COMMISSION REGULATION (EC) No 1043/2005
of 30 June 2005
implementing Council Regulation (EC) No 3448/93 as regards the system of granting export refunds on certain agricultural products exported in the form of goods not covered by Annex I to the Treaty, and the criteria for fixing the amount of such refunds
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 3448/93 of 6 December 1993 laying down the trade arrangements applicable to certain goods resulting from the processing of agricultural products (1), and in particular the first subparagraph of Article 8(3) thereof,
Whereas:
(1)
Commission Regulation (EEC) No 3615/92 of 15 December 1992 on the determination of the quantities of agricultural products to be taken into account for the calculation of refunds payable in the case of the export of goods referred to in Council Regulation (EEC) No 3035/80 (2), Commission Regulation (EC) No 3223/93 of 25 November 1993 on statistical information relating to the payment of export refunds on certain agricultural products exported in the form of goods covered by Council Regulation (EEC) No 3035/80 (3) and Commission Regulation (EC) No 1520/2000 of 13 July 2000 laying down common detailed rules for the application of the system of granting export refunds on certain agricultural products exported in the form of goods not covered by Annex I to the Treaty, and the criteria for fixing the amounts of such refunds (4), all relate to the export of certain agricultural products in the form of goods not covered by Annex I to the Treaty. Most of those regulations have been substantially amended several times. It is necessary to amend all of those regulations, and in the interests of clarity, simplification and administrative efficiency it is appropriate that they be replaced by a single regulation.
(2)
Council Regulations (EEC) No 2771/75 (5) and (EC) Nos 1255/1999 (6), 1260/2001 (7), 1784/2003 (8) and 1785/2003 (9) on the common organisation of the markets in eggs, milk and milk products, sugar, cereals and rice provide that, to the extent required to allow the agricultural products in question to be exported in the form of certain processed goods not listed in Annex I to the Treaty on the basis of world market quotations or prices for such products, the difference between such quotations or prices and prices in the Community may be covered by an export refund. The granting of refunds on all those agricultural products exported in the form of goods not covered by Annex I to the Treaty should be subject to common rules.
(3)
Export refunds should be paid for goods which are obtained directly from basic products, from products obtained from the processing of basic products and from products assimilated to either of these categories. The method for determining the amount of the export refund in each of those cases should be established.
(4)
To ensure correct application of the provisions of Regulations on the common organisation of markets relating to the granting of export refunds, such refunds should not be granted on goods from third countries used in the manufacture of goods which are exported after having been in free circulation in the Community.
(5)
Commission Regulation (EC) No 800/1999 (10) laid down common rules for the application of the system of export refunds on agricultural products. However, the manner in which those rules are to be applied to goods not covered by Annex I to the Treaty needs to be clarified.
(6)
Respect of the international commitments entered into by the Community implies that refunds granted on exports of agricultural products incorporated in goods not covered by Annex I to the Treaty may not exceed the refunds that would be payable on those products when exported in the unaltered state. Account should be taken of this when rates of refund are fixed and assimilation rules drawn up.
(7)
Commission Regulation (EEC) No 2825/93 of 15 October 1993 laying down certain detailed rules for the application of Council Regulation (EEC) No 1766/92 as regards the fixing and granting of adjusted refunds in respect of cereals exported in the form of certain spirit drinks (11) provides that the rate of the export refund is to be that applicable on the day on which the cereals are placed under control for the manufacture of spirit drinks. Therefore, the placing of cereals under customs control for the production of the spirit drinks referred to in Article 2 of Regulation (EEC) No 2825/93 should be deemed equivalent to export for the purpose of granting of export refunds.
(8)
Spirit drinks are considered less sensitive than other goods to the price of the agricultural products used in their manufacture. However, Protocol 19 of the Act of Accession of the United Kingdom, Ireland and Denmark provides that the necessary measures must be decided to facilitate the use of Community cereals in the manufacture of spirit drinks obtained from cereals.
(9)
Potato starch should be assimilated to maize starch for the purposes of determining export refunds. However, it should be possible to fix a specific refund rate for potato starch in market situations where its price is significantly lower than that of maize starch.
(10)
In order to qualify for a refund the agricultural products used and in particular the goods manufactured from such products must be exported. Any exception to that rule should be interpreted restrictively. However, during the process of manufacturing the goods, producers may incur losses of raw materials for which Community prices have nevertheless been paid while the losses incurred by producers established outside the Community are limited to world market prices. In addition, in the process of manufacturing certain goods by-products are obtained which differ markedly in value from the principal products. In some instances these by-products can be used only as animal feed. Therefore, it is necessary to lay down common rules for determining the concept of the quantity of products actually used in the process of manufacturing the exported goods.
(11)
Many goods manufactured by an undertaking under clearly defined technical conditions and having constant characteristics and quality follow a regular export pattern. To ease export formalities, a simplified procedure should be adopted for such goods whereby the manufacturer communicates to the competent authorities such information as the latter consider necessary concerning the conditions of manufacture of the goods. Where the quantities of agricultural products actually used in the manufacture of the exported goods are registered with the competent authorities, provision should be made for annual confirmation of such registration in order to reduce the risks associated with failure to communicate changes in those quantities.
(12)
Many agricultural products are subject to natural and seasonal variability. The agricultural product content of exported goods may consequently vary. The amount of the refund should therefore be determined on the basis of the quantities of agricultural products actually used in the manufacture of the exported goods. However, for certain goods of a simple and relatively constant composition, the amount of the refund should, for ease of administration, be determined on the basis of fixed quantities of agricultural products.
(13)
When fixing the rate of refund for basic products or assimilated products, account should be taken of production refunds, aids or other measures having similar effect which are applicable, in accordance with the relevant regulation on the common organisation of the market in the product.
(14)
Certain goods having similar characteristics may have been obtained by various techniques from different base materials. Exporters should be required to identify the nature of the base materials and to make certain declarations in respect of the manufacturing process where such information is necessary to determine entitlement to a refund or the appropriate refund rate to apply.
(15)
It is appropriate when calculating the quantities of agricultural products actually used to have regard to the dry matter content in the case of starches, and certain glucose and maltodextrin syrups.
(16)
Where the world trade situation, the specific requirements of certain markets or international trade agreements so require, it should be possible to differentiate the refund on certain goods according to destination.
(17)
Management of the amounts of refunds which may be granted during a budget year on certain agricultural products exported in the form of goods not covered by Annex I to the Treaty may result in a need to fix different rates for exports with or without advance fixing of the rate of refund on the basis of developments on Community and world markets.
(18)
The amount of refunds that may be granted in any budget year is limited in accordance with the international commitments entered into by the Community. It should be made possible to export goods not covered by Annex I to the Treaty under conditions which are known in advance. In particular, it should be possible to obtain an assurance that such exports are eligible for a refund compatible with the Community's commitments. Where that is no longer the case, exporters should be informed sufficiently in advance. The issue of refund certificates makes it possible to follow up on refund applications and guarantee to their holders that they will be able to benefit from a refund up to the amount for which the certificate is issued, provided that they meet with the other conditions for refund laid down by Community rules. Management measures should be laid down for the system of refund certificates. In particular, provision should be made for a reduction coefficient to be applied where applications for refund certificates exceed available amounts. In certain circumstances provision should be made for the issue of refund certificates to be suspended.
(19)
Refund certificates serve to ensure compliance with the international commitments entered into by the Community. They also make it possible to determine in advance the refund which can be granted on agricultural products used in the manufacture of goods exported to third countries. This purpose differs, in some respects, from the objectives of export licences issued for basic products exported in the unaltered state which are subject to international commitments involving quantitative restrictions. It is therefore necessary to specify which general provisions applicable to agricultural licences and certificates, currently laid down by Commission Regulation (EC) No 1291/2000 of 9 June 2000 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products (12), should not apply in respect of refund certificates.
(20)
Furthermore, it is necessary to specify how certain provisions of Regulation (EC) No 1291/2000 relating to certificates fixing the export refund in advance applied for in connection with an invitation to tender issued in an importing third country should apply to refund certificates. For the most part refund rates are be fixed or modified on Thursdays. In order to reduce the risk of applications for advance fixing in respect of products being lodged for speculative reasons, where an application for advance fixing is lodged on a Thursday, the application should be deemed to have been submitted on the following working day.
(21)
The conditions for the release of the security pertaining to certificates subject to Commission Regulation (EEC) No 2220/85 of 22 July 1985 laying down common detailed rules for the application of the system of securities for agricultural products (13), should be laid down. The obligations which are considered as primary requirements and against which security is lodged should be specified together with the evidence to be furnished in fulfilment of the obligations and upon which the relevant security may be released.
(22)
It is highly likely that certificate applications will be received for greater amounts than can be granted. The budget year should therefore be divided into periods so that certificates can be made available both to operators who export at the end of the budget year and to those who export at the beginning of the budget year. Where appropriate, a reduction coefficient should be applied to all amounts requested during a particular period.
(23)
Certain types of exports are not subject to limits on the payment of refunds as a result of international commitments entered into by the Community. Such exports should be free from any obligation to present a refund certificate.
(24)
Most exporters receive less than EUR 75 000 a year in refunds. Taken together, these exports account for only a small part of the total amount of refunds granted on agricultural products exported in the form of goods not covered by Annex I to the Treaty. It should be possible to exempt such exports from the requirement to present a certificate. However, in order to prevent exploitation it is necessary to limit application of this exemption to the Member State in which the exporter is established.
(25)
Monitoring arrangements should be established, based on the principle that the exporter should declare to the competent authorities, each time goods are exported, the quantities of products used to manufacture the exported goods. The competent authorities should take any measure they consider necessary to verify the accuracy of such declarations.
(26)
The authorities responsible for checking the exporter’s declaration may not possess sufficient evidence to enable them to accept the declaration of the quantities used, even if it is based on a chemical analysis. Such situations are particularly likely to arise when the goods to be exported have been manufactured in a Member State other than the exporting Member State. Therefore, the competent authorities of the exporting Member State should be able, if necessary, to obtain directly from the competent authorities of the other Member States all the information which the latter authorities are able to obtain concerning the conditions of manufacture of the goods.
(27)
In consultation with the competent authorities of the Member State in which the goods are manufactured, operators should be permitted to make a simplified declaration of the products used, in the form of aggregated quantities of those products, provided they keep a detailed record of the products used and make it available to the said authorities.
(28)
It is not always possible for the exporter to know the precise quantities of agricultural products used in respect of which he can claim a refund, particularly if he is not the manufacturer. Therefore, the exporter is not always able to declare such quantities. It is therefore necessary to provide an alternative method for calculating the refund which the person concerned may ask to be applied, restricted to certain goods, based on the chemical analysis of those goods, and using a table drawn up for that purpose.
(29)
Commission Regulation (EC) No 2571/97 of 15 December 1997 on the sale of butter at reduced prices and the granting of aid for cream, butter and concentrated butter for use in the manufacture of pastry products, ice-cream and other foodstuffs (14), provides that butter and cream may made available at reduced prices to industries which manufacture certain goods. This should be taken into account when refunds are calculated on the basis of chemical analysis.
(30)
Article 21 of Regulation (EC) No 800/1999 provides that no refund is to be granted on products that are not of sound and fair marketable quality on the day of acceptance of the export declaration. In order to ensure that this rule is uniformly applied it should be clarified that for a refund to be granted on the products that are indicated in Article 1 of Council Directive 92/46/EEC of 16 June 1992 laying down the health rules for the production and placing on the market of raw milk, heat-treated milk and milk-based products (15), or Article 1 of Council Directive 89/437/EEC of 20 June 1989 on hygiene and health problems affecting the production and the placing on the market of egg products (16), and appear in Annex II to this Regulation, the products concerned must be prepared in accordance with the requirements of those Directives and carry the required health mark.
(31)
Article 31(10) of Regulation (EC) No 1255/1999 when read in conjunction with Article 31(12) thereof, limits the requirement that milk products on which an export refund is paid, must be of Community origin to certain goods having a high milk content. Measures should therefore be introduced for implementing and monitoring that requirement.
(32)
Article 28 of Regulation (EC) No 800/1999 limits the period during which basic agricultural products or goods may remain under prefinancing of the refund arrangements to the unexpired term of the export licence. However, refund certificates issued towards the end of the budget period have a shorter validity period, which cannot, due to the international commitments of the Community, extend beyond 30 September. In order to ensure sufficient flexibility to enable exporters to make full use of those short duration refund certificates, specific provisions should be laid down in respect of those certificates in so far as they limit the period during which basic agricultural products or goods may remain under prefinancing of the refund arrangements to the unexpired term of the export licence.
(33)
It is appropriate to ensure the uniform application throughout the Community of the provisions on the granting of refunds on goods not covered by Annex I to the Treaty. To that end, each Member State should inform the other Member States, via the Commission, of the monitoring arrangements applied in its territory to the various types of exported goods.
(34)
It is essential to enable the Commission to monitor satisfactorily measures adopted concerning export refunds granted. Therefore, the Commission should have at its disposal certain statistical information, which should be transmitted to it by the competent authorities of the Member States. The format and scope of that information should be specified.
(35)
Adequate time should be allowed for the transition from the administrative arrangements for refund certificates under Regulation (EC) No 1520/2000 to the administrative arrangements provided for in this Regulation. This Regulation should therefore apply to applications submitted from 8 July 2005 for certificates for use from 1 October 2005.
(36)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee on horizontal questions concerning trade in processed agricultural products not listed in Annex I to the Treaty,
HAS ADOPTED THIS REGULATION:
CHAPTER I
SUBJECT-MATTER AND DEFINITIONS
Article 1
1. This Regulation lays down rules for the implementation of Regulation (EC) No 3448/93 as regards the system of granting export refunds established pursuant to Regulation (EEC) No 2771/75, Regulation (EC) No 1255/1999, Regulation (EC) No 1260/2001, Regulation (EC) No 1784/2003 and Regulation (EC) No 1785/2003.
It shall apply to exports of the basic products listed in Annex I to this Regulation, hereinafter ‘basic products’, of products derived from the processing thereof, or of products assimilated to one of those two categories in accordance with Article 3 of this Regulation, when those products are exported in the form of goods not covered by Annex I to the Treaty but listed in any of the following:
(a)
Annex I to Regulation (EEC) No 2771/75;
(b)
Annex II to Regulation (EC) No 1255/1999;
(c)
Annex V to Regulation (EC) No 1260/2001;
(d)
Annex III to Regulation (EC) No 1784/2003;
(e)
Annex IV to Regulation (EC) No 1785/2003.
Such goods, hereinafter ‘goods’, are listed in Annex II to this Regulation.
2. The export refund referred to in paragraph 1 shall not be granted in respect of goods put into free circulation in accordance with Article 24 of the Treaty and re-exported.
No refund shall be granted in respect of such goods when they are exported after processing or when they are incorporated in other goods.
3. Except in the case of cereals, no refund shall be granted on products used in the manufacture of alcohol contained in the spirituous beverages referred to in Annex II falling within CN code 2208.
Article 2
1. For the purposes of this Regulation, the following definitions shall apply:
1.
‘budget period’ means the period from 1 October of one year to 30 September of the following year;
2.
‘budget year’ means the period from 16 October of one year to 15 October of the following year;
3.
‘food aid’ means food aid operations meeting the conditions laid down in Article 10(4) of the Agreement on Agriculture concluded during the Uruguay Round of multilateral trade negotiations, hereinafter ‘the Agreement’;
4.
‘residues’ means the products of the manufacturing process under consideration, of compositions distinctly different from the goods actually exported and which cannot be marketed;
5.
‘by-products’ means the products or goods obtained in the course of the manufacturing process under consideration, of compositions or characteristics distinct from the goods actually exported and which are capable of being marketed;
6.
‘losses’ means the quantities of products or goods resulting from the process of manufacture under consideration, from the stage at which agricultural products are used unprocessed in the manufacture, other than the quantities of goods which are actually exported, other than residues and by-products and which cannot be marketed.
2. For the purposes of points 4, 5 and 6 of paragraph 1, the products obtained in the course of the manufacturing process under consideration, of composition distinct from the goods actually exported, sold against a payment representing exclusively the costs incurred for their disposal, shall not be considered as being marketed.
For the purposes of point 6 of paragraph 1, the products or goods resulting from the manufacturing process under consideration, and which can be disposed of, whether or not against payment, only as animal feeds, shall be assimilated to losses.
Article 3
1. Potato starch falling within CN code 1108 13 00 directly produced from potatoes, excluding sub-products, shall be assimilated to a product derived from the processing of maize.
2. Whey falling within CN codes 0404 10 48 to 0404 10 62 not concentrated, whether or not frozen, shall be assimilated to whey in powder as listed in Annex I, hereinafter ‘Product Group 1’;
3. The following products shall be assimilated to milk in powder of a fat content not exceeding 1,5 % as listed in Annex I, hereinafter ‘Product Group 2’:
(a)
milk and milk products falling within CN codes 0403 10 11, 0403 90 51 and 0404 90 21, not concentrated nor containing added sugar or other sweetening matter, whether or not frozen, of a milk fat content, by weight, not exceeding 0,1 %;
(b)
milk and milk products falling within CN codes 0403 10 11, 0403 90 11 and 0404 90 21, in powder, granules or other solid forms, not containing added sugar or other sweetening matter, of a milk fat content, by weight, not exceeding 1,5 %.
4. The following products shall be assimilated to milk in powder of a fat content of 26 % as listed in Annex I, hereinafter ‘Product Group 3’:
(a)
milk, cream and milk products falling within CN codes 0403 10 11, 0403 10 13, 0403 90 51, 0403 90 53, 0404 90 21 and 0404 90 23, not concentrated nor containing added sugar or other sweetening matter, whether or not frozen, of a milk fat content, by weight, exceeding 0,1 % but not exceeding 6 %;
(b)
milk, cream and milk products falling within CN codes 0403 10 11, 0403 10 13, 0403 10 19, 0403 90 13, 0403 90 19, 0404 90 23 and 0404 90 29 in powder, granules or other solid forms, not containing added sugar or other sweetening matter, of a milk fat content, by weight, exceeding 1,5 % but less than 45 %.
However, if the party so requests, the products referred to in points (a) and (b) of the first subparagraph may, with the agreement of the competent authority, be assimilated to:
(a)
Product Group 2, so far as the non-fat part of the dry matter content of the product is concerned;
(b)
butter as listed in Annex I, hereinafter ‘Product Group 6’, so far as the milk fat part of the product is concerned.
5. The following products shall be assimilated to Product Group 6:
(a)
milk, cream and milk products falling within CN codes 0403 10 19, 0403 90 59, 0404 90 23 and 0404 90 29, not concentrated nor containing added sugar or other sweetening matter, of a milk fat content, by weight, exceeding 6 %;
(b)
milk, cream and milk products falling within CN codes 0403 10 19, 0403 90 19 and 0404 90 29, in powder, granules or other solid forms, not containing added sugar or other sweetening matter, of a milk fat content, by weight, of not less than 45 %;
(c)
butter and other milk fats with a milk fat content, by weight, other than 82 % but not less than 62 %, falling within CN codes 0405 10, 0405 20 90, 0405 90 10, 0405 90 90.
6. Milk, cream and milk products falling within CN codes 0403 10 11 to 0403 10 19, 0403 90 51 to 0403 90 59 and 0404 90 21 to 0404 90 29, concentrated, other than in powder, granules or other solid forms, not containing added sugar or other sweetening matter, shall, so far as the non-fat part of the dry matter content of such a product is concerned, be assimilated to Product Group 2. So far as the milk fat part of such a product is concerned, it shall be assimilated to Product Group 6.
The first subparagraph shall also apply to cheese and curd.
7. Husked rice falling within CN code 1006 20 and semi-milled rice falling within CN codes 1006 30 21 to 1006 30 48 shall be assimilated to wholly milled rice falling within CN codes 1006 30 61 to 1006 30 98.
8. The following products shall, if they meet the conditions of eligibility for a refund laid down in Regulation (EC) No 1260/2001 and in Commission Regulation (EC) No 2135/95 (17) when exported unprocessed, be assimilated to white sugar falling within CN code 1701 99 10:
(a)
raw beet or cane sugar falling within CN code 1701 11 90 or CN code 1701 12 90 and containing, in the dry state, at least 92 % by weight of sucrose determined by the polarimetric method;
(b)
sugar falling within CN codes 1701 91 00 or 1701 99 90;
(c)
the products referred to in Article 1(1) (d) of Regulation (EC) No 1260/2001, excluding mixtures obtained partly using products covered by Regulation (EC) No 1784/2003;
(d)
the products referred to in Article 1(1)(f) and (g) of Regulation (EC) No 1260/2001, excluding mixtures obtained partly using products covered by Regulation (EC) No 1784/2003.
Article 4
Regulation (EC) No 800/1999 shall apply in addition to the provisions of this Regulation.
CHAPTER II
EXPORT REFUNDS
SECTION 1
Method of calculation
Article 5
1. The amount of the refund granted for the quantity, determined in accordance with Section 2, of each of the basic products exported in the form of the same type of goods shall be obtained by multiplying that quantity by the rate of the refund on the basic product calculated per unit of weight in accordance with Section 3.
2. Where, pursuant to Article 15(2), different refund rates are fixed for a particular basic product, a separate amount shall be calculated for each of the quantities of the basic product for which there is a different refund rate.
3. Where goods are used in the manufacture of the goods exported, the refund rate to be used in calculating the amount applying to each of the basic products, to products derived from the processing thereof, or to products assimilated to one of those two categories in accordance with Article 3 which were used in the manufacture of the goods exported, shall be the rate applicable when the former goods are exported unprocessed.
SECTION 2
Reference quantity
Article 6
In respect of goods, the quantity of each of the basic products to serve as a basis for calculating the amount of the refund, hereinafter ‘the reference quantity’, shall be determined in accordance with Articles 7, 8 and 9, except where reference is made to Annex III or where the second paragraph of Article 51 applies.
Article 7
In the case of use of a basic product, unprocessed, or of an assimilated product, the reference quantity shall be the quantity which is actually used in the manufacture of the exported goods, account being taken of the conversion rates set out in Annex VII.
Article 8
In the case of use of a product covered by Article 1 of Regulation (EC) No 1784/2003 or Regulation (EC) No 1785/2003, the reference quantity shall be the quantity which is actually used in the manufacture of the exported goods, adjusted to correspond to a quantity of the basic product by applying the coefficients set out in Annex V to this Regulation if one of the following applies to the product concerned:
(a)
the product results from the processing of a basic product or of a product assimilated to that basic product;
(b)
the product is assimilated to a product resulting from the processing of a basic product;
(c)
the product results from the processing of a product assimilated to a product resulting from the processing of a basic product.
However, for grain spirit contained in spirituous beverages falling within CN code 2208, the reference quantity shall be 3,4 kg of barley per % vol. of alcohol derived from cereals per hectolitre of the spirituous beverage exported.
Article 9
Subject to Article 11, in the case of use of either of the following products, the reference quantity for each of the basic products in question shall be equal to the quantity established by the competent authorities in accordance with Article 49:
(a)
a product, not covered by Annex I to the Treaty, which is derived from the processing of a product referred to in Articles 7 or 8 of this Regulation;
(b)
a product derived from the mixture or processing of several products referred to in Articles 7 or 8, or of products referred to in point (a) of this paragraph.
The reference quantity shall be determined on the basis of the quantity of the product actually used in the manufacture of the goods exported. For the purpose of calculating that quantity, the conversion rates referred to in Annex VII or, as the case may be, the special rules for calculation, equivalence ratios and coefficients referred to in Article 8 shall apply.
However, for the cereal-based spirituous beverages contained in spirituous beverages falling within CN code 2208, the reference quantity shall be 3,4 kg of barley per % vol. of alcohol derived from cereals per hectolitre of the spirituous beverage exported.
Article 10
For the purposes of Articles 6 to 9, the products used unprocessed in the manufacture of exported goods shall be considered as actually used. Where, during one of the stages of manufacture of such goods, a basic product is itself processed into another more elaborate basic product used at a later stage, only the latter basic product shall be considered as actually used.
The quantities of products actually used, within the meaning of the first paragraph, shall be determined for each of the goods exported.
However, in the case of regular exports of goods manufactured by a particular undertaking under clearly defined technical conditions and having constant characteristics and quality, those quantities may, by agreement with the competent authorities, be determined either from the manufacturing formula for the goods in question or from the average quantities of product used over a specified period in the manufacture of a given quantity of these goods. The quantities of products thus determined shall remain the basis of calculation so long as there is no change in the conditions under which the goods in question are manufactured.
Except in the case of a formal authorisation given by the competent authority, the quantities of products thus determined shall be confirmed at least once a year.
Article 11
In respect of the goods listed in Annex III, the reference quantity in kilograms of basic product per 100 kg of goods shall be that shown in that Annex against each of those goods.
However, in the case of fresh pasta, the quantities of basic products given in Annex III shall be reduced to an equivalent quantity of dry pasta by multiplying those quantities by the percentage of the dry extract of the pasta and dividing them by 88.
Where the goods in question have been manufactured partly from products for which the payment of export refund is covered by the Regulations referred to in Article 1(1) and partly from other products, the reference quantity in respect of those former products shall be determined in accordance with Articles 6 to 10.
Article 12
1. For the purposes of determining the quantities of agricultural products actually used, paragraphs 2 and 3 shall apply.
2. All agricultural products, used within the meaning of Article 10 and conferring a right to a refund, which disappear during the normal course of the manufacturing process in such forms as steam or smoke or by conversion into non-recoverable powder or ash, shall be eligible for that refund in respect of all of the quantities used.
3. Any quantity of goods which is not actually exported shall not be eligible for refunds in respect of the quantities of agricultural products actually used, without prejudice to the provisions laid down in Article 13(1).
If such goods have the same composition as those actually exported, a pro rata reduction in quantities of agricultural products actually used in the manufacture of the latter may be applied.
Article 13
1. By way of derogation from Article 12(3), losses of 2 % or less by weight inherent in the production of the goods may be disregarded.
The threshold of 2 % shall be calculated as the proportion of the weight of the dry matter of all raw materials used, after deduction of the quantities referred to in Article 12(2), in relation to the weight of the dry matter of the actually exported goods, or using any other method of calculation appropriate to the conditions of manufacture of the goods.
2. Where the losses inherent in manufacture exceed 2 %, the excess loss shall not be eligible for refunds in respect of the quantities of agricultural products actually used. The competent authorities of the Member States may, however, accept justified higher losses. The Member States shall communicate to the Commission the cases in which the authorities have accepted higher losses, as well as their reasons for such acceptance.
3. The quantities of agricultural products actually used incorporated in residues shall be taken into account for the granting of refunds.
4. In cases where by-products are obtained, the quantities of agricultural products actually used shall be attributed respectively to the goods exported and to the by-products.
SECTION 3
Rates of refund
Article 14
The fixing of the rate of refund, as provided for in Article 13(3) of Regulation (EC) No 1784/2003 and the corresponding provisions of the other Regulations referred to in Article 1(1) of this Regulation, shall be effected each month per 100 kg of basic products.
However, the rate of the refund on poultry eggs in shell, fresh or preserved, and eggs not in shell and egg yolks, suitable for human consumption, fresh, dried or otherwise preserved, not sweetened, shall be fixed for the same period as that for the refunds on those products exported unprocessed.
Article 15
1. The rate of the refund shall be determined with particular reference to the following:
(a)
the average cost incurred by the processing industries in obtaining supplies of basic products on the Community market and the prices prevailing on the world market;
(b)
the level of the refund on exports of processed agricultural products covered by Annex I to the Treaty which are manufactured under similar conditions;
(c)
the need to ensure equal conditions of competition between industries which use Community products and those which use third country products under inward processing arrangements;
(d)
on the one hand, the trend in expenditure and, on the other hand, the trend in prices in the Community and on the world market;
(e)
compliance with the limits resulting from agreements concluded in accordance with Article 300 of the Treaty.
2. In fixing the rates of the refund account shall be taken, where appropriate, of production refunds, aids or other measures having equivalent effect applicable in all Member States, in accordance with the Regulation on the common organisation of the market in the product in question, to basic products or to assimilated products.
3. A reduced rate shall be applied in respect of the export of goods falling under CN code 3505 10 50 where a production refund is applicable to the basic product used during the assumed period of manufacture of the goods pursuant to Commission Regulation (EEC) No 1722/93 (18). The reduced rate shall be fixed in accordance with Article 14 of this Regulation.
Article 16
In the case of potato starch falling within CN code 1108 13 00, the rate of the refund shall be fixed separately, in maize equivalent, in accordance with the procedure referred to in Article 25(2) of Regulation (EC) No 1784/2003 by applying the criteria indicated in Article 15(1) of this Regulation. The quantities of potato starch used shall be converted into equivalent quantities of maize in accordance with Article 8 of this Regulation.
In the case of D-glucitol (sorbitol) mixtures falling within CN codes 2905 44 and 3824 60, where the party concerned does not draw up the declaration referred to in Article 49 giving the information required under Article 52(1)(d) or where he does not provide satisfactory documentation in support of his declaration, the rate of refund on those mixtures shall be that for the basic product to which the lowest rate of refund applies.
Article 17
Refunds for starches falling within CN code 1108 11 00 to 1108 19 90 or products listed in Annex I to Regulation (EC) No 1784/2003 resulting from the processing of such starches shall be granted only on production of a declaration from the supplier of those products attesting that they have been directly produced from cereals, potatoes or rice, excluding all use of sub-products obtained in the production of other agricultural products or goods.
The declaration shall apply, until revocation, to all supplies from the same producer. It shall be verified in accordance with Article 49.
Article 18
1. Where the dry-extract content of potato starch assimilated to maize starch pursuant to Article 3(1) is 80 % or higher, the rate of the export refund shall be that laid down in accordance with Article 14. Where the dry-extract content is less than 80 %, the rate of the refund shall be that laid down in accordance with Article 14 multiplied by 1/80 of the actual dry-extract percentage.
For all other starches with a dry-extract content of 87 % or more, the rate of the export refund shall be that laid down in accordance with Article 14. Where the dry-extract content is less than 87 %, the rate of the refund shall be that laid down in accordance with Article 14 multiplied by 1/87 of the actual dry-extract percentage.
Where the dry-extract content of glucose or maltodextrin syrups falling within CN codes 1702 30 59, 1702 30 99, 1702 40 90, 1702 90 50 or 2106 90 55 is 78 % or more, the rate of the export refund shall be that laid down in accordance with Article 14. Where the dry-extract content of such syrups is less than 78 %, the rate of the refund shall be that laid down in accordance with Article 14, multiplied by 1/78th of the actual dry-extract percentage.
2. For the purposes of paragraph 1, the dry-extract content of starches shall be determined using the method referred to in Annex IV to Commission Regulation (EC) No 824/2000 (19) and the dry-matter content of glucose or maltodextrin syrups shall be determined using method 2 referred to in Annex II to Commission Directive 79/796/EEC (20) or any other suitable method of analysis offering at least the same guarantees.
3. When the declaration referred to in Article 49 is made, the applicant shall declare the dry-extract content of the starches or glucose or maltodextrin syrups used.
Article 19
1. Where the world trade situation in casein falling within CN code 3501 10, in caseinates falling within CN code 3501 90 90 or in ovalbumin falling within CN codes 3502 11 90 and 3502 19 90 or the specific requirements of certain markets so require, the refund on those goods may be differentiated according to destination.
2. The rate of refunds on goods falling within CN codes 1902 11 00, 1902 19 and 1902 40 10 may be differentiated according to destination.
3. The refund may vary according to whether or not it is fixed in advance in accordance with Article 29.
Article 20
1. The rate of the refund shall be that applying on the day on which the goods are exported, except in the following cases:
(a)
an application has been made in accordance with Article 29, for the refund rate to be fixed in advance;
(b)
an application has been made in accordance with Article 41(2) and the refund rate has been fixed in advance on the day the application for the refund certificate was lodged.
2. Where the system of advance fixing of the rate of the refund is applied, the rate in force on the day on which the application for advance fixing is lodged shall apply to goods exported at a later date during the period of validity of the refund certificate as provided for in the second subparagraph of Article 39(2). However, applications for advance fixing lodged on a Thursday shall be deemed to have been lodged on the following working day.
The rate of the refund shall be adjusted using the same rules as apply to the advance fixing of refunds for basic products exported unprocessed, but using the conversion coefficients laid down in Annex V for processed cereal and rice products.
3. Extracts, within the meaning of Regulation (EC) No 1291/2000, of refund certificates shall not be the subject of advance fixing independently of the certificates from which they are taken.
Article 21
If the exported goods are referred to in Article 4(1) of Regulation (EC) No 2571/97, the rate of the refund on milk products shall be that applicable to the use of reduced price dairy products, unless the exporter provides evidence that the goods do not contain reduced price dairy products.
CHAPTER III
REFUND CERTIFICATES
SECTION 1
General provisions
Article 22
1. Member States shall issue to any applicant, regardless of his place of establishment in the Community, refund certificates valid throughout the Community.
The refund certificates shall guarantee payment of the refund, provided that the conditions set out in Chapter V are met. They may include advance fixing of the refund rates. Certificates shall be valid in a single budget period only.
2. The granting of refunds on exports of basic products in the form of goods listed in Annex II or on cereals placed under customs control for the production of sprit drinks referred to in Article 2 of Regulation (EEC) No 2825/93 shall be conditional on production of a refund certificate issued in accordance with Article 24 of this Regulation.
The first subparagraph shall not apply to the supplies referred to in the third indent of Article 4(1) and in Articles 36(1), 40(1), 44(1) and 46(1) of Regulation (EC) No 800/1999, or to the exports referred to in Chapter IV of this Regulation.
3. The granting of the refund under the advance fixing system provided for in Article 20(2) shall be conditional on production of a refund certificate showing advance fixing of the refund rates.
Article 23
1. Regulation (EC) No 1291/2000 shall apply to the refund certificates referred to in this Regulation.
2. The provisions laid down in Regulation (EC) No 1291/2000 on the rights and obligations stemming from refund certificates denominated in quantities shall apply mutatis mutandis to the rights and obligations stemming from the refund certificates referred to in this Regulation for amounts denominated in euros, taking account of the provisions in Annex VI to this Regulation.
3. By way of derogation from paragraphs 1 and 2 of this Article, Article 8(2) and (4), Articles 9, 12 and 14, Article 18(1), Articles 21, 24, 32, 33 and 35, Article 36(5), and Articles 42, 46, 47 and 50 of Regulation (EC) No 1291/2000 shall not apply to the refund certificates referred to in this Regulation.
4. For the purposes of Articles 40 and 41 of Regulation (EC) No 1291/2000, certificates valid until 30 September may not be extended. In such cases, the certificate shall be cancelled for any amounts not applied for due to force majeure and the relevant security released.
Article 24
1. The application for a refund certificate and the refund certificate itself shall be based on the form set out in Annex I to Regulation (EC) No 1291/2000 and shall indicate the amount in euros.
Those documents shall be completed in accordance with the instructions set out in Annex VI to this Regulation.
2. Where the applicant does not have the intention to export from a Member State other than that in which he is applying for the refund certificate, the competent authority may keep the ensuing refund certificate, notably in the form of a computer file. In such case the competent authority shall inform the applicant that his refund certificate has been registered and provide him with the information set out on the holder’s copy of the refund certificate, hereinafter ‘Copy No 1’. The issuing authorities' copy of the refund certificate, hereinafter ‘Copy No 2’, shall not be issued.
The competent authority shall record all the information from the refund certificates referred to in Sections III and IV of Annex VI and the amounts claimed under the certificate.
Article 25
The granting of refunds on cereals placed under customs control for the production of the spirit drinks referred to in Article 2 of Regulation (EEC) No 2825/93 shall be conditional on production of a refund certificate issued in accordance with Article 24 of this Regulation.
For the application of Article 22 such cereals shall be deemed to be exported.
Article 26
Without prejudice to Article 27, the refund certificate shall not be transferable.
Article 27
1. Obligations deriving from certificates shall not be transferable.
Rights deriving from certificates may be transferred by their titular holder during the period of their validity, provided that the rights deriving under each certificate or extract therefrom are transferred to a single transferee only and that the name and address of the transferee who accepts it are entered in box 20 of the application form for a refund certificate as referred to Article 24 no later than at the time of lodging the application. Such transfer shall relate to the amounts not yet attributed to the certificate or extract.
Before the certificate is issued, the following text shall be entered in box 22 and completed in accordance with the details of the application: ‘The rights may possibly be transferred to […] (name and address of the transferee)’.
If the name and address of a possible transferee have not been specified in the application for the certificate, box 6 shall be deleted.
2. By way of derogation from paragraph 1, in the case of refund certificates issued for use as from 1 June for goods to be exported before 1 October the requirement that the name and address of the transferee be entered in box 20 of the application form shall not apply. Box 6 shall not be deleted from those refund certificates.
3. Transferees may not further transfer their rights but may transfer them back to the titular holder.
In such cases, one of the entries set out in Annex VIII shall be made by the issuing authority in box 6 of the certificate.
Article 28
1. In the event of a request for transfer by the titular holder or in the event of a transfer back to the titular holder by the transferee, the issuing authority or the agency or agencies designated by each Member State shall enter the following on the certificate or, where appropriate, on the extract therefrom:
(a)
the name and address of the transferee as indicated in accordance with Article 27(1) or the entry referred to in Article 27(3);
(b)
the date of transfer or transfer back to the titular holder certified by the stamp of the authority or agency.
2. The transfer or transfer back to the titular holder shall take effect from the date of the entry referred to in paragraph 1(b).
Article 29
Applications for advance fixing of the refund rates shall concern all the applicable refund rates.
The application for advance fixing may be lodged either at the time of the application for the refund certificate or at any time from the day on which the refund certificate is granted.
Applications for advance fixing shall be made in accordance with Section II of Annex VI using the form set out in Annex I to Regulation (EC) No 1291/2000. The advance fixing shall not apply to exports taking place before the date on which the application was lodged.
Applications for advance fixing lodged on a Thursday shall be deemed to have been lodged on the following working day.
Article 30
The holder of a refund certificate may apply for an extract from the certificate, drawn up in the form set out in Annex I to Regulation (EC) No 1291/2000. The application shall contain the information referred to in point 3 of Section II of Annex VI to this Regulation.
The amount for which the extract is requested shall be recorded on the original certificate.
Article 31
1. The issue of a refund certificate shall oblige the holder to apply for refunds equal to the amount for which the certificate has been issued on goods exported during the period of validity of the refund certificate. The security referred to in Article 43 shall be lodged to guarantee compliance with that obligation.
2. The obligations referred to in paragraph 1 shall be primary requirements within the meaning of Article 20(2) of Regulation (EEC) No 2220/85.
The primary requirement shall be considered to have been fulfilled if the exporter has transmitted the specific application relating to goods exported during the period of validity of the refund certificate in accordance with the conditions laid down in Article 32 of this Regulation and in section V of Annex VI.
Where the specific application is not the export declaration, it must be lodged within three months of the date of expiry of the refund certificate the number of which has been entered on the specific application, except in cases of force majeure.
If the time-limit of three months specified in the third subparagraph is not complied with, the obligation referred to in the first sentence of paragraph 1 cannot be deemed to have been met. The security provided for in Article 43 shall consequently be forfeit in respect of the amount in question.
3. Evidence that the primary requirement has been fulfilled shall be provided by means of the presentation to the competent authority of Copy No 1 of the refund certificate, duly recorded in accordance with Article 32(2). That evidence shall be presented by the end of the ninth month following the end of the period of validity of the refund certificate. The security provided for in Article 43 shall be forfeit in proportion to the amount for which the required evidence was not provided within that time-limit.
Article 32
1. Each exporter shall complete a specific application for payment within the meaning of Article 49(1) of Regulation (EC) No 800/1999. It shall be presented to the authority responsible for payment, accompanied by the corresponding certificates, except in the case of registration of the certificates within the meaning of Article 24(2) of this Regulation.
The competent authority may consider that the specific application is not the payment documents referred to in Article 49(2) of Regulation (EC) No 800/1999.
The competent authority may consider the specific application to be the export declaration within the meaning of Article 5(1) of Regulation (EC) No 800/1999. In that case, the date of receipt of the specific application by the authority responsible for payment referred to in paragraph 2 of this Article shall be the date on which that authority received the export declaration. In all other cases, the specific application must contain particulars of the export declaration.
2. The authority responsible for payment shall determine the amount requested on the basis of the information contained in the specific application, taking as sole basis the quantity and nature of the basic product(s) exported and the applicable refund rate(s). That data shall be indicated or referred to clearly in the export declaration.
The authority responsible for payment shall record that amount on the refund certificate within three months of the date of receipt of the specific application.
The certificates shall be attributed on the reverse of Copy No 1. Boxes 28, 29 and 30 shall contain the amount in euros instead of the quantity.
The third subparagraph shall apply mutatis mutandis to certificates kept in electronic form.
3. After attribution, if the refund certificate is not registered, Copy No 1 of the certificate shall be returned to the holder or kept by the paying authority at the request of the exporter.
4. The security retained in respect of the amount for which the refund certificate has been attributed for goods exported may be released or may be transferred to guarantee advance payment of the refund in accordance with Chapter 2 of Regulation (EC) No 800/1999.
Article 33
Refund certificates issued for a single budget period may be applied for separately in six tranches. Applications for certificates may be lodged at the latest on:
(a)
7 September for certificates for use from 1 October;
(b)
7 November for certificates for use from 1 December;
(c)
7 January for certificates for use from 1 February;
(d)
7 March for certificates for use from 1 April;
(e)
7 May for certificates for use from 1 June;
(f)
7 July for certificates for use from 1 August.
Operators may submit an application for a refund certificate only in respect of the tranche corresponding to the first closing date, as set out under points (a) to (f) of the first paragraph, following the date of submission.
Article 34
The deadline for the notification by the Member States to the Commission of applications for certificates shall be the following:
(a)
14 September for certificates referred to in point (a) of the first paragraph of Article 33;
(b)
14 November for certificates referred to in point (b) of the first paragraph of Article 33;
(c)
14 January for certificates referred to in point (c) of the first paragraph of Article 33;
(d)
14 March for certificates referred to in point (d) of the first paragraph of Article 33;
(e)
14 May for certificates referred to in point (e) of the first paragraph of Article 33;
(f)
14 July for certificates referred to in point (f) of the first paragraph of Article 33.
Article 35
1. The total amount in respect of which refund certificates may be issued for each budget period shall be determined in accordance with paragraph 2.
2. From the figure representing the maximum amount of refunds, as determined in accordance with Article 9(2) of the Agreement, the following elements shall be deducted:
(a)
the amount exceeding the maximum amount and unduly granted during the previous budget year;
(b)
the amount reserved to cover the exports referred to in Chapter IV of this Regulation;
(c)
the amounts in respect of which refund certificates valid during the budget period concerned have been issued.
The amount in respect of which certificates issued, as referred to in Article 45, have been returned shall be added to the figure obtained in accordance with the first subparagraph of this paragraph.
The resulting amount shall, where the amount reserved to cover the exports referred to in Chapter IV has been under-utilised, be increased accordingly.
Where there is uncertainty regarding any of the amounts referred to in points (a), (b) and (c) of the first subparagraph, that shall be taken into account when determining the final amount.
Article 36
The total amount in respect of which certificates may be issued for each of the tranches referred to in Article 33 shall be:
(a)
30 % of the amount calculated in accordance with Article 35, as determined on 14 September, in the case of the tranche referred to in point (a) of the first paragraph of Article 33;
(b)
27 % of the amount calculated in accordance with Article 35, as determined on 14 November, in the case of the tranche referred to in point (b) of the first paragraph of Article 33;
(c)
32 % of the amount calculated in accordance with Article 35, as determined on 14 January, in the case of the tranche referred to in point (c) of the first paragraph of Article 33;
(d)
44 % of the amount calculated in accordance with Article 35, as determined on 14 March, in the case of the tranche referred to in point (d) of the first paragraph of Article 33;
(e)
67 % of the amount calculated in accordance with Article 35, as determined on 14 May, in the case of the tranche referred to in point (e) of the first paragraph of Article 33;
(f)
100 % of the amount calculated in accordance with Article 35, as determined on 14 July, in the case of the tranche referred to in point (f) of the first paragraph of Article 33.
Article 37
1. If the total amount represented by the applications received in respect of each of the periods concerned exceeds the maximum referred to in Article 35, the Commission shall set a reduction coefficient applicable to all applications lodged before the corresponding date referred to in Article 33 so as to comply with the maximum referred to in Article 35.
The Commission shall publish the coefficient in the Official Journal of the European Union within five working days of the dates referred to in Article 34.
2. If a reduction coefficient is set by the Commission, certificates shall be issued for the amount requested, multiplied by 1 minus the reduction coefficient set as provided for in paragraph 1 of this Article or in Article 38(3)(a).
However, in respect of the tranche referred to in point (f) of the first paragraph of Article 33, applicants may withdraw their applications within five working days from publication of the coefficient in the Official Journal of the European Union.
3. Member States shall notify the Commission by 1 August of the amounts represented by the applications for refund certificates withdrawn pursuant to the second subparagraph of paragraph 2.
Article 38
1. If amounts determined in accordance with Article 35 remain available, the Commission may, by publication in the Official Journal of the European Union on 10 August at the latest, authorise the lodging of applications for refund certificates from the following Monday in respect of goods to be exported before 1 October.
Where such a publication is made, the provisions in paragraphs 2 and 3 shall apply.
2. Applications lodged in the course of each week shall be notified by Member States to the Commission on the following Tuesday. The corresponding certificates may be issued from the Monday following notification, unless the Commission issues instructions to the contrary.
3. If the total amount of the applications received in a particular application week exceeds the remaining amount available under paragraph 1 the Commission shall take one or more of the following steps:
(a)
set a reduction coefficient applicable to applications for refund certificates lodged in that particular application week, which have been notified to the Commission and for which refund certificates have not yet issued;
(b)
direct Member States to reject applications, lodged in that particular application week, which have yet to be notified to the Commission;
(c)
suspend the lodging of applications for refund certificates.
4. Any regulation adopted pursuant to paragraph 3 shall be published in the Official Journal of the European Union within four days from notification of the applications lodged in accordance with paragraph 2.
Article 39
1. Refund certificates shall be valid from the date of issue as defined in Article 23(1) of Regulation (EC) No 1291/2000.
2. Refund certificates shall be valid until the last day of the fifth month following the month in which the application for the certificate was made, or, until the last day of the budget period, whichever is the earlier. The refund certificates referred to in Article 40, however, shall be valid until the last day of the fifth month following the month in which the application for the certificate was made.
If refund rates are fixed in advance in accordance with Article 29, those rates shall remain valid until the last day of the fifth month following the month in which the application for advance fixing was lodged, or until the last day of the period of validity of the certificate, whichever is the earlier.
Article 40
Commission Regulation (EC) No 2298/2001 (21) shall apply to applications for refund certificates and refund certificates issued for export of goods, which are part of an international food aid operation within the meaning of Article 10(4) of the Agreement.
Article 41
1. For the purposes of Article 49 of Regulation (EC) No 1291/2000, the provisions in paragraphs 2 to 11 of this Article shall apply.
2. From 1 October of each budget period applications for certificates in connection with an invitation to tender issued in an importing third country, fixing the export refund in advance on the day the application is lodged, may be made in accordance with this Article outside the periods laid down in Articles 33 and 38, where the sum of the amounts corresponding to a single invitation to tender for which one or more applications for refund certificates have been made by one or more exporters and for which no certificate has yet been issued does not exceed EUR 2 million.
However, that limit may be increased to EUR 4 million if none of the reduction coefficients published since the beginning of the budget period and referred to in Article 37(1) exceeds 50 %.
3. The amount in respect of which the certificate or certificates are applied for may not exceed the quantity specified in the invitation to tender multiplied by the corresponding refund rate(s), fixed in advance on the day the application is lodged. No account shall be taken of tolerances or options provided for in the invitation to tender.
4. In addition to the information specified in Article 49(10) of Regulation (EC) No 1291/2000 Member States shall immediately inform the Commission of the amounts in respect of which each certificate is applied for, and the date and time of submission of each application.
5. Where the amounts notified under paragraph 4, when added to the amounts in respect of which one or more certificates have already been applied for as part of the same invitation to tender, exceed the applicable limit referred to in paragraph 2 the Commission shall inform the Member States within two working days of the receipt of the additional information referred to in paragraph 4 that the refund certificate shall not be issued to the operator.
6. The Commission may suspend application of paragraph 2 where the cumulative sum of the amounts of refund certificates which may be issued in accordance with Article 49 of Regulation (EC) No 1291/2000 exceeds EUR 4 million in a budget period. Decisions to suspend shall be published in the Official Journal of the European Union.
7. By way of exception from Article 39(1) and (2) of this Regulation refund certificates issued in accordance with Article 49 of Regulation (EC) No 1291/2000 shall be valid with effect from the day on which they are issued within the meaning of Article 23(2) of Regulation (EC) No 1291/2000. Refund certificates shall be valid until the end of the eighth month following the month of issue, or until 30 September, whichever is the sooner. Rates fixed in advance are valid until the last day of the certificate’s validity.
8. Where the competent authority has been satisfied in accordance with Article 49(9)(a) of Regulation (EC) No 1291/2000 that the agency that issued the invitation to tender has cancelled the contract for reasons which are not attributable to the successful tenderer and are not considered to constitute force majeure, it shall release the security in cases where the rate of the refund fixed in advance in respect of the basic product corresponding to the largest refund compared with the other basic products used is higher than or equal to the rate of the refund valid on the last day of the certificate's validity.
9. Where the competent authority has been satisfied in accordance with Article 49(9)(b) of Regulation (EC) No 1291/2000 that the agency that issued the invitation to tender has obliged the successful tenderer to accept changes to the contract for reasons that are not attributable to him and are not considered to constitute force majeure, it may extend the validity of the certificate and the period during which the rate of the refund fixed in advance are to apply until to 30 September.
10. Where the successful tenderer furnishes proof in accordance with Article 49(9)(c) of Regulation (EC) No 1291/2000 that the invitation to tender or the contract concluded following the award provided for a downward tolerance or option of more than 5 % and that the agency that issued the invitation to tender is invoking the relevant clause, the obligation to export shall be deemed to have been fulfilled where the quantity exported is not more than 10 % less than the quantity corresponding to the amount for which the certificate was issued.
The first subparagraph shall apply on condition that the rate of the refund fixed in advance in respect of the basic product corresponding to the largest refund compared with the other basic products used is higher than or equal to the rate of the refund valid on the last day of validity of the certificate. In such cases the rate of 95 % referred to in Article 44(4) of this Regulation shall be replaced by 90 %.
11. For the purposes of this Article the time-limit of 21 days specified in Article 49(5) of Regulation (EC) No 1291/2000 shall be 44 days.
Article 42
Without prejudice to Article 10 of Regulation (EC) No 1291/2000, extracts valid throughout the Community may be taken from certificates registered as valid in a single Member State.
SECTION 2
Securities
Article 43
Applications for refund certificates, save those in respect of food aid operations referred to in Article 40, shall be valid only if a security equal to 25 % of the amount applied for has been lodged in accordance with the conditions set out in Article 15 of Regulation (EC) No 1291/2000.
The security shall be released in accordance with the conditions set out in Article 44 of this Regulation.
Article 44
1. If a reduction coefficient is applied pursuant to Article 37(2) or Article 38(3)(a), part of the security, equal to the amount lodged multiplied by the reduction coefficient, shall be released immediately.
2. If the applicant withdraws his application for a certificate, in accordance with Article 37(2), 80 % of the original security shall be released.
3. The security shall be released in full once the holder of the certificate has applied for refunds totalling 95 % of the amount in respect of which the certificate was issued. On application by the titular holder, Member States may release the security by instalments in proportion to the amounts in respect of which the conditions referred to in Article 31(2) and (3) have been fulfilled, provided that evidence has been produced that an amount equal to at least 5 % of that indicated on the certificate has been applied for.
4. Where applications have been made for refunds in respect of less than 95 % of the amount for which the certificate was issued, part of the security, equal to 25 % of the difference between 95 % of the amount for which the certificate was issued and the amount of refunds actually used, shall be forfeited.
However, if the amount in respect of which the conditions referred to in Article 31(2) and (3) have been fulfilled is less than 5 % of the amount indicated on the certificate, the whole of the security shall be forfeit.
If the total amount of the security which would be forfeited comes to EUR 100 or less for a given certificate, the Member State concerned shall release the whole of the security.
Article 45
1. Where the certificate or an extract from the certificate is returned to the issuing authority within a period corresponding to the initial two-thirds of its term of validity, the corresponding amount of security to be forfeited shall be reduced by 40 %, for which purpose, any part of a day shall count as a whole day.
Where the certificate or extract from the certificate is returned to the issuing authority within a period corresponding to the last third of its term of validity or during the month following the expiry date, the corresponding amount of security to be forfeited shall be reduced by 25 %.
2. Paragraph 1 shall apply only to certificates and extracts from certificates returned to the issuing authority during the budget period in respect of which the certificates have been issued, provided that they are returned not later than 30 June of that period.
CHAPTER IV
EXPORTS NOT COVERED BY CERTIFICATES
Article 46
For each budget period from 1 October 2004, exports not covered by a certificate shall be eligible for payment of a refund within the limit of a total reserve of EUR 40 million for each budget year.
Article 47
1. Article 46 shall not apply to exports which are part of an international food aid operation within the meaning of Article 10(4) of the Agreement, nor to the supplies referred to in the third indent of the second subparagraph of Article 4(1) and in Articles 36(1), 40(1), 44(1) and 46(1) of Regulation (EC) No 800/1999.
2. Article 46 shall apply to exports by operators that have not held a refund certificate since the beginning of the budget period in question and do not hold such a certificate on the date of export. The applications submitted by the operator on the terms set out in Article 32(1) during the budget year, including the submission of the application for the export in question, shall not give rise to payment of more than EUR 75 000.
If the specific application is regarded by the competent authority as being the customs declaration within the meaning of Article 5(1) of Regulation (EC) No 800/1999, the date of the application may, if the competent authority agrees, be the date on which the customs authority accepted the export declaration in question.
3. Article 46 shall apply only in the Member State in which the operator is established.
Article 48
Member States shall notify the Commission no later than the fifth day of each month of the amounts of the refunds granted pursuant to Article 46 from the sixteenth day to the end of the previous month, and no later than the twentieth day of each month of the amounts of the refunds granted pursuant to Article 46 from the first to the fifteenth day of that month. Where applicable, Member States shall inform the Commission that no amounts have been granted between the relevant days.
If the sum of the amounts notified by the Member States reaches EUR 30 million the Commission may, taking account of the Community’s international commitments, suspend the application of Article 46 to exports not covered by a refund certificate, for a maximum of 20 working days.
Under the same circumstances, the Commission may, in accordance with Article 8(3) of Regulation (EC) No 3448/93, suspend the application of Article 46 of this Regulation to exports not covered by a refund certificate, for a period exceeding 20 working days.
CHAPTER V
OBLIGATIONS FOR THE EXPORTER
Article 49
1. When goods are to be exported, the party concerned shall declare the quantities of basic products, of products derived from the processing thereof, or of products assimilated to one of those two categories in accordance with Article 3, which have actually been used, within the meaning of Article 10, in the manufacture of those goods, on which a refund will be requested, or otherwise refer to that composition if it has been determined in accordance with the third paragraph of Article 10.
2. When goods have been used in the manufacture of goods to be exported, the declaration by the party concerned shall include the quantity of the goods actually used and the nature and quantity of each of the basic products, of products derived from the processing thereof and/or of products assimilated to one of those two categories in accordance with Article 3, from which the goods in question are derived.
The party concerned shall, in support of his declaration, supply the competent authorities with all documents and information which the latter consider relevant.
The competent authorities shall verify by any appropriate means the accuracy of the declaration made to them.
3. At the request of the competent authorities of the Member State on whose territory the customs export formalities are carried out, the competent authorities of the other Member States shall communicate to them directly all information they are able to obtain to enable the declaration made by the party concerned to be verified.
Article 50
By way of derogation from Article 49, and in consultation with the competent authorities, the declaration of the products or goods used may be replaced by an aggregated declaration of the quantities of products used or by a reference to a declaration of those quantities, if the latter have already been determined pursuant to the third paragraph of Article 10 and on condition that the manufacturer places at the disposal of the authorities all the information necessary to verify the declaration.
Article 51
Where the exporter does not draw up the declaration referred to in Article 49 or does not provide satisfactory information in support of his declaration, he shall not be entitled to a refund.
However, if the goods concerned are listed in columns 1 and 2 of Annex IV, the party concerned may, at his express request, be granted a refund. The nature and quantity of the basic products taken into consideration for the calculation of such refund shall be determined from an analysis of the goods to be exported and in accordance with the table in Annex IV. The competent authority shall decide on the conditions under which the analysis is to be carried out and the information to be supplied in support of the request.
The cost of such analysis shall be borne by the exporter.
Article 52
1. Article 49 shall not apply to the quantities of agricultural products determined in accordance with Annex III, with the exception of the following:
(a)
quantities of products as referred to in Article 49(1) exported in the form of goods obtained partly from products for which the payment of export refund is covered by the Regulations referred to in Article 1(1) and partly from other products, in accordance with the conditions laid down in the third paragraph of Article 11;
(b)
quantities of eggs or egg products exported in the form of pasta falling within CN code 1902 11 00;
(c)
the quantity of dry-matter contained in fresh pasta, as referred to in the second paragraph of Article 11;
(d)
the nature of the basic products actually used in the manufacture of D-glucitol (sorbitol) falling within CN codes 2905 44 and 3824 60, and, where necessary, the proportions of D-glucitol (sorbitol) obtained from amylaceous products and sucrose;
(e)
quantities of casein exported in the form of goods falling within CN code 3501 90 90;
(f)
the degree plato of beer made from malt falling within CN code 2202 90 10;
(g)
the quantities of unmalted barley accepted by the competent authorities.
The description of the goods given on the export declaration and the application for a refund on goods listed in Annex III shall take account of the nomenclature in that Annex.
2. When goods are analysed for the purposes of Articles 49, 50, 51 or of paragraphs 1 or 3 of this Article, the methods of analysis shall be those referred to in Commission Regulation (EEC) No 4056/87 (22) or, in their absence, those applicable for the Common Customs Tariff classification of similar goods which are imported into the Community.
3. The quantities of goods exported and the quantities of the products referred to in Article 49(1) or a reference to the composition determined in accordance with the third paragraph of Article 10 shall be entered on the document certifying exportation. However, where the second paragraph of Article 51 applies, the latter quantities shall be replaced by the quantities of basic products listed in column 4 of Annex IV, corresponding to the results of the analysis of the goods exported.
4. In order for a refund to be granted on goods falling within CN codes 0403 10 51 to 0403 10 99, 0403 90 71 to 0403 90 99, 0405 20 10, 0405 20 30, and 2105 00 99, the goods shall meet the requirements in Directive 92/46/EEC, in particular the requirement of having been prepared in an approved establishment and of complying with the health marking requirements specified in point A of Chapter IV of Annex C thereto.
In order for a refund to be granted on goods falling within CN codes 3502 11 90 and 3502 19 90, the goods shall comply with the provisions laid down in Chapter XI of the Annex to Directive 89/437/EEC.
5. For the purposes of Articles 49 and 50, each Member State shall inform the Commission of the checks carried out in its territory on the various kinds of goods exported. The Commission shall inform the other Member States accordingly.
Article 53
1. Pursuant to Articles 49 and 50, for goods falling within CN codes 0405 20 10, 0405 20 30, 1806 90 60 to 1806 90 90, 1901 or 2106 90 98 containing a high percentage of milk products falling within CN codes 0402 10 19, 0402 21 19, 0405 or 0406, the party concerned shall provide a declaration that none of those milk products have been imported from third countries or a specification of the quantities of those milk products imported from third countries.
2. For the purposes of paragraph 1, ‘containing a high percentage’ shall mean containing 51 kilograms or more of the milk products referred to in paragraph 1 used per 100 kilograms of goods exported.
3. Where a request is made for the quantities to be determined in accordance with the third paragraph of Article 10, the competent authority may accept an attestation by the party concerned that milk products referred to in paragraph 1 which have been imported from third countries will not be used.
4. A declaration made in accordance with paragraph 1 or an attestation as provided for in paragraph 3 may be accepted by the competent authority where it is satisfied that the price paid for the milk product referred to in paragraph 1 incorporated in the exported goods is at or close to the price prevailing on the Community market for an equivalent product. In comparing the prices, account shall be taken of the date the milk product was purchased.
CHAPTER VI
PAYMENT OF THE REFUND
Article 54
1. In the case of exports effected between 1 October and 15 October of each year, refunds shall not be paid before 16 October.
As regards exports effected with presentation of a refund certificate issued in respect of a budget period, and where the Commission considers that there is a danger that the Community does not meet its international commitments, refund payments scheduled after the end of that period shall not be made before 16 October. In that case the time-limit referred to in Article 49(8) of Regulation (EC) No 800/1999 may be temporarily extended to three months and 15 days by way of a regulation to be published before 20 September in the Official Journal of the European Union.
2. By way of derogation from Article 28(6) of Regulation (EC) No 800/1999, in the case of refund certificates issued for use as from 1 June in respect of goods to be exported before 1 October, the basic products as listed in Annex I to this Regulation may remain under customs control with a view to processing for three months from the date of acceptance of the payment declaration.
By way of derogation from Article 29(5) of Regulation (EC) No 800/1999, in the case of refund certificates issued for use as from 1 June in respect of goods to be exported before 1 October, goods may remain under a customs-warehousing or free zone procedure for three months from the date of acceptance of the payment declaration.
CHAPTER VII
OBLIGATION TO NOTIFY
Article 55
1. Before the 10th day of each month the Member States shall notify the Commission of the following:
(a)
the amounts in respect of which refund certificates were returned during the previous month in accordance with Article 45(1);
(b)
the amounts on refund certificates falling due the previous month for which the obligations referred to in Article 31(1) were not fulfilled in accordance with Article 31(2) or (3);
(c)
refund certificates issued during the previous month, as referred to in Article 40;
(d)
refund certificates issued during the previous month in accordance with Article 49 of Regulation (EC) No 1291/2000.
The amounts referred to in point (b) of the first subparagraph shall be differentiated by reference to the budget period of the refund certificate to which they relate.
2. Before 1 November of each year Member States shall notify the Commission of the total amounts attributed before 1 October of that year to refund certificates issued in the budget period ending 30 September of the previous calendar year.
Article 56
1. Member States shall, at the latest by the end of the month following each month of the calendar year, communicate to the Commission by way of the secured web-based Data Exchange System known as DEX, statistical information on goods covered by this Regulation in respect of which export refunds were granted in the previous month, broken down by eight-digit CN code and comprising:
(a)
the quantities of such goods, expressed in tonnes or another stated unit of measurement;
(b)
the amount, expressed in euros or in national currency, of export refunds granted the previous month in respect of each of the basic agricultural products concerned;
(c)
the quantities, expressed in tonnes, of each of the basic agricultural products in respect of which refunds were granted.
2. Before 1 January of each year, the Member States shall notify the Commission of the total amounts of refunds which they have actually granted until 30 September of the previous year on goods exported in previous budget periods not previously notified, specifying the periods concerned.
3. For the purposes of paragraphs 1 and 2 refunds granted shall include advance payments. Reimbursements of refunds unduly paid shall be notified separately.
CHAPTER VIII
FINAL PROVISIONS
Article 57
Regulations (EEC) No 3615/92, (EC) No 3223/93 and (EC) No 1520/2000 are repealed.
References to the repealed Regulations shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex IX.
Article 58
This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Union.
It shall apply to applications submitted from 8 July 2005 for certificates for use from 1 October 2005.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 30 June 2005.