Forests13 and a mechanism to tackle emissions from
deforestation and forest degradation adopted under the
UN Framework Convention on Climate Change.
Whatever the merits of these various strategies, the
fact is that throughout the period of their application
in the 1990s and 2000s, rapid deforestation per-
sisted.14 At the current rate of loss, tropical rainforests
could disappear within 100 years.15 In response to con-
tinued forest loss, interest grew around the turn of the
millennium in the possibility of indirectly addressing
deforestation by focusing on trade in illegal timber.16
Restricting imports to allow only timber that complies
with the relevant laws of the country in which it was
harvested should, in principle, eliminate illegal har-
vests driven by foreign demand and reduce the contri-
bution of illegal logging to deforestation. Of course,
deforestation could continue even if all logging were
done legally, but eradicating illegality from the sector
would at least enhance the ability of governments to
require sustainable practices.
The European Union (EU) has taken a leading role in
the effort to create a market for legal timber, enact-
ing the Forest Law Enforcement, Governance and
Trade (FLEGT) licensing scheme17 and the EU Timber
Regulation (EUTR),18 which respectively create volun-
tary and compulsory regimes for assuring the legality
of imported timber. Fundamentally, the EUTR bans
the import of illegal timber and requires importers
to conduct due diligence to ensure that the timber
products in which they trade have legal origins.19
FLEGT licensing provides timber-exporting countries a
means of sidestepping these burdensome due diligence
requirements,20 which could harm the competitiveness
of their timber.
The EUTR is a ‘potentially powerful tool to help the
EU exclude illegal timber from its markets, and so
contribute to its broader objectives of environmental
protection and sustainable development’.21 As the
EU accounts for about 40% of global forest product
imports,22 it has substantial potential to influence the
global timber trade through domestic legislation.
However, the Regulation’s value to the struggle against
illegal logging depends on its ability to withstand chal-
lenge in the World Trade Organization (WTO). The ban
on illegal timber potentially violates two treaties which
the WTO administers: the Agreement on Technical Bar-
riers to Trade (TBT) and the General Agreement on
Tariffs and Trade (GATT). WTO tribunals have never
confronted a regulation quite like the EUTR. Unlike
previously litigated regulations, the EUTR seeks to limit
trade on the basis of foreign definitions of legality
rather than imposing its own substantive requirements.
There is a plausible argument that such an approach
constitutes an impermissible restriction on trade,
which, if borne out, could put the EU’s illegal logging
efforts at risk.
This article analyzes the consistency of the EUTR with
WTO law, arguing that there is a case to be made that
the Regulation violates the GATT. First, it briefly
outlines the development of policy and regulatory
responses to the problem of illegal logging, culminating
in the promulgation of the EUTR. Next, it analyzes the
EUTR with a view to highlighting provisions that poten-
tially conflict with international trade law. The follow-
ing section analyzes relevant elements of this body of
law, arguing that the EUTR is not subject to the TBT,
but that although it probably does not violate the GATT,
it raises novel legal questions that could plausibly result
in a finding to the opposite effect. The concluding
section summarizes the article’s main findings.
DEVELOPMENT OF THE EU’S
ILLEGAL LOGGING REGULATORY
International attention first turned to the problem of
illegal logging in the late 1990s,23 but early initiatives
involved limited binding commitments. The Group of 8
(G8) released an Action Programme on Forests in 1998,
which did little more than oblige G8 members to
13 Non-legally Binding Instrument on All Types of Forests (UNGA
Resolution A/RES/62/98, 17 December 2007).
14 Global net deforestation between 1990 and 2000 is estimated at
8.3 million ha per year, or an annual loss of 0.2% of the remaining
forest area. The rate of loss between 2000 and 2010 declined to 5.2
million ha per year, but this still represented an annual net loss of ‘an
area slightly bigger than the size of Costa Rica’. Food and Agriculture
Organization (FAO) of the United Nations, Global Forest Resources
Assessment 2010 (FAO, 2010), at 15–17.
15 See National Geographic, n. 1 above.
16 See D. Brown et al., n. 6 above, at 5–6.
ment of a FLEGT Licensing Scheme for Imports of Timber into the
European Community,  OJ L347/1, Article 4.1.
Obligations of Operators Who Place Timber and Timber Products on
the Market,  OJ L295/23.
19 Ibid., Articles 4.1 and 6.1.
20 Ibid., Article 3.
21 J. Buckrell and A. Hoare, Controlling Illegal Logging: Implementa-
tion of the EU Timber Regulation (Chatham House, 2011), found at:
22 In 2008, 2009 and 2010, respectively, the EU accounted for 45%,
43% and 41% of global forest product imports. FAO, ‘Forestry Trade
Flows’, FAOSTAT database, found at: http://faostat.fao.org/site/628/
default.aspx>. However, only 20% of timber imports come from tropi-
cal countries, and this proportion is declining rapidly because of the
economic downturn in Europe and increasing barriers to trade in
tropical timber products. See UN Economic Commission for Europe
and FAO, Forest Products Annual Market Review, 2012–2013 (UN,
23 See D. Brown et al., n. 6 above, at 6.
RECIEL 23 (2) 2014 EUROPEAN UNION TIMBER REGULATION: IS IT LEGAL?
© 2014 John Wiley & Sons Ltd