FLEGT — additional legal options NL Chatham House

FLEGT - additional legal options (NL) Chatham House Workshop, Brussels, 31 January 2006

ALOS study by NL Government Council Conclusions on FLEGT Action Plan of 13 October 2003 (Par. 14) • ‘[The Council] urges Member States to provide the Commission with relevant information regarding national legislation which could be applied to address the illegal logging issue. ’ FLEGT - additional legal options (NL) 2

Possibilities for instituting criminal proceedings in The Netherlands • Timber being merely illegal according to the laws of country of origin is not by itself sufficient to institute criminal proceedings. “Illegal act” under Dutch law required • Apart from Flora and Fauna Act and the Economic Offences Act (CITES, 338/97), limited possibilities for the bringing of criminal proceedings, e. g. : theft, handling of illegally obtained goods, bribery and money laundering. • Article 5, Penal Code: crime committed abroad that is recognised as a crime not just in country in question but also in The Netherlands • Illegal felling within the meaning of the Forestry Act FLEGT - additional legal options (NL) 3

Practical difficulties in applying Dutch criminal law against ‘illegal’ timber • Evidence: virtually impossible to uniquely identify and retrace timber to place of origin • Problems related to mutual legal assistance • Double jeopardy principle (Ne bis in idem) • Lack of priority among enforcement agencies (capacity, expertise) • Important to have proper administrative enforcement arrangements in place. FLEGT - additional legal options (NL) 4

Flanking measures in The Netherlands • • • Bilateral partnership agreements with producers and countries (FLEGT licenses) Support for business initiatives through which the timber industry sets out to clean up its trade chains at business-to-business level (self-regulation) Placing of vulnerable tree varieties on the CITES lists thus bringing them within the scope of EC Regulation 338/97 and the Flora and Fauna Act. A public procurement policy that ensures that at least the Government, as a large consumer of wood, buy legal wood. Measures against timber from war zones FLEGT - additional legal options (NL) 5

EU import ban? • Caution: criminal law is not the panacea! • Unilateral action by MS ineffective • However, some doubts as to WTO compatibility of EU wide import ban • Enforceability: vital to have proper tracking and tracing, verification and monitoring mechanism throughout supply chain • NGO initiative interesting • Draw on US Lacey Act experiences FLEGT - additional legal options (NL) 6

Way forward …. • EU measures have added value! • Encourage MS to explore legal possibilities against illegal timber under national legislation and improve international co-operation • Expand scope CITES • Develop FLEGT mechanism and initiate flanking measures • Examine if EU wide import ban is WTO proof and what is needed to make it practically viable FLEGT - additional legal options (NL) 7