Regulation (EU) 2023/1115 of the European Parliament and of the Council of 31 May 2023 on the making available on the Union market and the export from the Union of certain commodities and products associated with deforestation and forest degradation and repealing Regulation (EU) No 995/2010 (Text with EEA relevance)

CHAPTER 1

GENERAL PROVISIONS

Article 1

Subject matter and scope

This Regulation lays down rules regarding the placing and making available on the Union market as well as the export from the Union of relevant products, as listed in Annex I, that contain, have been fed with or have been made using relevant commodities, namely cattle, cocoa, coffee, oil palm, rubber, soya and wood, with a view to:

(a) minimising the Union’s contribution to deforestation and forest degradation worldwide, and thereby contributing to a reduction in global deforestation;

(b) reducing the Union’s contribution to greenhouse gas emissions and global biodiversity loss.

Article 2

Definitions

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

(1) ‘relevant commodities’ means cattle, cocoa, coffee, oil palm, rubber, soya and wood;

(2) ‘relevant products’ means products listed in Annex I that contain, have been fed with or have been made using relevant commodities;

(3) ‘deforestation’ means the conversion of forest to agricultural use, whether human-induced or not;

(4) ‘forest’ means land spanning more than 0,5 hectares with trees higher than 5 metres and a canopy cover of more than 10 %, or trees able to reach those thresholds in situ, excluding land that is predominantly under agricultural or urban land use;

(5) ‘agricultural use’ means the use of land for the purpose of agriculture, including for agricultural plantations and set-aside agricultural areas, and for rearing livestock;

(6) ‘agricultural plantation’ means land with tree stands in agricultural production systems, such as fruit tree plantations, oil palm plantations, olive orchards and agroforestry systems where crops are grown under tree cover; it includes all plantations of relevant commodities other than wood; agricultural plantations are excluded from the definition of ‘forest’;

(7) ‘forest degradation’ means structural changes to forest cover, taking the form of the conversion of: (a) primary forests or naturally regenerating forests into plantation forests or into other wooded land; or (b) primary forests into planted forests;

(8) ‘primary forest’ means naturally regenerated forest of native tree species, where there are no clearly visible indications of human activities and the ecological processes are not significantly disturbed;

(9) ‘naturally regenerating forest’ means forest predominantly composed of trees established through natural regeneration; it includes any of the following: (a) forests for which it is not possible to distinguish whether planted or naturally regenerated; (b) forests with a mix of naturally regenerated native tree species and planted or seeded trees, and where the naturally regenerated trees are expected to constitute the major part of the growing stock at stand maturity; (c) coppice from trees originally established through natural regeneration; (d) naturally regenerated trees of introduced species;

(10) ‘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 50 % of the growing stock at maturity; it includes coppice from trees that were originally planted or seeded;

(11) ‘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;

(12) ‘other wooded land’ means land not classified as ‘forest’ spanning more than 0,5 hectares, with trees higher than 5 metres and a canopy cover of 5 to 10 %, or trees able to reach those thresholds in situ, or with a combined cover of shrubs, bushes and trees above 10 %, excluding land that is predominantly under agricultural or urban land use;

(13) ‘deforestation-free’ means: (a) that the relevant products contain, have been fed with or have been made using, relevant commodities that were produced on land that has not been subject to deforestation after 31 December, 2020; and (b) in the case of relevant products that contain or have been made using wood, that the wood has been harvested from the forest without inducing forest degradation after 31 December, 2020;

(14) ‘produced’ means grown, harvested, obtained from or raised on relevant plots of land or, as regards cattle, on establishments;

(15) ‘operator’ means any natural or legal person who, in the course of a commercial activity, places relevant products on the market or exports them, excluding downstream operators;

(15a) ‘micro or small primary operator’ means an operator who is a natural person or a micro-undertaking or small undertaking, within the meaning of Article 3(1) and Article 3(2), first subparagraph, respectively, of Directive 2013/34/EU of the European Parliament and of the Council (¹), irrespective of its legal form, established in a country classified as low risk in accordance with Article 29 of this Regulation, and who, in the course of a commercial activity, places on the market or exports relevant products that this operator itself has grown, harvested, obtained from or raised on relevant plots of land, or, as regards cattle, on establishments located in that country; this includes operators who exceed the limits of at least two of the three criteria set out in Article 3(1) and (2), first subparagraph, of Directive 2013/34/EU but who can demonstrate that the parts of their balance sheet total, net turnover and average number of employees during the financial year, related to the relevant commodities and the relevant products, do not exceed the limits of at least two of three of those criteria;

(15b) ‘downstream operator’ means any natural or legal person who, in the course of a commercial activity, places on the market or exports relevant products made using relevant products, all of which are covered by a due diligence statement or by a simplified declaration;

(16) ‘placing on the market’ means the first making available of a relevant commodity or relevant product on the Union market;

(17) ‘trader’ means any person in the supply chain other than the operator or downstream operator who, in the course of a commercial activity, makes relevant products available on the market;

(18) ‘making available on the market’ means any supply of a relevant 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;

(19) ‘in the course of a commercial activity’ means for the purpose of processing, for distribution to commercial or non-commercial consumers, or for use in the business of the operator, downstream operator or trader itself;

(20) ‘person’ means a natural person, a legal person or any association of persons which is not a legal person, but which is recognised under Union or national law as having the capacity to perform legal acts;

(21) ‘person established in the Union’ means: (a) in the case of a natural person, any person whose place of residence is in the Union; (b) in the case of a legal person or an association of persons, any person whose registered office, central headquarters or a permanent business establishment is in the Union;

(22) ‘authorised representative’ means any natural or legal person established in the Union who, in accordance with Article 6, 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;

(23) ‘country of origin’ means a country or territory as referred to in Article 60 of Regulation (EU) No 952/2013;

(24) ‘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 relevant product was produced;

(25) ‘non-compliant products’ means relevant products that do not comply with Article 3;

(26) ‘negligible risk’ means the level of risk that applies to relevant commodities and relevant products, where, on the basis of a full assessment of product-specific and general information, and, where necessary, of the application of the appropriate mitigation measures, those commodities or products show no cause for concern as being not in compliance with Article 3, point (a) or (b);

(27) ‘plot of land’ means land within a single real-estate property, as recognised by the law of the country of production, which enjoys sufficiently homogeneous conditions to allow an evaluation of the aggregate level of risk of deforestation and forest degradation associated with relevant commodities produced on that land;

(28) ‘geolocation’ means the geographical location of a plot of land described by means of latitude and longitude coordinates corresponding to at least one latitude and one longitude point and using at least six decimal digits; for plots of land of more than four hectares used for the production of the relevant commodities other than cattle, this shall be provided using polygons with sufficient latitude and longitude points to describe the perimeter of each plot of land;

(29) ‘establishment’ means any premises, structure, or, in the case of open-air farming, any environment or place, where livestock are kept, on a temporary or permanent basis;

(30) ‘micro, small and medium-sized enterprises’ or ‘SMEs’ means micro, small and medium-sized undertakings, irrespective of their legal form, within the meaning of Article 3(1), Article 3(2), first subparagraph, and Article 3(3), respectively, of Directive 2013/34/EU;

(31) ‘substantiated concern’ means a duly reasoned claim based on objective and verifiable information regarding non-compliance with this Regulation and which could require the intervention of competent authorities;

(32) ‘competent authorities’ means the authorities designated under Article 14(1);

(33) ‘customs authorities’ means customs authorities as defined in Article 5, point (1), of Regulation (EU) No 952/2013;

(34) ‘customs territory’ means territory as defined in Article 4 of Regulation (EU) No 952/2013;

(35) ‘third country’ means a country or territory outside the customs territory of the Union;

(36) ‘release for free circulation’ means the procedure laid down in Article 201 of Regulation (EU) No 952/2013;

(37) ‘export’ means the procedure laid down in Article 269 of Regulation (EU) No 952/2013;

(38) ‘relevant products entering the market’ means relevant products from third countries placed under the customs procedure ‘release for free circulation’ that are intended to be placed on the Union market and are not intended for private use or consumption within the customs territory of the Union;

(39) ‘relevant products leaving the market’ means relevant products placed under the customs procedure ‘export’;

(40) ‘relevant legislation of the country of production’ means the laws applicable in the country of production concerning the legal status of the area of production in terms of: (a) land use rights; (b) environmental protection; (c) forest-related rules, including forest management and biodiversity conservation, where directly related to wood harvesting; (d) third parties’ rights; (e) labour rights; (f) human rights protected under international law; (g) the principle of free, prior and informed consent (FPIC), including as set out in the UN Declaration on the Rights of Indigenous Peoples; (h) tax, anti-corruption, trade and customs regulations.

Article 3

Prohibition

Relevant commodities and relevant products shall not be placed or made available on the market or exported, unless 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 or a simplified declaration, as required by the relevant provisions of this Regulation.

CHAPTER 2

OBLIGATIONS OF OPERATORS, DOWNSTREAM OPERATORS AND TRADERS

Article 4

Obligations of operators

Operators shall not place relevant products on the market or export them where one or more of the following cases apply:

(a) the relevant products are non-compliant;

(b) the exercise of due diligence has revealed a non-negligible risk that the relevant products are non-compliant;

(c) the operator was unable to fulfil the obligations referred to in paragraphs 1 and 2.

Article 4a

Simplified regime for micro or small primary operators

Article 5

Obligations of downstream operators and traders

Downstream operators and traders shall collect and keep the following information relating to the relevant products they intend to place or make available on the market or export:

(a) the name, registered trade name or registered trade mark, the postal address, the email address and, if available, a web address of the operators, downstream operators, or the traders who have supplied the relevant products to them, as well as, only in the event that their supplier is an operator, the reference numbers of the due diligence statements or the declaration identifiers associated to those products;

(b) the name, registered trade name or registered trade mark, the postal address, the email address and, if available, a web address of the downstream operators, or the traders to whom they have supplied the relevant products.

Article 6

Authorised representatives

Article 7

Placing on the market by operators established in third countries

Where a natural or legal person established outside the Union places relevant products on the market, the first natural or legal person established in the Union who makes such relevant products available on the market shall be deemed to be an operator within the meaning of this Regulation.

Article 8

Due diligence

The due diligence shall include:

(a) the collection of information, data 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 11.

Article 9

Information requirements

Operators shall collect information, documents and data which demonstrate that the relevant products comply with Article 3. For this purpose, the operator shall collect, organise and keep for five years from the date of the placing on the market or of the export of the relevant products the following information, accompanied by evidence, relating to each relevant product:

(a) a description, including the trade name and type of the relevant products as well as, in the case of relevant products that contain or have been made using wood, the common name of the species and their full scientific name; the product description shall include the list of relevant commodities or relevant products contained therein or used to make those products;

(b) the quantity of the relevant products; for relevant products entering or leaving the market, the quantity is to be expressed in kilograms of net mass and, where applicable, in the supplementary unit set out in Annex I to Council Regulation (EEC) No 2658/87 (²) against the indicated Harmonised System code, or, in all other cases, the quantity is to be expressed in net mass or, where applicable, volume or number of items; a supplementary unit is applicable where it is defined consistently for all possible subheadings under the Harmonised System code referred to in the due diligence statement or where provided as part of the simplified declaration;

(c) the country of production and, where relevant, parts thereof;

(d) the geolocation of all plots of land where the relevant commodities that the relevant product contains, or has been made using, were produced, as well as the date or time range of production; where a relevant product contains or has been made with relevant commodities produced on different plots of land, the geolocation of all different plots of land shall be included; any deforestation or forest degradation on the given plots of land shall automatically disqualify all relevant commodities and relevant products from those plots of land from being placed or made available on the market or exported; for relevant products that contain or have been made using cattle, and for such relevant products that have been fed with relevant products, the geolocation shall refer to all the establishments where the cattle were kept; for all other relevant products of Annex I, the geolocation shall refer to the plots of land;

(e) the name, postal address and email address of any business or person from whom they have been supplied with the relevant products;

(f) the name, postal address and email address of any business, downstream operator or trader to whom the relevant products have been supplied;

(g) adequately conclusive and verifiable information that the relevant products are deforestation-free;

(h) adequately conclusive and verifiable information that the relevant commodities have been produced in accordance with the 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.

Article 10

Risk assessment

The risk assessment shall take into account, in particular, the following criteria:

(a) the assignment of risk to the relevant country of production or parts thereof in accordance with Article 29;

(b) the presence of forests in the country of production or parts thereof;

(c) the presence of indigenous peoples in the country of production or parts thereof;

(d) the consultation and cooperation in good faith with indigenous peoples in the country of production or parts thereof;

(e) the existence of duly reasoned claims by indigenous peoples based on objective and verifiable information regarding the use or ownership of the area used for the purpose of producing the relevant commodity;

(f) prevalence of deforestation or forest degradation in the country of production or parts thereof;

(g) the source, reliability, validity, and links to other available documentation of the information referred to in Article 9(1);

(h) concerns in relation to the country of production and origin or parts thereof, such as level of corruption, prevalence of document and data falsification, lack of law enforcement, violations of international human rights, armed conflict or presence of sanctions imposed by the UN Security Council or the Council of the European Union;

(i) the complexity of the relevant supply chain and the stage of processing of the relevant products, in particular difficulties in connecting relevant products to the plot of land where the relevant commodities were produced;