COMMISSION REGULATION (EEC) No 368/77 of 23 February 1977 on the sale by tender of skimmed-milk powder for use in feed for pigs and poultry
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic 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 (EEC) No 559/76 (2), and in particular Articles 7 (5) and 28 thereof,
Having regard to Council Regulation (EEC) No 974/71 of 12 May 1971 on certain measures of conjunctural policy to be taken in agriculture following the temporary widening of the margins of fluctuation for the currencies of certain Member States (3), as last amended by Regulation (EEC) No 557/76 (4), and in particular Article 6 thereof,
Whereas, pursuant to Council Regulation (EEC) No 1285/70 of 29 June 1970 laying down a special measure for the disposal of skimmed-milk powder bought in by intervention agencies (5), skimmed-milk powder in public storage which cannot be marketed on normal terms during a milk year may be sold at a reduced price if intended as feed for pigs and poultry ; whereas Article 7 (1) of Council Regulation (EEC) No 1014/68 of 20 July 1968 laying down general rules for the public storage of skimmed-milk powder (6), as amended by Regulation (EEC) No 749/69 (7), provides that the sale shall take place by, amongst other means, a tendering procedure ensuring equal access for all buyers to the skimmed-milk powder sold by the intervention agencies;
Whereas, because there are considerable stocks of skimmed-milk powder and limited possibilities for disposal, such a tendering procedure should now be initiated, without prejudice to a parallel measure for fixed-price sales to deal with certain special situations ; whereas to make the tendering procedure more effective it is necessary to introduce a standing tendering procedure;
Whereas the skimmed-milk powder must be sold at a price which allows it to be competitive with other feedingstuffs ; whereas it is therefore necessary to take measures which will guarantee that the skimmed-milk powder is not diverted from its final use ; whereas it is thus necessary to lay an obligation on buyers to denature the skimmed-milk powder or incorporate it directly in compound feedingstuffs in such a way as to exclude, in particular, its use for calf feed ; whereas in this respect the provisions of Commission Regulation (EEC) No 753/76 of 31 March 1976 laying down detailed rules for the sale of skimmed-milk powder for use in feedingstuffs pursuant to Regulation (EEC) No 563/76 (8) as last amended by Regulation (EEC) No 324/77 (9), may for the most part be taken over ; whereas it is advisable that a processing security be required;
Whereas in order to ensure an effective check upon the final use of the skimmed-milk powder it is also necessary to provide that processing may take place only in undertakings meeting certain requirements ; whereas, moreover, Commission Regulation (EEC) No 1687/76 of 30 June 1976 laying down common detailed rules for verifying the use and/or destination of products from intervention (10), as subsequently amended by Regulation (EEC) No 303/77 (11), applies ; whereas, therefore, the Annex thereto must be amended accordingly;
Whereas the skimmed-milk powder will be sold at a very low price ; whereas it is thus advisable that the aid for skimmed-milk powder provided for in Article 10 of Regulation (EEC) No 804/68 should not be given and that the compensatory amounts provided for in Regulation (EEC) No 974/71 be modified accordingly;
Whereas the Management Committee for Milk and Milk Products has not delivered an opinion within the time limit set by its chairman, (1)OJ No L 148, 28.6.1968, p. 13. (2)OJ No L 67, 15.3.1976, p. 9. (3)OJ No L 106, 12.5.1971, p. 1. (4)OJ No L 67, 15.3.1976, p. 1. (5)OJ No L 144, 2.7.1970, p. 1. (6)OJ No L 173, 22.7.1968, p. 4. (7)OJ No L 307, 7.12.1969, p. 2. (8)OJ No L 88, 1.4.1976, p. 1. (9)OJ No L 45, 17.2.1977, p. 19. (10)OJ No L 190, 14.7.1976, p. 1. (11)OJ No L 43, 15.2.1977, p. 1.
HAS ADOPTED THIS REGULATION:
Article 1
There shall be put up for sale under the conditions set out hereinafter skimmed-milk powder bought in under Article 7 (1) of Regulation (EEC) No 804/68 and taken into storage before 1 January 1976.
Article 2
The skimmed-milk powder shall be offered for sale by standing tender, without prejudice to any subsequent provision for its sale at a fixed price.
The tendering procedure shall be carried out by each of the intervention agencies for the quantities of skimmed-milk powder in question held by it.
Article 3
1. The intervention agency shall draw up a notice of invitation to tender, indicating in particular: (a) the location of the store or stores where the skimmed-milk powder is held;
(b) the quantity of skimmed-milk powder for sale at each store;
(c) the time limit and address for the submission of tenders.
2. The notice of invitation to tender shall be published in the Official Journal of the European Communities not later than 24 February 1977. The intervention agency may also publish notices elsewhere.
Article 4
1. During the period of validity of the standing invitation to tender, the intervention agency shall issue individual invitations to tender.
Each individual invitation to tender shall cover such part of the skimmed-milk powder referred to in Article 1 as is still available.
2. The time limit for the submission of tenders shall be each second Tuesday of the month, at 12 noon. If this Tuesday is a public holiday, the time limit shall be extended to 12 noon on the next working day following.
3. The time limit for the submission of tenders for the first individual invitation to tender shall be Tuesday, 8 March 1977 at 12 noon.
Article 5
1. The intervention agency shall keep up to date and make available to prospective tenderers on request a list of the stores in which the skimmed-milk powder for sale by tender is stored and the corresponding quantities. The lists as updated by the intervention agency shall be published at regular intervals and in an appropriate form, which it shall indicate in the notice of invitation to tender.
2. The intervention agency shall take the measures necessary to enable prospective tenderers to examine at their own expense, before tendering, samples of the skimmed-milk powder on sale.
Article 6
1. A tenderer may not take part in the invitation to tender unless he gives a written undertaking: - to denature the skimmed-milk powder, or have it denatured, in accordance with one of the formulae set out in section 1 of the Annex and with the prescriptions set out in section 3 thereof, at a denaturing centre approved in accordance with Article 7;
or
- to denature the skimmed-milk powder by incorporating it directly in a feedingstuff under the conditions laid down in Article 8 and in accordance with sections 2 and 3 of the said Annex.
2. A Member State may decide that, on its territory: - the denaturing of skimmed-milk powder by direct incorporation shall not be allowed,
- the products resulting from the application of one or more of the denaturing formulae in section 2 of the Annex shall not be manufactured or marketed.
Article 7
1. In order to be approved as a denaturing centre an establishment must have suitable equipment, a minimum capacity to be determined by the Member State concerned and administrative and accounting facilities sufficient to permit the implementation of the provisions of this Regulation.
The abovementioned capacity must be sufficient to permit the denaturing under this Regulation of at least 10 tonnes of skimmed-milk powder per day.
2. Approval shall be withdrawn where the requirements set out in paragraph 1 are no longer met or where it is found that the undertaking concerned has been in breach of an obligation arising from this Regulation.
Article 8
1. Skimmed-milk powder may be purchased for denaturing by direct incorporation in a feedingstuff in accordance with section 2 of the Annex only by undertakings having an establishment approved for the purpose by the competent authorities of the Member State on whose territory the establishment is situated.
2. The approval referred to in paragraph 1 shall be granted to an undertaking only in respect of an establishment: (a) in which no compound feedingstuffs within the meaning of Article 4 of Regulation (EEC) No 990/72 (1) are produced;
(b) capable of treating regularly a minimum quantity of skimmed-milk powder determined by the Member State concerned;
(c) which has suitable equipment and administrative and accounting facilities sufficient to permit the implementation of the provisions of this Regulation.
However, where the establishment for which approval is requested is able to offer safeguards adequate for effective control to be exercised, the Member State concerned may waive condition (a) and, where appropriate, limit its approval to a particular unit of the establishment in question.
3. Approval shall be withdrawn where the requirements set out in paragraph 2 are no longer met or where it is found that the undertaking concerned has been in breach of an obligation arising from this Regulation.
Article 9
1. For each individual invitation to tender, tenders, which shall be in writing, shall be submitted either by delivery by hand to the intervention agency holding the skimmed-milk powder against acknowledgement of receipt or by registered letter addressed to the intervention agency. Intervention agencies may authorize the use of telex.
2. Every tender shall indicate: (a) the name and address of the tenderer;
(b) the quantity of which the tender relates;
(c) the price offered per tonne, exclusive of internal taxes, ex store and delivered as provided in Article 15 (2), expressed in the currency of the Member State in which the tender is held;
(d) the store in which the skimmed-milk powder tendered for is stored, and if necessary an alternative store;
(e) the Member State on whose territory denaturing or direct incorporation is to take place.
A tender relating to more than one store, excluding any alternative store, shall be regarded as comprising a number of separate tenders equal to the number of stores mentioned.
3. A tender shall not be valid unless it relates to at least 20 tonnes. However, if the quantity available in a store is less than 20 tonnes, the available quantity shall constitute the minimum for tender.
4. A tender shall not be valid unless the following conditions are fulfilled: (a) the tender must be accompanied by the written undertakings referred to in Article 6 (1);
(b) the tender must include a declaration by the tenderer to the effect that he agrees to forgo any claim as to the quality and characteristics of any skimmed-milk powder sold to him;
(c) proof must be furnished that before expiry of the period set for the submission of tenders, the tenderer has provided in respect of the relevant individual invitation to tender the security for tender specified in Article 10;
(d) the tender must not include any condition and/or reservation which is not expressly authorized.
5. A tender may stipulate that it is not to be regarded as having been submitted unless a contract is awarded in respect of the entire quantity indicated therein.
6. A tender may not be withdrawn.
Article 10
1. The security for tender shall be 15 units of account per tonne.
2. It shall be provided at the option of the tenderer either in cash or in the form of a guarantee given by an establishment which meets the criteria laid down by the Member State concerned.
3. The security for tender shall be provided in the Member State in which the tender is submitted.
Nevertheless, if the tender states, under the terms of Article 9 (2) (e) that denaturing or direct incorporation is to take place in a Member State other than the selling Member State, the security for tender may be lodged with the competent authority appointed by that other Member State, which shall issue to the tenderer the proof referred to in Article 9 (4) (c). In such case, the selling intervention agency shall inform the competent authority of the other Member State of events justifying the release or forfeiture of the security. If the security is forfeited, it shall be transferred to the selling intervention agency. (1)OJ No L 115, 17.5.1972, p. 1.
Article 11
1. 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, a minimum selling price shall be fixed or a decision shall be taken to make no award.
2. At the same time as the minimum selling price is fixed and under the same procedure, a processing security per 100 kilograms shall be fixed. The amount of this security shall take account of the difference between the market price of skimmed-milk powder and the minimum price fixed, and shall be fixed at a level that will ensure that the product is used according to the provisions of this Regulation.
Article 12
1. A tender shall be rejected if the price offered is lower than the minimum price fixed for the individual invitation to tender concerned.
2. Subject as provided in paragraph 1, a contract shall be awarded to the tenderer who offers the price which differs most from the minimum price fixed. If the quantity available in the store in question is not exhausted by this award, contracts for the remaining quantity shall be awarded to the other tenderers in descending order of magnitude of tender.
3. Where acceptance of a tender would result in a contract being awarded for more skimmed-milk powder than is available at the store in question, the contract awarded shall relate only to the quantity available
4. Where acceptance of two or more tenders offering the same price would result in contracts being awarded in excess of the quantity available, the award shall be made by drawing lots.
5. Rights and obligations arising in connection with the invitation to tender shall not be transferable.
Article 13
1. Every tenderer shall immediately be notified by the intervention agency by registered letter of the result of his tender.
2. The successful tenderer shall, before taking delivery of any quantity of skimmed-milk powder, pay the intervention agency in accordance with his tender for the quantity which he intends to remove from store.
3. Delivery may not be taken of any quantity without provision of the processing security provided for in Article 11 (2).
Article 14
1. When the conditions laid down in Article 13 (2) and (3) have been fulfilled, the intervention agency shall issue a removal warrant indicating: (a) the quantity in respect of which these conditions have been satisfied;
(b) the store in question;
(c) the latest date for taking delivery of the skimmed-milk powder;
(d) the time limit for the submission of tenders for the lot of skimmed-milk powder in question.
2. The successful tenderer shall take delivery of the skimmed-milk powder awarded to him within 45 days of receiving the notification provided for in Article 13 (1). Delivery of the skimmed-milk powder may be taken in instalments, each of which shall not be less than 10 tonnes.
3. Save in cases of force majeure the sale shall be cancelled in respect of any quantities of which the successful tenderer has not taken delivery within the period prescribed, and the sum of 15 units of account per tonne undelivered shall be forfeit, either from the security for tender or - if this has been released in accordance with the second indent of Article 17 (1) (a) - then, according to the options available to the intervention agency concerned at the time of cancellation of the sale, either from the processing security or from any amounts already paid in respect of the purchase price.
Article 15
1. The skimmed-milk powder shall be delivered by the intervention agency in sacks marked as follows in letters not less than 1 cm high:
"to be denatured (Regulation (EEC) No 368/77)",
"til denaturering (forordning (EØF) nr. 368/77)",
"zur Denaturierung (Verordnung (EWG) Nr. 368/77)",
"à dénaturer (règlement (CEE) nº 368/77)",
"destinato alla denaturazione (regolamento (CEE) n. 368/77)",
"voor denaturering (Verordening (EEG) nr. 368/77)".
2. The intervention agency shall deliver the skimmed-milk powder: - where transport is to be by lorry or railway wagon, loaded, but not stowed, on vehicle at the loading bay of the store,
- in the case of any other means of transport, in particular a container, at the loading bay of the store.
Article 16
1. Denaturing or direct incorporation of the skimmed-milk powder in accordance with the first and second indents of Article 6 (1) shall take place within four months from the day on which the purchaser takes delivery as specified in Article 14 (2).
2. The competent authority of the Member State concerned shall be responsible for checking that denaturing or direct incorporation has been properly carried out. To this end it shall both verify accounts and provide for on-the-spot supervision. In the case of direct incorporation, this may be done by making frequent unannounced visits of inspection.
In the case of denaturing in accordance with the first indent of Article 6 (1), a request for supervision shall only be accepted if the quantity of skimmed-milk powder concerned is not less than five tonnes per day of supervision. However, if difficulties are encountered in a Member State in the application of this provision, it may be waived in accordance with the procedure laid down in Article 30 of Regulation (EEC) No 804/68.
In the case of denaturing by direct incorporation in accordance with the second indent of Article 6 (1), the costs of the supervision of this operation shall be borne by the undertaking concerned. These costs shall be fixed at a flat rate of two units of account per tonne of skimmed-milk powder and, in the case of permanent on-the-spot supervision, shall not be less than 30 units of account per day of supervision.
3. The sacks, packagings and containers used for the transport and storage of the skimmed-milk powder denatured or incorporated in accordance with Article 6 (1) shall bear the number of this Regulation and shall indicate the denaturing or incorporation formula used (formulae I A to I G and II A to II K) and, in the case of direct incorporation, the percentage of skimmed-milk powder contained in the final product.
Article 17
1. Save in cases of force majeure, the security for tender shall be released only in respect of that quantity: (a) in respect of which the tenderer - has not withdrawn his tender before the award of contracts, and
- has, within the period prescribed, paid the amount corresponding to his tender and provided the processing security ; or
(b) in respect of which his tender has not been accepted.
2. In a case which cannot be regarded as force majeure where the time limit for processing laid down in Article 16 (1): - has been exceeded by not more than 30 days, and
- was exceeded for reasons other than serious negligence on the part of the person concerned,
the amount of the processing security to be forfeited shall, on submission by the person concerned of a properly reasoned application to that effect, be reduced to one unit of account per tonne for each day by which the time limit was exceeded.
Such application shall not be considered unless it is lodged with the intervention agency concerned within 30 days of the day on which the time limit in question expired.
Article 18
1. In cases of force majeure not covered by the first subparagraph of Article 11 (1) of Regulation (EEC) No 1687/76, the intervention agency shall take such action as it considers necessary having regard to the circumstances invoked.
2. The Member States shall communicate to the Commission every quarter details of all cases in which they have applied either Article 17 (2) or the first paragraph of this Article, giving details of the circumstances invoked, the quantities concerned and the action taken.
Article 19
In the case of skimmed-milk powder sold under this Regulation and: - dispatched to another Member State either in its natural state or after denaturing or incorporation into compound feedingstuffs ; or
- exported to non-member countries either after denaturing or after incorporation into compound feedingstuffs:
(a) the compensatory amounts fixed pursuant to Regulation (EEC) No 974/71 shall: - in the case of products falling within subheading 04.02 A II b) 1 of the Common Customs Tariff, be multiplied by 0 718
- in the case of products falling within subheadings
23.07 B I a) 3
23.07 B I a) 4
23.07 B I b) 3
23.07 B I c) 3
23.07 B II
of the Common Customs Tariff, be multiplied by 0 7308,
(b) the aid provided for in Article 10 of Regulation (EEC) No 804/68 shall not be granted.
Article 20
In the Annex to Regulation (EEC) No 1687/76, under "II. Products subject to a use and/or destination other than that mentioned under I", the following paragraph, together with the relevant footnote (6) thereto, are inserted after paragraph 14:
"15. Commission Regulation (EEC) No 368/77 of 23 February 1977 on the sale by tender of skimmed-milk powder for use in feed for pigs and poultry (6): - Section 104:
"To be denatured (Regulation (EEC) No 368/77)",
"à dénaturer (règlement (CEE) nº 368/77)",
"zur Denaturierung (Verordnung (EWG) Nr. 368/77)",
"destinato alla denaturazione (regolamento (CEE) n. 368/77)",
"voor denaturering (Verordening (EEG) Nr. 368/77)",
"til denaturering (forordning (EØF) nr. 368/77)".
- Section 106: 1. The date on which the skimmed-milk powder was removed from intervention stocks;
2. The time limit for the submission of tenders for the individual invitation to tender under which the skimmed-milk powder was sold.
(6)OJ No L 52, 24.2.1977, p. 19."
Article 21
This Regulation shall enter 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, 23 February 1977.