COMMISSION REGULATION (EC) No 105/2008
of 5 February 2008
laying down detailed rules for the application of Council Regulation (EC) No 1255/1999 as regards intervention on the market in butter
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1255/1999 of 17 May 1999 on the common organisation of the market in milk and milk products (1), and in particular Articles 10 and 40 thereof,
Whereas:
(1)
Commission Regulation (EC) No 2771/1999 (2) lays down detailed rules for the application of Council Regulation (EC) No 1255/1999 as regards intervention on the market in butter and cream. Council Regulation (EC) No 1152/2007 of 26 September 2007 amending Regulation (EC) No 1255/1999 on the common organisation of the market in milk and milk products (3) amended the provisions concerning intervention and private storage for butter and cream. In view of those new arrangements and in the light of the experience gained, it is appropriate to amend and, where necessary simplify the detailed rules governing intervention on the market in butter and cream. In the interests of clarity Regulation (EC) No 2771/1999 should be repealed and replaced by a new Regulation.
(2)
Article 6(1) of Regulation (EC) No 1255/1999 lays down the criteria under which butter has to be bought at fixed price or through invitation to tender and under which circumstances buying-in is to be suspended. Practical arrangements should be provided concerning the buying-in process. To ensure compliance with the requirements as to the quality and presentation of the butter at the time when the offer is submitted, and after its entry into storage, sellers should be required to submit a written commitment to that effect together with their offer. Offers should also be accompanied by a security, in order to guarantee that the offer will be maintained and that the butter of the required quality will be delivered within time limits to be laid down.
(3)
To be eligible for intervention butter should meet the requirements laid down in Article 6 of Regulation (EC) No 1255/1999 as well as the conditions of quality and presentation, which need to be defined. The methods of analysis and detailed rules governing quality control should also be specified and, if the situation so requires, provision should be made for checks of radioactivity in butter, the maximum levels of which need to be established, where appropriate, by Community legislation. However, it should be possible for Member States to authorise a system of self checking, subject to certain conditions.
(4)
To ensure that the intervention arrangements function smoothly, it is necessary to specify the conditions for the approval of manufacturing undertakings and verification of compliance therewith. To ensure that the arrangements are effective, provision should be made for action to be taken if these conditions are not complied with. Since butter may be bought in by a competent body belonging to a Member State other than that on whose territory it was produced, the competent body which does the buying-in should in such cases be able to verify that the conditions relating to quality and presentation are complied with.
(5)
Article 6(1) of Regulation (EC) No 1255/1999 stipulates that buying-in is to be carried out by tendering procedure. The Commission may decide to suspend intervention buying-in once a certain quantity offered for intervention has been reached. In order to put the Commission in the position to take such a decision, provisions should be adopted for the Commission to monitor the quantity of butter offered for public intervention.
(6)
Once these quantities have been reached, the Commission may also decide to carry on buying-in by way of a standing tendering procedure. Relevant detailed rules should be determined. To ensure that all interested parties in the Community are treated equally, invitations to tender should be advertised in the Official Journal of the European Union. The details of the tender, particularly the minimum quantity, deadlines for submission and the maximum buying-in price should be defined.
(7)
It should be possible to guarantee the quality of the butter, and the terms of buying-in by means of checks at different stages during storage. Failure to comply with the requirements should not impose an additional burden on the Community budget. Provision should therefore be made for sub-standard butter to be taken back by the operator, who should be obliged to bear the storage costs incurred.
(8)
The Member States' obligations should be specified with a view to the proper management of stocks in storage, by stipulating a maximum distance for the place of storage and the costs to be borne when that distance is exceeded, and requiring, in particular, that stocks be accessible, that batches be identified and that butter in storage be insured against risks. In order to ensure a uniform frequency and level of checks, it is necessary to specify the nature and number of inspections of storage premises to be performed by the national authorities.
(9)
Proper management of intervention stock requires the butter to be resold as soon as outlets become available. In order to better manage quantities and to avoid destabilising the market, the selling price should be set following a tendering procedure. Conditions for sale, entailing the lodging of a security should be laid down, particularly as regards the time limits for payment. Tenderers should have the possibility to distinguish between sweet cream and sour cream butter in their offer and the selling price fixed may vary according to the location of the butter offered for sale.
(10)
Article 6(3) of Regulation (EC) No 1255/1999 provides for aid to be granted for the private storage of butter. To ensure that the arrangements can be monitored properly, provision should be made for a contract and a set of specifications regarding storage conditions. For the same reason, detailed rules should also be laid down regarding documentation, accounting and the frequency of checks and inspection procedures, particularly in respect of the requirements laid down in Article 6(3). To facilitate checks on the presence of the butter stored under private storage contracts, there should be provision for them to be removed from storage in whole lots unless the Member State authorises removal of a smaller quantity.
(11)
To ensure that the private storage scheme is properly managed, it is appropriate to fix annually the amount of the aid. The dates of entry into storage and the dates on which storers may remove from storage, storage periods and aid amounts may be changed to take account of the market situation.
(12)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for milk and milk products,
HAS ADOPTED THIS REGULATION:
CHAPTER I
SCOPE
Article 1
1. This Regulation lays down the detailed rules for applying the following intervention measures in the milk and milk products sector as provided for in Article 6 of Regulation (EC) No 1255/1999:
(a)
public storage:
(i)
buying-in of butter:
-
at fixed price,
-
by tendering;
(ii)
sales of butter;
(b)
private storage aid of butter.
2. For the purposes of this Regulation, the Belgo-Luxembourg Economic Union shall be considered as a single Member State.
3. For the purpose of this Regulation ‘competent body’ means the paying agency or, where appropriate, the body assigned by the paying agency as referred to in Article 6 of Council Regulation (EC) No 1290/2005 (4).
CHAPTER II
PUBLIC STORAGE
SECTION 1
Conditions for buying in butter
Article 2
The competent body shall buy in only butter which meets the requirements of the first subparagraph of Article 6(2) of Regulation (EC) No 1255/1999 and of Article 3 of this Regulation and which is offered for intervention in the period from 1 March to 31 August of any year.
Article 3
1. The competent body shall check the quality of butter using the methods described in Annex I and on the basis of samples taken in accordance with the rules set out in Annex II. However, Member States may, subject to written agreement of the Commission, set up a system of self checking under their own supervision in respect of certain quality requirements and in the case of certain approved undertakings.
2. Levels of radioactivity in butter may not exceed the maximum levels permitted, where applicable, under Community rules.
The level of radioactive contamination of butter shall be monitored only if the situation so requires, and during the requisite period. Where necessary, the duration and scope of checks shall be determined in accordance with the procedure laid down in Article 42 of Regulation (EC) No 1255/1999.
3. The butter shall have been made during the 23 days preceding the day on which the competent body received the offer to sell.
4. The minimum quantity of butter offered shall be 10 tonnes. Member States may require butter to be offered by the full tonne only.
5. Butter shall be packaged and delivered in blocks of at least 25 kilograms net.
6. Butter shall be packed in new, strong material in such a way as to ensure it is protected throughout transportation, storage and removal from storage. The packaging shall show at least the following particulars, where appropriate in code:
(a)
the approval number identifying the factory and the Member State of production;
(b)
the date of production;
(c)
the date of entry into storage;
(d)
the production batch number and the package number; the package number may be replaced by a pallet number marked on the pallet;
(e)
the words ‘sweet cream’ if the aqueous phase of the butter has the corresponding pH.
Member States may waive the obligation to show the date of entry into storage on the packaging, provided that the store manager undertakes to keep a register in which the particulars referred to in the first subparagraph are recorded on the date of entry into storage.
Article 4
1. Undertakings as referred to in Article 6(2) of Regulation (EC) No 1255/1999 shall be approved only if they:
(a)
are approved in accordance with Article 4 of Regulation (EC) No 853/2004 of the European Parliament and of the Council (5) and have the appropriate technical equipment;
(b)
undertake to keep permanent records in the form determined by the competent body of each Member State, listing the supplier and origin of the raw materials, the quantities of butter obtained and the packaging, identification and exit date of each production batch intended for public intervention;
(c)
agree to submit their production of butter to a specific official inspection;
(d)
undertake to inform the competent body, at least two working days in advance, of their intention to produce butter for public intervention; however, the Member State may set a shorter time limit.
2. To ensure compliance with this Regulation, the competent body shall carry out unannounced on-the-spot inspections, on the basis of the intervention butter production schedule of the undertakings concerned.
They shall carry out at least:
(a)
one inspection per period of 28 days of production for intervention with at least one inspection every year, to examine the records referred to in paragraph 1(b);
(b)
one inspection every year, to verify compliance with the other conditions for approval referred to in paragraph 1.
3. Approval shall be withdrawn if the preconditions laid down in paragraph 1(a) are no longer satisfied. Approval may be regranted at the request of the undertaking concerned after a period of at least six months, following a thorough inspection.
Except in cases of force majeure, where an undertaking is found not to have complied with one of its commitments as referred to in paragraph 1(b), (c) and (d), approval shall be suspended for a period of between one and 12 months depending on the seriousness of the irregularity.
The Member State may decide not to impose suspension where it is established that the irregularity was not committed deliberately or as a result of serious negligence and it is of minor importance with regard to the effectiveness of the inspections provided for in paragraph 2.
4. A report shall be drawn up on the inspections carried out pursuant to paragraphs 2 and 3, specifying:
(a)
the date of the inspection;
(b)
the duration of the inspections;
(c)
the operations carried out.
The report shall be signed by the inspector responsible.
Article 5
1. Where butter is offered to intervention in a Member State other than that in which it was produced, buying-in shall be subject to the presentation of a certificate supplied by the competent body of the Member State of production.
The certificate shall be presented to the competent body of the purchasing Member State not later than 45 days after the day on which the offer was received and shall contain the information referred to in Article 3(6)(a), (b) and (d) of this Regulation, and a confirmation that the butter has been produced directly and exclusively from pasteurised cream within the meaning of Article 6(6) of Regulation (EC) No 1255/1999, in an approved undertaking in the Community.
2. Where the Member State of production has performed the checks referred to in Article 3(1) of this Regulation, the certificate shall also contain the results of those checks and confirm that the product concerned is butter fulfilling the requirements of the first subparagraph of Article 6(2) of Regulation (EC) No 1255/1999. In that case, the packaging referred to in Article 3(6) of this Regulation must be sealed by means of a numbered label issued by the competent body of the Member State of production. The certificate shall contain the number of the label.
SECTION 2
Procedure for buying-in of butter at fixed price
Article 6
Buying-in of butter at 90 % of the intervention price pursuant to the first subparagraph of Article 6(1) of the Regulation (EC) No 1255/1999 shall be carried out in accordance with the provisions of this Section.
Article 7
1. Sellers shall submit a written offer against issuance of a receipt, or by any written means of telecommunication with proof of receipt.
2. Offers shall contain:
(a)
the name and address of the seller;
(b)
the quantity offered;
(c)
the name and the approval number of the undertaking approved under Article 4(1);
(d)
the dates of manufacture of the butter;
(e)
the place where the butter is held.
3. Offers shall be valid only if:
(a)
they relate to a quantity of butter meeting the requirements of Article 3(4);
(b)
they are accompanied by a written commitment by the seller to comply with Article 11(2);
(c)
proof is furnished that the seller has lodged a security of EUR 5 per 100 kg in the Member State in which the offer was submitted no later than the day on which the offer is received.
4. The commitment provided for in paragraph 3(b), if forwarded initially to the competent body, shall be deemed to be tacitly renewed for subsequent offers until explicitly cancelled by the seller or by the competent body, provided that:
(a)
the original offer stipulates that the seller intends to avail of the provisions of this paragraph;
(b)
subsequent offers refer to the provisions of this paragraph and to the date of the original offer.
5. The competent body shall record the day on which the offer was received, the quantities involved and their respective dates of manufacture and the place where the butter offered is stored.
6. Offers may not be withdrawn after they have been received by the competent body.
Article 8
Maintenance of the offer, delivery of butter to the cold store designated by the competent body within the time limit laid down in Article 9(2) of this Regulation and compliance with the requirements of Article 2 of this Regulation shall constitute primary requirements within the meaning of Article 20 of Commission Regulation (EEC) No 2220/85 (6).
Article 9
1. After checking the offer, and within five working days following the day of receipt of the offer to sell, the competent body shall issue a dated and numbered delivery order showing:
(a)
the quantity to be delivered;
(b)
the final date for delivery of the butter;
(c)
the cold store to which it must be delivered.
2. Within 21 days of the day of receipt of the offer to sell, the seller shall deliver the butter to the loading bay of the cold store. Delivery may be in several consignments.
Any costs incurred in unloading the butter at the loading bay of the cold store shall be borne by the seller.
3. The security referred to in Article 7(3)(c) shall be released as soon as the seller has delivered all the quantity indicated on the delivery order within the time limit laid down therein and conformity with the requirements laid down in Article 2 has been established.
Where the butter does not conform to the requirements laid down in Article 2 the butter shall be rejected and the security shall be forfeit in respect of the quantity rejected.
4. Except in cases of force majeure, where the seller fails to deliver the butter within the time limit laid down in the delivery order, the security provided for in Article 7(3)(c) shall be forfeit in proportion to the quantities not delivered and buying-in shall be cancelled in respect of these quantities not yet delivered.
5. For the purpose of this Article, the butter shall be deemed to be delivered to the competent body on the day when the full quantity of butter covered by the offer enters the cold store designated by the competent body, but no earlier than the day following that on which the delivery order was issued.
6. The rights and obligations resulting from the sale shall not be transferable.
Article 10
1. The paying agency shall pay the seller for each quantity of butter taken over, between the 45th and 65th day after the day of the taking over, provided that conformity with the requirements of Articles 2 and 3 has been established.
2. For the purpose of this Article, the day of the taking over shall mean the day on which the butter enters the cold store designated by the competent body, but no earlier than the day following that on which the delivery order referred to in Article 9(1) was issued.
Article 11
1. The butter shall be put through a trial storage period. This period shall be fixed at 30 days starting from the day of taking over.
2. By their offers, sellers shall undertake that, where the inspection on entry into the store designated by the competent body shows that the butter does not meet the requirements of Articles 2 and 3, or where, at the end of the trial storage period, the minimum organoleptic quality of the butter proves to be below that set in Annex I:
(a)
they will take back the butter in question and
(b)
they will pay the storage costs of the butter concerned from the day on which it was taken over until the date of its removal from storage.
The storage costs to be paid shall be determined on the basis of the standard amounts for entry, removal and storage costs laid down pursuant to Article 6 of Council Regulation (EEC) No 1883/78 (7).
Article 12
1. Not later than 12 noon (Brussels time) of each Tuesday, the competent body shall inform the Commission of the quantities of butter which, during the preceding week, have been the subject of an offer to sell in accordance with Article 7.
2. Once it is observed that the offers in a certain year approach 18 000 tonnes, the Commission shall inform Member States as of which date they shall communicate the information referred to in paragraph 1 every day before 12 noon (Brussels time) for the quantities of butter offered the preceding day.
Once it is observed that the offers in a certain year exceed the quantity of 30 000 tonnes referred to in the second subparagraph of Article 6(1) of Regulation (EC) No 1255/1999 buying-in may be suspended in accordance with the procedure referred to in Article 42(2) of that Regulation.
In the case of suspension of buying-in in accordance with the second subparagraph of this paragraph, no new offers shall be accepted as of the day following the day of the entry into force of the decision suspending buying-in.
SECTION 3
Procedure for buying-in of butter by tendering
Article 13
1. Where the Commission decides in accordance with the procedure referred to in Article 42(2) of Regulation (EC) No 1255/1999 to start buying-in butter through an open standing invitation to tender pursuant to the third subparagraph of Article 6(1) of that Regulation, Articles 2 and 3(1)(2)(4) to (6) and Articles 4, 5, 9, 10 and 11 of this Regulation shall apply unless otherwise provided in this Section.
2. A notice of invitation to tender shall be published in the Official Journal of the European Union.
3. The time limit for the submission of tenders in response to the individual invitations to tender shall be 11.00 (Brussels time) on the third Tuesday of the month. However, in August it shall be 11.00 (Brussels time) on the fourth Tuesday. If Tuesday is a public holiday the time limit shall be 11.00 (Brussels time) on the previous working day.
Article 14
1. Interested parties shall participate in the tendering procedure announced by the competent body of a Member State either by submitting a written tender against issuance of a receipt, or by any written means of telecommunication with proof of receipt.
2. Tenders shall contain:
(a)
the name and address of the tenderer;
(b)
the quantity offered;
(c)
the proposed price per 100 kilograms of butter, exclusive of national taxes and charges, delivered to the loading bay of the cold store, expressed in EUR to no more than two decimal places;
(d)
the name and the approval number of the undertaking approved under Article 4(1);
(e)
the dates of manufacture of the butter;
(f)
the place where the butter is held.
3. Tenders shall be valid only if:
(a)
they relate to a quantity of butter meeting the requirements of Article 3(4);
(b)
the butter has been produced during 31 days preceding the closing date of the tender;
(c)
they are accompanied by the written commitment by the tenderer to comply with Article 11(2);
(d)
proof is furnished that the tenderer has lodged a security of EUR 5 per 100 kg for the invitation to tender concerned, in the Member State in which the tender was submitted, before the time limit referred to in Article 13(3) for submission of tenders.
4. The commitment provided for in paragraph 3(c), if forwarded initially to the competent body, shall be deemed to be tacitly renewed for subsequent tenders until explicitly cancelled by the tenderer or by the competent body, provided that:
(a)
the original tender stipulates that the tenderer intends to avail himself of the provisions of this paragraph;
(b)
subsequent tenders refer to the provisions of this paragraph and to the date of the original tender.
5. The competent body shall record the day on which the tender was received, the quantities involved and their respective dates of manufacture and the place where the butter offered is stored.
6. Tenders may not be withdrawn after the time limit referred to in Article 13(3) for the submission of tenders relating to the invitation to tender concerned.
Article 15
Maintenance of the tender after the time limit for submission of tenders, delivery of the butter to the cold store designated by the competent body within the time limit laid down in Article 18(3) of this Regulation and compliance with the requirements of Article 2 of this Regulation, shall constitute primary requirements within the meaning of Article 20 of Regulation (EEC) No 2220/85.
Article 16
1. On the day of the lapse of the time limit referred to in Article 13(3), the competent body shall inform the Commission of the quantities and prices offered by tenderers.
If no offers have been submitted the competent body communicates this to the Commission within the same time limit.
2. In the light of the tenders received for each invitation to tender, the Commission shall fix a maximum buying-in price, by reference to the intervention prices applicable, in accordance with the procedure referred to in Article 42(2) of Regulation (EC) No 1255/1999.
A decision may be taken not to proceed with the invitation to tender.
Article 17
Tenders shall be rejected if the price proposed is higher than the maximum price referred to in Article 16(2), applying to the tendering procedure concerned.
Article 18
1. Tenderers shall be informed immediately by the competent body of the outcome of their participation in the tendering procedure.
Where tenders have been unsuccessful, the securities provided for in Article 14(3)(d) shall be released immediately.
The rights and obligations resulting from the tendering procedure shall not be transferable.
2. The competent body shall immediately issue to the successful tenderer a dated and numbered delivery order indicating:
(a)
the quantity to be delivered;
(b)
the final date for delivery of the butter;
(c)
the cold store to which it shall be delivered.
3. Within 21 days of the closing date for submission of tenders, the successful tenderer shall deliver the butter to the loading bay of the cold store. Delivery may be in several consignments.
Any costs incurred in unloading the butter at the loading bay of the cold store shall be borne by the successful tenderer.
4. The security provided for in Article 14(3)(d) shall be released as soon as the successful tenderer has delivered all the quantity indicated on the delivery order within the time limit laid down therein and the conformity with the requirements of Article 2 has been established.
Where the butter does not conform to the requirements laid down in Article 2, the butter shall be rejected and the security shall be forfeit in respect of the quantity rejected.
5. Except in cases of force majeure, where the successful tenderer fails to deliver the butter within the time limit laid down in the delivery order, the security provided for in Article 14(3)(d) shall be forfeit in proportion to the quantities not delivered, and buying-in shall be cancelled in respect of the quantities not yet delivered.
6. For the purpose of this Article, the butter shall be deemed to be delivered to the competent body on the day when the full quantity of butter covered by the delivery order enters the cold store designated by the competent body, but no earlier than the day following that on which the delivery order was issued.
SECTION 4
Entry into and removal from storage
Article 19
1. The Member States shall lay down technical standards for cold stores, providing in particular for a storage temperature equal or lower than - 15°C, and shall take any other measures necessary to ensure that the butter is properly conserved. The relevant risks shall be covered by insurance in the form of either a contractual obligation on storers or a comprehensive coverage of the liability borne by the competent body; the Member States may also act as their own insurers.
2. The competent body shall require that butter be delivered to the loading bay of the cold store, and be taken into storage and kept there, on pallets, in such a way as to create easily identifiable and readily accessible lots.
3. The competent body responsible for checks shall perform unannounced checks on the presence of the butter in store, in accordance with Annex I of Commission Regulation (EC) No 884/2006 (8).
Article 20
1. The competent body shall choose the nearest available cold store to the place where the butter is stored.
The maximum distance referred to in the second subparagraph of Article 6(2) of Regulation (EC) No 1255/1999 shall be 350 kilometres.
However, the competent body may choose another store situated within the distance referred to in the second subparagraph, provided that the choice of that cold store does not result in additional storage costs.
The competent body may choose a cold store situated beyond that distance if the resulting expenditure, including storage and transport costs, is lower. In that case the competent body shall notify the Commission of its choice forthwith.
2. Where the competent body buying-in the butter is in a Member State other than the one in whose territory the offered butter is stored, no account shall be taken, in calculating the maximum distance referred to in paragraph 1 of the distance between the store of the vendor and the border of the Member State of the purchasing competent body.
3. Beyond the maximum distance referred to in paragraph 1, the additional transport costs borne by the paying agency shall be EUR 0,065 per tonne and per kilometre. The additional costs shall be borne by the paying agency only if the temperature of the butter does not exceed 6 °C on arrival at the cold store.
Article 21
At the time of removal from store the competent body shall, in the case of delivery outside of the cold store, make the butter available on pallets at the store's loading bay, loaded, where appropriate, onto the means of transport where this is a lorry or a railway wagon. The costs involved shall be borne by the paying agency and any stowage and depalletising costs shall be borne by the purchaser of the butter.
SECTION 5
Procedure for sales of butter by tendering
Article 22
1. Butter shall be sold by means of a standing invitation to tender.
2. Sales shall concern butter taken into storage before 1 June 2007.
3. A standing invitation to tender shall be published in the Official Journal of the European Union at least eight days before the first closing date laid down for the submission of tenders.
4. The competent body shall draw up a notice of standing invitation to tender indicating in particular the time limit and the address for submission of tenders.
They shall also indicate, for the butter they hold:
(a)
the locations of the cold store where the butter to be sold is stored,
(b)
the quantity for sale in each cold store and, if appropriate, the quantity of the butter referred to in Article 3(6)(e).
5. The competent body shall keep an up-to-date list of the information referred to in paragraph 4, which they shall make available to interested parties on request. They shall publish updated lists at regular intervals in a form which shall be specified in the notice of standing invitation to tender.
6. The competent body shall make the necessary arrangements to enable interested parties:
(a)
to examine samples of the butter put up for sale at their own expense before submitting a tender;
(b)
to verify the results of the analyses referred to in Annex I concerning fat, water and non-fat solids.
Article 23
1. The competent body shall organise individual tendering rounds during the term of validity of the standing invitation to tender.
2. The time limit for the submission of tenders in response to the individual invitations to tender shall be 11.00 (Brussels time) on the third Tuesday of the month. However, in August it shall be 11.00 (Brussels time) on the fourth Tuesday and in December it shall be 11.00 (Brussels time) on the second Tuesday. If Tuesday is a public holiday the time limit shall be 11.00 (Brussels time) on the previous working day.
Article 24
1. Tenders under each individual round shall be submitted by written offer against issuance of a receipt, or by any written means of telecommunication with proof of receipt.
Tenders shall be submitted to the competent body holding the butter for which an offer is made.
2. Offers shall contain:
(a)
the name and address of the tenderer;
(b)
the quantity desired;
(c)
the price in EUR tendered per 100 kilograms, not including national taxes and charges, delivered to the loading-bay of the cold store;
(d)
if appropriate, the cold store where the butter is held and as the case may be a substitute cold store;
(e)
if appropriate, an indication of the kind of butter referred to in Article 3(6)(e) for which the offer is being submitted.
3. Offers shall not be valid unless:
(a)
they relate to at least five tonnes or, if the quantity available in a cold store is less than five tonnes, to the actual quantity available;
(b)
proof is provided that the tenderer has lodged a tendering security of EUR 70 per tonne, in the Member State where the tender is submitted, for the tendering round in question before the time limit specified for submission of tenders referred to in Article 23(2).
4. Tenders may not be withdrawn after the time limit referred to in Article 23(2).
Article 25
For the purposes of the tendering security provided for in Article 24(3)(b) of this Regulation, maintenance of the tenders after the time limit referred to in Article 23(2) of this Regulation and the payment of the price within the deadline laid down in Article 31(2) of this Regulation, shall constitute primary requirements within the meaning of Article 20 of Regulation (EEC) No 2220/85.
Article 26
1. On the day of the lapse of the time limit referred to in Article 23(2), the competent body shall inform the Commission of the quantities and prices offered by tenderers and the quantity of butter offered for sale.
If no offers have been submitted the competent body communicates this to the Commission within the same time limit if butter is available for sale in the Member State concerned.
2. A minimum selling price for the butter on the basis of the offers received under each round shall be fixed in accordance with the procedure referred to in Article 42(2) of Regulation (EC) No 1255/1999. This price may vary according to the location of the quantities of butter offered for sale.
A decision may be taken to make no award under the round.
Article 27
Offers shall be rejected if the price offered is lower than the established minimum price.
Article 28
1. The competent body shall allocate the butter on the basis of its date of entry into storage, starting with the oldest product of the total quantity or, as the case may be, the oldest of the quantity of sweet or sour cream butter available in the cold store designated by the tenderer.
2. Without prejudice to Article 27, the successful tenderer shall be the tenderer offering the highest price. If the full quantity available is not allocated, the remainder shall be awarded to the other tenderers on the basis of the prices tendered, starting with the highest price.
3. Where acceptance of a tender would result in contracts being awarded in excess of the quantity of butter available in a particular cold store, only the quantity available shall be awarded to the tenderer in question.
However, the competent body may designate other cold stores to make up the quantity set out in the tender, provided the tenderer agrees.
4. Where acceptance of two or more tenders offering the same price for butter in a particular cold store would lead to contracts being awarded in excess of the quantity available, the award shall be made by allocating the quantity available in proportion to the quantities tendered for.
However, should such allocation lead to the award of quantities of less than five tonnes, the award shall be made by drawing lots.
5. Where after the acceptance of all successful tenders the quantity left in the store is less than 5 000 kg, this remaining quantity shall be offered by the competent body to the successful tenderers starting with the one who offered the highest price. The successful tenderer shall be offered the option to buy the remaining quantity for the same price as the one awarded to him.
Article 29
The rights and obligations resulting from the tendering procedure shall not be transferable.
Article 30
1. The competent body shall immediately inform tenderers of the outcome of their participation in the invitation to tender.
Securities provided for in Article 24(3)(b) lodged for unsuccessful tenders shall be released immediately.
2. Before removing the butter and within the period specified in Article 31(2), successful tenderers shall pay the paying agency the amount corresponding to their tender for each quantity that they wish to withdraw.
3. Except in cases of force majeure, if the successful tenderer has not complied with the requirement provided for in paragraph 2 the tendering security referred to in Article 24(3)(b) shall be forfeited and the sale of the quantities involved shall be cancelled.
Article 31
1. Once the amount referred to in Article 30(2) has been paid the competent body shall issue a removal order indicating:
(a)
the quantity in respect of which the corresponding amount has been paid;
(b)
the cold store in which the butter is stored;
(c)
the final date for removal of the butter.
2. Successful tenderers shall remove the butter awarded to them within 30 days following the end of the time period for the submission of tenders. Removal may be effected by instalments of not less than five tonnes each. However, where the quantity remaining in a cold store is less than five tonnes, that smaller quantity may be delivered.
Except in cases of force majeure, if the butter has not been removed within the period laid down in the first subparagraph, the cost of storing shall be borne by the successful tenderer from the day following that on which the period expired. Moreover, storage shall be at tenderer's risk.
3. The security lodged in accordance with Article 24(3)(b) shall be released immediately in respect of quantities removed within the period provided for in the first subparagraph of paragraph 2.
In the event of force majeure referred to in the second subparagraph of paragraph 2, the competent body shall take such action as it considers necessary having regard to the circumstances invoked.
CHAPTER III
PRIVATE STORAGE OF BUTTER
SECTION 1
Contract and storage conditions
Article 32
For the purposes of this Chapter the following definitions shall apply:
-
‘storage lot’ means a quantity weighing at least one tonne and of homogeneous composition and quality, originating in a single factory, taken into storage in a single warehouse on a single day;
-
‘day of commencement of contractual storage’ means the day following that of entry into store.
Article 33
A private storage contract may be concluded only for butter as referred to in the first subparagraph of Article 6(3) of Regulation (EC) No 1255/1999.
Butter must have been produced in an undertaking approved in accordance with Article 4(1)(a), (b) and (c) of this Regulation during the 28 days preceding the day of commencement of contractual storage. Its radioactivity level shall not exceed the maximum permitted levels referred to in Article 3(2) of this Regulation.
Article 34
Contracts relating to the private storage of butter as referred to in the third subparagraph of Article 6(3) of Regulation (EC) No 1255/1999 shall be concluded between the competent body of the Member State on whose territory the butter is stored and natural or legal persons hereinafter called ‘contractors’.
Article 35
1. Storage contracts shall be concluded in writing for one or more storage lots and shall include, in particular, provisions concerning:
(a)
the quantity of butter to which the contract applies;
(b)
the amount of the aid;
(c)
the dates relating to the execution of the contract, without prejudice to the fourth subparagraph of Article 6(3) of Regulation (EC) No 1255/1999;
(d)
the identity of the cold stores.
2. The control measures, particularly those referred to in Article 40 of this Regulation and the information referred to in paragraph 3 of this Article shall be the subject of specifications drawn up by the competent body of the Member State of storage. The storage contract shall refer to those specifications.
3. The specifications shall provide that the packaging of the butter shows at least the following particulars, which may be encoded, where appropriate:
(a)
the number identifying the factory and the Member State of production;
(b)
the date of production;
(c)
the date of entry into storage;
(d)
the production batch number;
(e)
the word ‘salted’ in the case of butter as referred to in the second indent of the first subparagraph of Article 6(3) of Regulation (EC) No 1255/1999;
(f)
the net weight.
Member States may waive the obligation to indicate the date of entry into store on the packaging provided the store manager undertakes to keep a register in which the particulars referred to in the first subparagraph are entered on the date of entry into store.
Article 36
1. Entry into store may take place only between 1 March and 15 August of any year. Removal from store may take place only as from 16 August of the year of storage. Contractual storage shall end on the day preceding that of the removal from storage or at the latest the last day of February following the entry into store.
2. Removal from store shall be in whole storage lots or, if the competent body so authorises, in smaller quantities. However, in the circumstances referred to in Article 40(2)(a) only a sealed quantity may be removed from store.
Article 37
1. Applications to conclude a contract with the competent body may relate only to lots of butter which have been fully taken into storage.
Applications must reach the competent body within 30 days of the date of entry into cold store. The competent body shall register their date of receipt.
If the application reaches the competent body within 10 working days following the deadline, the storage contract may still be concluded but the aid shall be reduced by 30 %.
2. Storage contracts shall be concluded within 30 days of the date of registration of the application subject, where appropriate, to subsequent confirmation of the eligibility of the butter as referred to in Article 40(1) second subparagraph. In the case where the eligibility is not confirmed, the contract concerned shall be considered as null and void.
Article 38
1. Where the butter is stored in a Member State other than the Member State of production, conclusion of the storage contract referred to in Article 34 shall be subject to presentation of a certificate.
The certificate shall contain the information specified in Article 35(3)(a), (b) and (d) and confirm that the butter has been produced in an approved undertaking which is subject to checks verifying that the butter is produced from cream or milk within the meaning of Article 6(6) of Regulation (EC) No 1255/1999.
The certificate shall be supplied by the competent body of the Member State of production within 50 days of the date of the butter's entry into storage.
In the case referred to in the first subparagraph of this Article, storage contracts shall be concluded within 60 days of the date of registration of the application subject, where appropriate, to subsequent confirmation of the eligibility of the butter as referred to in Article 40(1) second subparagraph. In the case where the eligibility is not confirmed, the contract concerned shall be considered as null and void.
2. Where the Member State of production has performed the checks on the nature and composition of the butter referred to in Article 40(1) of this Regulation, the certificate shall contain the results of those checks and confirm that the product concerned is butter within the meaning of the first subparagraph of Article 6(3) of Regulation (EC) No 1255/1999. In that case, the packaging shall be sealed by means of a numbered label issued by the competent body of the Member State of production. The certificate shall contain the number of the label.
SECTION 2
Checks
Article 39
1. The Member State shall ensure that all the conditions for entitlement to payment of the aid are fulfilled.
2. The contractor or, at the request of the Member State or with its authorisation, the person responsible for operating the cold store shall make available to the competent body any documentation permitting verification of the following particulars of the butter placed in private storage:
(a)
the approval number identifying the factory and the Member State of production;
(b)
the date of production;
(c)
the date of entry into storage;
(d)
the storage lot number;
(e)
presence in the store and the address of the cold store;
(f)
the date of removal from storage.
3. The contractor or, where applicable, the person responsible for operating the cold store shall keep stock records available at the store for each contract, containing:
(a)
the storage lot number of the butter placed in private storage;
(b)
the dates of entry into and removal from storage;
(c)
the quantity of butter, indicated per storage lot;
(d)
the location of the butter in the cold store.
4. Butter stored must be easily accessible and easily identifiable per lot and by contract.
Article 40
1. The competent body shall conduct checks on the date or after the date of entry of butter into the cold store and within 28 days of the date of registration of the application for conclusion of a contract referred to in Article 37(1).
To ensure that the butter stored is eligible for aid, a representative sample of at least 5 % of the quantities placed in storage shall be checked to ensure that, as regards inter alia, the weight, identification, nature and composition of the butter, all storage lots conform to the particulars in the application for conclusion of a contract.
2. The competent body shall:
(a)
seal the butter by contract, storage lot or smaller quantity at the time of the check provided for in paragraph 1; or
(b)
make an unannounced check, by sampling, to ensure that the butter is present in the cold store. The sample concerned shall be representative and shall correspond to at least 10 % of the total quantity under the contract for a private storage aid measure.
3. At the end of the contractual storage period, the competent body shall, by sampling, verify weight and identification of butter. However, where the butter is still in storage after expiry of the maximum contractual storage period, that check may be made when the butter is removed from storage.
For the purposes of the check referred to in the first subparagraph, the contractor shall inform the competent body, indicating the storage lots involved, at least five working days before:
(a)
the end of the maximum contractual storage period; or
(b)
the start of the removal operations where butter is removed before expiry of the maximum contractual storage period.
The Member State may accept a shorter time limit than five working days.
4. A report shall be drawn up on the checks carried out pursuant to paragraphs 1, 2 and 3, specifying:
(a)
the date of the checks;
(b)
duration of the checks;
(c)
the operations carried out.
The report shall be signed by the inspector responsible and countersigned by the contractor or, as the case may be, the person responsible for operating the cold store, and shall be included in the payment dossier.
5. In the event of irregularities affecting at least 5 % of the quantities of butter checked, the check shall be extended to a larger sample to be determined by the competent body.
The Member States shall notify such cases to the Commission within four weeks.
SECTION 3
Storage aid
Article 41
1. Aid for private storage as provided for in the first subparagraph of Article 6(3) of Regulation (EC) No 1255/1999 may be granted only where the contractual storage period is between 90 and 210 days.
Where the contractor fails to comply with the time limit referred to in Article 40(3), the aid shall be reduced by 15 % and shall be paid only in respect of the period for which the contractor supplies to the competent body satisfactory proof that the butter has remained in contractual storage.
2. Without prejudice to Article 43 of this Regulation, the Commission shall determine each year in accordance with the procedure laid down in Article 42(2) of Regulation (EC) No 1255/1999, the amount of the aid referred to in the second subparagraph of Article 6(3) of that Regulation for private storage contracts commencing during the year in question.
3. The aid shall be paid on application by the contractor, at the end of the contractual storage period, within 120 days of receipt of the application, provided that the checks referred to in Article 40(3) have been carried out and that the conditions for entitlement to the aid have been met.
However, if an administrative enquiry into entitlement to the aid is under way, payment shall not be made until entitlement has been recognised.
4. After 60 days of contractual storage a single advance payment of the aid may be made at the contractor's request, provided he lodges a security equal to the advance payment plus 10 %. The advance payment shall be calculated on the basis of a storage period of 90 days. The security shall be released as soon as the balance of the aid referred to in paragraph 3 has been paid.
Article 42
If checks during storage or on removal reveal defective butter, no aid may be paid for those quantities. The remainder of the storage lot which is still eligible for aid shall not be less than one tonne. The same rule shall apply where part of a lot is removed for that reason before 16 August of the year of storage or before expiry of the minimum storage period.
Article 43
If the market situation so requires, the Commission may during the year alter the amount of the aid, the periods of entry into and removal from storage and the maximum length of storage in respect of contracts yet to be concluded.
CHAPTER IV
REPEAL, TRANSITIONAL AND FINAL PROVISIONS
Article 44
Regulation (EC) No 2771/1999 is hereby repealed. However, it shall continue to apply to private storage contracts concluded before 1 January 2008.
References to Regulation (EC) No 2771/1999 shall be construed as references to this Regulation and be read in accordance with the correlation table set out in Annex III.
Article 45
This Regulation shall enter into force on the seventh day following that of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 5 February 2008.