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"BCOMMISSION REGULATION (EC) No 2221/95
of 20 September 1995
laying down detailed rules for the application of Council Regulation (EEC) No 386/90 as regards
physical checks carried out at the time of export of agricultural products qualifying for refunds
(OJ L 224, 21.9.1995, p. 13)
Amended by:
Official Journal
No page date
"M1 Commission Regulation (EC) No 1167/97 of 26 June 1997 L 169 12 27.6.1997
"M2 Commission Regulation (EC) No 2655/1999 of 16 December
1999L 325 12 17.12.19991995R2221 — EN — 01.01.2000 — 002.001 — 1
COMMISSION REGULATION (EC) No 2221/95
of 20 September 1995
laying down detailed rules for the application of Council Regulation
(EEC) No 386/90 as regards physical checks carried out at the time
of export of agricultural products qualifying for refunds
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,Having regard to Council Regulation (EEC) No 386/90 of 12 February
1990 on the monitoring carried out at the time of export of agricultural
products receiving refunds or other amounts (
1), as amended by
Regulation (EC) No 163/94 (2), and in particular Article 6 thereof,
Whereas Commission Regulation (EEC) No 2030/90 (3) lays down rules
for the application of Regulation (EEC) No 386/90; whereas it lays down
detailed rules confined to the specifications strictly necessary for the
Community system to be applied rapidly, subject to subsequent additions
in the light of experience gained, in particular as regards the quality
aspects of the physical checks in question;
Whereas account should be taken of existing measures on checking, and
in particular those contained in the following instruments:
— Commission Regulation (EEC) No 2200/87 of 8 July 1987 laying
down general rules for the mobilization in the Community of
products to be supplied as Community food aid (4), as amended by
Regulation (EEC) No 790/91 (5);
— Commission Regulation (EEC) No 3665/87 of 27 November 1987
laying down common detailed rules for the application of the
system of export refunds on agricultural products (6), as last
amended by Regulation (EC) No 1384/95 (7);
Whereas in its supplementary report to the Council of the application of
Regulation (EEC) No 386/90 (8), the Commission stated its intention to
define precisely the term ‘physical check’ as used in Article 2 (a) of
Regulation (EEC) No 386/90, in order to achieve uniform application of
the Community rules in the Member States;
Whereas measures should be taken allowing verification at any time of
whether the check rate of 5 % has been reached;
Whereas a measure should be introduced to take account of cases where
the number of exports dealt with by a customs office is minimal;
Whereas to tackle the risk of substitution in the case of export
declarations accepted by an internal customs office within a Member
State, a minimum number of ‘substitution checks’ to be carried out by
the customs office of exit from the Community should be laid down;
whereas having regard to the place where such ‘substitution checks’ are
carried out, they must take the form of simplified checks;
Whereas, in order to reduce the risk of substitution, all means of
transport or packages should be sealed, save in exceptional cases where
the products may be identified by some other means;!B
(1) OJ No L 42, 16. 2. 1990, p. 6.
(2) OJ No L 24, 29. 1. 1994, p. 2.
(3) OJ No L 186, 18. 7. 1990, p. 6.
(4) OJ No L 204, 25. 7. 1987, p. 1.
(5) OJ No L 81, 28. 3. 1991, p. 108.
(6) OJ No L 351, 14. 12. 1987, p. 1.
(7) OJ No L 134, 20. 6. 1995, p. 14.
(8) OJ No C 218, 12. 8. 1993, p. 14.1995R2221 — EN — 01.01.2000 — 002.001 — 2
Whereas, Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community customs code (1), as amended by the Act of
Accession of Austria, Finland and Sweden, and the rules for the
application thereof laid down by Commission Regulation (EEC) No
2454/93 (2), as last amended by Regulation (EC) No 1762/95 (3), apply to
exports of all industrial or agricultural products; whereas special
provisions may have to be adopted in the case of agricultural products
qualifying for export refunds;
Whereas, in order to facilitate the practical implementation of the new
provisions and for the sake of clarity and administrative efficiency,
Regulation (EEC) No 2030/90 should be replaced;
Whereas, in the light of experience gained, appropriate, commensurate
measures are required, which must be uniformly applied;
Whereas the measures provided for in this Regulation are in accordance
with the opinion of the relevant Management Committees,
HAS ADOPTED THIS REGULATION:
Article 1
This Regulation lays down detailed rules for the application of the
physical checks referred to in Article 2 (a) of Regulation (EEC) No
386/90 and the substitution checks referred to in Article 3 (a) of that
Regulation.
Article 2
1. This Regulation:
(a) shall apply to exports to third countries of agricultural goods and to
similar operations as referred to in Articles 34 and 42 of Regulation
(EEC) No 3665/87 on which refunds are applied for, save in cases
where paragraph 2 is applied;
(b) shall not apply to exports involving Community food aid as referred
to in Regulation (EEC) No 2200/87, for which a special control
system exists.
2. Without prejudice to the control measures referred to in Articles 35
(4) and 42 (4) of Regulation (EEC) No 3665/87, Member States may opt
to waive the physical checks and the substitution checks on the deliveries
referred to in Articles 34 and 42 of Regulation (EEC) No 3665/87 in the
case of exporters qualifying for the procedure referred to in Article 35 of
Regulation (EEC) No 3665/87 and, where applicable, that referred to in
Articles 488 to 494 of Regulation (EEC) No 2454/93.
3."M2When calculating the minimum rate of checks to be carried
out in accordance with Article 3(2) of Regulation (EEC) No 386/90,
Member States may opt to disregard export declarations involving
quantities not exceeding:
— 5 000 kg in the case of cereals and rice,— 1 000 kg for fruits and vegetables fruits as well as for goods falling
outside Annex I to the Treaty,
— 500 kg in the case of other products.As an alternative Member States may also opt to disregard export
declarations referring to refund amounts less than EUR 200.
3
4. Member States which take up the options provided for in paragraph
2 and 3 shall adopt appropriate provisions to prevent deflections and
abuses.!B
(1) OJ No L 302, 19. 10. 1992, p. 1.
(2) OJ No L 253, 11. 10. 1993, p. 1.
(3) OJ No L 171, 21. 7. 1995, p. 8.1995R2221 — EN — 01.01.2000 — 002.001 — 3
Article 3
With a view to determining the basis for calculating the percentage for
the physical checks under Article 2 (a) of Regulation (EEC) No 386/90,
for the purposes of the first indent of the first subparagraph of Article 3
(2) of the said Regulation ‘customs office’ shall mean all offices
competent to complete the export formalities for the products in
question.
Article 4
For the purposes of the third indent of the first subparagraph of Article 3
(2) of Regulation (EEC) No 386/90, products covered by the same
agricultural market organization shall be regarded as coming under one
product sector.
However, products falling within the cereals and rice sectors, and goods
falling outside Annex II to the Treaty, shall be deemed to constitute a
single product sector.
Article 5
1. For the purposes of Article 2 (a) of Regulation (EEC) No 386/90
‘physical check’ shall mean verification that the export declaration,
including documents submitted in support thereof, and the goods
correspond as regards quantity, nature and characteristics.
Where the situation described in the Annex arises, the methods indicated
therein shall be applied.
The customs office of export must be mindful of the provisions of Article
13 of Regulation (EEC) No 3665/87.
2. Physical checks of which the exporter has received express or tacit
prior warning shall not count as physical checks.
The first subparagraph shall not apply to cases where the accounts of an
undertaking are checked in accordance with point 3 (a) of the Annex.
3. If a customs office of export accepts fewer than 20 export
declarations per sector per year, at least one export declaration per
sector per year must be subjected to a physical check.
4. If the rate of refund depends on a particular content, the customs
office of export shall take, as part of the physical check, representative
samples for analysis of the ingredients by a competent laboratory.
5. Where the sound, fair and marketable quality of a product is namely
the object of definite suspicions, the Customs office shall verify the
compliance with the applicable Community provisions, in particular
those relating to Community sanitary and phytosanitary rules. Where
considered necessary by the customs office, it initiates, or causes to be
initiated, laboratory testing, indicating the objective of the test.
Article 5a
If the Member State applies a system of risk analysis pursuant to the
second subparagraph of Article 3(2) of Regulation (EEC) No 386/90 the
following rules shall be applicable:
1. The percentage of physical checks carried out on non-Annex I
products shall not be taken into account for the purposes of
calculating the overall rate of 5 % for all sectors. In this case, a
minimum rate of 0,5 % shall be compulsory for non-Annex I
products.
2. If the rate of refund depends on a particular content and a product
with the same refund code or CN code is exported on a regular basis
by the same exporter, and with regard to the laboratory testing in the
past six months there have been no non-conformities with financial!B
!M21995R2221 — EN — 01.01.2000 — 002.001 — 4
consequences greater than EUR 200 relating to the gross amount of
the refund, then by derogation of Article 5(4) representative samples
need to be taken in only 50 % of the physical checks. If the result of
the laboratory testing detects a non-conformity with financial
consequences greater than EUR 200 relating to the gross amount of
the refund, samples must be taken for all physical checks in the
following six months.
3. For customs offices of export where a limited range of products
(maximum of two product sectors) from a few exporters (maximum
of five exporters) are presented for export, physical checks may be
reduced to a minimum rate of 2 % per product sector. Sectors with
fewer than 20 export declarations per year per customs office shall
not be taken into account for determining the number of sectors.
Customs offices may make use of these provisions for a full
calendar year, based on the statistics for the previous calendar year,
even where export declarations are made by additional exporters or
for additional product sectors during the course of the year.
Article 6
In order to ensure the identity of the goods for export between the
customs office of export and the customs office of exit from the customs
territory of the Community, the means of transport or packages shall be
sealed in accordance with Article 349 of Regulation (EEC) No 2454/93.
Article 7
1. Each customs office of export shall apply measures to ensure that
achievement of the check rate of 5 % can be verified at any time.
The measures must show, per sector:
— the number of export declarations which are taken into account for
the physical checks,
and
— the number of physical checks carried out.
2. The competent customs officer must produce a detailed examin-
ation account on each physical check carried out.
The examination account shall bear the date and the name of the
competent officer. It must be kept at the customs office of export or at
another office for three years from the year of export in such a way that it
can be readily consulted.
3. On the control copy T 5 which accompanies the goods, the
following shall be noted in box D:
(a) ‘386/90’, if the customs office of export has carried out a physical
check;
(b) ‘2200/87’, in the case of Community food aid exports.
Where the customs office of exit is situated in the same Member State as
the customs office of export, the notation shall be on the national
document accompanying the goods.
Article 8
1. In the case of payment of advances on refunds in accordance with
Articles 25 to 29 of Regulation (EEC) No 3665/87, the physical checks
carried out by the competent authorities:
— on entry into or during storage in the case referred to in Article 28
of that Regulation,!M2
!B1995R2221 — EN — 01.01.2000 — 002.001 — 5
!M1
— in the case of processing as referred to in Article 27 of that
Regulation:
from the time of acceptance of the payment declaration, where the
refund is granted for one or more basic products,
after processing, where the refund is granted for the processed
product
may be taken into account for calculating the minimum rate of checks
referred to in Article 3 Regulation (EEC) No 386/90, provided that the
following conditions are fulfilled:
(a) the physical checks carried out prior to the completion of the
customs export formalities meet the same strict criteria as those to
be carried out pursuant to Article 5 of this Regulation;
and
(b) the products or goods or basic products used to manufacture the
goods which have been the subject of previous physical checks are
identical to those which are the subject of the export declaration.
2. In the case of analyses and other physical checks carried out prior to
the completion of the customs export formalities under Community or
national provisions governing either the customs arrangements in
question or the manufacturing processes which the products and goods
have undergone, paragraph 1 shall apply mutatis mutandis .
Article 9
1. Where the export declaration has been accepted at a customs office
of export which is not the customs office of exit, the customs office of
exit from the customs territory of the Community shall perform a
substitution check in accordance with the conditions laid down in this
Article.
2."M2If the customs office of export has not sealed the means of
transport or the package then:
(a) without prejudice to control measures based on other provisions,
substitution checks shall be carried out, as far as possible, in the
light of risk analysis,
and
(b) the number of substitution checks shall not be less than the number
of days, on. which export refund products leave the customs
territory of the Community through the particular customs office of
exit.3
3. Where, in accordance with the requirements of the third country of
destination, a veterinary seal has been applied as well as a customs seal
the substitution check shall be carried out only in the event of suspected
fraud.
4. The substitution check shall be carried out by checking, visually,
whether the goods tally with the document which has accompanied them
from the customs office of export to the customs office of exit.
A sample for analysis shall be taken only in cases where the customs
office of exit cannot check visually and by means of the information on
the packaging and the documentation, whether the goods tally with the
document. In these circumstances, Article 5 (4) of this Regulation shall
not apply.
5. Each customs office of exit shall apply measures to ensure that:— the number of export declarations which are taken into account for
the substitution checks,
and
— the number of substitution checks carried out,
can be identified at any time.!B
!M1
!B1995R2221 — EN — 01.01.2000 — 002.001 — 6
If the customs office of exit has taken a sample, ‘sample taken’ shall be
noted on the control copy T5, or — where appropriate — on the national
document to be returned to the competent authorities.
A duplicate or a copy of the document shall remain at the customs office
of exit.
6. The customs office of exit shall inform in writing the competent
authorities referred to in paragraph 5 of the result of the analysis,
reporting:
— either ‘results of analysis conform’,— or the results of the analysis if there is a discrepancy between the
result and the product declared.
Article 9a
Each year, before 1 April, the Member States shall send the Commission
a report on the evaluation of the execution and effectiveness of this
regulation.
Article 10
Regulation (EEC) No 2030/90 is hereby repealed.
Article 11
This Regulation shall enter into force on the seventh day following its
publication in the Official Journal of the European Communities .
It shall apply from 1 January 1996 for export declarations accepted on or
after that date.!B
!M2
!B1995R2221 — EN — 01.01.2000 — 002.001 — 7
ANNEX
Methods to be followed for physical checks
1. (a) If the exporter uses closed-circuit automatic loading and calibrated
automatic weighing facilities for the loading of bulk goods, theverification that the export declaration and the goods tally is to be
carried out in such a way that the quantity is determined by the
calibrated automatic weighing and the nature and characteristics arechecked at random.
The customs office of export has also to check at random:— that the weighing and loading system does not permit re-routing
of the goods in these closed circuits or other manipulations,
— that the time limits specified for the calibration of weighing
equipment have not expired and that the seals are intact whereclosed-circuit weighing systems are used,
— that the consignments weighed are actually loaded on the means
of transport specified,
— that the data entered in the weighing records or weighing
certificates correspond to the data contained in the loadingdocuments.
(b) In exceptional cases where the quantity of bulk goods is not recorded
by a calibrated automatic weighing system, the customs office has to
use any other means of checking which is satisfactory from the
commercial point of view.
2. (a) "
M1If the exporter has declared goods using automatic bagging,
canning, bottling systems, etc., and calibrated automatic weighing/measuring equipment or packaging or bottling in compliance with theprovisions of Council Directives 75/106/EEC (
1), 75/107/EEC (2) and
76/211/EEC (3), the number of bags, cans, bottles, etc. must in
principle be counted in total and the nature and characteristics of thegoods must be checked on the basis of a representative selection by thecustoms office of export 3. The weight or volume is determined by
calibrated automatic weighing/measuring or by the packaging or the
bottles within the meaning of the two Directives. The customs office ofexport can weigh or measure a bag, a can or a bottle.
If the equipment has a calibrated automatic counter, the records of the
automatic counter may be taken into account for the physical checkwith respect to quantity.
The second subparagraph of point 1 (a) applies mutatis mutandis .
If the exporter uses pallets which are loaded with boxes, cans, etc., the
customs office of export selects representative pallets and checkswhether the number of boxes, cans, etc. declared are really present. It
selects from these pallets a number of representative boxes/cans and
checks whether the number of bottles, units, etc. is present.
(b) If the exporter does not use the facilities referred to in the first and
second subparagraphs, the customs office of export must count thenumber of bags and cans, etc. The nature, characteristics, weight orvolume are checked on the basis of a representative selection. The
preceding subparagraph applies mutatis mutandis .
3. (a) As regards non-Annex II goods:
— which are either packaged for retail sale or appropriately marked
with details concerning content and weight on the immediate
packaging, and
— which either meet the requirements of the third subparagraph of
Article 3 (2) of Commission Regulation (EC) No 1222/94 (
4), or
for which the quantities of product used are those set out inAnnex C to that Regulation,!
B
(1) OJ No L 42, 15. 2. 1975, p. 1.
(2) OJ No L 42, 15. 2. 1975, p. 14.
(3) OJ No L 46, 21. 2. 1975, p. 1.
(4) OJ No L 136, 31. 5. 1994, p. 5.1995R2221 — EN — 01.01.2000 — 002.001 — 8
the customs office of export may proceed as follows:
(aa) To begin with, it checks the weight and content of the non-Annex
II good put up in immediate packaging against the details on theimmediate packaging. It may weigh a piece without packaging.
(bb) Then it counts and/or weighs — in principle — the total quantity
of non-Annex II goods in immediate packaging.
Points 2 (a) and (b) apply mutatis mutandis .
It may take a sample to verify that no substitution has taken
place. Article 5 (4) of this Regulation does not apply.
(cc) (aaa) The composition of such a non-Annex II good may be
assumed by the customs office of export to be correct if thedescription and the content indicated on the immediate
packaging are consistent with the export declaration and the
registration identification code of the manufacturingformula, which has already been checked within a yearpreceding the export by the competent authorities.
In this case the customs office of export must have the
auditor of the competent authorities verify a posteriori as
quickly as possible if the produced goods and the exported
goods are identical. Having verified this, he must informthe customs office of export of the result.
If the manufacturing formula has not yet been checked by
the competent authorities, the customs office of export musthave the auditor of the competent authorities verify it and
the identity as quickly as possible a posterior i.
(bbb)For the application of this method for verifying com-
position, Member States must introduce in advance a
procedure whereby:
— the composition of the non-Annex II goods can be
checked by virtue of the accounts and the specificdocuments relating to production,
— the non-Annex II goods manufactured, the export
declaration, the manufacturing formula and the goodsto be exported can be identified by means of the
production documentation of the undertaking,
— the identity of the goods exported, the export
declaration in question, the manufacturing formula
and the goods manufactured can be verified by theauditor of the competent authority a posteriori .
(b) The specific documents relating to the manufacture of a non-Annex II
good must be kept by the undertakings concerned for three years fromthe year of export.
(c) In cases where point 3 (a) is not applied, the customs office of export
has to take representative samples without prejudice to Article 7 (1) of
Regulation (EC) No 1222/94.!
B1995R2221 — EN — 01.01.2000 — 002.001 — 9