Communication from the Commission to the European Parliament pursuant to Article 294(6) of the Treaty on the Functioning of the European Union concerning the position of the Council on the adoption of a Regulation of the European Parliament and of the Council laying down the obligations of operators who place timber and timber products on the market
Date: 2010-03-09
Institutions: European Commission
Subjects: amendment, drafting of EU law, marketing, pulp and paper industry, wood industry, wood product

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EUROPEAN COMMISSION 

Brussels, 9.3.2010 
COM(2010)87 final 

2008/0198 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to Article 294(6) of the Treaty on the Functioning of the European Union 

concerning the 

position of the Council on the adoption of a Regulation of the European Parliament and 
of the Council laying down the obligations of operators who place timber and timber 
products on the market 

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2008/0198 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to Article 294(6) of the Treaty on the Functioning of the European Union 

concerning the 

position of the Council on the adoption of a Regulation of the European Parliament and 
of the Council laying down the obligations of operators who place timber and timber 
products on the market 

1. 

BACKGROUND 

Date of transmission of the proposal to the European Parliament and 
to the Council 
(document COM(2008) 644 - 2008/0198 (COD)): 

17 October 2008 

Date  of  the  opinion  of  the  European  Economic  and  Social 
Committee: 

1 October 2009 

Date of the opinion of the Committee of the Regions: 

No opinion 

Date of the opinion of the European Parliament, first reading: 

22 April 2009 

Date of transmission of the amended proposal: 

[…]. 

Date of adoption of the position of the Council: 

1 March 2010 

2. 

OBJECTIVE OF THE COMMISSION PROPOSAL 

The objective of the Regulation is to minimize the risk of placing illegally logged timber on 
the EU market. It is based on the principle that operators should exercise due diligence when 
placing timber and timber products on the EU market for the first time. 

3. 

COMMENTS ON THE POSITION OF THE COUNCIL 

3.1. 

General comments 

The  European  Parliament  adopted  its  position  at  first  reading  on  22  April  2009.  The 
Commission accepted in full, in part or in principle 37 out of 75 amendments adopted by the 
European Parliament in its first reading, where it considered that these amendments clarified 
or  improved  the  Commission  proposal  and  were  consistent  with  the  general  aim  of  the 
proposal.  

On  1st  March  2010  the  Council  adopted  by  qualified  majority  its  position  at  first  reading. 
Seventeen  of  the  European  Parliament  amendments  have  been  taken  into  account  in  the 

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position of the Council.  

The  Commission  rejected  those  amendments  which  would  alter  the  general  approach  and 
principles of the proposal and/or were burdensome and beyond what is necessary to achieve 
the  objective  of  the  Regulation.  These  included  amendments  such  as  those  introducing  a 
prohibition  for  placing  on  the  market  of  illegally  harvested  timber  and  timber  products,  the 
extension of the scope of the regulation to cover all operators in the timber supply chain as 
well as related provisions on traceability and amendments introducing labelling requirements. 

The Commission considers that the position of the Council does not alter the approach or aims 
of the proposal and can thus support it as it stands. 

3.1.1.  Detailed comments 

3.1.1.1.  Parliamentary amendments accepted by the Commission and incorporated in full, in 

part or in principle in the position of the Council 

Amendments  22,  29,  47,  and  72  providing  that  particular  attention  should  be  paid  to  the 
impact  of  the  Regulation  on  small  and  medium-sized  enterprises  have  been  accepted  in 
principle and are incorporated in the text of the relevant articles, which now stipulate that the 
reviews  of  the  Regulation  should  in  particular  take  into  account  the  administrative 
consequences for small and medium-sized enterprises. They further state that delegated acts 
should not create a disproportionate burden on operators. The Commission made a declaration 
(annexed)  in  which  it  undertook  to  endeavour  to  facilitate  the  ability  of  the  operators  to 
comply with the requirements of this Regulation, taking specifically into account the situation 
of  small  and  medium  sized  enterprises/operators.  Amendment  44,  proposing  the  addition  of 
specific types of information has been partially accepted and the text of the article concerning 
the  due  diligence  system  has  been  amended  accordingly.  Amendment  51  concerning  the 
insertion of a conflict of interest clause in the requirements for monitoring organizations has 
been  accepted.  Amendment  64  which  specifies  how  the  information  containing  the  list  of 
competent authorities responsible for the application of the regulation will be made available 
to public has been accepted.  

3.1.1.2.  Parliamentary amendments rejected by the Commission and incorporated in full, in 

part or in principle in the position of the Council 

Amendments  21  and  32  concern  the  scope  of  the  Regulation  and  stipulate  that  timber  and 
timber  products  subject  to  mandatory  sustainability  criteria  should  not  be  excluded  from  its 
application.  The  Commission  proposal  included  an  exemption  for  such  products  and  these 
amendments were not accepted by the Commission, as they were considered inconsistent with 
EU policy in the field of renewable energy. The Council has taken a similar position to the 
Parliament  on  this  issue.  The  Commission  can  now  accept  this  change  in  the  light  of  the 
overall  Council  position,  in  particular  concerning  the  elaboration  of  the  risk  criteria. 
Amendment  38,  concerning  the  definition  of  applicable  legislation,  was  rejected  by  the 
Commission  as  it  introduced  a  very  broad  scope  of  legislation  to  be  taken  into  account. 
However, it was partially accepted by the Council which led to a broadening of the definition 
put  forward  in  the  Commission  proposal.  The  Commission  can  agree  to  this  more  limited 
elaboration. Amendments 51-56 on Commission recognition of monitoring organisations have 
been accepted in part. The Commission rejected these amendments as being inconsistent with 
the principle of subsidiarity. The Commission can agree that where monitoring organisations 
intend  to  carry  out  their  activities  in  more  than  one  Member  State  it  is  appropriate  that  the 

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Commission should recognise such organizations. Amendment 61 has been accepted in part –
information on checks shall be made available, whereas the Commission proposal envisaged 
that only a summary of the records should be made publicly available. 

3.1.1.3.  Parliamentary  amendments  accepted  in  full,  in  part  or  in  principle  by  the 

Commission but not incorporated in the position of the Council 

A number of amendments mainly concerning recitals were accepted in principle by 
to  forest  environment,  biodiversity,  forest 
the  Commission.  These  referred 
ecosystems  and  sustainable  forest  management  (amendments  1-8,  9-11,  14).  They 
were not incorporated in the position of the Council as Council considered them to 
be redundant.  

3.1.1.4.  Parliamentary  amendments  rejected  by  the  Commission  and  the  Council  and  not 

incorporated in the position of the Council 

Those  Parliament  amendments  which  significantly  depart  from  the  initial  idea 
underlining the Commission proposal were not accepted by the Commission and did 
not  find  a  place  in  the  position  of  the  Council.  Those  amendments  concern  in 
particular  the  following  issues:  the  introduction  of  a  prohibition  on  placing  of 
illegally harvested timber and timber products on the market (amendments 42, 43); 
the extension of the scope of the proposal to cover all operators in the supply chain 
and not only those placing timber and timber products on the market for the first time 
(amendments 15, 31, 33-35) and the related notion of traceability (amendment 41); 
the  inclusion  of  a  requirement  for  labelling  of  origin  of  the  timber  products 
(amendments  20,  50);  most  of  amendments  51-53  on  requirements  for  monitoring 
organizations. 

3.1.1.5.  Changes made by the Council to the Proposal  

The Council proposed the following main changes to the Commission proposal: 

Definition  of  "timber  and  timber  products":  The  Council  has  amended  the  definition  in 
order  to  clarify  that  timber  products  derived  from  timber  and  timber  products  that  have 
already  been  placed  on  the  market  are  not  covered.  The  Commission  supports  these 
amendments, which are in the spirit of the Commission proposal. The Commission can also 
support  the  exemption  for  recycled  timber  products;  it  is  willing  to  consider  alternative 
formulations for a definition of recycled timber products.  

Definition of "placing on the market": This has been amended to cover supply by means of 
distance communication through a reference to 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.  

Definition of "applicable legislation": This has been broadened to be more in line with the 
definition used in FLEGT VPAs and includes forestry-related environmental legislation; trade 
and customs legislation, as far as the forest sector is concerned, and thirds parties' legal rights 
concerning use and tenure. The Commission does not object to this amendment as it considers 
it to be an elaboration of its proposal and does not contain certain problematic elements that 
were  present  in  the  Parliaments  amendments,  such  as  the  inclusion  of  relevant  international 
law and of social legislation, e.g. labour law. 

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Due diligence system: The initial Commission proposal has been redrafted but nevertheless 
the  Commission  supports  this  amendment  as  it  clarifies  the  three  main  elements  of  the  due 
diligence  system  comprising  access  to  certain  information,  risk  assessment  and  risk 
mitigation.  The  Council  has  listed  four  risk  assessment  criteria  that  can  be  supplemented 
through delegated acts. It has also introduced the concept of negligible risk. 

Monitoring  Organizations:  The  Council  distinguished  between  monitoring  organisations 
which  intend  to  carry  out  activities  in  one  Member  State  or  in  several  Member  States.  It 
considered  that  the  Commission  should  recognize  those  organisations  carrying  out  their 
activities  in  several  Member  States,  while  a  Member  State's  competent  authority  should 
recognise  monitoring  organisations  carrying  out  their  activities  only  in  that  Member  State. 
The Commission can accept the Council amendments as they do not contradict the principle 
of  subsidiarity  and  agrees  that  where  monitoring  organisations  intend  to  carry  out  their 
activities  in  more  than  one  Member  State  it  is  appropriate  that  the  Commission  should 
recognise  such  organizations.  Another  change  in  the  Commission  proposal  concerns  the 
introduction of an obligation for the monitoring organizations, in executing their functions to 
notify  the  competent  authorities  in  the  event  of  serious  or  repeated  failure  by  the  operators. 
The  Commission  would  prefer  not  to  include  this  provision  and  has  already  expressed 
concerns in its Communication on the Parliament's amendments that such provisions may lead 
to violation of professional secrecy, especially in the case of private sector organizations, and 
eventually  to  a  less  effective  relationship  between  the  operators  and  the  monitoring 
organizations.  However,  in  view  of  the  fact  that  the  Council  limits  cases  for  notification  to 
serious or repeated failure, the Commission does not object to this amendment. 

Checks:  The  Council  reduced  the  period  for  keeping records  of  checks  from  10  to  5  years. 
The Council has provided for information on checks to be made available to any applicant in 
accordance with  Directive  2003/4/EC  of  the  European  Parliament  and  of  the  Council  of  28 
January 2003 on public access to environmental information while the Commission proposal 
envisaged that a summary of the records should be made public. The Commission can accept 
the amendments.  

Secondary  legislation:  The  comitology  provisions  in  the  Commission  proposal  have  been 
revised in the light of the entering into force of the Lisbon treaty. Commission can agree to 
the  choice  made  by  the  Council  of  provisions  which  should  be  amended  or  supplemented 
through delegated acts and those for which implementing acts should be adopted in order to 
ensure  uniform  implementation.  The  Commission  has  serious  concerns  on  the  drafting  of 
certain  provisions,  in  particular  the  recital  which  stipulates  that  the  Commission  "consult 
experts  in  the  preparatory  phase  in  accordance  with  the  commitment  …  undertaken  in  the 
Communication of 9 December 2009 on the implementation of Article 290 of the TFEU", on 
which the Commission made a declaration in the Council minutes (as set out in the Annex). 

Products` scope: The Council has made several amendments, notably including timber and 
timber products, which are subject to mandatory sustainability criteria, as well as products of 
CN  code  4409.  It  has  excluded  the  following  from  the  scope:  packing  material  used 
exclusively as packing material to support, protect or carry another product as well as timber 
products  made  of  recycled  timber.  The  Commission  accepts  these  amendments.  The 
Commission may propose minor technical adjustments to the annex during the second reading 
in  particular  in  order  to  ensure  its  consistency  with  the  latest  revision  of  the  Combined 
Nomenclature  (Annex  I  to  Council  Regulation  (EEC)  No.  2658/87).  The  Commission  will 
consider the inclusion of products under Chapter 49 of the Combined Nomenclature (Annex I 

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to Council Regulation (EEC) No. 2658/87) in future, as indicated in its' declaration, set out in 
the Annex.  

Application:  The  Commission  proposal  envisaged  that  the  Regulation  should  apply  24 
months  after  its  entry  into  force.  The  Council  has  extended  this  period  by  6  months.  This 
amendment  is  acceptable  for  the  Commission  as  it  will  enable  the  Commission  to  fully 
consult stakeholders in drawing up delegated and implementing acts. 

4. 

CONCLUSION 

The  changes  introduced  by  the  Council  are  consistent  with  the  objective  of  minimizing  the 
risk of placing illegally harvested timber and timber products on the market and build upon 
the Commission's proposal. Therefore the Commission can accept the position of the Council.  

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ANNEX  

Declarations by the Commission 

1) 

In  connection  with  articles  12  and  18  the  Commission  undertakes  to  submit  an 
evaluation  on  the  current  EU  economic  and  trade  situation  of  the  products  under 
Chapter 49 of the EU Customs Code, in order to consider their possible inclusion in 
the list of products annexed to the present Regulation. 

The  Commission  shall  also  endeavour  to  facilitate  the  ability  of  the  operators  to 
comply with the requirements of this Regulation, taking specifically into account the 
situation of small and medium sized enterprises/operators.  

2) 

The Commission welcomes the agreement reached in the Council on the Regulation 
on the placing on the market of timber and timber products. 

In this context the Commission takes note of the new recital 24 on the consultation of 
experts  in  the  preparatory  phase  of  delegated  acts.  The  Commission  considers  that 
expert groups cannot have a formal institutional role. Therefore provisions as regards 
the involvement of experts in the preparation of delegated acts cannot be included in 
the  basic  acts.  In  this  regard  the  Commission  refers  to  its  Communication  of  9 
December 2009. 

In order to allow the legislative process to move forward with a view to the timely 
adoption of this Regulation, the Commission will not oppose the common position of 
the Council given that the substance of the compromise reached, taken as a  whole, 
meets the objectives of the proposal. The Commission reserves its right to come back 
to the above mentioned recital in second reading also taking into account the position 
of the European Parliament on this matter. 

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