COMMISSION REGULATION (EC) No 111/1999 of 18 January 1999 laying down general rules for the application of Council Regulation (EC) No 2802/98 on a programme to supply agricultural products to the Russian Federation
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2802/98 of 17 December 1998 on a programme to supply agricultural products to the Russian Federation (1), and in particular Article 4(2) thereof,
Having regard to Council Regulation (EC) No 2799/98 of 15 December 1998 establishing agrimonetary arrangements for the euro (2),
Whereas Regulation (EC) No 2802/98 provides for measures relating to the free supply of agricultural products to Russia; whereas, with a view to implementing those measures, general rules on its application, and in particular rules on participation in tenders, the award of contracts for supplies, and the obligations to be met by successful tenderers should be laid down;
Whereas the supplies cover agricultural products from intervention stocks without further processing and products not available from intervention stocks but belonging to the same group of products; whereas specific detailed rules should also be laid down for supplies of processed products; whereas the latter should be allowed to be paid for in raw materials from intervention stocks;
Whereas, to ensure satisfactory competition between the various operators in the Community, in the case of the supply of processed products and of products not available in intervention that must be mobilised on the Community market, these supplies should be organised in two stages and contracts awarded separately for the manufacture of the processed product or the mobilisation of the product on the market, as appropriate, and then for delivery to the delivery stage laid down for supply to the recipient country;
Whereas pursuant to Article 14 of Commission Regulation (EC) No 2808/98 of 22 December 1998 laying down detailed rules for the application of the agrimonetary system for the euro in agriculture (3), amounts quoted in tenders submitted in response to invitations to tender organised under an instrument forming part of the common agricultural policy must be expressed in euros; whereas Article 5(1) of that Regulation provides that in such cases the operative event for the agricultural exchange rate is the final day for the submission of tenders; whereas paragraphs 3 and 4 of that Article specify the operative events applicable to advances and securities;
Whereas these rules on application must also include, prior to exit from the Community territory and at sea ports and frontier points of destination of the products, a system of controls and the lodging of securities to ensure that the supply operation is properly conducted; whereas, furthermore, proof that the products concerned have been taken over by the Russian authorities is to be provided by way of a special take-over certificate;
Whereas it is appropriate to provide for the possibility of allowing a certain tolerance in the case of losses to take account of particular difficulties;
Whereas products held by intervention agencies and intended for export are subject to the provisions of Commission Regulation (EEC) No 3002/92 of 16 October 1992 laying down common detailed rules for verifying the use and/or destination of products from intervention (4), as last amended by Regulation (EC) No 770/96 (5);
Whereas it should be specified that 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 (6), as last amended by Regulation (EC) No 3403/93 (7), is to apply to supplies governed by this Regulation;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the relevant management committees,
HAS ADOPTED THIS REGULATION:
Article 1
This Regulation shall apply to the free supply for agricultural products to Russia pursuant to Regulation (EC) No 2802/98, without prejudice to any additional provisions adopted in Regulations opening invitations to tender for awarding contracts for individual supplies.
Article 2
1. An invitation to tender is opened to determine the costs of supply, to the sea ports and frontier points of take over by the recipient laid down in the notice of invitation to tender, of products either withdrawn from intervention stores or mobilised on the Community market.
(a) Such costs may relate to the supply of goods from the loading bay of the intervention agency store, or loaded onto the means of transport, to a point of take over at the delivery stage laid down.
(b) Such costs may relate to the supply of a product, from a Community store, port or railway station, loaded onto the means of transport, to the point of take over at the delivery stage laid down.
2. The invitation to tender may cover the quantity of products to be removed physically from intervention stocks as payment for the supply of processed products from the same group of products. In that case, the costs shall in particular cover the processing, packaging and labelling of the products to be delivered to the delivery stage laid down in the notice of invitation to tender, in accordance with the individual invitation to tender.
3. The invitation to tender may cover the determination of the costs of the supply of products to be mobilised on the Community market. For such supplies, the costs shall cover in particular the price of the product and the costs of packaging and labelling the products to be delivered to the delivery stage laid down in the notice of invitation to tender, in accordance with the individual invitation to tender.
Article 3
Participation in tendering procedures shall be open on equal terms to any natural person who is a national of a Member State and established in the Community and to any company which is established in accordance with the laws of a Member State and whose registered office, central administration or main establishment is in a Member State.
Article 4
1. Tenders shall be submitted in writing to the intervention agency at the address given in the notice of invitation to tender before the date and time indicated.
Tenders shall be placed inside two sealed envelopes. The inner envelope shall bear, in addition to the address given in the notice of invitation to tender, the number of the regulation announcing the invitation to tender and the following: 'Submission from (business name of the tenderer) - To be opened only be the committee responsible for opening tenders`.
Tenders submitted by fax, telex or electronic mail shall not be admissible.
2. Tenders shall be opened in public and the body responsible shall publicise the amounts or quantities, as appropriate, tendered for each lot.
3. The intervention agencies shall satisfy themselves that tenderers and the subcontractors indicated in their tenders have the technical and financial capacity to meet the obligations under the supply operations for which they submit tenders.
Article 5
1. Tenders shall be admissible only where they:
(a) clearly indicate the regulation announcing the individual invitation to tender and the number of the lot to which they relate;
(b) give the name and address of the tenderer, who must be established in the Community, together with his VAT identification number and telex and/or fax number;
(c) cover one single, entire lot (net weight);
(d) in the case of the tenders referred to in Article 2(1) and (3), express the various amounts quoted in euros;
(e) indicate, where Article 2(1)(a) or (b) applies:
(1) the amount per tonne gross tendered for each destination allowing for all of the possible departure points provided for in the invitation to tender;
(2) the names and addresses of all forwarding agents and subcontractors to be used in executing the supply on Community territory and in third countries;
(3) the means of transport to be used, specifying their capacity;
(4) the route, including border crossing points and indicating any points at which the goods are to be transferred from one means of transport to another; in such cases the tenderer undertakes to communicate, in writing, at least three days in advance, the points at and the dates on which these transhipments are to take place as well as the probable dates of the principal operations, in particular loading and arrival at destination;
(5) a precise breakdown of the tender in accordance with the headings given in Annex II;
(6) the undertaking by the tenderer to submit, in the event of his tender being successful, the original of the insurance policy taken out to cover all risks relating to transport;
(f) indicate, where Article 2(2) applies, in the case of rice supplies:
(1) the proposed quantity of product, expressed in tonnes (net weight), to be exchanged for one tonne net of finished product to be delivered under the conditions and at the delivery stage laid down in the invitation to tender;
(2) the exact address(es) of the store(s) at which the goods are to be kept prior to dispatch;
(3) the name(s) and address(es) of all subcontractors and forwarding agents to be used in the operation;
(4) the amount per tonne (net) per day required to cover all costs (waiting, insurance, security, guarantees, etc.) in the event that the transporter is unable to take over the goods within the time limits laid down;
(g) indicate, where Article 2(3) applies, in the case of pigmeat supplies:
(1) the amount tendered per tonne (net), taking account of the cost of processing, packaging and transport to the delivery stage specified in the invitation to tender;
(2) the exact address(es) of the store(s) at which the goods are to be kept prior to dispatch;
(3) the name(s) and address(es) of all subcontractors and forwarding agents to be used in the operation;
(4) the amount per tonne (net) per day required to cover all costs (waiting, insurance, security, guarantees, etc.) in the event that the transporter is unable to take over the goods within the time limits laid down;
(h) are accompanied by proof that the tenderer has lodged, in favour of the intervention agency designated for submission of tenders, a tendering security for the unitary amount laid down in the notice of invitation to tender in accordance with Article 8(1) of Title III of Regulation (EEC) No 2220/85. Proof shall be furnished by means of the original of the document issued by the financial body providing the security drawn up in accordance with Annex III;
(i) are accompanied by the original of the written undertaking by the financial body concerned to provide the supply security provided for in Article 7 drawn up in accordance with Annex III.
The securities provided for in this Regulation shall be lodged by credit institutions approved by the Member States and included on the list drawn up by the Commission (8) in accordance with Articles 3(7) and 10(2) of Council Directive 77/780/EEC (9).
2. Tenders submitted which are not in accordance with the requirements of this Article or, where applicable, the additional requirements of a regulation opening an individual tender, or which contain conditions other than those laid down, shall be inadmissible.
3. Tenders shall be valid for 15 days after the final date for the submission of tenders.
4. Once submitted, tenders may be neither changed nor withdrawn.
Article 6
1. The intervention agency or agencies concerned shall send the Commission by fax or written telecommunication, within 24 hours of the end of the period for the submission of tenders, a communication, quoting the Regulation opening the invitation to tender, for each lot comprising:
(a) the names and addresses of the tenderers who have submitted admissible tenders pursuant in particular to Articles 3, 4 and 5;
(b) and for each admissible tender, the amount or quantity tendered, as appropriate.
2. On the basis of the tenders submitted, it may be decided, with regard to each lot:
- not to award any contract for supply,
or
- to award the supply contract as appropriate on the basis of the price or quantity offered.
3. The Commission shall inform the successful tenderer and the intervention agency that received the tender accepted of the award of the contract as soon as possible. It shall send the intervention agencies concerned details of the tender accepted required to monitor execution of the supply.
4. The intervention agencies that received tenders shall inform tenderers as soon as possible, by fax or electronic mail if necessary, of the outcome of their participation in the tender.
5. The intervention agency referred to in paragraph 3 shall immediately communicate to the Commission the tender submitted by the successful tenderer in full.
Article 7
1. In the case of supplies as referred to in Article 2(1)(a) or (b), at least three working days before removal the successful tenderer shall lodge a supply security of an amount equal to the quantities to be removed for each ship or for each destination, multiplied by the unitary amount laid down in the notice of invitation to tender.
2. In the case of supplies as referred to in Article 2(2), within five working days of the notification of the award of the contract, the successful tenderer shall lodge a supply security of an amount equal to the net quantities to be taken over for each lot, multiplied by the unitary amount laid down in the notice of invitation to tender.
3. In the case of supplies as referred to in Article 2(3), within five working days of the award of the contract, the successful tenderer shall lodge a supply security of an amount equal to 10 % of the tender, multiplied by the net quantities to be supplied.
4. The supply security shall be lodged in accordance with Article 8(1) of Title III of Regulation (EEC) No 2220/85 in favour of the intervention agency responsible for payment.
Proof of the lodging of the supply security shall be provided by means of the original of the document issued by the financial body providing the security drawn up in accordance with Annex III.
Article 8
1. Except in cases of force majeure, successful tenderers shall bear all risks to which the goods may be subject, and in particular their loss or deterioration, up to the specified supply stage.
2. The successful tenderer responsible for transport shall have delivery carried out by means of transport providing adequate assurance, in particular in terms of hygiene, of proper preservation and conveyance of the goods. In the case of transport by sea, the vessels used shall be listed in the larger classes in international classification registers.
3. In the event of difficulties arising in the course of execution of supply, after the products have been taken over by the successful tenderers, and except in cases of emergency, the Commission alone shall have the power to give instructions to facilitate completion of supply.
4. The Commission may, at the request of the intervention agency concerned, allow a tolerance in so far as unidentifiable losses are concerned, to take account of particular difficulties.
Article 9
1. Successful tenderers shall undergo, prior to exit of the goods from the Community territory, any controls requested and conducted by or on behalf of the Commission at the time of production, packaging, storage or loading. Such controls shall relate to the quantity, quality, health status, packaging and labelling of the supply. The results of these controls are opposable by all interested parties to the extent that the latter have had the possibility to participate in the controls.
Where samples are taken, the agency responsible for controls shall keep additional samples at the Commission's expense for the event of any subsequent disputes.
On completion of the controls, a certificate of conformity, or of non-conformity, shall be issued to the successful tenderer.
2. Where, in the case of the supplies provided for in Article 2(2) and (3), the quality of the goods provided by the intervention agency or suppliers does not meet the standards laid down in the notice of invitation to tender, the agency responsible for the controls shall immediately inform the Commission and loading shall be suspended.
3. Where the quality of the goods provided by the intervention agency does not meet the minimum standards laid down for intervention buying in or, in the case of beef and veal, the standards laid down for intervention storage, the intervention agency shall immediately provide goods meeting the requirements laid down for the supply.
The additional costs incurred by the successful tenderers (additional transport costs, demurrage, etc.) shall be borne by the intervention agency.
Where this paragraph is applied, Article 2(3)(c) of Commission Regulation (EEC) No 3597/90 (10) shall apply.
4. Where, in the case of the supplies provided for in Article 2(2) and (3), the goods provided by the suppliers do not meet the quality standards laid down in the notice of invitation to tender, the additional transport costs incurred by the successful tenderer shall be borne by those suppliers, without prejudice to Article 12(2).
5. In the case of the supply of beef/veal and pigmeat, the successful tenderer shall undergo any controls requested and conducted by agents designated by the recipient country on Community territory.
6. The agency responsible for the controls shall seal the means of transport at the time of loading. In the case of transhipment, the agency designated by the Commission shall verify that the seals on the means of transport arriving at the points of transhipment are intact, and shall seal the new means of transport used after transhipment.
7. Successful tenderers shall undergo, at the sea ports and frontier points of destination of the products laid down in the notice of invitation to tender, any controls requested and conducted by or on behalf of the Commission.
A certificate of conformity, or of non-conformity, detailing the checks made and the results, shall be issued to the successful tenderer on completion of the controls. The agency responsible for the controls shall send a copy of this certificate to the Commission.
8. The costs of the controls shall be borne by the Community, except for costs relating to the controls referred to in paragraph 5.
Article 10
1. Applications for payment of the supply shall be submitted to the intervention agency referred to in Article 4 within two months of the end of the period laid down for the supply in the notice of invitation to tender. Except in cases of force majeure, where this provision is not complied with the amount of the payment shall be reduced by 10 %. A reduction of 5 % for each additional month of delay shall be applied.
2. Applications for payment shall be accompanied by the following supporting documents:
(a) where Article 2(1)(b) applies:
- a copy of the transport documents,
- the original of the take-over certificate issued by the representative of the recipient country given in the annex to the regulation opening the invitation to tender for the supply. That document shall be drawn up in accordance with Annex I and endorsed by the control agency at the delivery stage,
- the certificate of conformity at the delivery stage referred to in Article 9(7);
(b) where Article 2(1)(a) applies, in addition to the documents indicated under (a) applications shall be accompanied by:
- the export licence referred to in Article 14(1),
- the single administrative document and the control document referred to in Article 14(2).
3. In the case of supplies as referred to in Article 2(1)(a) or (b), payment of the tender shall be made in respect of the quantity stated in the take-over certificate issued by the representative of the recipient country. That document shall be drawn up in accordance with Annex I and endorsed by the agency responsible for controls at the delivery stage.
4. In the case of supplies as referred to Article 2(2), the quantity of intervention product awarded shall be made available to the successful tenderer on presentation of proof of lodging of the security pursuant to Article 7(1).
5. In the case of supplies as referred to Article 2(3), payment of the tender of the successful tenderer for mobilisation of the product shall be made on presentation of the removal certificate drawn up in accordance with Annex V issued by the designated transporter after complete loading of the lot.
6. Where take over by the recipient's representative at the delivery stage is delayed owing to circumstances beyond the control of the successful tenderer, the additional costs borne by the latter shall be reimbursed by the recipient country following an examination of the supporting documents.
Article 11
1. For the tendering security, the primary requirements within the meaning of Article 20 of Regulation (EEC) No 2220/85 shall be the following:
(a) a requirement not to withdraw the tender;
(b) the lodging of the supply security in accordance with Article 7;
(c) additionally, for a supply as referred to in Article 2(2), the physical removal from intervention stocks of the quantities awarded. On expiry of the time limit laid down for removal, the security shall be forfeited for those quantities not yet removed in accordance with Article 23(2) of Regulation (EEC) No 2220/85. In addition, the quantity to be removed shall be reduced by 10 % for each month of delay.
2. The tendering security shall be released:
- if the tender is not accepted,
- in the case of supplies as provided for in Article 2(1)(a) or (b) and Article 2(3), upon presentation of proof of the lodging of the supply security in accordance with Article 7,
- in the case of supplies as referred to in Article 2(2), upon presentation of the certificate of removal issued by the intervention agency for all of the quantities awarded.
Article 12
1. For the supply security, the primary requirements within the meaning of Article 20 of Regulation (EEC) No 2220/85 shall be the supply of the full quantity of the product, of a quality substantially unchanged as compared with:
- that ascertained at the time of removal from the intervention store, in the case of a supply as referred to in Article 2(1)(a),
- that ascertained at the time of take over by the transporter, in the case of a supply as referred to in Article 2(1)(b),
- that specified in the notice of invitation to tender, in the case of a supply as referred to in Article 2(2) and (3).
2. The supply security shall be released when the successful tenderer provides proof of execution of the supply in accordance with the requirements of this Regulation and the Regulation opening the individual invitation to tender.
Such proof shall be provided:
(a) in the case of supplies as provided for in Article 2(1)(a) or (b), by presenting the documents referred to in Article 10(2)(a) or (b) as appropriate.
The security shall be forfeited for quantities in respect of which no proof is supplied;
(b) in the case of supplies as provided for in Article 2(2) and (3), by presenting:
- the removal certificate issued by the transporter, drawn up in accordance with Annex V,
- the export licences referred to in Article 14,
- the single administrative document and the control document referred to in Article 14(2).
The security shall be forfeited:
- for quantities not meeting the conditions laid down for the supply,
- for quantities lost in particular as a result of packaging which is inappropriate for the type of transport foreseen,
- up to an amount of EUR 1 per tonne per day, multiplied by the quantities not loaded, where the loading rate stipulated by the invitation to tender has not been respected.
3. Where delays occur in take over by the transporter or in delivery by the transporter or producer, the supply security shall be forfeited in respect of those quantities not taken over within the time limits or delivered outside of the time limits, up to an amount of EUR 0,75 per tonne per day of delay. With effect from the 11th day of delay the amount forfeited shall be increased to EUR 1,00 per tonne per additional day. These provisions shall apply where the delay in take over or delivery is attributable to the successful tenderer.
4. In the case of supplies as provided for in Article 2(1)(a) or (b), the supply security shall be released in accordance with the conditions laid down above or in instalments of 20 % each time proof is presented that 20 % of the quantity of a lot has been delivered in a condition substantially unchanged as compared with the product taken over from intervention stocks or at the take over stage laid down in the invitation to tender.
Article 13
Where Article 2(1)(a) or (b) applies, the successful tenderer may on request receive a payment on account equal to 90 % of the amount obtained by multiplying the net quantities taken over for a product, a destination and a delivery date by the unitary amounts indicated in his tender.
The payment on account shall be made upon presentation of a removal certificate, drawn up in accordance with Annex V or VI, issued, as appropriate, by the intervention agency of the Member State holding the product or by the successful tenderer for the manufacture of the processed product or the mobilisation of the product on the Community market, and on presentation of proof of the lodging of a payment-on-account security for an amount equal to the amount to be paid, in favour of the intervention agency responsible for payment. The security shall be lodged in accordance with Annex III.
Article 14
1. Box 20 of the export licences applied for and issued for execution of the supplies shall contain the following entry:
- 'Council Regulation (EC) No 2802/98. Not eligible for export refunds.`
2. The single administrative document and the control document issued pursuant to Article 3 of Regulation (EEC) No 3002/92 shall indicate the following:
- 'Commission Regulation (EC) No 111/1999 laying down general rules for the application of Council Regulation (EC) No 2802/98 on a programme to supply agricultural products to the Russian Federation. Not eligible for export refunds.`
Article 15
Upon request, the operator may obtain from the intervention agency referred to in Article 4 the relevant provisions, in English or Russian, of the Memorandum of Understanding between the European Community and the Russian Federation applicable to individual invitations to tender for supply contracts opened pursuant to Regulation (EC) No 2802/98.
Article 16
The Court of Justice of the European Communities shall be competent to resolve any dispute resulting from the implementation or the non-implementation or from the interpretation of the rules governing supply operations carried out in accordance with this Regulation.
Article 17
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 18 January 1999.