Analysis: Commission Publishes Updated EUDR FAQs

This week, a spokesperson announced that the EU Commission will release a five part EUDR package containing a review report, frequently asked questions, fresh guidance, a Delegated Act on scope and an Implementing Act on the IT system. The Commission spokesperson ruled out an on-time delivery of the EUDR report and delegated acts due to the May Day public holiday and noted that these items would be published in the coming week.

On April 30th, the EU Commission published updated EUDR FAQs with several key updates from the previous iteration. Here's what you need to know.

On the traceability of imported, exported and traded products

In order to maintain traceability under the simplified due diligence obligations, downstream operators and traders must keep a record of their suppliers and clients. However, the level of responsibility varies based on whether the downstream operator or trader is the first downstream operator, or further down in the supply chain.

Downstream operators and traders are obliged to collect and keep information about their direct business partners (see Art. 5(3) EUDR). They may only place or make available relevant products or export them after having received all required information from their direct supplier(s). The information consists of 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 and of the downstream operators or traders to whom they supply.

Only in the case in which their direct supplier is an (upstream) operator in the sense of Art. 2(15) EUDR, making the downstream operator or trader a so-called first downstream operator or trader, will the required information also include the due diligence statement reference numbers or declaration identifiers associated to products.

On whether downstream operators or traders must identify if they are the first downstream operator or trader

The primary operator bears the obligation to proactively pass on the due diligence reference number or simplified declaration identifier number to the first downstream operator or trader. "The downstream operator or trader, acting in good faith, can presume that their suppliers are not upstream operators if they do not receive reference umbers or declaration identifier numbers from them. Only when the first downstream operator or trader is aware that its supplier is an upstream operator and that upstream operator does not comply with its obligation to share the reference number or declaration identifier must the first downstream operator or trader refrain from placing or making available the relevant goods on the EU market (Art. 5(1)EUDR)."

A downstream operator or trader is not obliged to proactively assess if their supplier is an operator, nor to request or obtain the DDS/SD number from their supplier, unless they are aware that their supplier is an operator.

On declaring the place of production for mixed goods

Operators need to declare the place of production of all goods effectively shipped to the EU, otherwise they violate the prohibition under the Regulation of placing products of unknown origin on the Union market. For example, if compliant goods from multiple places of production are mixed into the same silo, stack, pile, tank, etc., and then some of those goods are placed on the EU market, the place of production declared should include the place of production of all goods that entered the silo since it was last empty (and could therefore potentially be included in the shipment).

If the silos are not regularly emptied, the operator would need to declare the place of production of all goods that entered the silo during a period of time that ensures that commodities of unknown place of production are not mixed up in the process. Other approaches are possible for first-in first-out as well as for other storage systems as long as it is ensured that commodities from an unknown place of production or which are non-compliant with EUDR are not mixed up in the process. 

On low-risk countries

Geolocation coordinates must still be provided for plots of land in low-risk countries. After assessing that there is negligible risk of mixing with products of unknown origin, standard or high risk countries, products sourced entirely from low risk countries are entitled to simplified due diligence under the law, meaning they do not require deforestation analysis or a full legality due diligence assessment.

While the Commission has not yet published its EUDR review report and subsequent delegated acts, they are not expected to introduce a no-risk country designation.

On non-EU based operators placing relevant products on the EU market

Non-EU operators placing relevant products or commodities on the EU market for the first time will have access to the EU TRACES system provided they have a valid EORI number issued to them by an EU member state. According to Article 7, the first person established within the EU who makes such products available on the market is also deemed to be an operator, meaning there are two operators in this instance. Both are responsible for submitting due diligence statements to EU TRACES.

On whether a company can require an exempted downstream operator or trader to submit a DDS

There is no legal obligation for any downstream operator or trader to submit a DDS, nor does the EU TRACES system foresee the technical possibility to do so.

On liability in the case of non-compliance

Primary operators bear responsibility for the compliance of the relevant products they place on the EU market or export. If a product is found to be non-compliant the primary operator must refrain from placing the product on the market and must immediately inform Competent Authorities, downstream operators and traders to whom they supplied the relevant product.

On online sales / e-commerce

The EUDR applies to all relevant products supplied ‘in the course of a commercial activity’, which includes online or distance sales. It is not relevant whether products are supplied to another business (B2B) or to a consumer (B2C), as any ‘supply’ ‘in the course of a commercial activity’ is captured by the EUDR.

On the definition of raising 'substantiated concerns' to Competent Authorities (a.k.a. whistleblowers)

Substantiated concerns regarding possible non-compliance can be brought by any natural or legal person. They can be brought directly to the attention of a Competent Authority or to a primary operator, downstream operator or trader, with relation to their own compliance, who in turn must inform Competent Authorities about that substantiated concern and any mitigation measures undertaken as a result.

Substantiated concerns must be 'duly reasoned', meaning that they must be justified through a transparent, concrete, logical and defensible chain of reasoning. The recipient of the claim should be able to reconstruct how the findings and conclusions set out in the substantiated concern were reached. According to the Commission, substantiated concerns should be based on "objective and verifiable information" and should be supported by evidence as part of the claim.

On obligations for products that have been re-imported after being previously exported

As long as a downstream operator can prove that a product has already been placed on the EU market once before, there is no obligation to submit a second DDS.

Examples of supporting evidence to demonstrate that a product was already placed on the EU market prior to export and re-import include: customs declarations, contracts between other parties or involving the re-importer, product order documents, shipment accompanying documents including CMRs, bills of lading, delivery notes, air-way bills, invoices, and any other credible documentation which can be linked directly to the relevant product in question. The FAQ document does not specifically note where such evidence should be presented, but re-importers should be prepared to present such documentation at customs.

At customs, the re-importer must also provide the reference number(s) received from its suppliers. If no reference numbers were provided, the re-importer can make use of a conventional reference number, which will be communicated by the /commission for use in the customs declaration submitted for re-import. Competent Authorities will be informed about the use of the conventional DDS reference number at customs, enabling them to take further steps of monitoring, verification and control.

On the evidence needed to prove that a good was placed on the EU market before the date of entry into application (December 30, 2026)

In case of imported products, the customs declaration of the relevant commodities or relevant products in question will be accepted as evidence of having been placed on the EU market before the date of application.

For goods produced within the EU, documentation related to the production date, documentation related to the production or selling date can all be accepted as evidence. The date of placing a product on the EU market can be supported by contracts between parties, product order documents, shipment documents containing information regarding the delivery to the customer, bills of lading, delivery notes, and any other documents showing evidence that goods transferred between two parties which can be linked directly to the relevant products in question.

While operators will not be able to submit this evidence to TRACES, Competent Authorities can carry out checks on relevant products to establish whether products were placed on the EU market during the transitional period. Operators must present evidence to Competent Authorities upon request.

Learn more

To learn more about the recently updated EUDR FAQs, or to speak with a member of our team of in-house policy experts, reach out today.