Commentary: EU must be ready to publicly name and shame bad actors if law on deforestation-free products is to be effective
30 March 2022
The European Commission’s proposal for a regulation on deforestation-free products integrates and seeks to improve upon the framework set up by the EU Timber Regulation (EUTR). Effective implementation of the EUTR has been severely hindered by a number of enforcement challenges, as highlighted on the Commission’s Fitness Check on the Regulation. As a result, non-compliant wood worth millions of dollars has continued to flood into the EU market, as Earthsight has documented over the past years (for example, here).
A crucial factor in the failure of EUTR to stop non-compliant timber from entering the EU market is the failure of Member States’ Competent Authorities (CAs) to meaningfully implement and enforce the law in practice. Routinely, importers’ inadequate due diligence procedures are approved. Overall, implementation has been piecemeal. Crucially, penalties – when they are issued – have been far from dissuasive or proportionate to the damage caused.
If the new regulation to curb EU-driven deforestation and forest degradation is to avoid the same fate, it ought to learn from the lessons of the EUTR.
The Commission ought to be congratulated for its efforts to address the EUTR’s enforcement flaws when drafting the new proposal. However, a provision included in an earlier draft requiring it to publish a list of business that fail to fulfil their obligations under the regulation was dropped from the final proposal.
It is now essential that this provision is included in the final regulation...
A public list of non-compliant companies serves as an essential enforcement tool for a number of reasons, including:
- It is not dependent on CAs’ willingness to issue meaningful penalties
- It is a deterrent to companies as it essentially serves a ‘naming and shaming’ function
- It increases transparency, which has been a weaknesses in the enforcement of the EUTR
- It can help civil society monitor compliance and analyse the effectiveness of the regulation over time, ultimately leading to greater compliance
- It can offer affected communities in producer countries evidence and backing to support demands for their rights
- It can support sustainable consumer choices by serving as an additional resource to consumer watch groups and protection authorities
While the list would still be dependent on Competent Authorities identifying cases of non-compliance, a name-and-shame requirement for such cases would be independent of the severity of the penalty imposed. This is a key point due to CAs’ usual reluctance to pursue consequential punishment for bad actors.
It is for this reason that, in order to be more effective, a public list must also include companies that receive formal warnings from Competent Authorities, not only final penalties or sanctions that have passed through all appealing stages or been issued by a court.
If the new regulation is to avoid the same fate of the EUTR, the European Parliament and Council must insist on the inclusion of a mandatory public list of contravening businesses. Lessons on past failures need to be addressed from day one and not left to be reviewed several years down the line. The urgent climate and biodiversity demand nothing less.