Commission Regulation (EC) No 2236/2003
of 23 December 2003
laying down detailed rules for the application of Council Regulation (EC) No 1868/94 establishing a quota system in relation to the production of potato starch
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1868/94 of 27 July 1994 establishing a quota system in relation to the production of potato starch(1), and in particular Article 8 thereof,
Whereas:
(1) Commission Regulation (EC) No 97/95(2) laid down rules concerning the application of Regulation (EC) No 1868/94. By reason of the amendments of Regulation (EC) No 1868/94 by the Treaty of Accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, and by the Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001, Regulation (EC) No 97/95 should be adapted in order to take into account those amendments. For the sake of clarity and legal certainty, it is therefore necessary to repeal Regulation (EC) No 97/95 and to replace it by a new text.
(2) In order to benefit from the Community aid under the system of quotas laid down by Regulation (EC) No 1868/94, undertakings producing potato starch should conclude cultivation contracts with potato producers.
(3) It is necessary to specify what matters should be covered by a cultivation contract between an undertaking producing potato starch and a producer so as to prevent the conclusion of contracts in excess of the undertaking's subquota. Such undertakings should be prohibited from accepting delivery of potatoes not covered by a cultivation contract, as this would put at risk the effectiveness of the quota system and the requirement that the minimum price set out in Article 4a of Regulation (EC) No 1868/94 be paid for all potatoes intended for starch production. Nevertheless, it should be possible, where climatic reasons lead to production in the areas covered by the cultivation contract of a larger quantity of potatoes or of potatoes with a higher starch content than was originally foreseen, for an undertaking producing potato starch to accept such potatoes provided that it pays the minimum price.
(4) Potatoes having a starch content of less than 13 % cannot be considered potatoes intended for the manufacture of potato starch. Potatoes with a starch content of less than 13 % should not be accepted by starch-producing undertakings. The Commission should, where climatic reasons lead to a lower starch content, and at the request of a Member State, be able to authorise the acceptance of potatoes having a starch content lower than 13 % under certain conditions.
(5) It is necessary to define acceptable methods for determining the underwater weight of potatoes and to provide a table showing the corresponding starch content and aid payable.
(6) Inspection measures should be introduced to ensure that only starch produced in accordance with the provisions of this Regulation gives rise to payment of the premium. In order to protect producers of potatoes intended for the production of starch, it is essential for the minimum price set out in Article 4(a) of Regulation (EC) No 1868/94 to be paid for all potatoes. It is therefore necessary to provide for sanctions where the minimum price has not been paid, or where starch-producing undertakings have accepted potatoes not covered by a cultivation contract.
(7) Rules are necessary to ensure that potato starch produced in excess of a starch-producing undertaking's subquota is exported without export refund, as is required by Article 6(1) of Regulation (EC) No 1868/94. Sanctions should be applied in the event of any breach.
(8) It is necessary to specify what will happen to the subquota of starch-producing undertakings which merge, change ownership or cease trading.
(9) It is necessary to enable the Member States and the Commission to control the operation of the quota system. The information to be communicated by undertakings producing potato starch to the Member State, and by the Member State to the Commission, should be specified.
(10) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
CHAPTER I DEFINITIONS - QUOTA SYSTEM
Article 1
For the purposes of this Regulation, the following definitions shall apply:
(a) quota: the quota laid down for each Member State by Article 2(1) and (3) of Regulation (EC) No 1868/94;
(b) subquota: that part of the quota allocated by the Member State to a starch-producing undertaking;
(c) starch-producing undertaking: any natural or legal person established on the territory of the Member State concerned which receives the subquota and premium referred to in Article 5 of Regulation (EC) No 1868/94;
(d) producer: any natural or legal person or group of such persons, which delivers to a starch-producing undertaking potatoes produced by itself or its members, in its own name and on its own behalf under a cultivation contract concluded by itself or in its own name;
(e) cultivation contract: any contract concluded between a producer or group of producers and the starch-producing undertaking;
(f) potatoes: potatoes intended for the manufacture of potato starch as referred to in Article 93 of Regulation (EC) No 1782/2003 and having a starch content of at least 13 %;
(g) unprocessed starch: starch produced under CN code 1108 13 00 which has not undergone any processing;
(h) merger of starch-producing undertakings: the consolidation into a single undertaking of two or more starch-producing undertakings;
(i) transfer of ownership of a starch-producing undertaking: the assignment or absorption of the assets of an undertaking holding a subquota, to one or more starch-producing undertakings;
(j) transfer of ownership of a starch factory: the assignment of ownership of a technical unit, including all the plant required to manufacture starch, to one or more undertakings, resulting in the partial or total absorption of the outpost of the undertaking making the assignment;
(k) lease of a factory: the leasehold contract of a technical unit including all the plant required for the manufacture of starch, with a view to its operation, concluded for a period of at least three consecutive marketing years with an undertaking which is established within the same Member State as the factory in question, if, after the lease takes effect, the undertaking which rents the factory can be considered a single starch-producing undertaking for its entire production;
(l) aid for starch potato: aid established for farmers producing potatoes intended for the manufacturing of potato starch referred to in Article 93 of Regulation (EC) No 1782/2003.
Article 2
Where Article 6(2) of Regulation (EC) No 1868/94 applies, the subquotas allocated shall be adjusted accordingly at the beginning of the marketing year following that in which the quota was exceeded.
CHAPTER II PRICE AND PAYMENT SYSTEM
Article 3
1. A cultivation contract shall be concluded for each marketing year. Each contract shall have an identification number and include at least the following information:
(a) the name and address of the producer or group of producers;
(b) the name and address of the starch-producing undertaking;
(c) the areas cultivated, expressed in hectares with two decimals and identified in conformity with Commission Regulation (EC) No 2419/2001(3) on the integrated administration and control system (IACS);
(d) the foreseen quantity of potatoes in tonnes to be harvested there and delivered to the starch-producing undertaking;
(e) the foreseen average starch content of the potatoes, based on the average starch content of the potatoes delivered by the producer to the starch-producing undertaking over the last three marketing years or, if such information is not available, on the average content for the area of supply;
(f) a commitment by the starch-producing undertaking to pay the producer the minimum price referred to in Article 4a of Regulation (EC) No 1868/94.
2. Each starch-producing undertaking shall forward to the competent authority before the beginning of the marketing year a summary of the contracts, including for each contract, the identification number, the name of the producer, the areas cultivated, and the tonnage contracted, expressed in terms of starch equivalent, before a date to be fixed by the Member State before the beginning of the marketing year, in order to ensure the necessary controls.
3. The total in starch equivalent of the quantities listed in the cultivation contracts shall not exceed the subquota established for that starch-producing undertaking.
4. Where the quantity actually produced under the cultivation contract in starch equivalent exceeds the quantity stated in the contract, that quantity may be delivered, if the starch-producing undertaking so chooses, provided the minimum price referred to in Article 4a of Regulation (EC) No 1868/94 is paid for it.
5. A starch-producing undertaking may not take delivery of potatoes not covered by a cultivation contract.
Article 4
1. Delivery of potatoes shall take place either at the starch-producing undertakings themselves or at their delivery points.
2. The determination the weight of the potatoes and the starch content, in conformity with Articles 5 and 7, shall be carried out at the time of delivery and under the authority of an inspector approved by the Member State.
Article 5
1. Where so required for the purposes of one of the methods referred to in Annex I of Regulation (EC) No 2235/2003(4), the gross weight of the potatoes shall be determined for each load at the time of delivery by comparative weighing of the means of transport used, loaded and empty.
2. The net weight of the potatoes shall be determined by one of the methods described in Annex I of Regulation (EC) No 2235/2003.
3. Accepted consignments must have a starch content of not less than 13 %.
However, starch-producing undertakings may accept consignments of potatoes with a starch content below 13 %, provided that the quantity of starch that can be manufactured from these potatoes does not exceed 1 % of the subquota. The minimum price to be paid in this case shall be that valid for a starch content of 13 %.
Article 6
The starch content of the potatoes shall be determined on the basis of an underwater weight valid for 5050 grams of potatoes supplied.
The water used shall be clean and without additives and its temperature shall be less than 18 °C.
Article 7
1. The premium shall be granted to starch-producing undertakings in respect of starch produced from potatoes of sound and fair marketable quality, on the basis of the quantity of potatoes used and their starch content, at the rates laid down in Annex II of Regulation (EC) No 2235/2003 up to the quantity of starch for which they hold a subquota. No premium shall be granted for starch produced from potatoes that are not of sound and fair marketable quality nor for starch produced from potatoes whose starch content is below 13 %, except where the second subparagraph of Article 5(3) applies.
Where the starch content of the potatoes is calculated by Reimann's or Parrow's scale and corresponds to a figure appearing on two or three lines in the second column in Annex II of Regulation (EC) No 2235/2003, the rates applicable shall be those for the second or third line.
2. Where the batches delivered contain 25 % or more of potatoes which can pass through a screen with a square mesh of 28 mm (hereinafter described as "tailings"), the net weight used for determining the minimum price to be paid by the starch manufacturer shall be reduced as follows:
>TABLE>
If the batches contain more than 50 % of tailings, they shall be dealt with by mutual agreement and no premium shall be paid thereon.
The percentage of tailings shall be determined at the same time as the net weight.
3. Observance of the limits of the subquota by the starch-producing undertakings shall be determined on the basis of the quantity and starch content of the potatoes used, in accordance with the rates laid down in Annex II of Regulation (EC) No 2235/2003.
Article 8
1. A receipt form shall be drawn up under the joint responsibility of the starch-producing undertaking, the approved inspector and the supplier. The starch-producing undertaking shall deliver a copy to the producer and retain the original so that it may, if necessary, be submitted to the agency responsible for the monitoring of premiums.
2. The receipt form shall contain at least the following information where this appears from operations carried out pursuant to Articles 4 to 7:
(a) date of delivery;
(b) delivery number;
(c) number of the cultivation contract;
(d) name and address of the potato producer;
(e) weight of the means of transport on arrival at the starch factory or delivery point;
(f) weight of the means of transport after unloading and removal of residual earth;
(g) gross weight of the delivery;
(h) reduction for extraneous matter and weight of water absorbed during washing, expressed as a percentage and applied to the gross weight of the delivery;
(i) reduction, expressed in weight, applied to the gross weight of the delivery as a result of extraneous matter;
(j) percentage of tailings;
(k) total net weight of the delivery (gross weight less the reduction, including the correction for tailings);
(l) starch content, expressed as a percentage or underwater weight;
(m) unit price to be paid.
Article 9
For each producer, the starch-producing undertaking shall draw up a summary payment slip containing the following particulars:
(a) business name of the starch-producing undertaking;
(b) name and address of the potato producer;
(c) cultivation contract number;
(d) date and number of the receipt forms;
(e) net weight of each delivery after any reductions as provided for in Article 8(2);
(f) unit price per delivery;
(g) total amount due to the grower;
(h) sums paid to the potato producer and date of payments;
(i) signature and stamp of the starch manufacturer.
CHAPTER III PAYMENTS - PENALTIES
Article 10
1. The payment of the premium referred to in Article 5 of Regulation (EC) No 1868/94 shall be subject to the condition that the starch-producing undertaking provides proof that following requirements have been fulfilled:
- the starch in question has been produced during the marketing year concerned,
- the price which has been paid to the producers is not less than that referred to in Article 4a of Regulation (EC) No 1868/94 at the delivered-to-factory stage for the whole quantity of potatoes produced in the Community and used for the production of starch,
- the starch in question was produced using potatoes covered by the cultivation contracts referred to in Article 3.
2. The proof referred to in paragraph 1 shall be furnished by submission of the summary payment slip provided for in Article 9, accompanied either by certification of payment by the producer or by a voucher issued by the financial undertaking that made the payment on the order of the starch manufacturer, certifying that such payment has been made.
3. The premium for starch producing undertakings shall be paid by the Member State on whose territory the potato starch was manufactured within four months following the date on which the proof referred to in paragraph 1 was furnished.
Article 11
1. The Member States shall introduce inspection arrangements for on-the-spot verification of the operations conferring entitlement to the premium and compliance with the subquota laid down for each starch-producing undertaking. In order to carry out such checks, inspectors shall have access to the stock records and accounts of undertakings and to manufacturing and storage premises.
During each processing period, inspection shall cover the entire processing of at least 10 % of the potatoes supplied to the starch-producing undertaking.
2. Member States shall inform each starch-producing undertaking, as appropriate, of the amounts of starch by which it has exceeded its subquota.
3. Should the competent body establish that the requirement specified in the second indent of Article 10(1) has not been respected by the starch-producing undertaking, that undertaking shall, in the absence of force majeure, lose entitlement to premiums, in whole or in part, as follows:
- if the requirement has not been observed in respect of a quantity of starch less than 20 % of the total quantity of starch produced by the undertaking, the premium granted shall be reduced by five times the percentage in question,
- if the percentage in question is 20 or more, no premium shall be granted.
4. If contravention of the prohibition contained in Article 3(5) is established, the premium paid for the subquota shall be reduced as follows:
- if the check shows a quantity of starch equivalent accepted by the undertaking of less than 10 % of its subquota, the total premiums to be paid to the undertaking for the marketing year in question shall be reduced by 10 times the percentage recorded,
- if the quantity not covered by production contracts is greater than the amount specified in the first indent, no premium shall be granted for the marketing year in question; furthermore, no premium shall be paid to the undertaking for the following marketing year.
5. If, contrary to Article 5(3), the starch that can be manufactured from consignments accepted with a starch content below 13 %:
- exceeds 1 % of the processing undertaking's subquota, no premium shall be granted for the excess quantity; furthermore, the premium granted for the subquota shall be reduced by ten times the excess percentage recorded;
- exceeds 11 % of the processing undertaking's subquota; no premium shall be granted for the marketing year in question; furthermore, the processing undertaking shall be ineligible for the premium for the following marketing year.
6. Inspections undertaken pursuant to this Article shall be without prejudice to any further verification by the competent authorities.
Article 12
1. The export operation referred to in Article 6 of Regulation (EC) No 1868/94 shall be regarded as having taken place when:
(a) the competent body of the Member State of production, irrespective of the Member State from which the starch was exported, has received the proof referred to in Article 13(2);
(b) the Member State of exportation has accepted the relevant export declaration before 1 January following the end of the marketing year during which the starch was produced;
(c) the starch in question has left the customs territory of the Community no later than 60 days after 1 January as specified in point (b);
(d) the product has been exported without refund.
Except in cases of force majeure, if all the conditions set out in the first subparagraph are not complied with, any quantity of starch which exceeds the subquota shall be regarded as having been disposed of on the internal market.
2. In cases of force majeure, the competent body of the Member State on whose territory the starch was produced shall adopt measures appropriate to the circumstances cited by the party concerned.
Where the starch is exported from the territory of a Member State other than the one where it was produced, these measures shall be taken after receiving the views of the competent authorities of that Member State.
3. For the purposes of this Regulation, Article 36 of Commission Regulation (EC) No 800/1999(5) may be not invoked.
Article 13
1. By way of derogation from Article 12 of Commission Regulation (EC) No 1342/2003(6) the security for export licences shall be EUR 23 per tonne.
2. Proof that the starch-producing undertaking in question has complied with the conditions laid down in the first subparagraph of Article 12(1) shall be furnished to the competent body of the Member State on whose territory the starch was produced, before 1 April of the calendar year following the end of the marketing year during which it was produced.
3. Such proof shall be furnished by the production of:
(a) an export licence issued to the starch-producing undertaking in question by the competent authority of the Member State referred to in paragraph 2 bearing one of the following statements, by way of derogation from Article 3 of Regulation (EEC) No 1518/95(7):
- "Para exportación sin restitución, de conformidad con el artículo 6 del Reglamento (CE) n° 1868/94"
- "Skal eksporteres uden restitution, jf. artikel 6 i forordning (EF) nr. 1868/94"
- "Ausfuhr ohne Erstattung gemäß Artikel 6 der Verordnung (EG) Nr. 1868/94"
- "Προς εξαγωγή χωρίς επιστροφή σύμφωνα με το άρθρο 6 του κανονισμού (ΕΚ) αριθ. 1868/94"
- "For export without refund under Article 6 of Regulation (EC) No 1868/94"
- "À exporter sans restitution conformément à l'article 6 du règlement (CE) n° 1868/94"
- "Da esportare senza restituzione a norma dell'articolo 6 del regolamento (CE) n. 1868/94"
- "Overeenkomstig artikel 6 van Verordening (EG) nr. 1868/94 zonder restitutie uit te voeren"
- "A exportar sem restituição em conformidade com o artigo 6.o do Regulamento (CE) n.o 1868/94"
- "Viedään tuetta asetuksen (EY) N:o 1868/94 6 artiklan mukaisesti"
- "För export utan exportbidrag enligt artikel 6 i förordning (EG) nr 1868/94"
(b) the documents referred to in Articles 32 and 33 of Commission Regulation (EC) No 1291/2000(8) required for the release of the security;
(c) a statement by the starch-producing undertaking certifying that it produced the starch.
4. When the unprocessed starch produced by a starch-producing undertaking is stored for export in a silo, warehouse or bin outside the factory of the manufacturer in the Member State of production, or in any other Member State, where other unprocessed starch produced by other undertakings or by the same one is also stored so that the products so stored cannot be physically distinguished, all such products shall be placed under administrative supervision offering guarantees equivalent to those of the customs services until the export declaration referred to in Article 12(1)(b) has been accepted, and shall be placed under customs supervision as soon as the declaration is accepted.
In the circumstances referred to in the first subparagraph when withdrawal from stock occurs before acceptance of the export declaration referred to in Article 12(1)(b), a proof shall be provided by the competent authorities of the Member State where storage took place.
When withdrawal from stock occurs after acceptance of the export declaration referred to in Article 12(1)(b), a proof within the meaning of Article 33(2)(a) of Regulation (EC) No 1291/2000 shall be provided by the customs authorities of the Member State where storage took place.
The proof referred to in the second and third subparagraphs shall testify to the withdrawal from stock of the product in question or the corresponding substitute quantity within the meaning of the first subparagraph.
Article 14
Where unprocessed starch produced by a starch-producing undertaking is stored loose under the customs warehousing or free-zone procedure for the advance refund as defined in Council Regulation (EEC) No 565/80(9), that starch may, in addition to the operations referred to in Article 29(4) of Regulation (EC) No 800/1999, also be mixed in the same storage place with other starches falling within the same subheading of the nomenclature used for the refunds, which have the same technical characteristics and fulfil the conditions required for the granting of export refunds and are also placed under the arrangements provided for by Regulation (EC) No 800/1999 or Regulation (EEC) No 565/80.
Article 15
1. The Member State concerned shall impose on the quantities which are considered to have been disposed of on the internal market, within the meaning of the second subparagraph of Article 12(1), in the case of unprocessed starch or any derived product listed in the Annex to Commission Regulation (EC) No 1518/95(10) or falling within the scope of Commission Regulation (EC) No 1520/2000(11), a flat rate amount calculated by tonne of unprocessed starch and equal to the Common Customs Tariff applicable by tonne of starch under CN code 1108 13 00 during the marketing year during which the starch or derived products were produced, plus 10 %.
2. The Member State concerned shall, before 1 May following 1 January as specified in Article 12(1)(b), notify the starch-producing undertakings of the total amount to be paid.
That total amount shall be paid by the starch-producing undertakings in question no later than 20 May of that year.
Article 16
1. In the event of the merger of starch-producing undertakings, the Member State shall allocate to the undertaking resulting from the merger a subquota equal to the sum of the subquotas allocated prior to the merger to the starch-producing undertakings concerned;
In the event of the transfer of ownership of a starch-producing undertaking, the Member State shall allocate to the transferee undertaking the subquota of the undertaking transferred. Where there is more than one transferee undertaking, the subquota shall be allocated in proportion to the production of starch which each has absorbed;
In the event of the transfer ownership of a starch factory, the Member State shall reduce the subquota of the undertaking transferring ownership of the factory and increase the subquota of the starch-producing undertaking or undertakings purchasing the factory in question by the quantity deducted, in proportion to the production absorbed.
2. In the event of the closure, in circumstances other than those referred to in paragraph 1, of a starch-producing undertaking, or of one or more factories of a starch-producing undertaking, the Member State may allocate the subquotas involved by such closure to one or more starch-producing undertakings.
3. In the event of the lease of a factory belonging to a starch-producing undertaking, the Member State shall reduce the subquota of the undertaking which offers the factory for rent and shall allocate the portion by which the subquota was reduced to the undertaking which rents the factory in order to produce starch in it.
If the lease is terminated before the term referred to in Article 1(k), the adjustment of the subquota pursuant to the preceding subparagraph shall be cancelled retroactively by the Member State as from the date on which the lease took effect.
4. If following the application of the first subparagraph of paragraph 1 production ceases in the factories of one or more of the starch-producing undertakings that have merged, thus seriously threatening the continuing production of potatoes for the manufacture of starch in the area which had previously supplied this undertaking or these undertakings, the Member State may direct the merged undertaking to transfer to the Member State the subquota initially allocated to the enterprise whose factories have since ceased production. Any quota transferred in accordance with the first subparagraph may be reallocated by the Member State to any starch-producing undertaking that undertakes to manufacture the starch in the area concerned.
Article 17
When the closure of the undertaking or factory, the merger or transfer occurs between 1 July and 31 March of the following year, the measures referred to in Article 16 shall take effect for the marketing year current during that period.
When the closure of the undertaking or factory, the merger or transfer occurs between 1 April and 30 June of the same year, the measures referred to in Article 16 shall take effect for the marketing year following that period.
CHAPTER IV NOTIFICATIONS
Article 18
By 30 April of each marketing year at the latest, the starch-producing undertakings shall notify the competent authorities of:
- the quantities of starch potatoes which have benefited from the aid provided for in Article 93 of Regulation (EC) No 1782/2003,
- the quantities of potato starch on which the premium provided for in Article 5 of Regulation (EC) No 1868/94 has been paid.
Article 19
1. By 30 June of each marketing year at the latest, the Member States shall notify the Commission of:
(a) the quantities of starch potatoes which have qualified under Article 93 of Regulation (EC) No 1782/2003;
(b) the quantities of starch on which the premium provided for in Article 5 of Regulation (EC) No 1868/94 has been paid;
(c) the quantities and subquotas for the starch-producing undertakings concerned by Article 6(2) of Regulation (EC) No 1868/94 during the marketing year and the subquotas available for the following marketing year;
(d) the quantities to be exported without attracting refunds in accordance with Article 6 of Regulation (EC) No 1868/94;
(e) the quantities referred to in Article 11(3) and (4) of this Regulation;
(f) the quantities referred to in Article 15 of this Regulation.
2. Where Article 16 applies, by 30 June of each marketing year at the latest, the Member States shall supply the Commission with all the detailed information relating thereto, together with supporting documents showing that the conditions laid down have been observed.
CHAPTER V GENERAL AND FINAL PROVISIONS
Article 20
The conversion rate to be used to express the minimum price referred to in Article 4a of Regulation (EC) No 1868/94 and the premium referred to in Article 5 of that Regulation in national currency shall be the most recently published by the European Central Bank prior to the day on which the potatoes are received by the starch manufacturer.
Article 21
Regulation (EC) No 97/95 is hereby repealed with effect from 1 July 2004.
Article 22
This Regulation shall enter into force on the seventh day following its publication in the Official Journal of the European Union.
It shall apply from the marketing year 2004/05.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 23 December 2003.