Regulation (EU) No 995/2010 of the European Parliament and of the Council of 20 October 2010 laying down the obligations of operators who place timber and timber products on the market Text with EEA relevance

Article 1

Subject matter

This Regulation lays down the obligations of operators who place timber and timber products on the internal market for the first time, as well as the obligations of traders.

Article 2

Definitions

For the purposes of this Regulation, the following definitions shall apply:

(a) ‘timber and timber products’ means the timber and timber products set out in the Annex, with the exception of timber products or components of such products manufactured from timber or timber products that have completed their lifecycle and would otherwise be disposed of as waste, as defined in Article 3(1) of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste (¹),

(b) ‘placing on the market’ means the supply by any means, irrespective of the selling technique used, of timber or timber products for the first time on the internal market for distribution or use in the course of a commercial activity, whether in return for payment or free of charge. It also includes the supply by means of distance communication as defined in Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (²). The supply on the internal market of timber products derived from timber or timber products already placed on the internal market shall not constitute ‘placing on the market’;

(c) ‘operator’ means any natural or legal person that places timber or timber products on the market;

(d) ‘trader’ means any natural or legal person who, in the course of a commercial activity, sells or buys on the internal market timber or timber products already placed on the internal market;

(e) ‘country of harvest’ means the country or territory where the timber or the timber embedded in the timber products was harvested;

(f) ‘legally harvested’ means harvested in accordance with the applicable legislation in the country of harvest;

(g) ‘illegally harvested’ means harvested in contravention of the applicable legislation in the country of harvest;

(h) ‘applicable legislation’ means the legislation in force in the country of harvest covering the following matters: — rights to harvest timber within legally gazetted boundaries, — payments for harvest rights and timber including duties related to timber harvesting, — timber harvesting, including environmental and forest legislation including forest management and biodiversity conservation, where directly related to timber harvesting, — third parties’ legal rights concerning use and tenure that are affected by timber harvesting, and — trade and customs, in so far as the forest sector is concerned.

Article 3

Status of timber and timber products covered by FLEGT and CITES

Timber embedded in timber products listed in Annexes II and III to Regulation (EC) No 2173/2005 which originate in partner countries listed in Annex I to that Regulation and which comply with that Regulation and its implementing provisions shall be considered to have been legally harvested for the purposes of this Regulation.

Timber of species listed in Annex A, B or C to Regulation (EC) No 338/97 and which complies with that Regulation and its implementing provisions shall be considered to have been legally harvested for the purposes of this Regulation.

Article 4

Obligations of operators

Article 5

Obligation of traceability

Traders shall, throughout the supply chain, be able to identify:

(a) the operators or the traders who have supplied the timber and timber products; and

(b) where applicable, the traders to whom they have supplied timber and timber products.

Traders shall keep the information referred to in the first paragraph for at least five years and shall provide that information to competent authorities if they so request.

Article 6

Due diligence systems

The due diligence system referred to in Article 4(2) shall contain the following elements:

(a) measures and procedures providing access to the following information concerning the operator’s supply of timber or timber products placed on the market: — description, including the trade name and type of product as well as the common name of tree species and, where applicable, its full scientific name, — country of harvest, and where applicable: (i) sub-national region where the timber was harvested; and (ii) concession of harvest, — quantity (expressed in volume, weight or number of units), — name and address of the supplier to the operator, — name and address of the trader to whom the timber and timber products have been supplied, — documents or other information indicating compliance of those timber and timber products with the applicable legislation;

(b) risk assessment procedures enabling the operator to analyse and evaluate the risk of illegally harvested timber or timber products derived from such timber being placed on the market. Such procedures shall take into account the information set out in point (a) as well as relevant risk assessment criteria, including: — assurance of compliance with applicable legislation, which may include certification or other third-party-verified schemes which cover compliance with applicable legislation, — prevalence of illegal harvesting of specific tree species, — prevalence of illegal harvesting or practices in the country of harvest and/or sub-national region where the timber was harvested, including consideration of the prevalence of armed conflict, — sanctions imposed by the UN Security Council or the Council of the European Union on timber imports or exports, — complexity of the supply chain of timber and timber products.

(c) except where the risk identified in course of the risk assessment procedures referred to in point (b) is negligible, risk mitigation procedures which consist of a set of measures and procedures that are adequate and proportionate to minimise effectively that risk and which may include requiring additional information or documents and/or requiring third party verification.

For the delegated acts referred to in this paragraph the procedures set out in Articles 15, 16 and 17 shall apply.

Article 7

Competent authorities

Member States shall inform the Commission of the names and addresses of the competent authorities by 3 June 2011. Member States shall inform the Commission of any changes to the names or addresses of the competent authorities.

Article 8

Monitoring organisations

A monitoring organisation shall:

(a) maintain and regularly evaluate a due diligence system as set out in Article 6 and grant operators the right to use it;

(b) verify the proper use of its due diligence system by such operators;

(c) take appropriate action in the event of failure by an operator to properly use its due diligence system, including notification of competent authorities in the event of significant or repeated failure by the operator.

An organisation may apply for recognition as a monitoring organisation if it complies with the following requirements:

(a) it has legal personality and is legally established within the Union;

(b) it has appropriate expertise and the capacity to exercise the functions referred to in paragraph 1; and

(c) it ensures the absence of any conflict of interest in carrying out its functions.

The decision to grant recognition to a monitoring organisation shall be communicated by the Commission to the competent authorities of all the Member States.

The decision to withdraw recognition of a monitoring organisation shall be communicated by the Commission to the competent authorities of all the Member States.

For the delegated acts referred to in this paragraph the procedures set out in Articles 15, 16 and 17 shall apply. Those acts shall be adopted by 3 March 2012.

Article 9

List of monitoring organisations

The Commission shall publish the list of the monitoring organisations in the Official Journal of the European Union, C series, and shall make it available on its website. The list shall be regularly updated.

Article 10

Checks on operators

The checks referred to in paragraph 1 may include, inter alia:

(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 and procedures;

(c) spot checks, including field audits.

Without prejudice to Article 19, where, following the checks referred to in paragraph 1, shortcomings have been detected, the competent authorities may issue a notice of remedial actions to be taken by the operator. Additionally, depending on the nature of the shortcomings detected, Member States may take immediate interim measures, including inter alia:

(a) seizure of timber and timber products;

(b) prohibition of marketing of timber and timber products.

Article 11

Records of checks

Article 12

Cooperation

Article 13

Technical assistance, guidance and exchange of information

Article 14

Amendments of the Annex

In order to take into account, on the one hand, the experience gained in the implementation of this Regulation, in particular as identified through the reporting referred to in Article 20(3) and (4) and through the exchange of information as referred to in Article 13, and, on the other hand, developments with regard to technical characteristics, end-users and production processes of timber and timber products, the Commission may adopt delegated acts in accordance with Article 290 TFEU by amending and supplementing the list of timber and timber products set out in the Annex. Such acts shall not create a disproportionate burden on operators.

For the delegated acts referred to in this Article the procedures set out in Articles 15, 16 and 17 shall apply.

Article 15

Exercise of the delegation

Article 16

Revocation of the delegation

Article 17

Objections to delegated acts

The delegated act may be published in the Official Journal of the European Union and enter into force before the expiry of that period if the European Parliament and the Council have both informed the Commission of their intention not to raise objections.

Article 18

Committee

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.

Article 19

Penalties

The penalties provided for must be effective, proportionate and dissuasive and may include, inter alia:

(a) fines proportionate to the environmental damage, the value of the timber or timber products concerned and the tax losses and economic detriment resulting from the infringement, 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 serious infringements, without prejudice to the legitimate right to exercise a profession, and gradually increasing the level of such fines for repeated serious infringements;

(b) seizure of the timber and timber products concerned;

(c) immediate suspension of authorisation to trade.

Article 20

Monitoring of implementation and access to information

The report referred to in the first subparagraph shall also include an assessment of the effectiveness of the prohibition of the placing on the market of illegally harvested timber and timber products derived from such timber as set out in Article 4(1) as well as of the due diligence systems set out in Article 6.

Article 21

Entry into force and application

This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.

It shall apply as from 3 March 2013. However, Articles 6(2), 7(1), 8(7) and 8(8) shall apply as from 2 December 2010.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

ANNEX

Timber and timber products as classified in the Combined Nomenclature set out in Annex I to Council Regulation (EEC) No 2658/87

(³) , to which this Regulation applies

— 4401 Fuel wood, in logs, in billets, in twigs, in faggots or in similar forms; wood in chips or particles; sawdust and wood waste and scrap, whether or not agglomerated in logs, briquettes, pellets or similar forms

— 4403 Wood in the rough, whether or not stripped of bark or sapwood, or roughly squared

— 4406 Railway or tramway sleepers (cross-ties) of wood

— 4407 Wood sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or end-jointed, of a thickness exceeding 6 mm

— 4408 Sheets for veneering (including those obtained by slicing laminated wood), for plywood or for other similar laminated wood and other wood, sawn lengthwise, sliced or peeled, whether or not planed, sanded, spliced or end-jointed, of a thickness not exceeding 6 mm

— 4409 Wood (including strips and friezes for parquet flooring, not assembled) continuously shaped (tongued, grooved, rebated, chamfered, V-jointed, beaded, moulded, rounded or the like) along any of its edges, ends or faces, whether or not planed, sanded or end-jointed

— 4410 Particle board, oriented strand board (OSB) and similar board (for example, waferboard) of wood or other ligneous materials, whether or not agglomerated with resins or other organic binding substances

— 4411 Fibreboard of wood or other ligneous materials, whether or not bonded with resins or other organic substances

— 4412 Plywood, veneered panels and similar laminated wood

— 4413 00 00 Densified wood, in blocks, plates, strips or profile shapes

— 4414 00 Wooden frames for paintings, photographs, mirrors or similar objects

— 4415 Packing cases, boxes, crates, drums and similar packings, of wood; cable-drums of wood; pallets, box pallets and other load boards, of wood; pallet collars of wood (Not packing material used exclusively as packing material to support, protect or carry another product placed on the market.)

— 4416 00 00 Casks, barrels, vats, tubs and other coopers’ products and parts thereof, of wood, including staves

— 4418 Builders’ joinery and carpentry of wood, including cellular wood panels, assembled flooring panels, shingles and shakes

— Pulp and paper of Chapters 47 and 48 of the Combined Nomenclature, with the exception of bamboo-based and recovered (waste and scrap) products

— 9403 30 , 9403 40 , 9403 50 00 , 9403 60 and 9403 90 30 Wooden furniture

— 9406 00 20 Prefabricated buildings