COMBATTING WASTE CRIME

The criminals responsible for illegal logging and illicit timber trafficking are not just destroying biodiversity but also threaten the livelihoods of those reliant on forest resources. For example, criminal land clearing can cause landslides and deny forest-dependent communities’ access to food, medicine and fuel.

From a law enforcement perspective, forestry crime involves criminal activity in the forestry sector, covering the entire supply chain, from harvest and transportation to processing and selling. It also refers to criminal offences that facilitate such activity, including document fraud, corruption, and money laundering.

Modus operandi in illegal logging is varied. For example, the UNODC describes modus operandi on corporate illegal logging in Indonesia as follows: a) opening the road without permission, b) logging outside the block, c) felling below the limit of allowable diameter, d) “cuci mangkok” – relogging, e) cutting down trees on the riverside (an area with steep slope), f) cutting not in accordance with RKT (annual workplan), g) land clearing for plantation. Similarly, modus operandi of forest corruption mafia is described as including abuse of authority in issuing permits based on bribery and gratification to the national/local official; the companies facilitate law enforcement agencies; manipulation of the EIA data as eligible for opening of palm and timber plantations; illegal timber laundering using legal company to get official document; using local communities to open the forest for oil palm plantation; legalisation of illegal timber during auction process etc.

In 2015, the European Commission undertook a review of the EUTR, in compliance with a legal obligation laid down in Article 20(3) of the Regulation. The purpose of the review was to assess the functioning and effectiveness of the EUTR, including in preventing illegally harvested timber or timber products derived from such timber being placed on the market. More than 240 stakeholders, NGOs and the private sector contributed to a public consultation as part of the review process. The Commission published the review in 2016, which concluded that "the EU is on track to achieve its objectives to combat illegal logging and associated trade in illegal timber, but challenges remain". According to the Commission: "Some positive trends are visible, namely that EU operators are gradually taking steps to ensure the legality of their suppliers and that there is more awareness of the problem of illegal logging amongst EU consumers. The Regulation has also encouraged producer countries to develop systems assessing compliance with the requirements of the legislation. However, more effort is needed from both the Member States and the private sector to ensure its effective and efficient application".

As already mentioned, the EUDR requires that operators (or traders which are not small and medium-sized enterprises) trace every relevant commodity back to its plot of land before making it available or placing it on the market, or before exporting it. Consequently, the submission of the due diligence statement which includes geolocation information is a requirement for the shipment for imports (customs procedure ‘release for free circulation’) and exports (customs procedure ‘export’) and the consignment for transactions within the Union market.

There seem to be several practical implementation issues. For example:

• Obtaining geolocation/polygon to plot data of millions of smallholders who supply mills indirectly through collectors/aggregators: it is a common problem that middlemen do not want to or cannot share information about smallholders they buy from for fear of being bypassed or being prosecuted under national data protection rules. Without their collaboration, smallholders supplying through them will be excluded from EU supply chains as a consequence, which could lead to supply chain disruptions.
• Obtaining and maintaining reliable and updated traceability data matching land ownership titles: in the absence of properly regulated land tenure and inadequate national farm registers, sourcing from farmers whose ownership rights, ownership changes, and land lease contract changes are not officially registered would be a risk to operators. Operators cannot comply with the EU’s requirements, which include complying with land use rights under national legislation in producing countries, if such official information is not available or in order.
• Resolving data sharing impediments in producing countries: some producing countries consider land ownership data sensitive and prohibit their sharing.

The implementation issues are by no means limited to countries with perceived deforestation issues. For example, according to FEFAC estimates, in 2021 approximately 91% of all EU27 + soy imports originated from low deforestation risk areas.

There also seem to be several practical questions which may arise. For example:

• Products traded in bulk: For products traded in bulk, such as soy or palm oil, this means that the operator (or traders that are not small and medium-sized enterprises ) needs to ensure that all plots of land involved in a shipment are identified and that the commodities are not mixed at any step of the process with commodities of unknown origin or from areas deforested or degraded after the cut-off date of 31 December 2020. For relevant composite products, such as e.g. furniture with a wood component, (the operator needs to geolocate all the plots of land where relevant commodities (wood for example) used for the manufacturing process has been produced. The relevant commodities components cannot be of unknown origin or/and from areas deforested or degraded after the cut-off date.
• Non-compliance of only a part of a shipment: If a part of a shipment is non-compliant, the non-compliant part needs to be identified and separated from the rest before the shipment is placed on the market or exported and that part may not be placed on the market or exported. If identification and separation cannot be done for instance because the non-compliant products have been mixed with the rest, then the whole shipment is non-compliant as it cannot be guaranteed that the conditions of Article 3 of the EUD are met and it may not be placed on the market or exported. For instance, when a shipment of bulk commodities that have all been mixed is linked to several hundred plots of land, the fact that one of the plots of land has been deforested after 2020 could make the whole shipment non-compliant.
• Is it sufficient to have producers map their own land? Yes. The EUDR does not apply to producers (i.e. smallholders) which do not place products on the Union market themselves (and thus do not fall under the definition of operators and traders). In the case of commodities produced outside the EU, the main subject of obligations would be the operator placing the products on the EU market. In such a case, the operator will have to guarantee that the area effectively mapped and geolocated corresponds to the plot of land where the relevant commodities were produced.