A closer look at the new draft EUDR Delegated Act

Breakdown of the updates to Annex I

Revisions made to Annex I are proposed according to one or more of six rationales, outlined below.

1. Clarifying product scope: Several product codes under the Oil Palm and Rubber commodities in Annex I have caused confusion, as they could refer to products made from both relevant and non-relevant commodities. To address this, the draft Act proposes adding the prefix ‘ex’ to selected codes to clarify that only products made with relevant commodities fall within the scope of the EUDR.

   For relevant products under the commodity Wood, the Act also confirms that products made entirely from bamboo, rattan or other materials of woody nature are excluded from the scope of the regulation.

2. Exclusion of waste, used and second-hand products: The Act clarifies that waste (as defined under the Waste Framework Directive (2008/98/EC, Article 3.1)) and second-hand or used products are not subject to the EUDR. This measure seeks to support circular economy and resource-efficient practices¹, which may otherwise have been discouraged due to existing ambiguities.

   The words "used products" and "second-hand" are employed for the first time within the context of the EUDR. However, the Commission has not provided a formal definition of these. Preferred by Nature’s own analysis has not found a formal definition of "used" in any previous EU legislation, although there is likely some customs usage of the term. A working definition inferred from the definition of “reuse” in the End-of-Life Vehicles Directive (2000/53/EC) could consider used products as those which have been operated or consumed at least once. “Second-hand goods” are defined in the EU VAT Directive (2006/112/EC) as “movable tangible property that is suitable for further use as it is or after repair…”

3. Exemption of product samples: Product samples used for examination, analysis or testing, as described within the Customs Duty Relief Regulation (EC 1186/2009, Articles 86 and 95), are excluded from the scope of the EUDR. Samples are used by businesses for purposes such as quality testing, design validation and market research, or to seek and solicit orders from new suppliers or customers.

   Product samples are often consumed, used up or destroyed during examination or testing. The Customs Duty Relief Regulation describes the manner of presentation and quantity of product samples, and rules out their use for any purpose other than that of seeking orders.

   These samples are likely to have minimal value and, importantly, minimal impact – yet can result in burdensome administration for operators. Hence, their exclusion from the regulation.

4. Packaging clarification: Packing materials and containers placed on the EU market or exported as products in their own right fall within the scope of the EUDR. They are only exempt when they are used to support, protect, or carry another product placed on the market. However, packing materials and containers clearly suitable for repetitive use can be re-exported or made available on the market (perhaps even multiple times) as a product on their own, and are therefore subject to the due diligence obligations of the regulation.

   The proposed Act seeks to clarify that packing materials and containers clearly suitable for repetitive use do not fall within the scope of the EUDR from the moment they are used for such purpose and onwards.

5. Accessory materials: The draft Act clarifies that materials such as user manuals, leaflets, and marketing materials are excluded from the EUDR scope when they accompany a product. However, this exclusion does not apply when such materials are placed or made available on the EU market independently, as products in their own right.

    

6. Correspondence exclusion: Items of correspondence, as defined in the Union Customs Code Delegated Act (EU 2015/2446, Article 1.26), include letters, postcards, braille letters and printed matter. These serve a communication purpose and are not considered to be placed or made available on the market. The draft Act seeks to clarify that such items do not fall within the scope of the EUDR.

    It is worth noting that the updated EUDR FAQ (2.13–2.14) states that if an item of correspondence contains a relevant product (e.g., an envelope containing relevant products), these will be subject to DDS requirements if supplied in the course of a commercial activity.

    

   ^{1 Commission Communication COM(2020) 98 final, titled "A new Circular Economy Action Plan for a cleaner and more competitive Europe" emphasises promoting reuse, repair, and sustainable consumption.}