At their December meeting, the EU Expert Group on EUTR and FLEGT, comprising representatives of the EC and government authorities from across the EU, reiterated their view that it is not possible to demonstrate a negligible risk that any timber from Myanmar is legally harvested in line with EUTR definitions.
According to the Expert Group this is due to “lack of sufficient access to the applicable legislation and documentation from governmental sources”.
This opinion of the Expert Group, which reiterates previous conclusions made at earlier meetings in June and September, implies that any operator placing Myanmar timber on the EU market will be liable to prosecution for failure to undertake adequate due diligence under the terms of the EUTR.
Authorities in several EU member states have sanctioned operators trading in Myanmar teak. In the three years since 2017, a variety of legal cases have been brought against importers of teak in Belgium, Denmark, Germany, Netherlands, Sweden, and the UK, involving confiscation of the timber or requiring it’s return to Myanmar, and additional sanctions such as fines.
The report of the Expert Group’s December meeting indicated that additional cases are now being brought in the Czech Republic and Austria. The Expert Group observed that these enforcement activities are leading to changes in the direction of trade around the EU.
ITTO’s own analysis of trade flow data confirms that there have been significant changes in the direction of trade, but no sign of decline in overall imports from Myanmar. EU imports of wood products from Myanmar were valued in excess of US$50 million in the 12 months to September 2019, double that of 5 years before.
During this period imports into Italy increased four-fold to over US$30 million.
During the same period direct imports from Myanmar into Germany, Netherlands, Belgium and Denmark fell to negligible levels. However, in addition to Italy, there was a significant increase in imports (from a very small base), into Greece, Croatia and Sweden. Imports into France remained low but consistent at around US$2 million per year.
The continuing reluctance of EU officials to accept that negligible risk of illegal harvest can be demonstrated in Myanmar comes despite additional information and wideranging discussion of EU due diligence requirements at a national FLEGT multi-stakeholder dialogue held in Nay Pyi Thaw, Myanmar, in November.
According to a report on the dialogue in the minutes of the EU Expert Group meeting in December, “this multistakeholder group (MSG) was set up in the course of the pre-preparatory process towards a VPA in Myanmar”, although “already last year it was made clear that the [VPA] process was halted”.
The MSG, which operates at national level with associated regional groups, includes representatives of government (including State-owned Myanmar Timber Enterprise, MTE), private sector and civil society organisations (CSOs). The dialogue meeting in November involved about 150 people.
The dialogue was funded and facilitated by the EU FLEGT facility and the FAO-EU FLEGT Programme.
The EU Expert Group minutes go on to note that “although the VPA process is stopped, having the MSG as an interlocutor is very helpful in the strife for improved forest governance and law enforcement in Myanmar”.
The EU Expert Group minutes state that “Myanmar applied for funding from the FAO-EU FLEGT Programme for further multi-stakeholder meetings to prepare a work programme for activities that could be funded by the Programme from 2020-2021 and build capacity to submit quality project proposals”.
“The intention is to ensure ownership of the process [in Myanmar] of all stakeholders and at the same time avoid the pursuit of (often costly) activities promoted by some stakeholders predominantly interested in trade, which, in the end, do not constitute adequate measures to ensure good forest governance and legal timber harvest”, according to the EU Expert Group minutes.
The EU Expert Group meeting minutes conclude that “dialogue with Myanmar has clarified what issues must be addressed in order to outline a way forward towards good forest governance and legal timber harvest, which would provide sufficient transparency to enable operators to carry our due diligence correctly and adequately mitigate to a negligible level the risk of illegal harvested timber being placed on the internal market. It also showed avenues for working together with IMM in this context, without giving false expectations”.
The EU Expert Group also “took note of the fact that the Annual Allowable Cut (AAC) for the 2019/2020 season was made available online in November”.
However, the EU Expert Group also note that “other applicable legislation is not fully accessible for EU operators within the meaning of Article 6 (1)(a) of the EUTR, enabling operators to fully comply with Article 5 of Implementing Regulation (EU) No 607/2012, e.g. because it is declared internal or it only exists in Burmese.
Full risk assessment and choosing and applying adequate mitigation measures to address each of these risks is therefore not possible”.