Nova legislativa EU v ramci boje s odlesnovanim cast druha

New EU legislation to combat deforestation - part two: who am I?

The Regulation imposes (different) obligations on operators and traders. This often leads to the question of what the difference between the two is.

In the words of the Regulation, an operator is a person who, in the course of a commercial activity, places relevant products on the market or exports them. Several key terms appear in the definition:

• in the course of a commercial activity;
• places on the market or exports from the market;
• relevant products.

A trader is a person who is not an economic operator and, in the course of a commercial activity, makes relevant products available on the market. Again, we encounter several terms, this time:

• in the course of a commercial activity;
• makes available on the market;
• relevant products.

We will look at relevant products (and commodities), a feature common to both economic operators and traders, in a future episode; today we will look at commercial activity and placing and making available on the market.

Placing on the market means the first supply of a product to the market. It is the activity of economic operators, through which they make available products that have not appeared on the EU market before - meaning a specific piece, not its type.

By contrast, making available on the market is a repeated supply of a previously made available relevant product (again, we are talking about a specific piece, not a type). It is the activity of traders through they provide their customers – not necessarily consumers – with relevant products that have already been placed on the market by another entity.

To fall within the scope of the Regulation, both of these options must be carried out in the course of a commercial activity. Such is not limited to mere buying and selling, but includes a range of activities that are related to the business of a particular entity. It should also be borne in mind that commercial activities within the meaning of the EUDR need not be carried out for remuneration but may also involve products provided free of charge - or the products need not be provided to a third party at all, but for example used for the entrepreneur's own needs.

The distinction between economic operators and traders, however complicated it may seem, is central to determining the impact of the Regulation on a particular entity's business. It is the economic operators who bear, in simple terms, the "core" obligations under the EUDR. However, the obligations of traders, while significantly different from those of economic operators, are also far from negligible.

Moreover, traders do not "win" either. Indeed, if they are not SMEs, they are considered economic operators for the purposes of the Regulation; the same is true if they are the first entity in the supply chain established in the European Union.

It can therefore be a difficult task to determine whether an entity is an economic operator or a trader. Nevertheless, it is crucial for the fulfilment of the obligations that EUDR brings.

For more detailed information, please contact the authors of this article or other members of the EY team with whom you work.

Authors:

Jan Turek
Veronika Juhasová