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1This document is meant purely as a documentation tool and the institutions do not assume any liability for its con-
tents
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
(OJ No L 224, 21. 9. 1995, p. 13)
Amended by:
Official Journal
No page date
Commission Regulation (EC) No 1167/97 of 26 June 1997 L 169 12 27. 6. 1997
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ICOMMISSION 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 T reaty establishing the EuropeanCommunity,
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 sys-tem 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 Com-
munity food aid (
4), as amended by Regulation (EEC)
No 790/91 (5);
— Commission Regulation (EEC) No 3665/87 of 27 No-
vember 1987 laying down common detailed rules for
the application of the system of export refunds on
agricultural products (6), as last amended by Regula-
tion (EC) No 1384/95 (7);
Whereas in its supplementary report to the Council of the
application of Regulation (EEC) No 386/90 (8), the Com-
mission 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 re-ached;
Whereas a measure should be introduced to take account
of cases where the number of exports dealt with by a cus-toms office is minimal;
(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.
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IIWhereas to tackle the risk of substitution in the case of
export declarations accepted by an internal customs officewithin a Member State, a minimum number of ‘substitu-tion 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’ arecarried 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;
Whereas, Council Regulation (EEC) No 2913/92 of 12 Oc-
tober 1992 establishing the Community customs code (
1),
as amended by the Act of Accession of Austria, Finlandand 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; whereasspecial provisions may have to be adopted in the case ofagricultural products qualifying for export refunds;
Whereas, in order to facilitate the practical implementation
of the new provisions and for the sake of clarity and ad-ministrative efficiency, Regulation (EEC) No 2030/90should be replaced;
Whereas, in the light of experience gained, appropriate,
commensurate measures are required, which must be uni-
formly applied;
Whereas the measures provided for in this Regulation are
in accordance with the opinion of the relevant Manage-ment Committees,
HAS ADOPTED THIS REGULATION:
(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.
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1Article 1
This Regulation lays down detailed rules for the applica-
tion 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 Ar-
ticles 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
i nA r t i c l e s3 5( 4 )a n d4 2( 4 )o fR e g u l a t i o n( E E C )N o
3665/87, Member States may opt to waive the physical
checks and the substitution checks on the deliveries re-
ferred to in Articles 34 and 42 of Regulation (EEC) No
3665/87 in the case of exporters qualifying for the pro-
cedure referred to in Article 35 of Regulation (EEC) No3665/87 and, where applicable, that referred to in Articles
488 to 494 of Regulation (EEC) No 2454/93.
3. When calculating the minimum rate of checks to be
carried out in accordance with Article 3 of Regulation
(EEC) No 386/90, Member States may opt to disregard
export operations involving quantities not exceeding:
— 5 000 kg in the case of cereals and rice,
— 500 kg in the case of other products.
4. Member States which take up the options provided
for in paragraph 2 and 3 shall adopt appropriate provisions
to prevent deflections and abuses.
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 compet-
ent to complete the export formalities for the products in
question.2221/95
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2Article 4
For the purposes of the third indent of the first subpara-
graph of Article 3 (2) of Regulation (EEC) No 386/90,
products covered by the same agricultural market organiz-
ation shall be regarded as coming under one product sec-
tor.
However, products falling within the cereals and rice sec-
tors, and goods falling outside Annex II to the T reaty, 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 provi-
sions of Article 13 of Regulation (EEC) No 3665/87.
2. Physical checks of which the exporter has received ex-
press 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.
Article 6
In order to ensure the identity of the goods for export
between the customs office of export and the customs of-
fice of exit from the customs territory of the Community,
the means of transport or packages shall be sealed in ac-
cordance 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,
and2221/95
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3— the number of physical checks carried out.
2. The competent customs officer must produce a de-
tailed examination 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 thegoods.
Article 8
1. In the case of payment of advances on refunds in ac-
cordance with Articles 25 to 29 of Regulation (EEC) No
3665/87, the physical checks carried out by the competentauthorities:
— on entry into or during storage in the case referred to
in Article 28 of that Regulation,
— in the case of processing as referred to in Article 27 of
that Regulation:
from the time of acceptance of the payment declara-
tion, where the refund is granted for one or more ba-
sic products,
after processing, where the refund is granted for the
processed product
may be taken into account for calculating the minimumrate of checks referred to in Article 3 Regulation (EEC)
No 386/90, provided that the following conditions are ful-
filled:
(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;
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4(b) the products or goods or basic products used to manu-
facture 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 car-ried out prior to the completion of the customs export for-
malities under Community or national provisions governing
either the customs arrangements in question or the manu-
facturing processes which the products and goods have un-
dergone, 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. Without prejudice to control measures based on other
provisions, substitution checks shall be carried out, as far
as possible, in the light of a risk analysis, at least once a
day, if the customs office of export has not sealed the
means of transport or the package.
3. Where, in accordance with the requirements of the
third country of destination, a veterinary seal has been ap-
p l i e da sw e l la sac u s t o m ss e a lt h es u b s t i t u t i o nc h e c ks h a l l
be carried out only in the event of suspected fraud.
4. The substitution check shall be carried out by check-
ing, 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 docu-
mentation, 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.
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.1167/97
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5A 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 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 Euro-
pean Communities .
It shall apply from 1 January 1996 for export declarations
accepted on or after that date.2221/95
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6ANNEX
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 ofbulk goods, the verification 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 auto-matic weighing and the nature and characteristics are
checked at random.
The customs office of export has also to check at ran-
dom:
— that the weighing and loading system does not per-
mit re-routing of the goods in these closed circuitsor other manipulations,
— that the time limits specified for the calibration of
weighing equipment have not expired and that theseals are intact where closed-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 con-
tained in the loading documents.
(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 check-
ing which is satisfactory from the commercial point ofview.
2. (a) If the exporter has declared goods using automatic
bag-
ging, canning, bottling systems, etc., and calibrated auto-
matic weighing/measuring equipment or packaging or
bottling in compliance with the provisions of Council Di-
rectives 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 the goods must be checked on the basis
of a representative selection by the customs office of ex-
port. The weight or volume is determined by calibratedautomatic weighing/measuring or by the packaging or thebottles within the meaning of the two Directives. The
customs office of export 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 ac-
count for the physical check with respect to quantity.
The second subparagraph of point 1 (a) applies mutatis
mutandis .
(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. 1.2221/95
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7If the exporter uses pallets which are loaded with boxes,
cans, etc., the customs office of export selects represen-
tative pallets and checks whether the number of boxes,
cans, etc. declared are really present. It selects fromthese pallets a number of representative boxes/cans and
checks whether the number of bottles, units, etc. is pres-
ent.
(b) If the exporter does not use the facilities referred to in
the first and second subparagraphs, the customs office of
export must count the number of bags and cans, etc.The nature, characteristics, weight or volume 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 ap-
propriately marked with details concerning contentand weight on the immediate packaging, and
— which either meet the requirements of the third
subparagraph of Article 3 (2) of Commission Reg-ulation (EC) No 1222/94 (
1), or for which the
quantities of product used are those set out in An-
nex C to that Regulation,
the customs office of export may proceed as follows:
(aa) T o begin with, it checks the weight and content of
the non-Annex II good put up in immediate pack-
aging against the details on the immediate packag-
ing. 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 Regulationdoes not apply.
(cc) (aaa) The composition of such a non-Annex II good
may be assumed by the customs office of ex-port to be correct if the description and the
content indicated on the immediate packaging
are consistent with the export declaration andthe registration identification code of the
manufacturing formula, which has already
been checked within a year preceding the ex-port 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 areidentical. Having verified this, he must inform
the customs office of export of the result.
(1) OJ No L 136, 31. 5. 1994, p. 5.2221/95
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8If the manufacturing formula has not yet been
checked by the competent authorities, the cus-
toms office of export must have the auditor of
the competent authorities verify it and theidentity as quickly as possible a posterior i.
(bbb) For the application of this method for verify-
ing composition, Member States mustintroduce in advance a procedure whereby:
— the composition of the non-Annex II
goods can be checked by virtue of the ac-counts and the specific documents relat-
ing to production,
— the non-Annex II goods manufactured,
the export declaration, the manufacturing
formula and the goods to be exported can
be identified by means of the productiondocumentation of the undertaking,
— the identity of the goods exported, the ex-
port declaration in question, the manufac-turing formula and the goods manufac-
tured can be verified by the auditor 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 undertakingsconcerned for three years from the year of export.
(c) In cases where point 3 (a) is not applied, the customs
office of export has to take representative samples with-out prejudice to Article 7 (1) of Regulation (EC) No
1222/94.2221/95