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
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 804/68 of 27 June 1968 on the common organization of the market in milk and milk products (1), as last amended by Regulation (EC) No 1587/96 (2), and in particular Articles 6 (6), 12 (3) and 28 thereof,
Whereas the butter market in the Community is encumbered by heavy surpluses; whereas Article 6 (3) of Regulation (EEC) No 804/68 provides for disposal of the butter bought in by the intervention agency; whereas Council Regulation (EEC) No 1723/81 (3), as amended by Regulation (EEC) No 863/84 (4), lays down general rules on measures intended to maintain the level of use of market butter by certain classes of consumer and undertakings;
Whereas Commission Regulation (EEC) No 570/88 (5), as last amended by Regulation (EC) No 531/96 (6), provides for the sale of butter from intervention stocks 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; whereas experience has shown that the arrangements need to be adjusted and simplified in order to improve the operation of the scheme;
Whereas, in order to ensure consistency with the definition of butter eligible for aid, it should be specified that cream must meet the conditions laid down in Article 6 (5) of Regulation (EEC) No 804/68 in order to qualify for aid;
Whereas Regulation (EEC) No 570/88 provides that market butter must be packaged even if, after manufacture, it is intended for incorporation in products other than final products in the same establishment; whereas this requirement is not necessary for control purposes and may be abolished in such cases; whereas the requirement concerning the packaging of certain final products in the form of uncooked dough or powder preparations may also be abolished where the products are transported direct to retailers for subsequent processing;
Whereas, in order to facilitate verification of compliance with the six-month time limit for incorporation of products under this scheme into final products, the number of the tendering procedure should be indicated on the packaging;
Whereas past experience with cream to which tracers have been added as a product eligible for aid shows that cream to which no tracers have been added can also be accepted as eligible if it is incorporated directly and exclusively into the final products covered by formula B; whereas the limit on the maximum fat content of cream may be abolished; whereas, in order to ensure that all operators are treated equally, the conditions regarding the perception of organoleptic tracers in cream should also apply to butter and concentrated butter, and the minimum dosage of such tracers in cream should be specified;
Whereas changes to the combined nomenclature and to the composition and nature of certain final products require adjustments to the descriptions of such products and the conditions to which they are subject;
Whereas the establishments at which the different manufacturing, processing and incorporation operations covered by this scheme are carried out must be approved; whereas, in order to obtain approval, establishments must meet a number of conditions and give various undertakings; whereas establishments which no longer meet the conditions should lose their approval; whereas, if an establishment fails to comply with its undertakings, its approval should be withdrawn for a period which reflects the seriousness of the irregularity;
Whereas Regulation (EEC) No 570/88 provides that products falling within CN codes 0401 to 0406 may not, except for a few products specifically indicated, be treated as intermediate products within the meaning of that Regulation; whereas experience has shown that there is no need to maintain these exceptions, except for recombined butter; whereas the definition of 'recombined butter` should take account of the different processes by which this product is manufactured, particularly to allow for the addition of cream to concentrated butter;
Whereas the addition of tracers to butter or cream, or incorporation of butter or cream into final products or intermediate products may take place in a Member State other than that of manufacture; whereas, in such cases, the Member State of destination must be able to ensure that the quality criteria have been complied with;
Whereas it seems appropriate to give operators the option, in the case of products to which tracers have been added, not to lodge a processing security if the aid is requested only after incorporation in final products and after checks have been carried out;
Whereas, in view of the lower level of aid henceforth applicable, the amount of the penalty to be imposed if the deadline for incorporation in final products is exceeded should be reduced;
Whereas the option provided for in Regulation (EEC) No 570/88 to fix a minimum basic selling price and/or maximum basic aid has not been taken up since it was introduced; whereas this option, together with Annex VII to that Regulation may be abolished;
Whereas reliable and regular data on the utilization of butter, cream and concentrated butter in intermediate and final products and on users and trade flows are essential for the proper management of the aid scheme; whereas the obligation to supply information laid down in Regulation (EEC) No 570/88 is limited and should therefore be widened;
Wheres, in order to enable the national authorities to fulfil their obligations to communicate information, approval of establishments should be made subject to the further condition that they undertake to supply the data required by the competent body;
Whereas Regulation (EEC) No 570/88 has been repeatedly and substantially amended; whereas, on the occasion of fresh amendments, it should be recast for the sake of clarity;
Whereas the operative events for the applicable agricultural conversion rate are laid down in Commission Regulation (EEC) No 1756/93 (7), as last amended by Regulation (EC) No 569/96 (8);
Whereas the Management Committee for Milk and Milk Products has not delivered an opinion within the time limit set by its chairman,
HAS ADOPTED THIS REGULATION:
CHAPTER I
General provisions
Article 1
1. This Regulation shall govern:
(a) the sale of intervention butter bought in under Article 6 (1) of Regulation (EEC) No 804/68 and taken into storage before a date to be determined;
(b) the aid granted for using butter, concentrated butter and cream, as defined in paragraph 2.
2. Notwithstanding Article 9 (a), only the following may qualify for aid:
(a) butter produced directly and exclusively from pasteurized cream which meets the requirements laid down in Article 6 (2) of Regulation (EEC) No 804/68 and the requirements of the national quality class set out in Annex II to Commission Regulation (EC) No 454/95 (9) in the Member State of manufacture and whose packaging is marked accordingly. Where the butter is manufactured in the same establishment as the one in which tracers are added or the butter, with or without the addition of tracers, is incorporated at an intermediate stage into products other than final products, the packaging of the butter prior to such operations shall not be required;
(b) concentrated butter produced from butter or cream at an establishment approved in accordance with Article 10 and meeting the specifications laid down in Annex I;
(c) cream meeting the conditions of Article 6 (5) of Regulation (EEC) No 804/68, falling within CN codes ex 0401 30 39 and ex 0401 30 99, with a fat content of not less than 35 % and directly and exclusively used in the final products referred to in Article 4 (1), formula B.
Article 2
The intervention butter shall be sold and the aid shall be granted for the products referred to in Article 1 (2) by means of a standing invitation to tender organized by each intervention agency.
Article 3
Tenders shall be accepted only if the tenderer gives a written undertaking to incorporate the butter or concentrated butter, or cause it to be incorporated, exclusively and notwithstanding the intermediate products referred to in Article 8, into final products as referred to in Article 4 or, in the case of cream, directly and exclusively into final products as referred to in Article 4 (1), formula B, in one of the following ways:
(a) either by adding the tracers referred to in Article 6 (1),
(i) after processing of the intervention butter into concentrated butter, in accordance with Article 5, or
(ii) without further processing;
(b) or by providing a written undertaking to use, at the establishment where incorporation into the final products is effected, a minimum of 5 tonnes of butter-equivalent per month, or a minimum of 45 tonnes of butter-equivalent per year of the same quantities in intermediate products,
(i) after processing of the intervention butter into concentrated butter, in accordance with Article 5, or
(ii) without further processing.
CHAPTER II
Conditions relating to the use and incorporation of the butter, concentrated butter and cream
Article 4
1. The relevant final products shall belong to one of the formulas set out below, which is to be indicated in the tender:
Formula A:
A1 products falling within CN codes 1905 20, 1905 30, 1905 90 40, 1905 90 45, 1905 90 55, 1905 90 60 and 1905 90 90;
A2 the following products, put up for retail sale:
(a) sugar confectionery falling within CN codes 1704 90 51, 1704 90 55, 1704 90 61, 1704 90 65, 1704 90 71, 1704 90 75 and 1704 90 99,
(b) sugar confectionery falling within CN code 1806 90 50,
(c) other food preparations containing cocoa falling within CN codes 1806 31 00, 1806 32, 1806 90 60, 1806 90 70 and 1806 90 90, other than chocolate and chocolate items;
A3 fillings incorporated into chocolate goods put up for retail sale falling within CN codes 1806 31 00, 1806 90 11, 1806 90 19 and 1806 90 31.
The milkfat content by weight of the products specified in A2 and A3 shall be not less than 3 % and not more than 50 %.
A4 products falling within CN codes 1901 20 00 and 1901 90 99:
(a) in the form of uncooked dough, not including decoration:
(i) with a flour and/or starch base, representing not less than 40 % of the weight of the constituents calculated in terms of dry matter, mixed with milkfat and other ingredients such as sugar (sucrose), eggs or egg yolk, milk powder, salt, etc., with a milkfat content by weight exceeding 90 % of the total fat content, not including the fat forming part of the normal composition of the ingredients; and
(ii) the ingredients of which have been thoroughly kneaded and the fat emulsified, so that no matter what physical treatment is applied it is impossible to separate the milkfat; and
(iii) ready for baking, or other heat treatment of equivalent effect, for the direct production of goods falling within CN code 1905, as referred to in A1; and
(iv) put up in accordance with (c) below.
Decoration may be added to the uncooked dough, provided the product thus obtained does not fall within a different CN code;
(b) in the form of a powder preparation:
(i) with a flour and/or starch base, representing not less than 40 % of the weight of the constituents calculated in terms of dry matter, mixed with milkfat and other ingredients such as sugar (sucrose), eggs or egg yolk, milk powder, salt, etc., with a milkfat content by weight exceeding 90 % of the total fat content, not including the fat forming part of the normal composition of the ingredients; and
(ii) suitable for kneading, grinding, simple or multiple fermentation or cutting up to obtain a dough which, after baking or other equivalent heat treatment, directly produces products falling within CN code 1905, as referred to in A1; and
(iii) put up in accordance with (c) below;
(c) put up:
(i) in the case of uncooked dough, in units packed together in an outer carton; or
(ii) in the case of powder preparations, in packages of a maximum content of 25 kg;
(iii) in both cases set out in points (i) and (ii), all packages must bear, in clearly visible, legible letters the following information:
- the date of manufacture (a code may be used),
- the milkfat content by weight,
- the words 'Formula A - Article 4 of Regulation (EC) No 2571/97`,
- where appropriate, the serial number referred to in Article 10 (4).
However, compliance with the conditions laid down in (i), (ii) and (iii) shall not be required where the products referred to in points (a) and (b) are either processed in the same establishment into final products as referred to in A1, or, with the agreement of the competent body, transported directly to the retailer to undergo such processing.
A5 (a) prepared or preserved meat, fish, crustaceans and molluscs falling within Chapter 16 and food preparations falling within CN codes 1902 20 10 to 1902 30 90 and 1902 40 90 and 1904 90 10, 1904 90 90 and 2005 80 00;
(b) sauces and preparations for sauces falling within CN codes 2103 10 00, 2103 20 00, 2103 90 10 and ex 2103 90 90 and products falling within CN code 2104 10.
The milkfat content by weight of these products, calculated in terms of dry matter, shall be at least 5 %.
Formula B:
B1 Ice-cream falling within CN codes 2105 00 91 and 2105 00 99 and the preparations referred to in B2, suitable for consumption without further treatment other than mechanical treatment and freezing and containing 4,5 % or more by weight of milkfat but not more than 30 %.
B2 Preparations, excluding yoghurt and yoghurt powder, for the manufacture of ice-cream falling within CN codes 1806 20 80, 1806 20 95, 1806 90 90, 1901 90 99 and 2106 90 98, which contain 10 % or more by weight of milkfat but not more than 33 %, together with one or more flavourings and with emulsifiers or stabilizers, and suitable for consumption without further treatment other than the addition of water if required, any mechanical treatment necessary, and freezing.
2. Further processing of these final products shall be permitted only if the products obtained fall within one of the CN codes referred to in paragraph 1 and if no product falling within any other CN code is produced at any intermediate stage of such processing.
Article 5
Where the intervention butter is to be processed into concentrated butter, all the butter awarded to the tenderer must be processed into concentrated butter of a fat content of not less than 99,8 %, and must produce a minimum quantity of 100 kilograms of concentrated butter per 122,5 kilograms of butter used.
Article 6
1. Where Article 3 (a) applies, and if the product is concentrated butter in the process of or immediately after manufacture and in the same establishment, the following shall be added, to the exclusion of any other products, in such a way that they are evenly distributed, according to the minimum quantities prescribed:
(a) if the butter or concentrated butter is to be incorporated in formula A products: the products listed in Annex II hereto,
(b) if the butter or concentrated butter is to be incorporated in formula B products: the products listed in Annex III hereto,
(c) in the case of cream, the products listed in Annex IV hereto.
2. Where, for example because of uneven distribution, the content of each of the products referred to in Annex II (I) to (V), Annex III (I) to (III), and Annex IV (1) is found to be more than 5 % but less than 30 % below the minimum quantities prescribed up to 1,5 % of the processing security referred to in Article 18 (2) shall be forfeited or the aid shall be reduced by 1,5 % for each percentage point below the prescribed minimum quantities.
The provisions laid down in the first subparagraph shall not apply in the case of organoleptic tracers if the products referred to in Annex II at (a) of points I to V, in Annex III at (a) of point I to III and in Annex IV (1) (a) are added in such quantities that their flavour or colour can be perceived up to the stage of incorporation in final products as referred to in Article 4 or, where applicable, in intermediate products as referred to in Article 8.
3. The competent body designated by the Member State concerned shall ensure that the requirements as to composition and characteristics, in particular the degree of purity, of the products set out in Annexes II, III and IV, have been complied with.
Article 7
1. If the manufacture of the concentrated butter, with, or without added tracers, or the addition of the tracers to butter or cream, as the case may be, and the incorporation in final products or, where applicable, in intermediate products as referred to in Article 8, are carried out in different places, then the concentrated butter, butter or cream shall be put up in sealed packages, weighing not less than 10 kilograms net for concentrated butter or butter, without prejudice to any subpackaging, and not less than 25 kilograms net for cream.
Concentrated butter and cream may also be transported in tankers or containers. Before incorporation into final products, the concentrated butter may be repackaged in sealed packages as provided for in this Article at an establishment approved for such purpose in accordance with Article 10.
2. Packages shall bear in clearly visible and legible characters an indication of this Regulation and the intended use (formula A or formula B), a reference to the number of the tendering procedure (a code may be used), to be indicated on the original packaging, so that the competent body can verify compliance with the deadline for incorporation, and:
(a) for concentrated butter, one or more of the markings referred to in Annex V (1) (a). If tracers have been added to the concentrated butter, the words 'to which tracers have been added` shall be added;
(b) for butter to which tracers have been added, one or more of the markings referred to in Annex V (1) (b);
(c) for cream to which tracers have been added, one or more of the markings referred to in Annex V (1) (c).
Article 8
1. Where the butter or concentrated butter, with or without added tracers, is incorporated at an intermediate stage into products other than final products and in an establishment other than that of final processing, the conditions laid down in paragraphs 2 to 5 shall apply.
2. In accordance with Article 10, approval of the processing establishment and of the intermediate products shall be given, or refused, on the basis of an application specifying in particular the composition and butterfat content of the products manufactured and showing that incorporation into such intermediate products is justified for the manufacture of one of the final products.
The list of establishments of final processing or, failing this, the list of first consignees in the Member State and, where applicable, the list of first consignees in other Member States, shall be forwarded to the competent authority together with the application for approval.
The latter list shall be forwarded by the competent authority of each Member State to the other Member States concerned. These lists shall be updated in accordance with provisions laid down by the Member State which grants the approval.
3. Where the holder as referred to in Article 10 (2) (c) is a resale establishment, the latter shall undertake under the terms of the contract of sale:
(a) to keep accounts showing, for each delivery, the name(s) and address(es) of the establishment(s) of final processing or, failing this, the first consignees in the Member State and, where applicable, the first consignees in other Member States, together with the corresponding quantities sold;
(b) to ensure that Articles 11 and 23 (4) are complied with.
4. The competent authority shall subject intermediate processing establishments as referred to in paragraph 2 to the control measures provided for in Article 23 (3).
5. Without prejudice to any subpackaging, intermediate products shall be put up in sealed packages weighing not less than 10 kilograms net or shall be transported in tankers or containers. However, products of low density such as foamed products may be put up in sealed packaging weighing not less than five kilograms net without prejudice to any subpackaging.
Packages shall bear, in addition to the intended use (formula A or formula B) and, where applicable, the words 'to which tracers have been added`, one or more of the markings referred to in Annex V (2) and, in the case of the products referred to in Article 9 (a), reference to the number of the tendering procedure (a code may be used) so that the competent body can verify compliance with the deadline for incorporation.
Article 9
The intermediate products referred to in Article 8 shall, without prejudice to Article 4, be products other than those falling within CN codes 0401 to 0406.
However,
(a) products falling within subheading 0405 10 30 with a butterfat content of not less than 82 % manufactured exclusively from concentrated butter as referred to in Article 1 (2) (b), without prejudice to the addition of cream, at an establishment approved to that effect in accordance with Article 10, shall be considered as intermediate products on condition that tracers as referred to in Article 6 (1) have been added to them. In this case, the minimum selling price paid and the maximum amount of aid granted shall correspond respectively to the minimum selling price and the maximum amount of aid fixed in accordance with Article 18 for traced butter with a fat content of 82 %;
(b) mixtures as referred to in Annex VI shall not be considered to be intermediate products.
Article 10
1. The manufacture of concentrated butter as referred to in Article 1 (2) (b), the processing of butter into concentrated butter as referred to in Article 5, the addition of tracers as referred to in Article 6, the repackaging of concentrated butter as referred to in the second subparagraph of Article 7 (1), the incorporation into intermediate products as referred to in Article 8 and, where Article 3 (b) applies, the incorporation of butter, concentrated butter, intermediate products and cream into final products shall be carried out in approved establishments.
2. Establishments shall be approved only on condition that:
(a) they possess suitable technical plant, capable of processing or incorporating at least five tonnes of butter per month or its equivalent in concentrated butter or cream, or, where appropriate, intermediate products;
(b) they posses premises enabling any stocks of non-butter fats held to be kept separate and identified;
(c) they undertake to keep permanent records showing the quantities, composition and origin of fats used and the quantities, composition and butterfat content of the products obtained, and, except for establishments marketing final products at the retail stage, the date on which the products leave the establishment and the names and addresses of their holders, supported by references to the delivery orders and invoices;
(d) they undertake to forward the manufacturing programme for each tender offer as defined in Article 16 to the agency responsible for inspection as referred to in Article 23, in accordance with the detailed rules laid down by the Member State concerned. However, where the competent agency decides, as a result of the inspections referred to in Article 23, to carry out intensive checks at least once a month, Member States may accept manufacturing programmes which do not bear a reference to the tender;
(e) they undertake to forward to the competent body the data concerning them as referred to in Annexes IX to XIII, in accordance with detailed rules to be laid down by each Member State.
3. Establishments which process different products attracting aid or price reductions under different Community schemes must also undertake:
(a) to keep separately the records referred to in paragraph 2 (c),
(b) to process the said products successively. However, at the request of the party concerned, Member States may waive this obligation if any establishment possesses premises ensuring proper separation and identification of any stocks of the butter in question.
4. Separate approvals bearing a serial number shall be issued by the Member States on whose territories each of the following are performed:
(a) manufacture of concentrated butter;
(b) addition of tracers to butter or cream;
(c) incorporation into intermediate products;
(d) where Article 3 (b) applies, incorporation into final products.
5. An approval shall be withdrawn whenever the pre-conditions set out in paragraph 2 (a) and (b) are no longer met. At the request of the establishment concerned, approval may be restored after a minimum period of six months, following a detailed inspection.
If an establishment is found not to have complied with one of its undertakings as referred to in paragraph 2 (c) and (d) or any other obligation arising from this Regulation, then, except in cases of force majeure, approval shall be suspended for a period of one to twelve months, depending on the seriousness of the irregularity. Member States may decide not to impose such a suspension if it is established that the irregularity was not committed deliberately or through serious negligence and that its consequences are marginal.
Article 11
The products referred to in Article 1 shall be processed and incorporated into final products in the Community within a period of six months following the month of the closing date for the submission of tenders in response to the individual invitation to tender as fixed in accordance with Article 14 (2).
Article 12
1. Successful tenderers shall:
(a) carry out or cause to be carried out on their behalf and at their expense the operations relating to the manufacture of concentrated butter and the addition of tracers;
(b) keep accounts showing, for each delivery, the names and addresses of the purchasers and the corresponding quantities, specifying their intended use (formula A or formula B) and either the deadline for incorporation referred to in Article 11 or the number of the tendering procedure, which may be in code. Where the successful tenderer processes different products attracting aid or price reductions under different Community schemes, separate accounts must be kept for each scheme;
(c) include in each sales contract:
(i) in the case of manufacture of intermediate products, an obligation to comply with Articles 8 and 9;
(ii) an obligation to comply, where appropriate, with the undertaking referred to in Article 3 (b);
(iii) an obligation of incorporation into final products, specifying the intended use (formula A or formula B), within the period referred to in Article 11;
(iv) where applicable, an obligation to keep accounts as referred to in point (b);
(v) an obligation to comply with Article 10;
(vi) an obligation to keep records as referred to in Article 10 (2) (c) where products containing tracers are incorporated into final products;
(vii) an obligation on the contractor to forward to the competent body the data concerning them as referred to in Annexes IX to XIII, in accordance with detailed rules to be laid down by each Member State;
(viii) where applicable, an obligation to provide the manufacturing programme.
2. Successful tenderers who manufacture the final products must keep records as referred to in Article 10 (2) (c) and forward their manufacturing programmes in accordance with Article 10 (2) (d).
CHAPTER III
Tendering procedures
Article 13
1. Notice of a standing invitation to tender shall be published in the Official Journal of the European Communities at least eight days before the first closing date for submission of tenders.
2. The competent intervention agency shall issue each notice of invitation to tender, indicating in particular the closing date and address for the submission of tenders.
The intervention agency shall also specify, for the butter stocks it holds:
(a) the location of the cold stores where the butter intended for sale is held. Only the stores holding the oldest butter shall be listed.
(b) the quantity of intervention butter for sale in each store.
Article 14
1. During the period of validity of the standing invitation to tender, intervention agencies shall issue individual invitations to tender.
2. The period for the submission of tenders in response to each individual invitation shall expire at 12 noon (Brussels time) each second and fourth Tuesday of the month, except the fourth Tuesday in December. If the Tuesday is a public holiday, the period shall expire at 12 noon (Brussels time) on the previous working day.
Article 15
1. Intervention agencies shall make available to prospective tenderers on request an up-to-date list as provided for in Article 13 (2) (a) of the cold stores where the oldest butter put up for tender is stored and the corresponding quantities. Intervention agencies shall also publish updated lists at regular intervals, in an appropriate form to be specified in the notices of invitation to tender provided for in Article 13 (2). Intervention agencies shall inform the Commission, when transmitting tender offers to it, of the quantities of butter available for sale.
2. Intervention agencies shall take the necessary steps to enable prospective tenderers to examine samples of the butter for sale, at their own expense, before tendering.
Article 16
1. Tenders shall be submitted in writing either by registered post or delivery by hand to the intervention agency against proof of receipt, or by any other written means of telecommunication.
Tenders relating to the sale of intervention butter shall be submitted to the intervention agency holding the butter.
Tenders relating to the grant of aid shall be submitted:
(a) where Article 3 (a) applies, to the intervention agency of the Member State in whose territory tracers are to be added;
(b) where Article 3 (b) applies, to the intervention agency of the Member State in whose territory the first of the following operations is to be carried out:
(i) manufacture of concentrated butter, or
(ii) incorporation of butter into intermediate products, or
(iii) incorporation of butter or cream into final products.
2. Tenders relating to the sale of butter shall state:
(a) the name and address of the tenderer;
(b) the quantity applied for;
(c) the intended use of the butter (formula A or formula B), the incorporation procedure chosen having regard to the relevant provisions of Article 3 and, where applicable, the manufacture of intermediate products as referred to in Article 9 (a);
(d) the price offered per 100 kilograms of butter, exclusive of internal taxes, ex cold store, expressed in ecus;
(e) where appropriate, the Member State on whose territory the butter is to be incorporated into final products or processed into concentrated butter, tracers are to be added to the butter or intermediate products are to be manufactured;
(f) where appropriate, the cold store in which the butter is held and, optionally, an alternative store.
3. Tenders for the grant of aid shall state:
(a) the name and address of the tenderer;
(b) the quantity of cream, butter or concentrated butter for which aid is requested and, in the case of butter, the fat content;
(c) the intended use of the butter (formula A or formula B), the incorporation procedure chosen having regard to the relevant provisions of Article 3 and, where applicable, the manufacture of intermediate products as referred to in Article 9 (a);
(d) the proposed amount of aid per 100 kilograms of cream, butter or concentrated butter, disregarding any tracers, expressed in ecus.
4. Tenders shall be valid only if:
(a) relating to a single product (intervention butter, cream or butter or concentrated butter), which a uniform fat content in the case of butter (82 % or more, or less than 82 %), intended for the same use (formula A or formula B) and subject to the same incorporation procedure (whether or not tracers are to be added);
(b) relating to at least five tonnes of butter or twelve tonnes of cream or four tonnes of concentrated butter. However, if the quantity available in a store is less, this available quantity shall constitute the minimum quantity for the tender;
(c) accompanied by the undertaking referred to in the first sentence of Article 3 and, where appropriate, the undertaking referred to in Article 3 (b);
(d) without prejudice to Article 18 (4), tenderers include a declaration to the effect that they agree to forgo any claim as to the quality and characteristics of any butter awarded to them;
(e) proof is furnished before expiry of the period set for the submission of tenders that the tenderer has lodged a tendering security as referred to in Article 17 (1) for the relevant individual invitation to tender;
The undertakings and declarations referred to in points (c) and (d) of the first subparagraph forwarded initially to the intervention agency shall be tacitly renewed for subsequent tenders until this arrangement is expressly terminated by the tenderer or the intervention agency, on condition that:
(a) the original tender states that the tenderer wishes this subparagraph to be applied;
(b) subsequent tenders refer to this subparagraph and to the date of the original tender.
5. No tender may be withdrawn after the closing date as specified in Article 14 (2) for the specific invitation to tender concerned.
Article 17
1. Maintenance of the tender after the closing date for the submission of tenders and, where appropriate,
(a) for intervention butter, the lodging of a processing security as referred to in Article 18 (2) and payment of the price within the period set in Article 20 (2);
(b) for the products referred to in Article 1 (2), where Article 3 (a) applies, the lodging of a processing security as referred to in Article 18 (2) or, where the second subparagraph of Article 22 (3) applies, incorporation into final products;
(c) for the products referred to in Article 1 (2), where Article 3 (b) applies, incorporation into final products,
shall constitute primary requirements, against performance of which a tendering security of ECU 180 per tonne shall be lodged.
2. Tendering securities shall be lodged in the Member State in which the tender is submitted.
However, if the tender offer states, under Article 16 (2) (e), that incorporation into final products or, where appropriate, manufacture of concentrated butter or addition of tracers to butter, or manufacture of intermediate products will take place in a Member State other than the Member State in which the tender has been submitted, the security may be lodged with the competent authority designated by the other Member State, which shall issue to the tenderer the proof referred to in Article 16 (4) (e). In such cases, the intervention agency concerned shall inform the competent authority of the other Member State of the circumstances entailing release or forfeiture of the security.
Article 18
1. A minimum selling price shall be fixed for intervention butter and maximum aid shall be fixed for cream, butter or concentrated butter in the light of the tenders received in response to each individual invitation to tender and in accordance with the procedure laid down in Article 30 of Regulation (EEC) No 804/68. The price or aid thus fixed may vary according to:
(a) the intended use (formula A or formula B),
(b) the fat content of the butter,
(c) the incorporation procedure to be followed in accordance with Article 3.
In accordance with the procedure defined in Article 30 of Regulation (EEC) No 804/68, a decision may be taken to make no award in respect of an invitation to tender.
2. At the same time as the minimum selling price(s) or maximum amount(s) of aid is/are fixed and under the procedure defined in Article 30 of Regulation (EEC) No 804/68, the amount(s) of the processing security shall be fixed per 100 kilograms by reference either to the difference between the intervention price of butter and the minimum prices fixed or to the amounts of aid.
The purpose of the processing security shall be to ensure performance of the primary requirements concerning either:
(a) for intervention butter:
(i) the processing of the butter into concentrated butter in accordance with Article 5 and the addition of tracers, where appropriate, or the addition of tracers to the butter,
and
(ii) the incorporation of the butter or concentrated butter, to which tracers have or have not been added, into final products; or,
(b) for products as referred to in Article 1 (2), where Article 3 (a) applies, incorporation into final products.
3. The proof required for the purposes of release of the processing security referred to in paragraph 2 shall be produced for the competent agency designated by the Member State within 12 months of the expiry of the period laid down in Article 11.
Where the time limits laid down in Article 11 are exceeded by less than a total of 60 days, the processing security shall be forfeited at the rate of ECU 4 per tonne per day. At the end of this period, Article 23 of Commission Regulation (EEC) No 2220/85 (10) shall apply to the amount remaining.
4. Where the primary requirements referred to in paragraph 2 (a) are not complied with within the time limits laid down in Article 11 because the intervention butter is found to be unfit for consumption, any processing securities shall nevertheless be released, with the agreement of the Commission, once appropriate action has been taken under the supervision of the authorities of the Member State concerned.
Article 19
1. Tenders shall be rejected if the price offered is lower than the minimum price or if the amount of aid proposed exceeds the maximum amount of aid fixed, due regard being had to the intended use, the fat content of the butter in question and the incorporation procedure.
2. Without prejudice to paragraph 1, successful tenderers shall be those offering the highest price.
The competent intervention agency shall sell intervention butter on the basis of the date on which it entered storage, starting with the oldest butter among the total available quantity or, where applicable, the available quantity in the cold store(s) named by the operator.
3. Under the sale procedure, if the quantity available in the store in question is not exhausted, contracts for the remaining quantity shall be awarded to the other tenderers according to the prices offered, starting with the highest price. Where the remaining quantity is one tonne or less, that quantity shall be offered to the successful tenderers on the same terms as quantities already awarded to them.
Where acceptance of a tender would lead to a contract being awarded for more butter than is available at the cold store in question, a contract shall be awarded to the tenderer concerned only for the quantity available. However, notwithstanding Article 16 (2) (f), the intervention agency shall designate other stores from which the quantity specified in the tender is to be made up.
Where, in respect of a single cold store, acceptance of two or more tenders offering the same prices with the same intended uses for the butter, the same fat content and the same method of incorporation would lead to contracts being awarded in excess of the quantity available, awards shall be made by dividing the quantity available in proportion to the quantities tendered for. However, should such a division lead to the award of quantities of less than five tonnes, awards shall be made by drawing lots.
4. Rights and obligations arising in connection with the invitation to tender shall not be transferable.
CHAPTER IV
Sale by tendering procedure of butter from intervention
Article 20
1. All tenderers shall immediately be notified by the competent intervention agency of the result of their participation in an individual invitation to tender.
2. Before removing the butter and within the period specified in Article 21 (2), successful tenderers shall pay the intervention agency an amount corresponding to their tender for the quantity which they intend to remove from store and shall lodge a processing security as referred to in Article 18 (2).
3. Except in cases of force majeure, if the successful tenderer has not made the payment referred to in paragraph 2 within the specified period the tendering security referred to in Article 17 (1) shall be forfeited and the sale of the remaining quantities shall be cancelled.
Article 21
1. When the amount referred to in Article 20 (2) has been paid and a security as referred to in Article 18 (2) has been lodged, the intervention agency shall issue a removal warrant indicating:
(a) the quantity for which the conditions referred to above have been satisfied and the tender to which it relates, identified by a serial number;
(b) the cold store where it is stored;
(c) the final date for removal of the butter;
(d) the final date for incorporation into final products;
(e) the incorporation procedure chosen, having regard to Article 3, and
the intended use (formula A or formula B).
2. Successful tenderers shall remove the butter awarded to them within 45 days of the closing date for submission of tenders. Removal may take place in instalments.
If the payment referred to in Article 20 (2) has been made but the butter has not been removed within the period referred to above, the successful tenderer shall bear the cost and risk of storing the butter with effect from the day following that referred to in paragraph 1 (c).
3. The butter shall be handed over by the intervention agency in packages bearing a clear and legible indication of this Regulation, the intended use (formula A or formula B) and the incorporation procedure chosen having regard to the relevant provisions of Article 3.
The butter shall remain in its original packaging until the start of the incorporation procedure in accordance with Article 3.
4. For imperative and duly substantiated commercial reasons, a change in the intended use or incorporation method for the entire quantity of the tender as referred to in Article 16, prior to the addition of tracers where Article 3 (a) applies, shall be authorized by the intervention agency, under its supervision and in compliance with this Regulation.
However, where the minimum selling price or the maximum level of aid referred to in Article 18 (1), as the case may be, are identical for formula A and formula B, at the tenderer's request a change in the intended use between the two formulas for the entire quantity of the tender as referred to in Article 16 may be authorized by the competent authority, under its supervision and in compliance with this Regulation.
CHAPTER V
Performance of the tender as regards the granting of aid
Article 22
1. All tenderers shall immediately be notified by the competent intervention agency of the result of their participation in an individual invitation to tender.
2. Successful tenderers shall be notified of the following in particular:
(a) the amount of aid awarded for the quantity of butter, concentrated butter or cream concerned and the tender to which it relates, identified by a serial number;
(b) where applicable, the amount of the processing security;
(c) the final date for incorporation into final products;
(d) the incorporation procedure chosen, having regard to Article 3, and the intended use (formula A or formula B), without prejudice to the application of Article 21 (4).
3. Aid shall be paid to successful tenderers only on condition that proof has been provided, within 12 months of the final date laid down in Article 11:
(a) for butter:
(i) that it has satisfied the conditions laid down in Article 1 (2) (a),
and
(ii) that it has been incorporated into final products within the period laid down in Article 11 or, where Article 3 (a) applies, that the processing security referred to in Article 18 (2) has been lodged;
(b) for concentrated butter:
(i) that it has been manufactured in accordance with the specifications in Annex I within the period laid down in Article 11,
and
(ii) that it has been incorporated into final products within the period laid down in Article 11 or, where Article 3 (a) applies, that the processing security referred to in Article 18 (2) has been lodged;
(c) for cream:
(i) that it has satisfied the conditions laid down in Article 1 (2) (c),
and
(ii) that it has been incorporated into final products within the period laid down in Article 11 or, where Article 3 (a) applies, that the processing security referred to in Article 18 (2) has been lodged.
However, no processing security as referred to in Article 18 (2) need be lodged if the aid is claimed following completion of the checks referred to in Article 23 and if proof is supplied of incorporation into final products within the period laid down in Article 11.
4. The aid shall be paid within 60 days of presentation to the intervention agency of the proof referred to in paragraph 3, in proportion to the quantities for which such proof has been provided.
However, Member States may restrict payment of the aid to one application per month and per tendering procedure.
Where the period specified in Article 11 is exceeded by less than a total of 60 days, for products as referred to in Article 3 (b), the aid shall be reduced by ECU 4 per tonne per day. At the end of this period, the remaining amount of the aid shall be reduced by 15 %, and thereafter by 2 % for each extra day.
Where a subordinate obligation within the meaning of Article 20 of Regulation (EEC) No 2220/85 is not complied with and in the absence of any specific penalty provided for under this Regulation, the aid shall be reduced by 15 %.
In cases of force majeure or where an administrative inquiry concerning entitlement to the aid has been initiated, payment shall not be made until entitlement to the aid has been established.
CHAPTER VI
Control measures
Article 23
1. In order to ensure compliance with this Regulation, Member States shall adopt the control measures set out in paragraphs 2 to 8, the cost of which they shall bear.
2. During the manufacture of concentrated butter, whether or not tracers are added, or during the addition of tracers to cream or butter, or during repackaging as referred to in the second subparagraph of Article 7 (1), the competent agency shall carry out on-the-spot checks on the basis of the establishment's manufacturing programme as referred to in Article 10 (2) (d) in such a way that each tender award, as referred to in Article 16, is checked at least once. However, for quality control purposes, Member States may, after obtaining the Commission's consent, establish under their supervision a system of self-checking for certain approved establishments.
Such checks shall entail physical sampling and shall relate in particular to the conditions of manufacture and the quantity and composition of the product obtained depending on the butter or cream used.
The above checks shall be supplemented from time to time, on the basis of quantities processed, by detailed scrutiny, by sampling of records as referred to in Article 10 (2) (c) and, where appropriate, by sampling accounts as referred to in Article 12 (1) (b) and by verifying compliance with the terms and conditions governing approval of the establishment.
3. The arrangements to check the incorporation of concentrated butter or butter into intermediate products must include at least the following provisions:
(a) on-the-spot inspections of the establishments concerned shall be carried out unannounced on the basis of the manufacturing programme as referred to in Article 10 (2), (d), at a frequency which shall depend on the quantities used, but at least once a month. Inspections shall relate in particular to the conditions in which the intermediate products are manufactured and compliance with the requirements regarding butterfat content as declared in accordance with Article 8 (2), by means of:
(i) scrutiny of the records provided for in Article 10 (2) (c) to verify the composition as declared of the intermediate products manufactured,
(ii) sampling of intermediate products and examination of the butterfats used, to check the composition as indicated in the above records,
(iii) checks on the input of butterfat and the output of intermediate products manufactured;
(b) the inspections referred to in (a) shall be supplemented by checks to ascertain whether the conditions for the approval of the undertaking have been complied with and, where applicable, checks on the accounts referred to in Article 12 (1), and by detailed inspection of the said records carried out:
- by sampling, where Article 3 (a) applies,
- for each batch of intermediate products manufactured, where Article 3 (b) applies.
4. The arrangements to check the use of butter or concentrated butter or cream or of intermediate products in final products must include at least the following provisions:
(a) on-the-spot inspections of the establishments concerned shall be carried out to check compliance with the use to which the product is to be put as stated in the tender, on the basis of either the manufacturing recipes and of the records referred to in Article 10 (2) (c) or of the accounts referred to in Article 12 (1) (b):
(i) by sampling, at a frequency based on the quantities used, where Article 3 (a) applies, but at least once a month if five tonnes or more of butter or its equivalent are incorporated in the establishment per month. Such establishments shall forward their manufacturing programme in accordance with Article 10 (2) (d),
(ii) for each manufacturing batch of final products, where Article 3 (b) applies;
(b) where Article 3 (b) applies, the checks referred to in (a) shall be carried out at least once a month and shall be supplemented periodically by checks to ascertain compliance with:
(i) Article 1 (2) if necessary, with sampling of final products where appropriate,
(ii) the conditions for the approval of the establishment,
(iii) the undertaking given under Article 3 (b). Application of this provision may be suspended where an establishment has not respected its undertaking.
5. Where Article 3 (b) applies, 'manufacturing batch` shall mean a quantity of products manufactured from butter or concentrated butter or cream to which no tracers have been added, identified in relation to all or part of a tender as referred to in Article 16.
Where Article 3 (a) applies, the checks referred to in paragraph 3 (a) and in subpoint (i) of paragraph 4 (a) shall be carried out by identifying the quantities used in relation to tenders as referred to in Article 16.
6. Where Article 3 (a) applies, the checks referred to in paragraph 4 shall be deemed to have been carried out if the successful tenderers or, where applicable, the vendors submit a declaration by the final users or, where applicable, the final retailers, applicable to all sales, in which the latter:
(a) confirm their undertaking of incorporation into final products, as referred to in subpoint (iii) of Article 12 (1) (c) and set out in the sales contract;
(b) state that they are aware of the penalties they may incur if any checks which the public authorities may perform reveal that they have not fulfilled the obligations they have entered into.
Without prejudice to the penalties laid down now or in the future by the Member States concerned, a sum equal to the amount of the processing security referred to in Article 18 (2) shall be paid to the intervention agency in respect of the quantities concerned.
The Member States shall notify the Commission, before 1 March each year in respect of the previous year, or all cases where this point is applied.
The first subparagraph shall apply only if the final user or, where applicable, the final retailer, undertakes in writing to purchase over a 12-month period not more than 9 tonnes of butter-equivalent covering, where relevant, not more than 14 tonnes of cream or the same quantity of butter or concentrated butter in intermediate products. That subparagraph shall no longer apply to final users or final retailers who have not complied with this undertaking. However, if the competent authority deems it justified, it may approve a further undertaking by a final user or retailer who has so requested in writing, setting out the reasons for their non-compliance with the previous undertaking. Such approval may take effect only after a period of 12 months following the request. In the meantime, the checks referred to in paragraph 4 shall apply.
7. In addition to the checks referred to in paragraphs 2 to 6, the data forwarded to the competent authority under Article 10 (2) (e) and subpoint (vii) of Article 12 (1) (c) shall be checked periodically.
8. The inspections carried out pursuant to this Article must be the subject of an inspection report specifying the date of the inspection, its duration, and the operations carried out.
Article 24
1. Commission Regulation (EEC) No 3002/92 (11) shall apply mutatis mutandis to the products referred to in this Regulation, save as otherwise provided for herein. The products referred to in Article 1 (2) shall also be subject to the checks referred to in Article 2 of Regulation (EEC) No 3002/92 from the beginning of the operations referred to in Article 6 or, in the case of concentrated butter to which no tracers have been added, from the date of manufacture or, in the case of butter to which no tracers have been added, incorporated into intermediate products, as from the date of incorporation and until incorporation into the final products.
The special entries to be made in sections 104 and 106 of the T5 control copy shall be as set out in Annex VII.
2. Where tracers have been added to butter or cream, or butter or cream have been incorporated into final products or, where applicable, into intermediate products, in a Member State other than the country of manufacture, such butter or cream shall be accompanied by a certificate issued by the competent authority of the Member State stating that the terms of Article 1 (2) have been complied with.
CHAPTER VII
Reporter requirements
Article 25
The Member States shall communicate to the Commission:
1. each month, for the previous month, the data referred to in Annex VIII;
2. before 1 March, 1 June, 1 September and 1 December, for the previous quarter of the calendar year:
(a) the data referred to in Annexes IX, X, XI and XII,
(b) the prices paid, expressed as a weighted average with an indication of the extremes, as declared by final users in accordance with the rules laid down by the Member State or established by sampling by the Member State,
(c) cases where it has been found that the terms of Article 1 (2) have not been complied with;
3. before 1 March each year, for the previous year,
- the date referred to in Annex XIII,
- the number of changes of intended use authorized under Article 21 (4) and the quantities and uses concerned.
Member States shall take the necessary steps to ensure compliance with the obligations referred to in Article 10 (2) (e) and subpoint (vii) of Article 12 (1) (c).
CHAPTER VIII
General provisions
Article 26
For the purposes of this Regulation, except as regards Articles 8, 10 and 23, the Belgium-Luxembourg Economic Union shall be regarded as a single Member State.
Article 27
Regulations (EEC) No 2220/85 shall apply, except where otherwise explicitly provided. The penalty for failure to comply with a subordinate obligation provided for in this Regulation shall preclude the penalties provided for by Regulation (EEC) No 2220/85.
Article 28
Regulation (EEC) No 570/88 is hereby repealed.
However, the following provisions shall apply:
(a) Regulation (EEC) No 570/88 shall continue to apply to tendering procedures for which the period allowed for submission of tenders expires before 1 January 1998, without prejudice to the provisions of the third paragraph of Article 29;
(b) pre-printed packages as referred to in Articles 8 and 9 of Regulation (EEC) No 570/88 may be used until 30 June 1998;
(c) the undertakings entered into under point 5 of Article 23 of Regulation (EEC) No 570/88 and the approval of establishments and intermediate products under Article 10 of that Regulation shall remain valid under this Regulation except for those concerning products falling within CN codes 0402 21 19 and 0402 21 99. The competent authorities shall ensure that the additional undertakings referred to in Article 10 of this Regulation are made by the establishments concerned not later than 30 June 1998.
References to the repealed Regulation shall be construed as references to this regulation.
Article 29
This Regulation shall enter into force on the seventh day following that of its publication in the Official Journal of the European Communities.
It shall apply from 1 January 1998.
However, where successful tenderers so request, from the date of entry into force of this Regulation and before their incorporation into final products, Articles 4, 6 (2) and 23 (6) shall be applied to quantities awarded before 1 January 1998. In such cases, the intervention agency shall issue an amendment to the initial terms of the contract and forward a copy thereof, at the successful tenderer's request, to the inspection authorities of the other Member States concerned.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 15 December 1997.