First court cases show: EU Timber Regulation starts to work

Published 16 August 2017

The EU Timber Regulation (EUTR) is starting to function. The first court decisions regarding measures imposed on companies to comply with the regulation have now appeared. Wybe Douma, senior researcher at the T.M.C. Asser Instituut, says in a blog on Doing Business Right that the regulation is starting to take effect. “These court cases could help companies, authorities and the judiciary in other countries better understand the manner in which the EUTR can be applied and enforced in practice.”

Prevent illegal timber on EU internal market
The EUTR prohibits the placing on the EU internal market of illegally harvested timber and timber products. It obliges EU traders to prove that the timber was harvested in line with the legislation of the producing country, and employ a due diligence system demonstrating this in detail. The EU member states need to ensure that traders meet these requirements and if not, impose effective and dissuasive sanctions. At first, uneven implementation and patchy enforcement stood in the way of establishing a level playing field.

First court cases
Judges in Sweden and The Netherlands have recently held that the due diligence requirements of the EUTR had not been met by two importing companies. The companies should have ensured that the timber from Myanmar and Cameroon was logged in compliance with the local legislation. They should have provided extensive evidence of this, especially where the countries in question are prone to corruption, and should have adopted risk mitigation measures. Moreover, another Dutch court recently ordered the Dutch competent authorities to explain why they did not enforce the EUTR in cases where due diligence requirements concerning timber imported from Brazil were not met. In other EU member states, similar court decisions were adopted.

Effect in practice
“The court decisions show that the EUTR system is starting to take effect in practice,” Douma says. He points out that merely issuing a warning to ‘first offenders’ that fail to abide by the EUTR rules is not an option according to the Dutch court decision. “The argument that companies needed time to adjust to the new rules was rejected, since the EUTR allowed market participants a considerable amount of time to prepare for meeting its requirements. When companies violate the law, in principle the law ought to be enforced. In view of the lack of special circumstances, an earlier decision not to prosecute companies violating the EUTR was deemed insufficiently motivated and therefore quashed.”

EU Trade policy and the protection of public values
Deforestation because of illegal logging is responsible for 20–30 % of worldwide greenhouse gas emissions, stimulates corruption and land grabbing, leads to rising food prices, fuels armed conflicts and undermines sustainable development, good governance and the rule of law. This is why the EU has initiated the EUTR. Similar to the EU measures regarding biofuels, fisheries and conflict minerals, these measures ultimately aim at pursuing public values, such as the protection of human rights, in jurisdictions outside the EU by means of trade relations.

Read the full blog on http://www.asser.nl/DoingBusinessRight/Blog/post/towards-a-due-diligence-jurisprudence-the-eu-timber-regulation-s-requirements-in-courts-by-wybe-th-douma.

Doing Business Right 
The T.M.C. Asser Instituut carries out research on developments in international and European law and its potential for serving the cultivation of trust and respect in the global, regional, national and local societies in which the law operates. The project ‘Doing Business Right’ is part of the broader research strand ‘Advancing Public Interests in International and European Law’. 

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