applicable national legislation of the country of harvesting; and that it is therefore necessary “to take into account” the level of corruption existing in each specific country (see Guidance Document (2016), p. 7). These were precisely the circumstances existing in Myanmar.
- 108.
The prohibition decision adopted by the authority (the first in Sweden under the EUTR) only applies however to a specific teak Thai product (containing Burmese teak) imported by Retlog from a specific Thai supplier. In other words, the decision only prohibits the company from placing on the EU internal market the specific teak Thai product (also made by Burmese teak) from its specific Thai supplier.
- 109.
Skogsaktuellt, Biltemas logistikföretag förbjuds att sälja teak från Burma, 22 March 2017, (available at http://www.skogsaktuellt.se/artikel/53420/biltemas-logistikforetag-forbjuds-att-salja-teak-fran-burma.html).
- 110.
Such interpretation is indeed totally in line with EUTR (unequivocal) prohibition to place illegal timber on the EU internal market and the way the due diligence rules are formulated. Moreover, it has to be kept in mind that the revised Commission’s Guidance Document clearly explains that the higher the risk of corruption in a specific case, the more it is necessary to get additional evidence to mitigate the risk of illegal timber entering the EU market; and it also mentions third-party schemes as a means of obtaining such additional evidence (p. 7). According to the Forest Agency, Retlog neither adequately implemented EUTR’s provisions nor was able (by the visit of Bureau Veritas to MTE) to provide the required further evidence on the origin of the imported timber.
- 111.
Further prohibition decisions have been issued by the Swedish competent authority in May and July 2017. The first against imports from Taiwan of Burmese teak (decision not appealed) while the second against teak import directly from Myanmar. Moreover, two Swedish operators have recently voluntary stopped sourcing teak from Myanmar via Singapore and Vietnam. On these developments see Briefing Note for the Competent Authorities implementing the EU Timber Regulation, June–July 2017, p. 1.
- 112.
See Mizzima, Denmark sanctions entire Myanmar teak industry, 16 March 2017 (available at http://www.mizzima.com/business-domestic/denmark-sanctions-entire-myanmar-teak-industry).
- 113.
See Ministry of Natural Resources and Environmental Conservation (MONREC), Statement of progress in Timber Legality Assurance in Myanmar, 16 March 2017.
- 114.
Briefing Note for the Competent Authorities implementing the EU Timber Regulation, June–July 2017, p. 4.
- 115.
According to the NVWA the timber importer Fibois did not comply with the EUTR rules when introducing a shipment of Azobé timber from Cameroon on the Dutch market. It therefore adopted a sanction measure whereby the operator would forfeit € 1,800 for each cubic meter of wood and/or timber product placed on the EU market up to a maximum of € 90,000. Interestingly, the NVWA’s reasoning is (correctly) grounded on the fact that, given the high level of corruption in Cameroon, there is a high chance that the wood was not legally harvested and the company should have consequently exercised more caution.
- 116.
B.V. X v de staatssecretaris van Economische Zaken, Rechtbank Noord-Holland 24-05-2017, AWB—16 5358, ECLI:NL:RBNHO:2017:4474 (available at https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBNHO:2017:4474).
- 117.
Stichting Greenpeace Nederland v de staatssecretaris van Economische Zaken, Rechtbank Amsterdam 4-7-2017, AMS 15/5067, ECLI:NL:RBAMS:2017:4926 (available at https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBAMS:2017:4926).
- 118.
NVWA refused to sanction the companies notably on the ground that the rules were still rather new and it found therefore reasonable to provide operators with a further possibility to bring their business operations in line with the new legal regime. As a matter of fact, a guidance document on the enforcement policy under the Dutch nature protection legislation prescribed warnings to first offenders: see NVWA, Specific Intervention Policy Nature Protection Legislation (Specifiek interventiebeleid natuurwetgeving), IB02-SPEC08 natuur, version 2.1 of 16-07-2015.
- 119.
Under a further recent development, last 26 October 2017 the Dutch competent authority NVWA has found other timber-importing companies (Boogaert Hout and one other unidentified timber importer) to be in breach of the EUTR’s due diligence requirements, for placing Burmese teak on EU internal market. The importer has now a 2-months grace period to comply with the EUTR’s obligations otherwise it will be fined € 20,000 per cubic meter for any further non-compliant Burmese teak it places on EU markets (see https://englishnvwa.nl/news/2017/10/26/preventive-measure-issued-against-two-dutch-companies-for-breaching-the-rules-regarding-illegal-logging). The case of Boogaert Hout was submitted to Dutch authorities by the NGO Environmental Investigation Agency in October 2016. This NVWA decision follows similar outcomes by competent national authorities in Denmark, Sweden, Belgium, Germany and the United Kingdom, where (as mentioned) similar cases were submitted by EIA (in the light of the finding of its investigations being illustrated in its October 2016 report ‘Overdue diligence’). A further two cases submitted by EIA, concerning the companies World Wood and Gold Teak Holdings, are still being investigated by Dutch authorities (see: https://eia-international.org/major-dutch-timber-company-found-breach-european-timber-regulation, last accessed 2 November 2017).
- 120.
Briefing Note for the Competent Authorities implementing the EU Timber Regulation, April–May 2017, p. 1.
- 121.
German Federal Agency for Agriculture and Food (Bundesanstalt für Landwirtschaft und Ernährung, BLE).
- 122.
- 123.
This follows a previous case against illegal timber imports from the DRC, also brought by Greenpeace France, which was closed by the public prosecutor: see Client Earth, EUTR News, March–May 2017, p. 5.
- 124.
A previous breach of relevant EUTR provisions had earlier been identified by the British competent authority and it led to a notice of remedial action being served on Lombok on 28 April 2015. This was followed by a warning letter dated 7 October 2015 when the company failed to comply with notice. On October 2016, the authority’s officers visited Lombok’s central London showroom and found the required due diligence checks had not been made for an artisan sideboard for sale imported from India. See UK Government, Press Release: Company fined for failure to check product was made from legally-harvested timber, 1 November 2017 (available at http://www.gov.uk/government/news/company-fined-for-failure-to-check-product-was-made-from-illegally-harvested-timber, last accessed 2 November 2017).
- 125.
As the Dutch Greenpeace case shows, there was sometimes a sort of reluctance by national authorities to apply the relevant EUTR’s provisions even in cases when operators were found not being in compliance with the Regulation’s due diligence system.
- 126.
- 127.
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Pontecorvo, C.M. (2018). The EU Legal Framework on Trade in Timber and Timber Products: Recent Developments in the Implementation and Enforcement of the Timber Regulation. In: Bungenberg, M., Krajewski, M., Tams, C.J., Terhechte, J.P., Ziegler, A.R. (eds) European Yearbook of International Economic Law 2018. European Yearbook of International Economic Law, vol 9. Springer, Cham. https://doi.org/10.1007/8165_2018_8
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