The research, carried out by industry law specialists at Thomas Eggar LLP, shows that three quarters of respondents are either aware of the EU ETS but find it difficult to understand or not aware of it at all. What this means is that very few logistics companies are properly engaging in the EU ETS or have the proper compliance measures in place.
Also, despite two years passing since the introduction of the Bribery Act in 2010, nearly two thirds of those surveyed admit their organisation could either do more to comply or does not have a bribery policy at all.
Bribery Act 2010
Described by some as ‘the toughest anti-corruption legislation in the world’, the Act covers the crimes of bribery; being bribed; the bribery of foreign public officials; and the failure of a commercial organisation to prevent bribery on its behalf.
The Act is relevant because many companies operate supply chains or form part of a supply chain in countries where there is a high risk of bribery. Also, their activities may include those with a high risk of corruption, such as interacting with public officials or using local agents or partners.
Because the Act has wide extra-territorial jurisdiction, this means any act of bribery by aUKorganisation,UKnational orUKresident, anywhere in the world, breaks the law in theUK.
“Generally speaking larger organisations, and particularly those with international trading arrangements, have been quite quick to identify and address their compliance obligations under the Act,” says Matthew Bridger, Associate at Thomas Eggar LLP. “But for some, especially organisations at medium sized enterprise level, there may not be the awareness or availablity of resources to meet all of the Act’s compliance criteria”.
“I think this, coupled possibly with a large degree of uncertainty and confusion as to what the Act’s compliance requirements are, explains the results of our survey.”
The legal consequences for committing a crime under the Act are severe. Companies can be struck with an unlimited fine and individuals a fine or imprisonment for the most serious of cases.
Matthew adds: “From a wider commercial perspective, an organisation that is unable to demonstrate compliance with the Act may be prevented from participating in contract tendering opportunities. Organisations in the public sector and those organisations that deal with US corporations that are subject to the requirements of the Foreign Corrupt Practices Act since 1977 are, for the most part, acutely aware of the risks of non-compliance with statutory bribery provisions. Perhaps more needs to be done to educate SMEs about the Act.”
In order to combat bribery, logistics companies should:
- Introduce a zero-tolerance policy;
- Conduct a risk assessment to evaluate where the organisation is exposed to bribery;
- Gather information and fully document offences in order to avoid future occurrences;
- Introduce robust anti-bribery systems or ‘adequate procedures’ to prevent bribery; and
- Train employees properly to understand the risks of bribery.
The EU ETS aims to combat climate change and covers power stations and industrial sites in 30 countries, whose carbon emissions make up almost 50% of Europe’s total. It caps the total emissions allowed and allowance certificates adding up to the cap are issued to the companies regulated by the scheme.
Companies monitor and report their CO² emissions. If they exceed their allowance they have to purchase extra allowance certificates. However, if a firm’s CO² emissions are less than its allowance, it is allowed to sell the surplus certificates, thus creating a financial incentive for businesses to work clean and stay green.
Matthew Bridger comments: “Unfortunately, the EU ETS has been subject to many revisions and there are now proposals for yet more changes. This uncertainty has made it difficult for logistics companies to properly assess and participate in the system. Also, some have heavily criticised the EU ETS, which will have had an impact on compliance with the system.”
The EU ETS applies only to firms operating installations with a rated thermal input above 20 MW or carrying out certain activities, such as processing ferrous metals. There are heavy penalties for non-compliance so Matthew recommends logistics managers visit the website of the Environment Agency in the first instance, found at http://www.environment-agency.gov.uk for more information and practical advice.