BLOG | Criminalisation, Crisis Narratives and The Commission: The fight against deforestation in Europe

In recent months, the European Commission has taken radical action to tackle deforestation in the Carpathian region. But this legislation goes beyond simply addressing non-compliance: the measures also trigger serious changes in national legislation and advance the criminalisation of environmental offences, argues George Iordăchescu.

This blog was written by George Iordăchescu, a BIOSEC Post-Doctoral Research Fellow who investigates the emergence of illegal logging and timber trade as a public security threat.

The European Union makes considerable efforts to stop imported deforestation in the supply chains placing products on the common market. Last year the Commission stepped up its Action Plan to Protect and Restore the World’s Forests, and more recently the Parliament welcomed the ambitious goals of the Green Deal to encourage imports that do not generate deforestation abroad. Various ongoing legislative initiatives admit that the EU is a driver of global deforestation and aim to reverse this trend swiftly. These efforts promote two types of solution; either the development of due diligence systems, or the creation of certification and labelling standards. The latter are usually contested by various NGOs for shifting the responsibility onto consumers. Nonetheless, a thorough read of these initiatives leaves the impression that deforestation is always a phenomenon that is happening somewhere else, ‘abroad’, ‘in the source countries’, when in fact deforestation and illegal logging posits Eastern governments as villains in a ceaseless fight for forest protection. Poland, the Slovak Republic and Romania are among the member states which are often exposed as being unable to end deforestation and take tangible steps to halt illegal logging.

So how does the EU respond to these challenges? If we consider the EU’s response as pressure from the demand side, how effective is this pressure in changing the realities on the ground? I will try to answer these questions by referring to a current open infringement procedure initiated by the European Commission against the Romanian government. In a recent administrative action the Commission concluded that the Romanian state shows systemic deficiencies in complying with EU environmental law regarding the management and protection of forests.

Over recent years, Romania has frequently made headlines as a country where illegal logging seems an out of control violent business. Despite attracting unprecedented political attention, authoritative reports show that timber is still being illegally cut and introduced to the common market, harming valuable old-growth forests and other unique biodiversity hotspots. A UNEP – WWF publication lists illegal logging as the biggest threat to biodiversity and the local economy in the Danube-Carpathian region, on par with the illegal caviar trade, mass-killing of songbirds and poaching of big carnivores.

For many years, prominent environmental NGOs and journalists have considered the Romanian illegal logging and timber trade to be a serious organised crime demanding stricter legislation and enforcement. Nevertheless, at the national level, few cases of forest offences have been prosecuted as serious crimes.

At the EU level, concerted efforts to regulate this worrying timber trade are relatively fresh. In the early 2000s, the common market raised its standards of legality for timber imports (FLEGT in 2005). Still, a legal framework aiming to reduce the amount of illegally sourced timber within the Union emerged only in 2010 and came to force in 2013. Around the same time, the breadth of illicit businesses in the Carpathian forests was making headlines in the international press. The European Union Timber Regulation (EUTR) is a legal act adopted by the European Parliament and the Council with the expressed intent to prohibit the placing on the market of illicit timber or timber products. It imposes high standards of due diligence and risk mitigation onto the operators doing business in the forestry sector. In recent years, the implementation of EUTR worked towards aligning the national legislation regulating the commercial exploitation of Romanian forests to the rules of the common market. The infringement of this regulation was one of the main accusations of the European Commission in a Letter of formal notice sent to the Romanian government earlier this year. An infringement procedure is the only legal action through which the European Commission can enforce any binding provision of EU law against a non-compliant member state (Art. 258 TFEU).

The accusations in the Letter of formal notice sent to Bucharest on 12 February 2020 referred not only to the infringement of EUTR but also to the violation of the Habitats Directive 92/43/CEE, the Directive regarding public access to environmental information 2003/4/CE and the Directive on the environmental assessment 2001/42/EC. The Commission considered multiple investigations that had circulated in the international press exposing the breath of illegal logging in the Carpathians, but also to the declarations made by a freshly appointed Minister of Environment who uncritically promoted spectacular deforestation figures that created serious anxiety within an already crumbling timber industry. The Letter takes forward this uncritical stance and presents contestable figures as facts; one example is the approx.20 million cubic meters of wood entering the market illegally every year. Subsequently, a collective of forestry scientists contested the figure and expressed concerns with other facts the Commission seemed to have taken for granted from various reports and media coverage.

The radical action taken by the Commission came after a long set of events organised by different Brussels institutions around a complaint filed by several environmental NGOs. Client Earth, EuroNatur and Agent Green tried to hold the Romanian state accountable for what they referred to as an ‘ongoing nature conservation drama (which) is one of the most pressing environmental crises in Europe’. Whilst present at some of these events happening between September 2019 and February 2020, I witnessed how images of deforested landscapes were turned into political arguments accompanied by the spectacular figures recycled from widespread national debates.

Back in Bucharest in mid-February 2020, the political reactions to the Commission’s formal notice were prompt and social media was taken by storm. The Minister of Environment promised tighter controls of the industry, reaffirmed his commitment to develop new timber tracking technologies and to increase the capacities of those institutions responsible for the law enforcement. The export of round wood outside the common market was proposed, voted in the Parliament and signed into law, and various other amendments to the national forestry legislation were introduced in the public consultations. The occasion was also speculated by those in favour of strict conservation, which reaffirmed their demands to put large tracts of old-growth forests under exclusive protection, irrespective of the social and economic outcomes of such measures. Another exciting development triggered by the Commission’s Letter of formal notice was the emerging debate about the establishment of a new anti-corruption agency to prosecute forest crimes. At the time of writing this blog piece, the draft has just been voted positively in the Parliament’s lower chamber.

Thus, the role of environmental NGOs in bringing cases of EU law infringement to the Commission’s attention should not be underrated. Back in the 2017 Client Earth, together with six other environmental organisations, led probably one of the most famous fights against the government of a member state when the Polish PiS cabinet tripled the logging quotas in the iconic Białowieża Forest. Beyond being simply a case of infringement of EU regulations, the controversy contributed to an ongoing constitutional crisis that deepened the authoritarian populist trend on which the country had set course. The European Court of Justice ruled that the logging was illegal, and forced the Polish government to pay severe fines.

While still open, the Romanian case shows that the Commission is committed to putting an end to deforestation as the continent’s forests and intact forest landscapes have become essential elements of the green growth, biodiversity and climate change mitigation strategies. Yet, an infringement procedure is never only about fixing non-compliance; it can also work to hasten the criminalisation of forest wrongdoers and to perpetuate crisis narratives that need to be tackled in exceptional ways.

George discussed some of these issues in an interview with Radio Télévision Belge Francophone in late February.