COUNCIL REGULATION (EC) No 1216/2009
of 30 November 2009
laying down the trade arrangements applicable to certain goods resulting from the processing of agricultural products
(codified version)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Articles 37 and 133 thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament (1),
Whereas:
(1)
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 (2) has been substantially amended several times (3). In the interests of clarity and rationality the said Regulation should be codified.
(2)
The Treaty provides for the establishment of a common agricultural policy covering the agricultural products listed in Annex I to the Treaty.
(3)
Certain agricultural products are used in numerous goods not covered by Annex I to the Treaty.
(4)
It is necessary to provide for measures under the common agricultural policy and the common commercial policy to take account of the impact of trade in such goods on the objectives of Article 33 of the Treaty and of how measures adopted to implement Article 37 of the Treaty affect the economic position of such goods, given the differences between the costs of procuring agricultural products within and outside the Community and the differences in the prices of agricultural products.
(5)
The Treaty lays down that the agricultural policy and the commercial policy are Community policies. It is necessary to establish for certain goods resulting from the processing of agricultural products general and comprehensive rules, applicable throughout the Community, relating to trade in these goods, in order to attain the objectives of the Treaty.
(6)
It is appropriate to take account of the constraints arising from the agreement on agriculture concluded in the multilateral trade negotiations under the Uruguay Round (4).
(7)
Certain goods not falling within Annex I of the Treaty and listed in Annex II to this Regulation are obtained using agricultural products subject to the common agricultural policy. The charges applied to imports of such goods should therefore, on the one hand, cover the difference between the world market prices and the prices on the Community market for the agricultural products used in their production and, on the other hand, ensure the protection of the processing industry concerned.
(8)
Under agreements entered into, the Community is to limit such charges to covering, in whole or in part, differences in the price of agricultural products used in the production of the goods in question. It is accordingly necessary to establish for these goods that part of the overall charge which covers the differences between the prices of the agricultural products taken into account.
(9)
In addition, it is necessary to maintain a close link between the calculation of the agricultural component of the charge applicable to goods and that applicable to basic products imported in the unaltered state.
(10)
In order to avoid undue administrative formalities, negligible amounts should not be applied and Member States should be permitted to refrain from adjusting amounts relating to a given transaction where the balance of the amounts concerned is itself negligible.
(11)
The implementation of preferential agreements should not complicate the procedures applicable to trade with third countries. The implementing rules should therefore ensure that goods declared for export under a preferential arrangement are not in fact exported in accordance with the general arrangements and vice versa.
(12)
Under certain preferential agreements reductions are granted on the agricultural components within the framework of the Community's commercial policy. These reductions are established with reference to the agricultural components applicable to non-preferential trade. These reduced amounts must therefore be converted into national currency at the same rate as applied for conversion of the non-reduced amounts.
(13)
Under certain preferential agreements concessions are granted within quota limits relating to both agricultural and non-agricultural protection, or non-agricultural protection is subject to reductions as a consequence of such agreements. It is essential that the management of the non-agricultural part of protection should be subject to the same rules as for the agricultural part.
(14)
Arrangements should be made for export refunds on certain agricultural products used in the manufacture of goods not covered by Annex I to the Treaty in order not to penalise producers of the said goods for the prices at which they are obliged to procure their supplies as a result of the common agricultural policy. Such refunds may cover only the difference between the price of an agricultural product on the Community market and world market respectively. These arrangements should accordingly be established as part of the common organisation of the markets concerned.
(15)
Articles 162, 163 and 164 of 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) (5) provide for the granting of such refunds. The implementing rules should be adopted under the procedure referred to in Article 195(2) of Regulation (EC) No 1234/2007. The amounts of the refunds should be fixed under the same procedure as the amounts of the refunds for the agricultural products exported in the unaltered state but the implementing rules for the said procedure should be established having regard essentially to the manufacturing processes of the goods concerned. The implementing rules should accordingly be established on the same basis.
(16)
In particular, there should be checks on expenditure on the basis of commitments through the issuing of certificates. However, as regards expenditure which has not been covered by obtaining a certificate or certificates, accounting of such expenditure will continue to be carried out on the basis of refund payments, if necessary in the form of an advance.
(17)
The Commission will take into consideration agricultural products processing enterprises as a whole, and, in particular, the situation of small and medium-sized enterprises, taking account of the impact of targeted measures relating to savings on export refunds. In view of their specific interests, small exporters should be exempted from submission of certificates under the export refund arrangements.
(18)
The mechanism of agricultural protection provided for by this Regulation may prove defective under exceptional circumstances. That risk may also arise in the context of preferential agreements. In order to avoid in such cases leaving the Community market without defence against disturbances which could result from this, it is appropriate to provide for all necessary measures to be taken rapidly.
(19)
Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community customs code (6) should be made applicable to trade covered by this Regulation.
(20)
The distinction drawn between agricultural products covered by Annex I to the Treaty and goods not covered by Annex I is a criterion specific to the Community, based on the situation of agriculture and the food industry in the Community. The situation may be appreciably different in certain third countries with which the Community concludes agreements. Therefore, provision should be made in such agreements for the possibility of extending the general rules applicable to processed agricultural products not covered by Annex I to the Treaty, mutatis mutandis, to certain agricultural products covered by Annex I to be Treaty.
(21)
Under agreements concluded in accordance with Article 300 of the Treaty, it is possible that the requirements for the processing industries in terms of agricultural raw materials may not be covered completely, under competitive conditions, by Community raw materials. Article 117(c) of Regulation (EEC) No 2913/92 admits goods under the inward processing arrangements subject to fulfilment of the economic conditions as defined by Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (7). Having regard to the abovementioned agreements, there should also be provision for considering the economic conditions to have been fulfilled for the admission of certain quantities of certain agricultural products under the processing arrangements.
(22)
In order to safeguard the interests of producers of agricultural raw materials, in successive financial years, the necessary appropriations should be made available so that goods not covered by Annex I to the Treaty may benefit fully from a maximum use of the current WTO ceiling. There should also be overall checks, though the procedure laid down should be flexible, on the basis of a regularly revised forward estimate, of the quantities admitted under inward processing arrangements not subject to prior individual checks of the economic conditions (excluding those used for processing, the usual forms of handling or the manufacture of goods not eligible for refunds) and in compliance with the other general conditions relating to the inward processing arrangements. Finally, account should also be taken of the situation on the Community market for the commodities concerned, to ensure prudent management of the said quantities.
(23)
The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (8),
HAS ADOPTED THIS REGULATION:
CHAPTER I
SUBJECT MATTER, DEFINITIONS AND SCOPE
Article 1
This Regulation determines the trade arrangements applicable to certain goods defined in Annex II.
Article 2
1. For the purposes of this Regulation, the following definitions shall apply:
(a)
‘agricultural products’ means products covered by Annex I to the Treaty;
(b)
‘goods’ means products not covered by Annex I to the Treaty and listed in Annex II to this Regulation.
However, the term ‘goods’, used in Chapter III and in Article 12, shall relate to products not covered by Annex I to the Treaty and contained in Annex XX of the Single CMO Regulation.
2. For the purposes of the application of certain preferential agreements, the following definitions shall apply:
(a)
‘agricultural component’ means the part of the charge corresponding to the Community Customs Tariff duties applicable to the agricultural products listed in Annex I or, where appropriate, the duties applicable to agricultural products originating in the countries concerned for the quantities of these agricultural products considered to have been used, as referred to in Article 14;
(b)
‘non-agricultural component’ means the part of the charge corresponding to the Common Customs Tariff duties, reduced by the agricultural component defined in point (a);
(c)
‘basic products’ means certain agricultural products covered by Annex I to this Regulation or assimilated to those products or resulting from their processing, for which the duties published in the Common Customs Tariff serve to determine the agricultural component of the charge applicable to the goods.
Article 3
This Regulation may also apply to certain agricultural products in the framework of preferential trade.
In that case the list of those agricultural products subject to the rules governing trade in goods shall be established by the agreement concerned.
CHAPTER II
IMPORTATION
SECTION I
Trade with third countries
Article 4
1. Save where otherwise provided in this Regulation, the Common Customs Tariff duties shall apply to the goods listed in Annex II.
For the goods listed in Table 1 of Annex II, the charge shall consist of an ad valorem duty, designated the ‘fixed component’, and a specific amount set in euros, designated the ‘agricultural component’.
For the goods listed in Table 2 of Annex II, the agricultural component of the charge shall be part of the charge applicable to imports of such goods.
2. Subject to Articles 10 and 11, the levying of any customs duty or charge having equivalent effect other than the charge provided for in paragraph 1 of this Article shall be prohibited.
3. The general rules for interpretation of the Combined Nomenclature and the special rules for application of the Nomenclature shall apply for the purposes of classification of the products covered by this Regulation; the tariff nomenclature resulting from application of this Regulation shall be included in the Common Customs Tariff.
4. The detailed rules for application of this Regulation shall be adopted in accordance with the procedure laid down in Article 16(2).
Article 5
1. Where the Common Customs Tariff lays down a maximum charge, the charge provided for in Article 4 may not exceed this maximum.
Where the maximum charge referred to in the previous subparagraph may be applied only under specific conditions, these conditions shall be determined in accordance with the procedure laid down in Article 10(2) of Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (9).
2. Where the maximum charge consists of an ad valorem duty plus an additional duty on various kinds of sugar, expressed as sucrose (AD S/Z), or on flour (AD F/M), such additional duty shall be that laid down in the Common Customs Tariff.
SECTION II
Preferential trade
Article 6
1. The agricultural component applicable in the framework of preferential trade shall be the specific amount fixed in the Common Customs Tariff.
However, where the country or countries concerned satisfy the requirements of Community legislation for processed products, adopt the same basic products as the Community, cover the same goods and use the same coefficients as the Community:
(a)
this agricultural component may be determined on the basis of the quantities of basic products actually used if the Community has concluded a customs cooperation agreement covering the establishment of such quantities;
(b)
the duty applicable on importation of the basic product may be replaced by an amount established on the basis of the difference between agricultural prices in the Community and those in the country or region concerned, or by an amount offsetting a jointly established price for the region concerned;
(c)
where the application of point (b) results in amounts with little impact on the goods covered, this arrangement may be replaced by a system of flat rate amounts or rates.
2. The agricultural components, with any reductions, applicable to imports under a preferential agreement shall be converted into national currency by applying the same exchange rate as applicable to non-preferential trade.
3. The ad valorem duties corresponding to the agricultural component of the charge for the goods in Table 2 of Annex II may be replaced by another agricultural component where provided for by a preferential agreement.
4. The detailed rules for applying this Article shall be adopted in accordance with the procedure referred to in Article 16(2).
If necessary, those detailed rules shall cover in particular:
(a)
completion and circulation of the documents necessary for granting the preferential arrangements provided for in paragraphs 1 and 3 of this Article;
(b)
the measures necessary to avoid diversions of trade;
(c)
the list of basic products.
5. Where methods of analysing the agricultural products used are necessary, the methods specified for the agricultural products in question in the case of refunds on exports to third countries shall be used.
6. The Commission shall publish the charges resulting from application of the agreements referred to in paragraphs 2 and 3.
Article 7
1. Where a preferential agreement provides for the reduction or phasing-out of the non-agricultural part of the charge, this shall be the fixed component in the case of the goods listed in Table 1 of Annex II.
2. Where a preferential agreement provides for a reduction in the agricultural component, whether or not within the limits of a tariff quota, the detailed rules for determining and managing such reduced agricultural components shall be adopted in accordance with the procedure referred to in Article 16(2), provided the agreement specifies:
(a)
the products eligible for these reductions;
(b)
the quantities of goods or value of any quotas to which these reductions apply or the method of calculating these quantities or values;
(c)
the factors determining the reduction in the agricultural component.
3. The detailed rules necessary for initiating and managing reductions in the non-agricultural components of the charge shall be adopted in accordance with the procedure referred to in Article 16(2).
4. The Commission shall publish the charges resulting from application of the preferential agreements referred to in paragraphs 1 and 2.
CHAPTER III
EXPORTATION
Article 8
1. On exportation of the goods, the agricultural products which have been used and which satisfy the conditions laid down in Article 23(2) of the Treaty may qualify for refunds established pursuant to the Single CMO Regulation. No export refund may be granted on agricultural products incorporated into goods not covered by a common organisation of the market providing for export refunds on products exported in the form of such goods.
2. The list of goods qualifying for refunds shall be established, taking account of:
(a)
the impact of the difference between the prices on the Community market and on the world market of the agricultural products used in their production;
(b)
the need to cover this difference in whole or in part, to allow the exportation of the agricultural products used in the goods concerned.
The list shall be drawn up pursuant to the Single CMO Regulation in the agricultural sector.
3. The common implementing rules for the refund arrangements referred to in this Article shall be adopted in accordance with the procedure referred to in Article 16(2).
The amounts of the refunds shall be fixed in accordance with the same procedure as for the granting of refunds on the agricultural products concerned when they are exported in the unprocessed state.
4. Where the arrangements for the direct offsetting referred to in Article 6(1)(b) are established within the framework of a preferential agreement, the amounts payable on exports to the country or countries concerned by the agreement shall be determined jointly and on the same basis as the agricultural component of the charge under the conditions laid down in the agreement.
These amounts shall be established in accordance with the procedure referred to in Article 16(2). The implementing rules which may be necessary pursuant to this paragraph, and in particular measures to ensure that goods declared for export under a preferential arrangement are not in fact exported under a non-preferential arrangement or vice versa, shall be adopted by the same procedure.
Where methods of analysing the agricultural products used are necessary, the methods specified for the agricultural products in question in the case of refunds on exports to third countries shall be used.
5. Compliance with the limits arising from agreements concluded in accordance with Article 300 of the Treaty shall be ensured on the basis of certificates issued in respect of the reference periods laid down, supplemented by the amount provided for in respect of small exporters.
6. The amount below which small exporters may be exempted from presentation of certificates under the export refund arrangements shall be set at EUR 50 000 per year. This ceiling may be adjusted, in accordance with the procedure referred to in Article 16(2).
Article 9
Where, pursuant to the Single CMO Regulation as regards a particular market, levies, charges or other measures are applied to exports of an agricultural product listed in Annex I, appropriate measures with regard to certain goods the export of which is likely to hinder the achievement of the objective in the agricultural sector in question, because of their high content of the agricultural product concerned and the uses to which they may be put, may be decided, in accordance with the procedure referred to in Article 16(2), taking due account of the specific interest of the processing industry.
CHAPTER IV
GENERAL PROVISIONS
Article 10
Where there is a danger that a reduction in the agricultural component applicable to imports of goods under a preferential agreement could disturb the agricultural markets or the markets in the goods concerned, the safeguard clauses applicable to imports of the agricultural products concerned shall also apply to the goods listed in Annex II.
For the purposes of assessing the disturbances in question, account shall be taken of the characteristics of the goods actually imported under the preferential arrangements, compared with the characteristics of the goods traditionally imported prior to the introduction of these arrangements.
Article 11
1. In order to prevent or counteract adverse effects on the Community market which may result from imports of certain goods resulting from the processing of agricultural products, listed in Annex III, the importation at the rate of duty provided for in the Common Customs Tariff of one or more of such goods shall be subject to the payment of an additional import duty if the conditions set out in Article 5 of the Agreement on Agriculture have been fulfilled unless the imports are unlikely to disturb the Community market, or where the effects would be disproportionate to the intended objective.
2. The trigger prices below which an additional import duty may be imposed shall be those forwarded to the World Trade Organisation by the Community.
The trigger quantities which must be exceeded in order for an additional import duty to be imposed shall be determined, inter alia, on the basis of imports into the Community in the three years preceding that in which the adverse effects referred to in paragraph 1 arise or seem likely to arise.
3. The import prices to be taken into consideration when imposing an additional import duty shall be determined on the basis of the cif import prices of the consignment concerned.
4. The detailed implementing rules for this Article shall be adopted in accordance with the procedure referred to in Article 16(2).
Those rules shall cover in particular:
(a)
the goods to which additional import duties are applied under Article 5 of the Agreement on Agriculture;
(b)
the other criteria necessary for application of paragraph 1 in accordance with Article 5 of the Agreement on Agriculture.
Article 12
1. Admission of agricultural products under the inward processing arrangements shall be subject to a prior check on compliance with the economic conditions referred to in Article 117(c) of Regulation (EEC) No 2913/92. These conditions shall be considered fulfilled in accordance with Article 552 of Regulation (EEC) No 2454/93.
Moreover, and in accordance with Regulation (EEC) No 2454/93, the economic conditions referred to in Article 117(c) of Regulation (EEC) No 2913/92 shall also be considered fulfilled for certain quantities of basic products used for the manufacture of goods. These quantities shall be determined with the aid of a balance drawn up by the Commission, based on a comparison between the required available funds and the forecast refund requirements, and taking account, in particular, of the estimated volume of exports of the goods concerned and the internal and external market situation of the relevant basic products. This balance, and hence these quantities, shall be reviewed at regular intervals in order to take account of developments in economic and regulatory factors.
The detailed rules for the application of the second subparagraph, making it possible to determine the basic products to be admitted under inward processing arrangements and check and plan the quantities thereof, shall guarantee greater clarity for operators through prior publication of indicative import quantities for each individual common organisation of markets. These shall be published on a regular basis, depending in particular on the use of such quantities. The detailed application rules shall be adopted in accordance with the procedure referred to in Article 16(2).
The term ‘basic product’ used in this Article shall concern the products listed by CN code in the table in Annex I, including solely note 1 concerning cereals.
2. The quantity of goods, admitted under inward processing arrangements, other than those referred to in the second subparagraph of paragraph 1, and therefore not subject to the charge provided for in Article 4 for the purpose of, or as a result of, exporting other goods shall be that actually used in the manufacture of the goods.
Article 13
1. Table 2 of Annex II may be amended in accordance with the procedure referred to in Article 16(2), in order to adapt it to the agreements concluded by the Community.
2. The Commission shall adapt this Regulation or Regulations adopted pursuant thereto to any amendments to the Combined Nomenclature.
Article 14
This Article shall apply to all preferential trade for which determination of the agricultural component of the charge, possibly reduced under the conditions laid down in Article 7, is not based on the actual content referred to in Article 6(1)(a) and/or for which the basic amounts are not based on the price differences referred to in Article 6(1)(b).
The characteristics of the basic products and the quantities of the basic products to be taken into account shall be those laid down by Commission Regulation (EC) No 1460/96 of 25 July 1996 establishing the detailed rules for implementing the preferential trade arrangements applicable to certain goods resulting from the processing of agricultural products, as provided for in Article 7 of Council Regulation (EC) No 3448/93 (10).
Any amendments to be made to this Regulation shall be adopted in accordance with the procedure referred to in Article 16(2).
Article 15
1. The threshold or thresholds below which the agricultural components established in accordance with Articles 6 and 7 shall be fixed at zero may be laid down in accordance with the procedure referred to in Article 16(2). The non-application of these agricultural components may be made subject to special conditions, in accordance with the same procedure, in order to avoid creating artificial trade flows.
2. A threshold below which Member States may refrain from applying amounts to be granted or levied pursuant to this Regulation, in connection with a given economic transaction, may be established in accordance with the procedure referred to in Article 16(2) if the balance of these amounts is lower than the threshold.
Article 16
1. The Commission shall be assisted by a committee on horizontal questions concerning trade in processed agricultural products not listed in Annex I (hereinafter referred to as ‘the Committee’).
2. Where reference is made to this paragraph, Articles 4 and 7 of Decision 1999/468/EC shall apply.
The period laid down in Article 4(3) of Decision 1999/468/EC shall be set at one month.
3. The committee may examine any other matter referred to it by its chairman, either on the chairman's own initiative or at the request of a Member State.
Article 17
The measures necessary to adapt this Regulation to amendments made to the Single CMO Regulation in order to maintain the existing arrangements shall be adopted in accordance with the procedure referred to in Article 16(2).
Article 18
Methods of qualitative and quantitative analysis of the goods and the other technical provisions necessary for identifying them or for determining their composition shall be adopted in accordance with the procedure referred to in Article 10(2) of Regulation (EEC) No 2658/87.
Article 19
The Member States shall communicate to the Commission the information necessary for implementing this Regulation, on the one hand, on imports, exports and, even where appropriate, the production of the goods and, on the other, on the administrative implementing measures adopted. The detailed rules for communication of this information shall be laid down in accordance with the procedure referred to in Article 16(2).
Article 20
Regulation (EC) No 3448/93 is repealed.
References to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex V.
Article 21
1. This Regulation shall enter into force on the twentieth day following its publication in the Official Journal of the European Union.
2. The application of this Regulation to caseins falling within CN code 3501 10, and to caseinates and other casein derivatives falling within CN code 3501 90 90, shall be deferred until a further decision by the Council.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 30 November 2009.