Influence of the EU Climate and Energy Framework and Trade Policy on Implementation of Permanently Sustainable Forestry – Legal Aspects

the subject of considerations are the legal aspects of the influence of the eU climate and energy framework and trade policy on implementation of permanently sustainable forestry. even though forestry belongs to the competences of Member States and there is no formal establishment of common forest policy in the tFeU, the new LULUcF Regulation and provisions of regulations regarding prevention of illegal timber trade prove that there is an ongoing process of subjecting forestry to the competencies of the european union to a growing extent as well as reducing the area left to Member states. it must be stated that the platform for expansion of eU regulations on member states’ forestry in terms of land use and timber trade – acts adopted within the trade policy and climate and energy framework – is the principle of sustainable development that derives from international legislation and is also included in the Constitution of the republic of Poland. This principle is also the foundation for development of the beginnings of common forest policy that emerges at the verge of eu policies.

however, as part of the eU trade policy, Union regulations include timber trade and due diligence systems referring to provision of sustainable forestry 9 . In particular, development of forest management regulations by Member States requires consideration of international conditions regarding implementation of forest management and timber trade 10 .
legal literature includes the issue of land management in the context of the LULUcF Regulation 11 and the issue of climate protection 12 , but not from the perspective of forestry. Some issues are discussed in forestry science literature 13 . The issue of forestry actions undertaken within eU policies has also been raised 14 . Among arguments that justify elaboration of this issue, there are cognitive and theoretical aspects. when it comes to the former, forestry -as activity related to humans using forest resources -affects their preservation for future generations. Besides, their involvement in emission and reduction of greenhouse gases has an impact on the climate. the literature informs that in Poland, in the LULUcF sector, forests have the highest carbon dioxide removal per surface unit, amounting to 4.42 tons of Co 2 per hectare and forestry contributes to carbon dioxide removal to a much bigger extent than net afforestation (on average, in recent years the volume of forestry-related carbon dioxide removal in Poland amounted to almost 38 million tons per year and net afforestation removed slightly more than 2 million tons of carbon dioxide on average) 15 . 9 see m. czermińska, Zasady i funkcjonowanie wspólnej polityki handlowej Unii Europejskiejimplikacje dla Polski, "zeszyty naukowe Uniwersytetu ekonomicznego w krakowie" 2008, nr 777, pp. 5-30. 10

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The european union assumes gradual reduction of greenhouse gas emissions until 2050 16 . Some countries, including Poland, have exceeded the yearly emission limits 17 . The most recent goals assume that the european union will achieve climate neutrality by 2050, in accordance with the Paris agreement 18 . The european Council decided that all eu policies have to be consistent with this goal. At the same time, eu leaders decided that there is a need to provide energy security and respect member states' right to decide about their own energy mix and to choose the most appropriate technologies 19 . Poland did not undertake to implement this goal and the european Council wants to return to this topic in June 2020. Meanwhile, climate protection issues are vital for implementation of the climate neutrality goal in the entire european union 20 .
when it comes to theoretical aspects, it must be emphasized that eu regulations have a growing influence on forestry. it is, thus, justified to examine the influence of eu regulations on the directions of forestry that falls within the competences of individual member states. Given the above, the goal of considerations is to find the scope of and reasons for inclusion of forestry in eu regulations.

II.
The division of competences between the european union and the Member states is regulated by articles 2-6 of the treaty on the Functioning of the european Union (tFeU) 21 . According to Article 5 (1) of the Treaty on european union (Teu) 22 , the eu has only the competences granted to it by Treaties. In light of these 16 Percentage points are the difference between the volume of emissions and yearly limit of emissions expressed as a percentage change in comparison with emissions in 2005 as the base year. 17 report from the Commission to the european Parliament and the Council eu and the Paris climate agreement: taking stock of progress at katowice coP (required under article 21 of Regulation (eu)  regulations, the following types of competences can be distinguished: exclusive (areas in which the eU alone is able to legislate and adopt binding acts -article 3 tFeU), shared (the eU and member states are both able to legislate and adopt legally binding acts; the latter exercise their own competence where the eu does not exercise, or has decided not to exercise, its own competence -article 4 tFeU) and supporting (specified in article 6 tFeU, for which the eU can only intervene to support, coordinate or complement the action of Member States; legally binding eU acts must not require harmonization of member states' laws or regulations) 23 .
Forestry does not belong to the exclusive competences as mentioned in article 3 tFeU and there is no common forestry policy 24 . Forestry, thus, belongs to the competences of Member States, under the principle of subsidiarity. Among challenges that Member States and the eu undoubtedly face is the counteracting and prevention of climate change, including reduction of greenhouse gas emissions and sustainable resource management 25 . The eu has the right to support the national forestry policy and programs through monitoring and possible reporting on the condition of eu forests, anticipation of global tendencies in this area and drawing of member states' attention to new challenges as well as offering and possible coordination of or support for early action opportunities within the eu 26 .

III.
according to the Forest act, "forestry" is the activity regarding development, protection, and management of forests, preserving and expanding resources and forest stand, game management, acquisition -excluding purchase -of timber, resin, trees, stump timber, bark, needles, game and ground cover plants as well as sale of these products and implementation of non-productive functions of forests 27 .

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"Permanently sustainable forestry", in turn, is an activity that aims at development of forest structure and its use in a manner and at a pace that guarantee permanent preservation of their biological richness, high productivity and regenerative potential, life span and the ability to fulfill, now and in the future, all-important protective, economic and social functions at the local, national and global level, without harm to other ecosystems 28 .
the need to take into account climate protection should derive from the "non-productive functions of forests" in the forestry definition as well as "the ability to fulfill, now and in the future, all-important protective, economic and social functions at the local, national and global level". These fragments clearly show that permanently sustainable forestry (not just forestry -mark that) is subordinate to, among others, the goal of preserving forests and their positive influence on the climate, air, water, soil, conditions of living and health of humans as well as the balance of nature 29 .
The notion of permanently sustainable forestry refers to the principle of sustainable development 30 . The principle of sustainable development derives from international legislation 31 and has a source in the Constitution of the republic of Poland 32 as well. sustainable development is defined as "the process whose goal is to satisfy the developmental needs of the current generation in such a way that enables implementation of the same objectives to subsequent generations" 33 .
under Article 5 of the Polish Constitution "The republic of Poland shall safeguard the independence and integrity of its territory and ensure the freedoms and rights of persons and citizens, the security of the citizens, safeguard the national heritage and shall ensure the protection of the natural environment pursuant to the 28 article 6 (1) (1) of the Forest act. 29 article 7 (1) (1) of the Forest act. 30 cf. Resolution adopted by the General assembly on 25 september 2015 [without reference to the main committee (a/70/L. principles of sustainable development". The literature assumes that Article 5 of the Polish constitution lists the goals of the country that fit implementation of the protective function which, however, is not the only function ascribed to the state by the legislator 34 . The fact that Poland does not recognize eu obligations in terms of achievement of climate neutrality seems to be inconsistent with the constitutional objective to pursue the principle of sustainable development, even if it could be justified from the economic viewpoint. this stance is also hard to fathom in the context of the content of the document -development strategy entitled "state environmental Policy 2030" 35 . The above-mentioned document considers it necessary to support multipurpose and permanently sustainable forestry as well as actions to prevent climate change 36 .

IV.
within eu trade policy, regulations focus on prevention of illegal timber harvesting 37 in terms of placing timber on the internal market 38 and obligations of operators that provide timber and timber products for sale 39 . Prevention of illegal timber harvesting is regulated by regulations (eC) no. 2173/2005 40 and 995/2010 41 . The above-mentioned acts establish a ban on sale of illegally harvested timber and related negative social, economic, and environmental consequences. In particular, illegally harvested timber is timber harvested in such a way that violates legislation applicable in the country of harvesting 42 , e.g. the Forest act. Legal solutions are to support control and supervision of placing timber and timber products on the U M C S katarzyna Leśkiewicz 76 market and their goal is to implement sustainable forestry in countries that produce timber 43 . State forest management does not have to be consistent with the principle of sustainable development "in the interest of public welfare" 44 . At the union level, there is a system of licensing in order to make sure that only timber products from legally harvested timber are placed on the eU markets, in accordance with the national legislation of the country that produces timber 45 . This system is referred to as the FLeGt licensing scheme 46 . Besides, regulation (eu) no. 995/2010 establishes an obligation of "due diligence" while placing timber or timber products on the market. Provisions of this regulation must be implemented by the operator that places these products on the eU markets for the first time. the obligation is specified by a number of procedures and measures described as "due diligence system" 47 which can be based on supervision and control resulting from national legislation. A guarantee of compliance with applicable legislation may include e.g. certification or systems verified by a third party 48 . In practice, a guarantee that timber harvesting took place within "sustainable forestry" is provided through evaluation of compliance -certification that may include forestry or supply chain (including source of timber) 49 .

V.
In the eu, protection and improvement of the quality of the environment is included in article 11 or article 191 tFeU 50 . The eu implements sustainable development goals set by the un, including long-term reduction of greenhouse gas emissions and larger removals by sinks in all sectors 51 . the climate and energy framework includes land use, land use change, and forestry sector (LULUcF) which is exposed to the effects of climate change on the one hand, and on the other, it can contribute to mitigation of these effects. The most important obligation of Member States is to maintain lower emissions than removals in the periods from 2021 to 2025 and from 2026 to  2030, taking into account flexibilities. it means that member states are obliged to prepare and keep accounts according to the principle of accuracy, completeness, consistency, comparativeness, and transparency (article 5 of the LULUcF Regulation). every member state has to make sure that accounted for greenhouse gas emissions from land use are fully balanced with Co 2 removals through activity in this sector. the LULUcF also guarantees maintaining of the proportion of timber harvested for products and bioenergy in the years 2000-2009. there is a mechanism of compensation for possible emissions from managed land use in case a given country does not achieve the removal volume equal to the reference level and its activity is based exclusively on the forestation rate of the Member State (average forestation rate for the reference period 2000-2009). Poland has been granted a compensation limit for 10 years (2021)(2022)(2023)(2024)(2025)(2026)(2027)(2028)(2029)(2030) in the amount of -22.5 million tons of co 2 equivalent as total maximum limit for this period. however, accounting of balances for afforestation or deforestation and harvested timber products (excluding paper) should not be restricted with either a limit or a reference level.
when it comes to forestry, there is an assumption that the reference level for forests must be based on continued practice of sustainable forestry documented between 2000 and 2009 with reference to dynamic age-related forest characteristics in national forests with the use of the best available data. This level should also take into account "the future impact of dynamic age-related forest characteristics in order not to unduly constrain forest management intensity as a core element of sustainable forest management practice, with the aim of maintaining or strengthening long-term carbon sinks" (article 8 (5) of the LULUcF Regulation).
when it comes to afforested and deforested land, emissions and removals shall be accounted as total emissions and total removals for each year in the period from 2021 to 2025 and from 2026 to 2030 52 . emissions and removals for managed forest land shall be calculated as emissions and removals in the period from 2021 to 2025 and from 2026 to 2030 minus the value obtained by multiplying by five the forest reference level of the Member State concerned 53 . If the result is negative in relation to the forest reference level 54 for a given Member State, this country should include in its managed forest land accounts "total net removals of no more than the equivalent of 3,5 per cent of the emissions of that member state's emissions in its base year or period as specified in annex iii, multiplied by five", excluding exceptions specified in the LULUcF, in the land accounting category of managed forest land. 52 article 6 (1) of the LULUcF Regulation. 53 article 8 (1) of the LULUcF Regulation. 54 Under article 3 (1) (7) of the LULUcF Regulation, "forest reference level" is the estimated forest reference level expressed in tons of Co 2 equivalent per year, of the average annual net emissions or removals resulting from forest land management in a given Member State in the periods from 2021 to 2025 and from 2026 to 2030, based on the criteria established in this regulation. in conclusion, it must be stated that the FLeGt licensing scheme and the due diligence system regard the manner timber is both harvested and sold. the LULUcF regulation, in turn, because of accounting mechanisms of emissions and removals from forest land management, may affect timber harvesting. Thus, these areas fall under the notion of forestry. what is important, the attribute of sustainable forestry serves only actions that are consistent with the discussed regulation. even though forestry belongs to the competences of Member States and there is no formal establishment of common forest policy in the tFeU, the new LU-LUcF Regulation and provisions of regulations regarding prevention of illegal timber trade prove that there is an ongoing process of subjecting forestry to the competences of the european union to a growing extent as well as reducing the area left to Member States. It must be stated that the platform for expansion of eU regulations on member states' forestry in terms of land use and timber trade -acts adopted within the trade policy and climate and energy framework -is the principle of sustainable development that derives from international legislation and is also included in the Constitution of the republic of Poland. This principle is also the foundation for development of the beginnings of common forest policy that emerges at the verge of eu policies.