COMMISSION REGULATION (EC) No 491/2008
of 3 June 2008
laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 concerning production refunds in the cereals sector
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (1), and in particular Article 98 in conjunction with Article 4 thereof,
Whereas:
(1)
Council Regulation (EC) No 1784/2003 of 29 September 2003 on the common organization of the market in cereals (2) is to be repealed from 1 July 2008 under Article 201(1)(c) of Regulation (EC) No 1234/2007.
(2)
Commission Regulation (EEC) No 1722/93 of 30 June 1993 laying down detailed rules for the application of Council Regulation (EEC) No 1766/92 concerning production refunds in the cereals sector (3) has been substantially amended several times. Following the adoption of Regulation (EC) No 1234/2007 as single CMO Regulation it is appropriate to adapt Regulation (EEC) No 1722/93 accordingly. In the interests of clarity, that Regulation should be repealed and replaced by a new Regulation.
(3)
In view of the special situation of the market in starch, and particularly the need to keep prices competitive in relation to starch produced in third countries and imported as goods in respect of which the import arrangements do not provide sufficient protection for Community producers, Article 96 of Regulation (EC) No 1234/2007 provides for the grant of a production refund for starch obtained from maize, wheat or potatoes and for certain derivatives used in the manufacture of certain products a list of which is drawn up by the Commission, or in the absence of significant domestic production of other cereals for the production of starch, in Finland and Sweden each marketing year a certain amount of starch from barley or oats, in so far as this does not entail an increase in the level of starch production from those two cereals. The granting of this refund aims to enable the user industries concerned to have access to starch and certain derivatives at a lower price than that which would result from applying the rules of the common organization of the market in the products in question.
(4)
Pursuant to Article 98 of Regulation (EC) No 1234/2007, it is necessary to adopt detailed rules for the grant of production refunds, including rules for control and payment, so that the same rules are applied in all Member States.
(5)
The Regulation (EC) No 1234/2007 provides for a list to be drawn up of products the manufacture of which uses starch giving rise to entitlement to the refund.
(6)
To ensure that control measures are effective, provision should be made for beneficiaries of the refund to be approved in advance by the Member States in whose territory the abovementioned products are manufactured.
(7)
It is necessary to define how the production refund is to be calculated and how often it is to be fixed. The most satisfactory calculation method is at present based on the difference between the market price for cereals and the price used to calculate the import duty. For reasons of stability, the production refund should as a general rule be fixed every month and, as a means of checking that the production refund is of the correct value, the prices of cereals should be monitored on the world and the most representatives Community markets. It should be clarified which Community markets are to be monitored, and this monitoring should be limited to maize. Since taking other cereal prices into account has not had any practical effect in the past on calculating the amount of the refund, references to other cereals should therefore not be necessary.
(8)
Production refunds are to be paid for the use of starch and certain derived products in the manufacture of certain goods; detailed information is required to facilitate the appropriate control and payment of the production refunds to applicants; the competent authority in the Member State concerned should be empowered to require applicants to supply any information and allow any checks or inspections necessary to effect such controls.
(9)
The manufacturer of the product may not necessarily use basic starch and it is therefore necessary to draw up a list of certain products derived from starch the use of which will give the manufacturer the right to receive the refund.
(10)
The special characteristics of esterified or etherified starch could lead to certain speculative processing operations designed to receive the production refund more than once; so as to prevent such speculation, measures are needed to ensure that esterified or etherified starch is not reprocessed into a raw material the use of which gives the right to apply for a refund. The level of the security should be adapted to prevent such speculation.
(11)
The production refund should not be paid until processing has taken place. Once processing has taken place, payment should be made within five months following verification by the competent authority that the starch has been processed. However, it should be possible for the manufacturer to receive an advance before completion of the controls.
(12)
With a view to simplification and reducing administrative burdens and the costs of re-converting modified starches it is appropriate to increase the amount of the production refund below which control measures are not deemed to be necessary, without expanding the risk for inappropriate spending of Community resources.
(13)
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 (4), applies to the arrangements provided for in this Regulation. Therefore, the primary requirements of the obligations incumbent on manufacturers and guaranteed by the lodging of a security should be defined.
(14)
The Management Committee for the Common Organisation of Agricultural Markets has not delivered an opinion within the time limit set by its Chairman,
HAS ADOPTED THIS REGULATION:
Article 1
1. In accordance with Article 96 of Regulation (EC) No 1234/2007 a production refund (hereinafter called ‘refund’) may be granted to natural or legal persons using starch extracted from wheat, maize, or potatoes, or certain derived products, in the manufacture of the goods listed in Annex I to this Regulation.
For Finland and Sweden, a refund may also be granted for the use of barley and oat starch limited to a total quantity of 50 000 tonnes in Finland and 10 000 tonnes in Sweden.
2. It is decided to grant a refund taking into account, in particular:
(a)
the level of competition with third countries, and the degree of protection against such competition afforded by the mechanisms of the common agricultural policy and the Common Customs Tariff;
(b)
the progress made in the technology of starch manufacture and utilization;
(c)
the degree to which starch is incorporated in the final product and/or the relative value of starch in the final product and/or the importance of the product as an outlet for starch, in the light of competition with other products.
3. The grant of a refund for a product may not cause distortion in the conditions of competition with other products which are not eligible for such refunds.
4. Should it be established that distortion has occurred following the grant of a refund, that refund shall:
(a)
be abolished; or
(b)
adjusted, in so far as is necessary to eliminate the distortion in the conditions of competition.
5. Starches imported into the Community under an import scheme which gives rise to a reduction in import duty may not benefit from a production refund.
6. The decisions provided for in this Article shall be adopted by the Commission in accordance with the procedure referred to in Article 195(2) of Regulation (EC) No 1234/2007.
Article 2
For the purposes of this Regulation the following definitions shall apply:
(a)
‘starch’ means basic starch or a product derived from starch as listed in Annex II;
(b)
‘approved products’ means any of the products listed in Annex I;
(c)
‘the manufacturer’ means the user of the starch for the production of approved products.
Article 3
1. In cases where a refund is granted, it shall be fixed once a month. However, if the prices of maize and/or wheat in the Community or on the world market change in a significant way, the refund calculated in accordance with paragraph 2 can be modified during this month to take account of these changes.
2. The refund per tonne of starch of maize, wheat, barley or oats shall be calculated in particular on the basis of the difference, multiplied by a coefficient of 1,6, between:
(a)
the average of the maize market prices in France and Hungary, valid during the five days preceding the day of fixing; and
(b)
the average of the representative cif Rotterdam import prices used for the determination of the import duties on the maize, noted during the five days preceding the day of the beginning of application.
For the purposes of calculating the difference referred to in the first subparagraph, the following rules shall apply:
(a)
if the maize market price referred to in point (a) is higher than the intervention price referred to in Article 18 of Regulation (EC) No 1234/2007, but less than 155 % of that price, the price to be taken into account shall be the intervention price plus half the difference between the real price and the intervention price;
(b)
if the maize market price referred to in point (a) is higher than 155 % of the intervention price, the price to be taken into account shall be the intervention price plus 27,5 % of the intervention price.
For potato starch a different rate may be set that reflects the minimum price indicated in Article 4a of Council Regulation (EC) No 1868/94 (5). In that case, the calculation shall be made on the basis of the maize market price in France and Hungary referred to in point (a) of the first subparagraph, up to a limit of 115 % of the intervention price.
During July, August and September, the maize price referred to in point (a) of the first subparagraph shall be reduced by the difference between the intervention price for cereals as referred to in Article 18 of Regulation (EC) No 1234/2007 valid in June and that valid in July, save if the price of maize referred to in point (a) of the first subparagraph corresponds already to that valid for the new harvest.
3. The refund payable shall be that calculated in accordance with paragraph 2 and multiplied by the coefficient indicated in Annex II which corresponds to the CN code of the starch actually used to manufacture the approved products.
4. The decisions provided for in this Article shall be adopted by the Commission in accordance with the procedure referred to in Article 195(2) of Regulation (EC) No 1234/2007.
Article 4
1. Manufacturers who intend to claim refunds should apply to the competent authority in the Member State where the starch is used, giving the following information:
(a)
the name and address of the manufacturer;
(b)
the range of products in which starch is used, including those which are on the list in Annex I and those which are not, giving a full description and the CN codes;
(c)
the address(es) of the place(s) where the starch is to be processed into an approved product, if the address is different as these of the manufacturer.
Member States may ask the manufacturer for additional information.
2. Manufacturers shall submit a written undertaking to the competent authority, allowing the competent authorities to carry out all checks and inspections required to monitor the use of the starch and that they will provide any information required.
3. The competent authority shall take measures to ensure that the manufacturer is established and officially recognized in the Member State.
4. On the basis of the information specified in paragraphs 1 and 2, the competent authority shall draw up a list of approved manufacturers which it shall keep up to date.
Only manufacturers thus approved shall be entitled to claim a refund in accordance with Article 5.
Article 5
1. If the manufacturer wishes to apply for a refund, he must address himself in writing to his competent authority to obtain a refund certificate. Applications may be lodged every working day before 13:00 Brussels time.
2. The application must specify:
(a)
the name and address of the manufacturer;
(b)
the quantity of starch to be used;
(c)
in the case of manufacture of a product falling within CN code 3505 10 50, the quantity of starch which will be used;
(d)
the place(s) where the starch will be used;
(e)
the planned dates of the processing operations.
3. The application shall be accompanied by:
(a)
the lodging of a security in accordance with Article 8;
(b)
a declaration by the supplier of the starch that the product to be used has been directly produced from maize, wheat, barley, oats or potatoes, with the exclusion of all use of by-products obtained at the time of the manufacture of other agricultural products or goods.
4. Member States may require additional information.
Article 6
1. As soon as applications submitted in accordance with Article 5 are received, the competent authority shall verify them and shall issue the refund certificate forthwith.
2. Member States shall use national forms for the refund certificate which, without prejudice to the other provisions of Community legislation, shall contain at least the information specified in paragraph 3.
3. The refund certificate shall include the information referred to in Article 5(2) and state the refund rate and the last day of its validity, which shall be the last day of the third month following the month of issue.
However, during July, August and until 24 September included, the validity of the certificates requested during the periods in question is limited to 30 days as from the day on which they are issued, without being able to exceed the limit of 30 September.
4. The rate of the refund applicable and stated on the certificate corresponds to that valid the day of the receipt of the request.
However, where any of the quantities of starch quoted on the certificate is processed during the cereals marketing year following that in which the application was received, the refund payable for that starch which is processed in the new marketing year shall be adjusted according to the difference between the intervention price applicable during the month of delivery of the restitution certificate, and that applicable in the month of processing, multiplied by a coefficient of 1,60. The operative event for the exchange rate applicable to the refund shall be that referred to in Article 2(1) of Regulation (EC) No 1913/2006.
Article 7
1. Manufacturers in possession of a refund certificate delivered in accordance with Article 6 shall be entitled, provided all the requirements of this Regulation have been met, to request payment of the refund indicated on the certificate, after the starch has been used in the manufacture of the approved products concerned.
2. Rights under the certificate shall not be transferable.
Article 8
1. The issue of a certificate shall be subject to the lodging of a security by the manufacturer with the competent authority, equal to EUR 15 per tonne of basic starch, where appropriate multiplied by the coefficient corresponding to the type of starch to be used as set out in Annex II.
2. The security shall be released in accordance with Regulation (EEC) No 2220/85. The primary requirement within the meaning of Article 20 of that Regulation shall be the processing of the quantity of starch stated on the application into approved products within the period of validity of the certificate. However, if a manufacturer has processed at least 90 % of the quantity of starch stated on the application, he shall be deemed to have fulfilled that primary requirement.
Article 9
1. The definitive payment of the refund may be made only after the manufacturer has notified the competent authority of the following information:
(a)
the date or dates of purchase and delivery of the starch;
(b)
the name and address of the suppliers of the starch;
(c)
the name and address of the producers of the starch;
(d)
the date or dates on which the starch was processed;
(e)
the quantity and type of starch, including the CN codes, which has been used;
(f)
the quantity of the approved product shown on the certificate and manufactured using the starch.
2. Where the product mentioned on the certificate falls within CN code 3505 10 50, the notification referred to in paragraph 1 shall be accompanied by the lodging of a security equal to the production refund payable on the manufacture of the product in question. However, where the amount of the production refund is less than EUR 30/tonne of starch, the security shall not be required and the verification and control measures provided for in Article 10 shall not apply.
The primary requirement, within the meaning of Article 20 of Regulation (EEC) No 2220/85, constitutes the use or the export of the product in accordance with the respective provisions of points (a) and (b) of Article 10(1) of this Regulation. The use or the export is to be effected within 12 months following the deadline of validity of the certificate. An extension of maximum six months of this deadline may be considered on the basis of a duly justified request presented to the competent authority.
3. Before payment, the competent authority shall establish that the starch has been used for the manufacture of the approved products in accordance with the information stated on the certificate. This will normally be achieved using administrative checks, but these should be supported by physical checks where necessary.
4. All checks provided for in this Regulation shall be completed within five months of the date on which the competent authority received the information required in paragraph 1.
5. Where the quantity of starch processed is greater than the quantity shown on the certificate, then the extra quantity, up to a limit of 5 %, shall be deemed to have been processed under that document, conferring a right to the refund indicated thereon.
Article 10
1. The security provided for in Article 9(2) shall be released only once the competent authority has received proof that the product falling within CN code 3505 10 50:
(a)
has been used within the customs territory of the Community to manufacture products other than those listed in Annex II; or
(b)
has left the customs territory of the Community, in the case of direct export to third countries.
2. The proof referred to in paragraph 1(a) shall consist of a declaration submitted by the manufacturer to the competent authority, indicating:
(a)
whether the product in question is to be processed;
(b)
that the product will be used to manufacture only products other than those listed in Annex II;
(c)
that the product in question will be sold only to a party who will take the undertaking mentioned in point (b), on the basis of either a contractual clause established for that purpose or a specific condition mentioned in the sales invoice; the manufacturer shall retain a copy of the sales contract or of the sales invoice, to be kept at the disposal of the competent authority;
(d)
that he is aware of the provisions of paragraph 8;
(e)
the name and address of the party who receives the product and the quantity involved if the product is transferred;
(f)
the number of the T 5 control copy if the buyer is located in another Member State.
3. At the end of each quarter, the manufacturer shall forward copies of the declaration referred to in paragraph 2 to his competent authority within 20 working days. On receipt, the competent authority concerned shall forward the same documents to the competent authority of the buyer within 20 working days.
4. Both manufacturers and buyers of the product falling within CN code 3505 10 50 must have stock records of a type approved by the Member States so that compliance with the undertakings and information contained in the manufacturer's declaration referred to in paragraph 2 can be verified. The competent authorities of the Member States will carry out verifications on the basis of these stock records with reference to financial accounts, including invoices and bank extracts, as necessary to satisfy themselves of the quantitative operations recorded.
However, the buyers who, each quarter, use a quantity of the products within this CN code which is less than 1 000 kg, can be exempted from this obligation.
5. The verification provided for in paragraph 4 shall be made by the competent authorities of the respective Member States at the premises of the manufacturer and of the buyer after the end of each quarter. Such checks shall focus on reconciling global data relating to that period for the manufacturers and buyers concerned, and with detailed verification of at least 10 % of all the transactions and utilizations which have taken place.
Such verification shall be determined by the competent authorities on the basis of a risk analysis, taking into account the importance of the quantities and sums involved, findings from previous verifications, and other factors to be decided by the competent control authorities.
Each verification operation must be completed not later than five months after the end of each quarter.
The competent authority of the manufacturer must have the results of each verification at its disposal not later than 20 working days after the end of each check.
Where such verifications take place in two or more Member States, the competent authorities concerned shall communicate the results of the verifications made as part of the procedures referred to in Council Regulation (EEC) No 1468/81 (6).
6. If irregularities are found in 3 % or more of the checks referred to in paragraph 5, the competent authorities shall intensify checks.
Where the results of verifications so warrant, the authority which released the security shall apply the penalty provided for in paragraph 8 to the manufacturer concerned.
7. When the product in question is the subject of intra-Community trade or is exported to third countries via the territory of another Member State, a T 5 control copy shall be issued in accordance with Commission Regulation (EEC) No 2454/93 (7).
Box 104 of the control copy shall include, under the heading ‘Other’, one of the entries listed in Annex III to this Regulation.
8. If the conditions laid down in paragraphs 1 to 7 are not met, the competent authority of the Member State concerned shall, without prejudice to national sanctions, require payment of an amount equivalent to 150 % of the highest refund applicable to the product in question during the 12 preceding months.
Article 11
1. The refund quoted on the certificate shall be paid only for the quantity of starch actually processed. At the same time, the security referred to in Article 8(1) shall be released in accordance with Title V of Regulation (EEC) No 2220/85.
2. The refund shall be paid not later than five months after the date on which the check provided for in Article 9(3) is completed. However, at the request of the manufacturer, the competent authority may advance a sum equivalent to the refund 30 days after receipt of the said information. Apart from cases where the product falls within CN code 3505 10 50, this advance shall be subject to the lodging of a security by the manufacturer equal to 115 % of the sum advanced. The security shall be released in accordance with Article 19(1) of Regulation (EEC) No 2220/85.
Article 12
Member States shall notify to the Commission:
(a)
by the end of the first week of each month, the quantities of starch for which certificate applications as indicated in Article 5(1) were made during the previous month;
(b)
within three months of the end of each quarter of the calendar year the type, quantities and origin of starch (maize, wheat, potatoes, barley or oats) on which refunds were paid and the quantities of products for which the starch was used.
Article 13
Regulation (EEC) No 1722/93 is hereby repealed.
Article 14
This Regulation shall enter into force on 1 July 2008.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 3 June 2008.