The EUTR’s due diligence obligation: why is it an appropriate tool?
Under the EUTR, all operators must exercise due diligence. But, in practice, the measures actually required for due diligence can vary slightly from case to case. To strike the balance between the need for both flexibility and certainty, the EUTR sets up a mandatory legal framework with a fixed set of parameters for assessing and dealing with risks of illegality, while leaving it to the operator to determine which concrete measures are required in the particular context of each case. By combining a fixed set of elements with a flexible approach, the EUTR has put in place a tool that enables operators to deal with risks of illegality in a context of imperfect information.
How should official documentation be used under the EUTR?
Documents from official sources are one type of information that operators are very likely to use to carry out due diligence (i.e. to assess the risk of illegal timber being present in their supply chains). These are documents issued by governments in countries of harvest, or documents that have been government-accredited. Having access to official documentation is not, on its own, enough to comply with the EU Timber Regulation. This is true for operators and also for competent authorities, who are responsible for the application of the EUTR at the national level. Operators and competent authorities must always consider the credibility and relevance of official documents.
Does certified timber comply with the EUTR?
The EUTR recognises that certification schemes may be used by operators as a tool when assessing and mitigating the risk that timber has been logged illegally. Using certified timber does not remove the obligation on operators to conduct due diligence. Operators must assess whether a certification scheme is sufficiently credible, as well as the extent to which it responds to the requirements of the EUTR. Certified timber cannot be used on its own to evidence compliance with the Timber Regulation. This needs to be clearly understood and applied by both operators and competent authorities.
For more information, please see ClientEarth’s briefing on certification and the EUTR.
How are Voluntary Partnership Agreements (VPAs) dealt with in the EUTR?
Under the Timber Regulation, timber with a valid VPA license or CITES permit is automatically recognised as legal. VPA and CITES are the only licenses that are recognised in this way by the EUTR. For countries negotiating/implementing VPAs where no VPA-licenses are yet issued, timber and timber products may still be exported to the EU but operators have to comply with the requirements of the EU Timber Regulation.
What are the effects of the EUTR on non-EU industry?
The main effect on industry in non-EU timber producing countries is likely to derive from the operators’ need to obtain access to credible information on timber or timber products. EU operators are likely to ask their suppliers for various documents or other information that they cannot easily obtain by themselves. In order to facilitate trade relations with EU operators, non-EU timber industry may wish to proactively compile this information and be ready to share it with buyers.
For more information, please see ClientEarth’s briefing on the EUTR and non-EU industry.
How does the EUTR compare with other illegal logging legislation internationally?
The EU, USA and Australia have all developed laws to restrict the access of illegally harvested timber to their markets. While the mechanisms of these laws differ, there are some important similarities. In each law, timber is considered illegal if relevant laws in the country of harvest have been breached. Each law encourages the regulated party to take active steps to consider the origin of the timber or timber product and assess the risk that the timber has been logged illegally. The EU and Australian laws contain a ‘due diligence’ obligation and the Lacey Act considers whether ‘due care’ was taken while applying penalties.
The USA was the first to pass an illegal logging law in 2008, by amending the Lacey Act. The Lacey Act Amendments added plants and plant products such as timber and paper to the law. In the EU, the EUTR came into effect on 3 March 2013 and in Australia, the Illegal Logging Prohibition Act took full effect in November 2014.
For more information, please see ClientEarth’s briefing on illegal logging laws internationally including practical considerations on compliance and a detailed comparison of the three different laws.