Legal provisions of COM(2021)706 - Making available on the Union market as well as export from the Union of certain commodities and products associated with deforestation and forest degradation - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2021)706 - Making available on the Union market as well as export from the Union of certain commodities and products associated with ... |
|---|---|
| document | COM(2021)706  |
| date | May 31, 2023 |
Chapter 1
General Provisions
This Regulation lays down rules regarding the placing and making available on the Union market, as well as the export from the Union market, of cattle, cocoa, coffee, oil palm, soya and wood (“relevant commodities”) and products, as listed in Annex I, that contain, have been fed with or have been made using relevant commodities (“relevant products”), with a view to
(a)minimising the Union’s contribution to deforestation and forest degradation worldwide
(b)reducing the European Union’s contribution to greenhouse gas emissions and global biodiversity loss.
The Regulation shall not apply to relevant commodities and products placed on the Union market that were produced before the date established in Article 36(1).
For the purposes of this Regulation, the following definitions shall apply:
(1) ‘deforestation’ means the conversion of forest to agricultural use, whether human-induced or not;
(2) ‘forest’ means land spanning more than 0,5 hectares with trees higher than 5 meters and a canopy cover of more than 10%, or trees able to reach those thresholds in situ, excluding agricultural plantations and land that is predominantly under agricultural or urban land use;
(3) ‘agricultural plantations’ means tree stands in agricultural production systems, such as fruit tree plantations, oil palm plantations, olive orchards and agroforestry systems when crops are grown under tree cover. It includes all plantations of the commodities in Annex I other than wood;
(4) ‘plantation forest’ means a planted forest that is intensively managed and meets, at planting and stand maturity, all the following criteria: one or two species, even age class, and regular spacing. It includes short rotation plantations for wood, fibre and energy, and excludes forests planted for protection or ecosystem restoration, as well as forests established through planting or seeding which at stand maturity resemble or will resemble naturally regenerating forests;
(5) ‘planted forest’ means forest predominantly composed of trees established through planting and/or deliberate seeding provided that the planted or seeded trees are expected to constitute more than fifty percent of the growing stock at maturity; it includes coppice from trees that were originally planted or seeded;
(6) ‘forest degradation’ means harvesting operations that are not sustainable and cause a reduction or loss of the biological or economic productivity and complexity of forest ecosystems, resulting in the long-term reduction of the overall supply of benefits from forest, which includes wood, biodiversity and other products or services;
(7) ‘sustainable harvesting operations’ means harvesting that is carried out considering maintenance of soil quality and biodiversity with the aim of minimising negative impacts, in a way that avoids harvesting of stumps and roots, degradation of primary forests or their conversion into plantation forests, and harvesting on vulnerable soils; minimises large clear-cuts and ensures locally appropriate thresholds for deadwood extraction and requirements to use logging systems that minimise impacts on soil quality, including soil compaction, and on biodiversity features and habitats;
(8) ‘deforestation-free’ means
(a)that the relevant commodities and products, including those used for or contained in relevant products, were produced on land that has not been subject to deforestation after December 31, 2020, and
(b)that the wood has been harvested from the forest without inducing forest degradation after December 31, 2020;
(9) ‘produced’ means grown, harvested, raised, fed from or obtained on relevant plot of land;
(10) ‘placing on the market’ means the first making available of a relevant commodity or product on the Union market;
(11) ‘making available on the market’ means any supply of a relevant commodity or product for distribution, consumption or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge;
(12) ‘operator’ means any natural or legal person who, in the course of a commercial activity, places relevant commodities and products on the Union market or exports them from the Union market;
(13) ‘trader’ means any natural or legal person in the supply chain other than the operator who, in the course of a commercial activity, makes available on the Union market relevant commodities and products;
(14) ‘country of origin’ means a country or territory as defined in Article 60 of Regulation (EU) No 952/2013 of the European Parliament and of the Council 47 ;
(15) ‘country of production’ means the country or territory where the relevant commodity or the relevant commodity used in the production of or contained in a product was produced;
(16) ‘negligible risk’ means a full assessment of both the product-specific and the general information on compliance with Articles 3(a) and 3(b) by relevant commodities or products showing no cause for concern;
(17) ‘authorised representative’ means any natural or legal person established within the Union who has received a written mandate from an operator to act on its behalf in relation to specified tasks with regard to the operator's obligations under this Regulation;
(18) ‘non-compliant products’ means relevant commodities and products that were not produced in a ‘deforestation-free’ manner, or were not produced in accordance with the relevant legislation of the country of production, or both;
(19) ‘plot of land’ is an extension of land within a single real-estate property, as recognised by the laws of the country of production, and which enjoys sufficiently homogeneous conditions as to allow to evaluate on the aggregate level the risk of deforestation and forest degradation associated with commodities produced on that extension of land;
(20) ‘SMEs’ mean micro, small and medium-sized enterprises as defined in Directive 2013/34/EU 48 ;
(21) ‘substantiated concern' means well-founded claim based on objective and verifiable information regarding non-compliance with the present Regulation and which may require the intervention of competent authorities;
(22) ‘competent authorities’ means the authorities designated under Article 13(1);
(23) ‘customs authorities’ means customs authorities as defined in Article 5, point 1, of Regulation (EU) No 952/2013;
(24) ‘release for free circulation’ means the procedure laid down in Article 201 of Regulation (EU) No 952/2013;
(25) ‘export’ means the procedure laid down in Article 269 of Regulation (EU) No 952/2013;
(26) ‘relevant commodities and products entering the Union market’ means relevant commodities and products from third countries placed under the customs procedure ‘release for free circulation’ and intended to be placed on the Union market or intended for commercial use or consumption other than private within the customs territory of the Union;
(27) ‘relevant commodities and products leaving the Union market’ means relevant commodities and products placed under the customs procedure ‘export’;
(28) ‘relevant legislation of the country of production’ means the rules applicable in the country of production concerning the legal status of the area of production in terms of land use rights, environmental protection, third parties’ rights and relevant trade and customs regulations under legislation framework applicable in the country of production;
Relevant commodities and products may be placed or made available on the Union market, or exported from the Union market only if all the following conditions are fulfilled:
(a)they are deforestation-free;
(b)they have been produced in accordance with the relevant legislation of the country of production; and
(c)they are covered by a due diligence statement as laid down in Article 4(2).
Chapter 2
Obligations of operators and traders
1. Operators shall exercise due diligence prior to placing relevant commodities and products on or prior to their export from the Union market in order to ensure their compliance with Article 3(a) and (b). To that end, they shall use a framework of procedures and measures, hereinafter referred to as a ‘due diligence’, as set out in Article 8.
2. Operators that by exercising due diligence as referred to in Article 8 have come to the conclusion that the relevant commodities and products comply with the requirements of this Regulation shall make available to the competent authorities via the information system referred to in Article 31 a due diligence statement before placing on the Union market or exporting the relevant commodities and products. That statement shall confirm that due diligence was carried out and no or only negligible risk was found and shall contain the information set out in Annex II for the relevant commodities and products.
3. By making available the due diligence statement, the operator assumes responsibility for the compliance of the relevant commodity or product with the requirements of this Regulation. Operators shall keep record of the due diligence statements for 5 years from the date of making available via the information system referred to in Article 31.
4. Operators may not place relevant commodities and products on the Union market nor export them without prior submission of a due diligence statement.
5. The operator shall not place the relevant commodities and products on the market nor export them if one or more of the following cases apply:
(a)the relevant commodities and products are not compliant with Article 3(a) or (b);
(b)the exercise of due diligence has revealed a non-negligible risk that the relevant commodities and products are not compliant with Article 3(a) or (b);
(c)the operator was unable to complete a due diligence procedure according to paragraphs 1 and 2.
6. Operators that have received new information, including substantiated concerns, that the relevant commodity or product that they have already placed on the market is not in conformity with the requirements of this Regulation shall immediately inform the competent authorities of the Member States in which they placed the relevant commodity or product on the market. In the case of exports from the Union market, the operators shall inform the competent authority of Member State which is the country of production.
7. Operators shall offer all assistance necessary to competent authorities to facilitate the performance of the checks under Article 15, including as regards access to premises and the presentation of documentation or records.
1. Operators or traders may mandate an authorised representative to make available the due diligence statement pursuant to Article 4(2) on their behalf. The operator or trader shall in that case retain the responsibility for the compliance of the relevant commodity or product with the requirements of this Regulation.
2. The authorised representative shall, upon request, provide a copy of the mandate in an official language of the European Union to the competent authorities.
1. Traders which are SMEs may only make available on the market relevant commodities and products if they are in possession of the information required under paragraph 2.
2. Traders which are SMEs shall collect and keep the following information relating to the relevant commodities and products they intend to make available on the market:
(a)the name, registered trade name or registered trade mark, the postal address, the email and, if available, a web address of the operators or the traders who have supplied the relevant commodities and products to them;
(b)the name, registered trade name or registered trade mark, the postal address, the email and, if available, a web address of the traders to whom they have supplied the relevant commodities and products.
3. Traders which are SMEs shall keep the information referred to in this Article for at least 5 years and shall provide that information to the competent authorities upon request.
4. Traders which are SMEs that have received new information, including substantiated concerns, that the relevant commodity or product that they have already made available on the market is not in conformity with the requirements of this Regulation shall immediately inform the competent authorities of the Member States in which they made available the relevant commodity or product on the market.
5. Traders which are not SMEs shall be considered operators and be subject to obligations and provisions in Articles 3, 4, 5, 8 to 12, 14(9), 15 and 20 of this Regulation with regard to the relevant commodities and products that they make available in the Union market.
6. Traders shall offer all assistance necessary to competent authorities to facilitate the performance of the checks under Article 16, including as regards access to premises and the presentation of documentation or records.
In case a natural or legal person established outside the Union places on the Union market relevant commodities and products, the first natural or legal person established in the Union who buys or takes possession of such relevant commodities and products shall be considered operator within the meaning of this Regulation.
1. Prior to placing relevant commodities and products on the market or before exporting them, operators shall exercise due diligence with regard to all relevant commodities and products supplied by each particular supplier.
2. For the purposes of this Regulation, the due diligence shall include:
(a)the collection of information and documents needed to fulfil the requirements set out in Article 9;
(b)risk assessment measures as referred to in Article 10;
(c)risk mitigation measures as referred to in Article 10.
1. Operators shall collect information, documents and data demonstrating that the relevant commodities and products are compliant with Article 3. For this purpose, the operator shall collect, organise and keep for 5 years the following information relating to the relevant commodities or products, supported by evidence:
(a)description, including the trade name and type of relevant commodities and products as well as, where applicable, the common name of the species and its full scientific name;
(b)quantity (expressed in net mass and volume, or number of units) of the relevant commodities and products;
(c)identification of the country of production;
(d)geo-localisation coordinates, latitude and longitude of all plots of land where the relevant commodities and products were produced, as well as date or time range of production;
(e)name, email and address of any business or person from whom they have been supplied with the relevant commodities or products;
(f)name, email and address of any business or person to whom the relevant commodities or products have been supplied;
(g)adequate and verifiable information that the relevant commodities and products are deforestation-free;
(h)adequate and verifiable information that the production has been conducted in accordance with relevant legislation of the country of production, including any arrangement conferring the right to use the respective area for the purposes of the production of the relevant commodity;
2. The operator shall make available to the competent authorities upon request the information, documents and data collected under this Article.
3. The Commission may adopt delegated acts in accordance with Article 33 to supplement paragraph 1 concerning further relevant information to be obtained that may be necessary to ensure the effectiveness of the due diligence system.
1. Operators shall verify and analyse information collected in accordance with Article 9 and any other relevant documentation, and on this basis carry out a risk assessment to establish whether there is a risk that the relevant commodities and products intended to be placed on or exported from the Union market are non-compliant with the requirements of this Regulation. If the operators cannot demonstrate that the risk of non-compliance is negligible, they shall not place the relevant commodity or product on the Union market nor export it.
2. The risk assessment shall take special account of the following risk assessment criteria:
(a)the assignment of risk to the relevant country or parts thereof in accordance with Article 27;
(b)the presence of forests in the country and area of production of the relevant commodity or product;
(c)prevalence of deforestation or forest degradation in the country, region and area of production of the relevant commodity or product;
(d)the source, reliability, validity and links to other available documentation of the information referred to in Article 9(1);
(e)concerns in relation to the country of production and origin, such as level of corruption, prevalence of document and data falsification, lack of law enforcement, armed conflict or presence of sanctions imposed by the United Nations Security Council or the Council of the European Union;
(f)the complexity of the relevant supply chain, in particular difficulties in connecting commodities and/or products to the plot of land where they were produced;
(g)the risk of mixing with products of unknown origin or produced in areas where deforestation or forest degradation has occurred or is occurring;
(h)the conclusions of the relevant Commission expert group meetings published in the Commission’s expert group register;
(i)substantiated concerns submitted under Article 29;
(j)complementary information on compliance with this Regulation, which may include information supplied by certification or other third-party-verified schemes, including voluntary schemes recognised by the Commission under Article 30(5) of Directive (EU) 2018/2001 49 , provided that the information meets the requirements set out in Article 9;
3. Wood products which are in scope of Council Regulation (EC) No 2173/2005 that are covered by a valid FLEGT license from an operational licensing scheme shall be deemed to be in compliance with Article 3(b) of this Regulation.
4. Except where the analysis undertaken in accordance with paragraph 1 allows the operator to ascertain that there is no or negligible risk that the relevant commodities or products are not compliant with the requirements of this Regulation, the operator shall adopt prior to placing the relevant commodities and products on the Union market or to their export risk mitigation procedures and measures that are adequate to reach no or negligible risk. This may include requiring additional information, data or documents, undertaking independent surveys or audits or other measures pertaining to information requirements set out in Article 9.
5. Operators shall be able to demonstrate how the information gathered was checked against the risk assessment criteria set out in paragraph 2, how a decision on risk mitigation measures was taken and how the operator determined the degree of risk.
6. Operators shall have in place adequate and proportionate policies, controls and procedures to mitigate and manage effectively the risks of non-compliance of relevant commodities and products identified. These shall include:
(a)model risk management practices, reporting, record-keeping, internal control and compliance management, including for operators that are not SMEs, the appointment of a compliance officer at management level;
(b)an independent audit function to check the internal policies, controls and procedures referred to in point (a) for all operators that are not SMEs.
7. The risk assessments shall be documented, reviewed at least on an annual basis and made available to the competent authorities upon request.
8. The Commission may adopt delegated acts in accordance with Article 33 to supplement paragraphs 2, 4 and 6 as regards relevant information to be obtained, risk assessment criteria and risk mitigation measures that may be necessary to supplement those referred to in this Article to ensure the effectiveness of the due diligence system.
1. In order to exercise due diligence in accordance with Article 8, operators shall establish and keep up to date a due diligence system to ensure that they can guarantee compliance with the requirements set out in Article 3(a) and (b). The due diligence system shall be reviewed at least once a year and if necessary adapted to and accounting for new developments which may influence the exercise of due diligence. Operators shall keep record of updates in the due diligence system(s) for 5 years.
2. Unless otherwise provided by other EU legislative instruments that lay down requirements regarding sustainability value chain due diligence, operators which are not SMEs shall, on an annual basis, publicly report as widely as possible, including on the internet, on their due diligence system including on the steps taken by them to implement their obligations as set out in Article 8. Operators falling also within the scope of other EU legislative instruments that lay down requirements regarding value chain due diligence may fulfil their reporting obligations under this paragraph by including the required information when reporting in the context of other EU legislative instruments.
3. Operators shall keep for at least 5 years all documentation related to due diligence, such as all relevant records, measures and procedures pursuant to Article 8. They shall make them available to the competent authorities upon request.
1. When placing relevant commodities or products on the Union market or exporting them from it, operators are not required to fulfil the obligations under Article 10 where they can ascertain that all relevant commodities and products have been produced in countries or parts thereof that were identified as low risk in accordance with Article 27.
2. However, if the operator obtains or is made aware of any information that would point to a risk that the relevant commodities and products may not fulfil the requirements of this Regulation, all obligations of Article 9 and 10 have to be fulfilled.
Chapter 3
Obligations of Member States and their competent authorities
1. Member States shall designate one or more competent authorities responsible for carrying out the obligations arising from this Regulation.
2. By [three months after the date of entry into force of this Regulation], Member States shall notify the Commission of the names, addresses and contact details of the competent authorities designated pursuant to paragraph 1. Member States shall inform the Commission without undue delay of any changes to this information.
3. The Commission shall make the list of the competent authorities publicly available on its website. The Commission shall regularly update the list, based on relevant updates received from Member States.
4. Member States shall ensure that the competent authorities have adequate powers and resources to perform the obligations set out in Chapter 3 of this Regulation.
5. Without prejudice to the operators’ obligation to exercise due diligence as set out in Article 8, Member States may provide technical and other assistance and guidance to operators, taking into account the situation of SMEs, in order to facilitate compliance with the requirements of this Regulation.
6. Member States, may facilitate the exchange and dissemination of relevant information, in particular with a view to assisting operators in assessing risk as set out in Article 9, and on best practices regarding the implementation of this Regulation.
7. Assistance shall be provided in a manner which does not compromise the independence, legal obligations and responsibilities of competent authorities in enforcing this Regulation.
1. The competent authorities shall carry out checks to establish whether operators and traders comply with their obligations under this Regulation and whether the relevant commodities and products placed or made available on the Union market or exported from it are compliant with the requirements of this Regulation.
2. The checks referred to in paragraph 1 shall be conducted in accordance with Article 15 and 16.
3. To carry out the checks referred to in paragraph 1, the competent authorities shall establish a plan based on a risk-based approach. The plan shall contain at least risk criteria to carry out the risk analysis under paragraph 4 and thereby inform the decisions on checks. In establishing and reviewing the risk criteria, the competent authorities shall take into account in particular the assignment of risk to countries or parts thereof in accordance with Article 27, the history of compliance of an operator or trader with this Regulation and any other relevant information. Based on the results of the checks and the experience on implementation of the plans, the competent authorities shall review those plans and risk criteria on a regular basis in order to improve their effectiveness. When reviewing the plans, the competent authorities shall establish a reduced frequency of checks for those operators and traders who have shown a consistent record of full compliance with the requirements under this Regulation.
4. In order to implement the risk-based plans of checks established under paragraph 3, the competent authorities shall carry out risk analysis of the information contained in the due diligence statements made available to them according to Article 4(2). The risk analysis shall use the risk criteria included in the plans established under paragraph 3, and shall be carried out by means of electronic data-processing techniques integrated in the information system set out in Article 31.
5. Based on the risk analysis under paragraph 4 and any other relevant information, the competent authorities shall identify the operators and traders to be checked according to Articles 15 and 16.
6. Based on the risk analysis under paragraph 4, competent authorities shall also identify relevant commodities and products that call for immediate action because they present such high risk of non-compliance with the provisions of this Regulation that require to be checked before they are placed or made available on the Union market or exported. Such identification shall be flagged in the information system established under Article 31 and shall result in competent authorities taking immediate interim measures under Article 21 to suspend the placing or making available on the Union market of the relevant commodities and products or, in the case of relevant commodities or products entering or leaving the Union market and once the electronic interface referred to in Article 26(1) is in place, in the request to customs authorities for suspension under Article 24(6) of their release for free circulation or export.
7. The suspensions referred to in paragraph 6 shall end within 3 working days unless the competent authorities, based on the result of the checks conducted within that period, conclude that they require additional time to establish whether the relevant commodities and products comply with the requirements of this Regulation. In such case, the competent authorities shall extend the period of suspension by means of additional interim measures taken under Article 21 or, in the case of relevant commodities or products entering or leaving the Union market, by notifying the customs authorities of the need to maintain the suspension under Article 24(6).
8. Competent authorities shall exchange information on and coordinate the development and application of the risk criteria referred to in paragraph 3 with competent authorities of other Member States and with the Commission, in order to improve the effectiveness of the enforcement of this Regulation.
9. Each Member State shall ensure that the annual checks carried out by their competent authorities cover at least 5% of the operators placing, making available on or exporting from the Union market each of the relevant commodities on their market as well as 5% of the quantity of each of the relevant commodities placed or made available on or exported from their market.
10. For relevant commodities and products produced in a country or parts thereof listed as high risk in accordance with Article 27 or if there is a risk of relevant commodities or products produced in such countries or parts thereof entering the relevant supply chain, the competent authority shall carry out enhanced scrutiny specified in Article 20.
11. Without prejudice to the checks under paragraphs 5 and 6, competent authorities shall conduct checks referred to in paragraph 1 when they are in possession of evidence or other relevant information, including based on substantiated concerns provided by third parties under Article 29, concerning potential non-compliance with this Regulation.
12. Checks shall be carried out without prior warning of the operator or trader, except where prior notification of the operator or trader is necessary in order to ensure the effectiveness of the checks.
13. The competent authorities shall keep records of the checks indicating in particular their nature and results, as well as on the measures taken in case of non-compliance. Records of all checks shall be kept for at least 5 years.
1. The checks on operators shall include:
(a)examination of the due diligence system, including risk assessment and risk mitigation procedures;
(b)examination of documentation and records that demonstrate the proper functioning of the due diligence system;
(c)examination of documentation and records that demonstrate the compliance of a specific product or commodity that the operator has placed, intends to place on or export from the Union market with the requirements of this Regulation;
(d)examination of due diligence statements;
and, where appropriate,
(e)on the ground examination of relevant commodities and products with a view to ascertaining their conformity to the documentation used for exercising due diligence;
(f)any technical and scientific means adequate to determine the exact place where the relevant commodity or product was produced, including isotope testing;
(g)any technical and scientific means adequate to determine whether the relevant commodity or product are deforestation-free, including Earth observation data such as from Copernicus programme and tools, and
(h)spot checks, including field audits, including where appropriate in third countries through cooperation with the administrative authorities of third countries.
1. The checks on traders shall include:
(a)examination of documentation and records that demonstrate the compliance with Article 6(2);
(b)where appropriate, spot checks, including field audits.
1. Member States may authorise their competent authorities to reclaim from the operators or traders the totality of the costs of their activities with respect to instances of non-compliance.
2. The costs referred to in paragraph 1 may include the costs of carrying out testing, the costs of storage and the costs of activities relating to products that are found to be non-compliant and are subject to corrective action prior to their release for free circulation, their placing on or exporting from the Union market.
1. Competent authorities shall cooperate with each other, with authorities from other Member States, with the Commission, and if necessary, with administrative authorities of third countries in order to ensure compliance with this Regulation.
2. For the application and enforcement of this Regulation, competent authorities shall establish administrative arrangements with the Commission concerning the transmission of information and the conduct of investigations.
3. Competent authorities shall exchange information necessary for the enforcement of this Regulation. This shall include giving access to and exchange of data on operators and traders including due diligence statements with other Member States’ competent authorities to facilitate the enforcement of this Regulation.
4. Competent authorities shall immediately alert competent authorities of other Member States and the Commission when they detect infringement of this Regulation and serious shortcomings that may affect more than one Member State. Competent authorities shall, in particular, inform competent authorities of other Member States when they detect a relevant commodity or product on the market that is not compliant with this Regulation, to enable the withdrawal or recall of such commodity or product from sales in all Member States.
5. At the request of a competent authority, Member States shall provide to it the necessary information to ensure compliance with this Regulation.
1. Member States shall make available to the public and the Commission, at the latest by 30 April of each year, information on the application of this Regulation during the previous calendar year. This information shall include their plans for checks, the number and the results of the controls carried out on operators and traders, including the contents of these checks, the volume of relevant commodities and products checked in relation to the total quantity of relevant commodities and products placed on the market, the countries of origin and of production of relevant commodities and products as well as the measures taken in case of non-compliance and the costs of controls recovered.
2. The Commission services shall make publicly available, on an annual basis, a Union-wide overview of the application of this Regulation based on the data submitted by the Member States under paragraph 1.
Where relevant commodities or products were produced in a country or part thereof listed as high risk in accordance with Article 27, or there is a risk of relevant commodities or products produced in such countries or parts thereof entering the relevant supply chain, each Member State shall ensure that the annual checks carried out by their competent authorities cover at least 15% of the operators placing, making available on or exporting from the Union market each of the relevant commodities on their market as well as 15% of the quantity of each of the relevant commodities placed or made available on or exported from their market from high risk countries or parts thereof.
Where, following the checks referred to in Article 15 and 16, possible serious shortcomings have been detected, or risks have been identified pursuant to Article 14(6), the competent authorities may take immediate interim measures, including seizure or suspension of the placing or making available on and exporting from the Union market of the relevant commodities and products.
1. Without prejudice to Article 23, where competent authorities establish that an operator or trader has not complied with its obligations under this Regulation or that a relevant commodity or product is not compliant with this Regulation, they shall without delay require the relevant operator or trader to take appropriate and proportionate corrective action to bring the non-compliance to an end.
2. For the purposes of paragraph 1, the corrective action required to be taken by the operator or trader shall include at least one or more of the following:
(a)rectifying any formal non-compliance, in particular with the requirements of Chapter 2 of this Regulation;
(b)preventing the relevant commodity or product from being placed, made available on or exported from the Union the market;
(c)withdrawing or recalling the relevant commodity or product immediately;
(d)destroying the relevant commodity or product or donating it to charitable or public interest purposes.
3. If the operator or trader fails to take corrective action referred to in paragraph 2 or where the non-compliance referred to in paragraph 1 persists, competent authorities shall ensure that the product is withdrawn or recalled, or that its being made available on or exported from the Union market is prohibited or restricted.
1. Member States shall lay down rules on penalties applicable to infringements of the provisions of this Regulation by operators and traders and shall take all measures necessary to ensure that they are implemented. Member States shall notify the Commission of those provisions and without delay of any subsequent amendments affecting them.
2. The penalties provided for shall be effective, proportionate and dissuasive. Penalties shall include as a minimum:
(a)fines proportionate to the environmental damage and the value of the relevant commodities or products concerned, calculating the level of such fines in such way as to make sure that they effectively deprive those responsible of the economic benefits derived from their infringements, and gradually increasing the level of such fines for repeated infringements; the maximum amount of such fines shall be at least 4 % of the operators or trader’s annual turnover in the Member State or Member States concerned;
(b)confiscation of the relevant commodities and products concerned from the operator and/or trader;
(c)confiscation of revenues gained by the operator and/or trader from a transaction with the relevant commodities and products concerned;
(d)temporary exclusion from public procurement processes.
Chapter 4
Procedures for relevant commodities and products entering or leaving the Union market
1. Relevant commodities and products placed under the customs procedure ‘release for free circulation’ or ‘export’ shall be subject to the controls and measures laid down in this Chapter. The application of this Chapter is without prejudice to any other provisions of this Regulation as well as to other Union legislation governing the release for free circulation or export of goods, in particular the Union Customs Code and its Articles 46, 47, 134 and 267. Chapter VII of Regulation (EU) No. 2019/1020 of the European Parliament and of the Council 50 shall however not apply to controls on relevant commodities and products entering the Union market in so far as the application and enforcement of this Regulation is concerned.
2. Competent authorities shall be responsible for the overall enforcement of this Regulation with regard to a relevant commodity and product entering or leaving the Union market. In particular, competent authorities shall be responsible of establishing, through the checks under Article 14(1), whether any such relevant commodity or product complies with the requirements of this Regulation. The competent authorities shall carry out these duties in accordance with the relevant provisions of Chapter 3 of this Regulation.
3. Customs authorities shall control the correct declaration of relevant commodities and products entering or leaving the Union market. Such controls shall be based primarily on risk analysis, with the purpose of identifying and evaluating the risks and developing the necessary countermeasures, and shall be performed within a common risk management framework on the Union level.
4. The reference number of the due diligence statement assigned by the information system referred to in Article 31 in relation to a relevant commodity or product entering or leaving the Union shall be made available to customs authorities when lodging the customs declaration for release for free circulation or export of that relevant commodity or product, except where the due diligence statement is lodged pursuant to Article 26(2).
5. Upon receipt of a customs declaration for release for free circulation or export of a relevant commodity or product entering or leaving the Union market, customs authorities shall verify the status of the due diligence statement using the electronic interface referred to in Article 26(1). Any change of status in the Information System referred to in Article 31, which takes place before the release for free circulation or export of that relevant commodity or product, shall be notified automatically to the customs authorities supervising that relevant commodity or product.
6. Where following the risk analysis under Article 14(4) the status of the corresponding due diligence statement indicates in the information system established under Article 31 that a relevant commodity or product requires to be checked before placed or made available on the EU market or exported, customs authorities shall suspend the release for free circulation or export of that relevant commodity or product.
7. Where all other requirements and formalities under Union or national law relating to the release for free circulation or export have been fulfilled, customs authorities shall allow a relevant commodity or product to be released for free circulation or exported in any of the following circumstances:
(a)Following the risk analysis under Article 14(4), competent authorities have not indicated in the information system established under Article 31 that relevant commodity or product as requiring the suspension of release for free circulation or of the export pursuant to paragraph 6;
(b)Where the release for free circulation or export has been suspended in accordance with paragraph 6, the competent authorities have not requested, within the 3 working days indicated in Article 14(7), the need to maintain the suspension of the release for free circulation or export of that relevant commodity or product;
(c)Where competent authorities have notified customs authorities through the information system established under Article 31 that the suspension of the release for free circulation or export of the relevant commodities and products can be lifted.
The release for free circulation or export shall not be deemed proof of compliance with Union law and, in particular, with this Regulation.
8. Where the competent authorities conclude that a relevant commodity or product entering or leaving the Union market is not compliant with this Regulation, they shall notify the customs authorities accordingly through the information system established under Article 31. Competent authorities may also indicate in the information system that they object to placing the relevant commodity or product under other specific customs procedures.
Upon notification of that status, customs authorities shall not allow the release for free circulation or export of that relevant commodity or product. They shall also include the following notice in the customs data-processing system and, where possible, on the commercial invoice accompanying the relevant commodity or product and on any other relevant accompanying document: ‘Non-compliant commodity or product — release for free circulation/export not authorised — Regulation (EU) 2021/XXXX.’ [OP to indicate reference of this Regulation]
Where the relevant commodity or product is subsequently declared for other customs procedures and provided that the competent authorities did not object to such placement, the notice shall be included by operator in the customs declarations and registered, under the same conditions, in the customs data-processing system and, where possible, on the accompanying documents used in connection with any such procedures.
9. Notifications and requests under paragraphs 5 to 8 of this Article shall take place by means of the electronic interface referred to in Article 26(1). Paragraphs 5 to 8 shall apply once the electronic interface referred to in Article 26(1) is in place.
10. Customs authorities may destroy a non-compliant relevant commodity or product upon the request of the competent authorities or where they deem it necessary and proportionate. The cost of such measure shall be borne by the natural or legal person holding the relevant commodity or product. Articles 197 and 198 of Regulation (EU) No 952/2013 shall apply accordingly. Upon request of competent authorities, non-compliant relevant commodities and products may alternatively be confiscated and placed by customs at the disposal of the competent authorities.
1. To enable the risk-based approach referred to in Article 14(3) for relevant commodities and products entering or leaving the Union market and to ensure that checks are effective and performed in accordance with the requirements of this Regulation, the Commission, competent authorities and customs authorities shall cooperate closely and exchange information.
2. Customs authorities and competent authorities shall cooperate in accordance with Article 47(2) of Regulation (EU) No 952/2013 and exchange information necessary for the fulfilment of their functions under this Regulation, including via electronic means.
3. Risk-related information shall be exchanged:
(a)Between customs authorities in accordance with Article 46(5) of Regulation (EU) No 952/2013; and
(b)Between customs authorities and the Commission in accordance with Article 16(1) of Regulation (EU) No 952/2013.
4. Where, in relation to relevant commodities and products subject to this Regulation that are either in temporary storage or placed under a customs procedure other than ‘release for free circulation’, customs authorities at the first point of entry have reason to believe that those relevant commodities or products are not compliant with this Regulation, they shall transmit all relevant information to the competent customs office of destination.
1. The Commission shall develop an electronic interface based on the EU Single Window Environment for Customs to enable the transmission of data, in particular the notifications and requests referred to in Article 24, paragraphs 5 to 8, between national customs systems and the information system referred to in Article 31. This electronic interface shall be in place at the latest four years from the date of adoption of the relevant implementing act referred to in paragraph 3.
2. The Commission may develop an electronic interface based on the EU Single Window Environment for Customs to enable:
(a)Traders and operators to make available the due diligence statement of a relevant commodity or product via national single window environment for customs referred to in Article 8 of Regulation [PO to check the reference number and article number after the proposal is adopted] and receive feedback thereon from competent authorities; and
(b)The transmission of that due diligence statement to the information system referred to in Article 31 of this Regulation.
3. The Commission shall adopt implementing acts specifying the details of implementation arrangements for paragraphs 1 and 2 and, in particular, defining the data, including its format, to be transmitted in accordance with paragraphs 1 and 2. The implementing acts may also determine that certain specific data available in the due diligence statement and necessary for activities of customs authorities, including surveillance and fight against fraud, is transmitted and registered in EU and national customs systems. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 34(2).
Chapter 5
Country benchmarking system and cooperation with third countries
1. This Regulation establishes a three-tier system for the assessment of countries or parts thereof. Unless identified in accordance with this Article as presenting a low or high risk, countries shall be considered as presenting a standard risk. The Commission may identify countries or parts thereof that present a low or high risk of producing relevant commodities or products that are not compliant with Article 3, point (a). The list of the countries or parts thereof that present a low or high risk shall be published by means of implementing act(s) to be adopted in accordance with the examination procedure referred to in Article 34(2). That list shall be updated as necessary in light of new evidence.
2. The identification of low and high risk countries or parts thereof pursuant to paragraph 1 shall take into account information provided by the country concerned and be based on the following assessment criteria:
(a)rate of deforestation and forest degradation,
(b)rate of expansion of agriculture land for relevant commodities,
(c)production trends of relevant commodities and products,
(d)whether the nationally determined contribution (NDC) to the United Nations Framework Convention on Climate Change covers emissions and removals from agriculture, forestry and land use which ensures that emissions from deforestation and forest degradation are accounted towards the country's commitment to reduce or limit greenhouse gas emissions as specified in the NDC;
(e)agreements and other instruments concluded between the country concerned and the Union that address deforestation or forest degradation and facilitates compliance of relevant commodities and products with the requirements of this Regulation and their effective implementation;
(f)whether the country concerned has national or subnational laws in place, including in accordance with Article 5 of the Paris Agreement, and takes effective enforcement measures to avoid and sanction activities leading to deforestation and forest degradation, and in particular whether sanctions of sufficient severity to deprive of the benefits accruing from deforestation or forest degradation are applied.
3. The Commission shall notify the countries concerned of its intent to assign a change to the existing risk category and invite them to provide any information deemed useful in this regard. The Commission shall allow the countries adequate time to provide a response, which may include information on measures taken by the country to remedy the situation in case its status or the status of parts thereof might be changed to a higher risk category.
It shall include in the notification the following information:
(a)the reason or reasons for the intention to change the risk identification of the country or parts thereof;
(b)the invitation to respond to the Commission in writing with regard to the intention to changing the risk status of the country or parts thereof;
(c)the consequences of its identification as a high or low risk country.
4. The Commission shall, without delay, notify the competent authorities of inclusion or removal of a country from the list referred to in paragraph 1.
1. The Commission shall engage with producer countries concerned by this Regulation to develop partnerships and cooperation to jointly address deforestation and forest degradation. Such partnerships and cooperation mechanisms will focus on the conservation, restoration and sustainable use of forests, deforestation, forest degradation and the transition to sustainable commodity production, consumption processing and trade methods. Partnerships and cooperation mechanisms may include structured dialogues, support programmes and actions, administrative arrangements and provisions in existing agreements or agreements that enable producer countries to make the transition to an agricultural production that facilitates the compliance of relevant commodities and products with the requirements of this regulation. Such agreements and their effective implementation will be taken into account as part of the benchmarking under Article 27 of this Regulation.
2. Partnerships and cooperation should allow the full participation of all stakeholders, including civil society, indigenous people, local communities and the private sector including, SMEs and smallholders.
3. Partnerships and cooperation shall promote the development of integrated land use planning processes, relevant legislations, fiscal incentives and other pertinent tools to improve forest and biodiversity conservation, sustainable management and restoration of forests, tackle the conversion of forests and vulnerable ecosystems to other land uses, optimise gains for the landscape, tenure security, agriculture productivity and competitiveness, transparent supply chains, strengthen the rights of forest dependent communities including smallholders, indigenous peoples and local communities, and ensure public access to forest management documents and other relevant information.
4. The Commission shall engage in international bilateral and multilateral discussion on policies and actions to halt deforestation and forest degradation, including in multilateral fora such as Convention on Biological Diversity, Food and Agriculture Organization of the United Nations, United Nations Convention to Combat Desertification, United Nations Environment Assembly, United Nations Forum on Forests, United Nations Framework Convention on Climate Change, World Trade Organisation, G7 and G20. Such engagement shall include the promotion of the transition to sustainable agricultural production and sustainable forest management as well as the development of transparent and sustainable supply chains as well as continue efforts towards identifying and agreeing robust standards and definitions that ensure a high level of protection of forest ecosystems.
Chapter 6
Substantiated concern
1. Natural or legal persons shall be entitled to submit substantiated concerns to competent authorities when they deem, based on objective circumstances, that one or more operators or traders are failing to comply with the provisions of this Regulation.
2. Competent authorities shall diligently and impartially assess the substantiated concerns and take the necessary steps, including checks and hearings of operators and traders, with a view to detecting potential breaches of the provisions of this Regulation and, where appropriate, interim measures under Article 21 to prevent the placing making available on and export from the Union market of relevant commodities and products under investigation.
3. The competent authority shall, as soon as possible and in accordance with the relevant provisions of national law, inform the natural or legal persons referred to in paragraph 1, which submitted observations to the authority, of its decision to accede to or refuse the request for action and shall provide the reasons for it.
1. Any natural or legal person having sufficient interest, including those having submitted substantiated concern in accordance with Article 29, shall have access to a court or other independent and impartial public body competent to review the procedural and substantive legality of the decisions, acts or failure to act of the competent authority under this Regulation.
2. This Regulation shall be without prejudice to any provisions of national law which require that administrative review procedures be exhausted prior to recourse to judicial proceedings.
Chapter 7
Information System
1. The Commission shall establish and maintain, by the date established in Article 36(2), an information system (“Register”) which shall contain the due diligence statements made available pursuant to Article 4(2).
2. The information system shall provide at least for the following functionalities:
(a)registration of operators and traders and their authorised representatives in the EU; for operators placing relevant commodities and products under the customs procedure ‘release for free circulation’ or ‘export’, the Economic Operators Registration and Identification (EORI) number established pursuant to Article 9 of Regulation (EU) No 952/2013, shall be included in their registration profile;
(b)registration of due diligence statements including the delivery to the operator or trader concerned of a reference number for each due diligence statement;
(c)registration of the outcome of controls on due diligence statements;
(d)interconnection with customs via the EU Single Window Environment for Customs* [when the Regulation is adopted, reference can be made to it directly ], in accordance with Article 26, including to allow the notifications and requests under Article 24(5) to (8);
(e)allow the risk profiling of operators, traders and relevant commodities and products for the purpose of identifying high risk consignments according to the risk analysis in Article14(4);
(f)allow administrative assistance and cooperation between competent authorities and the Commission to exchange information and data;
(g)allow communication between competent authorities and operators and traders for the purposes of implementation of this Regulation.
3. The Commission shall, by means of implementing acts, establish rules for the functioning of the information system, including rules for the protection of personal data and exchange of data with other IT systems. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 33(2) of this Regulation.
4. The Commission shall provide access to that information system to customs authorities, competent authorities, operators and traders in accordance with their respective obligations under this Regulation.
5. In line with the EU’s Open Data Policy, and in particular the Directive (EU) 2019/1024 51 , the Commission shall provide access to the wider public to the complete anonymised datasets of the information system in an open format that can be machine-readable and that ensures interoperability, re-use and accessibility.
Chapter 8
Review
1. No later than two years after the entry into force, the Commission shall carry out a first review of this Regulation, and shall present a report to the European Parliament and the Council accompanied, if appropriate, by a legislative proposal. The report shall focus in particular on an evaluation of the need and the feasibility of extending the scope of this Regulation to other ecosystems, including land with high carbon stocks and land with a high biodiversity value such as grasslands, peatlands and wetlands and further commodities.
2. No later than five years after the entry into force and at least every five years thereafter, the Commission shall carry out a general review of this Regulation, and shall present a report to the European Parliament and the Council accompanied, if appropriate, by a legislative proposal. The first of the reports shall include in particular, based on specific studies, an evaluation of:
(a)the need for and feasibility of additional trade facilitation tools to support the achievement of the objectives of the Regulation including through recognition of certification schemes;
(b)the impact of the Regulation on farmers, in particular smallholders, indigenous peoples and local communities and the possible need for additional support for the transition to sustainable supply chains.
3. Without prejudice to the general review under paragraph 1, a first review of Annex I shall be carried out by the Commission no later than two years after the entry into force of this Regulation, and thereafter at regular intervals in order to assess whether it is appropriate to amend or extend the relevant products listed in Annex I in order to ensure that all products that contain, have been fed with or have been made using relevant commodities are included in that list, unless the demand for those products has a negligible effect on deforestation. The reviews shall be based on an assessment of the effect of the relevant commodities and products on deforestation and forest degradation, and take into account changes in consumption, as indicated by scientific evidence.
4. Following a review as set out in paragraph 3, the Commission may adopt delegated acts in accordance with Article 33 to amend Annex I to include relevant products that contain or have been made using relevant commodities.
Chapter 9
Final provisions
1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.
2. The power to adopt delegated acts referred to in Articles 9(3), 10(8) and 32(4) shall be conferred on the Commission for a period of 5 years from DD/MM/YY. The Commission shall draw up a report in respect of the delegation of power at the latest 6 months before the end of the 5 year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.
3. The delegation of power referred to in Articles 9(3), 10(8) and 32(4) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.
4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making.
5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.
6. A delegated act adopted pursuant to Articles 9(3), 10(8) and 32(4) shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by [two months] at the initiative of the European Parliament or of the Council.
1. The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011 52 .
2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply, having regard to the provisions of Article 11 thereof.
Regulation (EU) No 995/2010 is repealed with effect from the date of application of this Regulation set out in Article 36(2).
1. This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
2. Articles 3 to 12, 14 to 22, 24, 29 and 30 shall apply 12 months from the entry into force of this Regulation.
3. Articles referred to paragraph 2 shall apply 24 months from the entry into force of this Regulation for operators that are microenterprises 53 established by December 31, 2020, except for products covered in the Annex to Regulation (EU) No 995/2010.