Legality Requirement
Deforestation-free is not enough on its own
The EUDR's second core condition under Article 3 is that relevant commodities and products must have been produced in accordance with the relevant legislation of the country of production. A product can originate from land that has not been deforested since December 2020 but still be prohibited if its production violated local laws on land rights, environmental protection, labour, or indigenous peoples' rights.
What "Relevant Legislation" Covers
Article 2(40) of the EUDR provides an expansive definition of "relevant legislation" for the purpose of the legality requirement. The scope goes well beyond simple forestry law and encompasses eight broad categories:
| Category | Examples |
|---|---|
| Land use rights | Legal title, concession agreements, communal land rights |
| Environmental protection | Protected area designations, environmental impact assessments, wildlife law |
| Forest-related rules | Forest management plans, sustainable forest management requirements, biodiversity conservation |
| Third parties' legal rights | Easements, community rights, indigenous territorial claims |
| Labour rights | Minimum wage, safe working conditions, freedom of association |
| Human rights under international law | Prohibition of child labour, prohibition of forced labour |
| Free, prior and informed consent (FPIC) | Rights of indigenous and local communities to consent to activities on their lands |
| Tax, anti-corruption, trade and customs | Payment of applicable taxes, customs declarations, anti-bribery obligations |
This is an extraordinarily broad scope. It means that EUDR compliance is not merely an environmental exercise. A company importing coffee grown on legally titled land with no deforestation issues but produced by workers whose labour rights are violated is potentially non-compliant with the EUDR's legality requirement.
Legality as a package, not a single check
Think of the legality requirement as a package of eight independent compliance checks, each of which must pass. Having a valid land title but failing on indigenous peoples' rights means the package fails. Being fully compliant with environmental law but paying below-minimum wages means the package fails. All eight categories must be satisfied simultaneously for the legality condition to be met. This is one of the most challenging aspects of EUDR compliance for operators with complex, multi-tier supply chains.
Free, Prior and Informed Consent: A Special Emphasis
The EUDR's inclusion of free, prior and informed consent (FPIC) as a component of the legality requirement is one of its most significant provisions. FPIC is a principle derived from international human rights law, particularly the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which gives indigenous and local communities the right to grant or withhold consent before any project or activity is carried out on their lands.
For EUDR purposes, production that occurred on lands where FPIC was not obtained from affected indigenous or local communities violates the legality requirement, regardless of whether the national law of the producing country formally requires FPIC. The EUDR refers to FPIC as protected "under international law," which means the standard applies even in countries where FPIC is not embedded in domestic legislation.
A concession with legal title but no FPIC: a real-world scenario
An oil palm company in a Southeast Asian country holds a government-issued concession covering land that is also claimed by an indigenous community. The community was not consulted or asked for its consent before the concession was granted. The land has not been deforested after December 2020 (it was cleared previously), so the deforestation condition is satisfied. However, the palm oil produced on this concession fails the legality requirement under the EUDR because the relevant legislation requirement includes FPIC as protected under international law. An EU importer buying from this company would be non-compliant.
How the Legality Requirement Interacts with Risk Assessment
In practice, operators do not need to obtain legal opinions on every aspect of the legality requirement for every supplier in every shipment. Instead, the EUDR's due diligence system requires operators to assess the risk of non-compliance with the legality requirement and to take proportionate mitigation steps when risk is non-negligible.
The risk assessment for legality considers:
- The rule of law and corruption indices in the country of production.
- Whether the country has strong land tenure systems and clear property rights.
- Whether indigenous peoples' rights are recognised and enforced in the producing country or region.
- Whether labour standards are effectively enforced.
- Third-party information, including NGO reports, government advisories, and press coverage of legal violations in the supply chain.
- Existing third-party audits or certifications that address legality dimensions.
What Operators Must Collect to Demonstrate Legality
The information collection step of due diligence requires operators to gather documentation that demonstrates legal compliance. This varies by commodity and context, but typically includes:
- Proof of legal land use rights (land titles, concession documents, lease agreements).
- Environmental permits and impact assessments where required by national law.
- Forest management plans or sustainable harvesting certificates where applicable.
- Tax payment records and export documentation.
- Labour compliance records or supplier self-declarations.
- Documentation of FPIC processes where indigenous or community lands are involved.
The Legality Requirement and Sector-Specific Challenges
The legality requirement poses different challenges depending on the commodity and producing country. For cattle in Brazil, establishing legal land tenure is challenging because large areas of the Amazon and Cerrado have unclear or disputed land title. For cocoa in West Africa, the customary land rights of farming communities often exist alongside formal state ownership, creating complexity in demonstrating clear legal title. For timber in Southeast Asia, concession systems may be legally valid at the national level while violating the rights of indigenous peoples recognised under international law.
The EUDR does not require certainty in every case, but it does require a systematic, documented effort to assess and address legal risk. Operators who can demonstrate a genuine, well-documented risk assessment and mitigation process are far better positioned than those who simply assume legality without investigation.
The EUDR's country risk classification (low, standard, high) affects the intensity of due diligence required but does not change the content of the legality requirement. Even for products from low-risk countries, operators must collect adequate information to satisfy themselves that production was in accordance with relevant legislation. What changes is the depth of investigation required: for low-risk countries, a well-documented supplier declaration and standard checks may be sufficient, while for high-risk countries, independent audits and more intensive verification may be necessary.
Country classification is also informative for legality risk: a country classified as high-risk may have weak land tenure systems, high corruption, or poor indigenous rights protections, all of which elevate legality risk and require more intensive investigation by the operator.
Key Takeaways
- 1The EUDR's legality requirement mandates that production must comply with the relevant legislation of the country of production across eight categories: land use rights, environmental protection, forest-related rules, third parties' rights, labour rights, human rights, FPIC, and tax/customs obligations
- 2Free, prior and informed consent (FPIC) is a particularly significant component: production on indigenous or community lands without FPIC is non-compliant even if national law does not formally require it
- 3The legality requirement is assessed through a risk-based approach: operators must gather documentation, assess legal risk, and take proportionate mitigation steps
- 4Different commodity sectors face different legality challenges: unclear land tenure in Brazilian Amazon, customary rights in West African cocoa, and concession/indigenous rights conflicts in Southeast Asian timber and palm oil
- 5Country risk classification informs the intensity of legality verification but does not change the content of what must be demonstrated: even low-risk countries require documented legality assessment