3. How civil society can help
Evidence supplied by NGOs was a critical factor in persuading lawmakers to amend the Lacey Act and pass the EUTR. It will also be critical in ensuring they are a success. Information supplied by third parties is important for assisting in enforcement; all of the most significant cases pursued to-date under both Lacey and the EUTR stemmed from information supplied by NGOs. It will be equally important in improving implementation of and compliance with these laws in other ways, in ensuring the laws themselves remain in place and are incrementally improved.
The EUTR formally recognises the importance of information provided by members of the public. An article of the law specifically notes that authorities may conduct checks of domestic harvesters, timber importers or monitoring organisations on the basis of “substantiated concerns” provided by third parties concerning compliance. The preamble states that they should “endeavour” to carry out checks in such circumstances.
The EUTR authorities in most EU countries claim to use information provided by third parties to help determine what checks to carry out. An official review of the EUTR in February 2016 found that substantiated concerns were widely used in the first two years of application of EUTR and had proven to be “an efficient tool for identifying products or operators to be prioritised in carrying out risk-based checks”.
Information provided by civil society can have broad impacts on industry behaviour, even where that information is not appropriate for individual prosecutions. If organisations and individuals are able to demonstrate the high-risk of illegality in any supply chain, it can have a chilling effect on the market. It can discourage buyers from running the risk of violating the law and can inform their due diligence. Though the Lacey Act does not impose legal sanctions on companies failing to carry out due diligence, as the EUTR does, companies are liable for heavier penalties if they should reasonably have known that a source of timber was illegal. Civil society investigators can ensure that they do.
In this way, bringing a consistent stream of robust evidence into the public domain on illegal logging and related trade will increase the probability that violators will get caught if they buy illegal timber, and will increase the punishment when they do.
Types of useful information
A broad spectrum of evidence can be useful in helping to implement and enforce the EUTR and Lacey Act. Ideally, evidence supplied to enforcement officials will be sufficient on its own to warrant action being taken. The whole supply chain will be well-documented, and incontrovertible evidence of illegalities clearly falling within the scope of EUTR or Lacey obtained. In reality, this is rarely possible. In most cases, evidence collected by independent third parties will be incomplete; some of the evidence may even relate to products or to areas of producer-country law which fall outside the scope of EUTR or Lacey. However, this does not mean such information cannot be used with impact.
Enforcement authorities can build on partial or incomplete evidence, using their powers to carry out checks and access government information. For example, strong evidence about illegality in timber from a particular overseas supplier can prompt officials to check customs databases to establish whether any companies are importing from that supplier.
Even where it can only be shown that a product is of likely but not certain illegal origin, this may be sufficient to change company behaviour, or demonstrate failure of due care if additional evidence later emerges. Evidence which relates to products or areas of source country law not captured by current legislation may help inform future amendments to that legislation. The European Commission, for example, is already considering possible expansion of the product categories covered by the EUTR.
The range of ways in which information can support implementation of the law, expand the law, and influence behaviour and policies are summarised below. The possible applications available to organisations, or individuals, will rely heavily on the form of information they are able to gather. For example, they may be able to gather detailed intelligence on one company, that can lead to an enforcement action. Alternatively, they may not have detailed information on one company, but a much broader body of evidence on rates of illegality from an entire country. This may not lead to enforcement against a specific company, but can be used to dissuade companies from sourcing from that country. They may develop a robust body of evidence on illegality in a particular product that currently falls outside the scope of the EUTR, that could support efforts to expand the EUTR to include it.
The following chapter details the ways relevant information and evidence can be sought by people across the world. The final chapter goes into more detail on the different ways in which information can help, and explores the best ways to package it up, in order to maximise its impact.
Ways in which evidence from third parties can help implement Lacey and EUTR
- Lead directly to enforcement action. Ideally, evidence supplied to enforcement officials will be sufficient on its own to warrant action being taken, though this is rare.
- Provide a starting point. Even if it is incomplete, good, well-documented evidence provided by NGOs to enforcement authorities can provide a starting point on which they are able to build a case.
- Influence enforcement priorities. In addition to providing a starting point on which to build, good but incomplete evidence provided by NGOs can help influence decisions by enforcement officials on where to focus resources, including choosing which shipments, companies or product supply chains to check.
- Demonstrate foreknowledge. Under both the EUTR and Lacey, whether a case is pursued by the authorities (and the level of penalties which are applied) depend in part on how much a company knew, or should reasonably have known, that the wood was illegal or at high risk of illegality. NGOs can help make later prosecutions more likely, and any relevant penalties higher, by contacting companies found to be importing or handling specific high-risk products and warning them of the risk involved.
- Influence private sector behaviour. Even where evidence obtained by NGOs does not result in enforcement action, it can nevertheless result in voluntary changes in purchasing practices by companies. NGOs can send information directly to identified buyers, and where necessary can also bring pressure to bear by publicising their findings.
- Influence government policy. Where evidence obtained by NGOs is not used in enforcement because it relates to out-of-scope products or predicate offences, or because the government or authority concerned has failed in its duty to properly implement and enforce, then exposure of the case can help encourage better implementation or even help