2002R2090 — EN — 15.03.2003 — 001.001 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COMMISSIONREGULATION(EC)No2090/2002
of26November2002
laying downdetailed rules for applying Council Regulation (EEC) No 386/90 as regards physical
checkscarried outwhenagricultural productsqualifyingforrefundsareexported
(OJ L 322, 27.11.2002, p. 4)
Amended by:
Official Journal
No page date
►M1Commission Regulation (EC) No 444/2003 of 11 March2003 L 67 3 12.3.2003
▼B
COMMISSIONREGULATION(EC)No2090/2002
of26November2002
laying down detailed rules for applying Council Regulation (EEC)
No386/90asregardsphysicalcheckscarriedoutwhenagricultural
productsqualifyingforrefundsareexported
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 agriculturalproducts receiving refunds or other amounts (
1), as amended by Regula-
tion (EC) No 163/94 (2), and in particular Article 6 thereof,
Whereas:
(1)Commission Regulation (EC) No 2221/95 of 20 September 1995
laying down detailed rules for the application of Council Regula-tion (EEC) No 386/90 as regards physical checks carried out atthe time of export of agricultural products qualifying for
refunds (
3), as last amended by Regulation (EC) No 2655/
1999(4), has been substantially amended. In the interests of
clarity and administrative efficiency, therefore, that Regulationshould be recast, at the same time making certain amendmentswhich experience has shown to be desirable.
(2)Account should be taken of existing inspection measures, inparticular those introduced by Commission Regulations (EC)No 2298/2001 of 26 November 2001 laying down detailed rulesfor the export of products supplied as food aid (
5) and (EC) No
800/1999 of 15 April 1999 laying down common detailed rules
for the application of the system of export refunds on agricul-
tural products (6), as last amended by Regulation (EC) No 1253/
2002(7).
(3)In its supplementary report to the Council on the application of
Regulation (EEC) No 386/90 (8), the Commission stated its
intention to define precisely the term ‘physical check’ as usedin Article 2(a) of Regulation (EEC) No 386/90, in order toachieve uniform application of the Community rules in theMember States.
(4)To make better use of the inspection possibilities, export declara-tions involving small quantities of products or a low amount ofrefund should be disregarded when calculating the minimumrates of checks.
(5)A verification of laboratory tests has shown that the obligation tocarry out a laboratory test should be simplified where satisfac-tory results, obtained repeatedly, concern the same product fromthe same exporter.
(6)A measure should be introduced to take account of cases wherethe number of exports dealt with by a customs office is minimal.
(7)Compared to the total amount of the refunds, the share ofrefunds granted to goods not listed in Annex I to the Treaty issmall, while the share of physical checks carried out on these
products is large. To make better use of the inspection resources,
this discrepancy should be reduced, in particular by lowering theinspection rate for non-Annex I products.2002R2090 — EN — 15.03.2003 — 001.001 — 2
(1) OJ L 42, 16.2.1990, p. 6.
(2) OJ L 24, 29.1.1994, p. 2.
(3) OJ L 224, 21.9.1995, p. 13.
(4) OJ L 325, 17.12.1999, p. 12.
(5) OJ L 308, 27.11.2001, p. 16.
(6) OJ L 102, 17.4.1999, p. 11.
(7) OJ L 183, 12.7.2002, p. 12.
(8) OJ C 218, 12.8.1993, p. 14.
▼B
(8)There is a substantial difference between the customs treatment
of goods intended for export in the large ports, where there is a
great diversity of products coming from a wide range of expor-ters, and the customs treatment of goods at customs officeswhich handle only a limited range of products from a few expor-ters. In the latter case, the goods are subjected to a much higherlevel of checks. For these customs offices, the selection of goods
with a view to carrying out physical checks should take account
of the fact that the check is being carried out on the basis of asmaller representative sample.
(9)In order to reduce the risk of substitution, all means of transport
or packages should be sealed, save in cases where the products
may be identified by some other means.
(10)Measures should be taken to allow verification at any time ofwhether the check rate of 5 % has been reached.
(11)Article 912c of Commission Regulation (EEC) No 2454/93 of 2July 1993 laying down provisions for the implementation ofCouncil Regulation (EEC) No 2913/92 establishing the Commu-nity Customs Code (
1), as last amended by Regulation (EC) No
444/2002 (2), specifies the office of destination where the T5
control copy should be presented for the check on the use and/
or destination of the goods. It should therefore be stipulated that,if the customs office of exit and the office of destination are notthe same, the substitution check must be carried out by the officeto which the T5 control copy is sent.
(12)To tackle the risk of substitution in the case of export declara-tions accepted by an internal customs office within a MemberState, a minimum number of ‘substitution checks’ to be carriedout by the customs office of exit from the Community should belaid down. Having regard to the place where such ‘substitution
checks’ are carried out, they must take the form of simplified
checks.
(13)For the purpose of evaluating the application of Regulation(EEC) No 386/90, the Member States are required to submitannual evaluations on the implementation and effectiveness of
the checks carried out under this Regulation and of the proce-
dures applied to selecting the goods subject to physical checks.
(14)In the light of experience gained, appropriate and commensuratemeasures are required, which must be uniformly applied.
(15)The measures provided for in this Regulation are in accordancewith the opinion of all the Management Committees concerned,
HAS ADOPTED THIS REGULATION:
Article 1
1. This Regulation lays down the detailed rules for applying the
physical check and the substitution check referred to in Article 2(a)
and (b) of Regulation (EEC) No 386/90.
2. This Regulation shall not apply to exports involving Community
or national food aid covered by Regulation (EC) No 2298/2001.
3. For the purposes of this Regulation:
— ‘customs office of export’ means the custom office as referred to in
Article 5(7)(a) of Regulation (EC) No 800/1999,
— ‘customs office of exit’ means the customs office referred to in
Article 793(2) of Regulation (EEC) No 2454/93,
— ‘office to which the T5 control copy is sent’ means the office of
destination as referred to in Article 912c of Regulation (EEC) No2454/93.2002R2090 — EN — 15.03.2003 — 001.001 — 3
(1) OJ L 253, 11.10.1993, p. 1.
(2) OJ L 68, 12.3.2002, p. 11.
▼B
Article 2
1. Without prejudice to the inspection measures referred to in
Article 36(4), Article 37(4) and Article 44(4) of Regulation (EC) No800/1999, Member States may opt to waive the physical and substitu-
tion checks provided for in this Regulation on deliveries as referred to
in Articles 36 and 44 of Regulation (EC) No 800/1999.
2. When calculating the minimum rates of checks to be carried out
in accordance withArticle 3(2) and Article 3a of Regulation (EEC) No386/90, Member States shall disregard export declarations involving:
(a) either quantities not exceeding:
(i) 5 000 kg in the case of cereals and rice,
(ii) 1 000 kg in the case of fruit and vegetables and products not
listed in Annex I to the Treaty,
(iii) 500 kg in the case of other products;
(b) or refund amounts of less than EUR 200.
3. When implementing paragraphs 1 and 2, Member States shall
adopt appropriate provisions to prevent fraud and abuses. Any checksmade to that end may be counted for the purposes of calculatingcompliance with the minimum rates of checks referred to in paragraph2.
Article 3
With a view to determining the basis for calculating the percentage for
the physical checks referred to in Article 2(a) of Regulation (EEC) No386/90, for the purposes of the first indent of the first subparagraph ofArticle 3(2) of that Regulation, ‘customs office’ shall mean all offices
competent to complete the export formalities for the products
concerned.
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 organisation shall be regarded as coming underone product sector.
However, products covered by the common organisations of the
markets in cereals and rice, on the one hand, and goods not listed inAnnex I to the Treaty, on the other hand, shall each be treated as asingle 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, corresponds withthe goods as regards quantity, nature and characteristics.
In the cases referred to in Annex I, the methods indicated therein shall
be applied.
The customs office of export shall ensure compliance with Article 21
of Regulation (EC) No 800/1999. Where there are specific grounds
for suspecting the sound, fair and merchantable quality of a product,
the customs office shall verify compliance with the applicable Commu-nity provisions, in particular those relating to animal and plant health.Where the customs office deems it necessary, it shall perform labora-tory tests, or have them performed, stating the grounds for such tests.
2. Physical checks concerning which the exporter has received
express or tacit prior warning shall not count as checks.
The first subparagraph shall not apply where the accounts of an under-
taking are audited in accordance withpoint 3(a) of Annex I.2002R2090 — EN — 15.03.2003 — 001.001 — 4
▼B
3. Where a customs office of export accepts fewer than 20 export
declarations per sector per year, at least one export declaration persector per year must be subjected to a physical check.
This requirement shall not apply where the customs office of export,
having carried out a risk analysis in accordance with the secondsubparagraphof Article 3(2) of Regulation (EEC) No 386/90, h as not
checked the first two declarations and no further exports are carried out
thereafter in that sector.
4. Where the refund rate depends on the level of a particular compo-
nent, as part of the physical check the customs office of export shall
take representative samples with a view to having the composition
analysed by a competent laboratory.
Article 6
Where the Member States apply a selection system based on risk
analysis as referred to in the second subparagraph of Article 3(2) ofRegulation (EEC) No 386/90, the following rules shall apply:
(a) The percentage of physical checks carried out on products not
listed in Annex I to the Treaty shall not be taken into accountwhen calculating the overall rate of 5 % for all sectors. In thiscase, a minimum rate of 0,5 % shall be compulsory for non-AnnexI goods.
(b) As an exception to Article 5(4), where the refund rate depends on
the level of a particular component and the same exporter regularly
exports a product withth e same refund code or CN code, and
where laboratory tests during the past six months have revealedno non-conformities having financial consequences greater thanEUR 200 on the gross amount of the refund, then representativesamples need be taken in only 50 % of physical checks. If labora-
tory testing detects a non-conformity having financial consequences
greater than EUR 200 on the gross amount of the refund, samplesmust be taken for all physical checks in the following six months.
(c) For customs offices of export where a range of products from no
more than two sectors is presented for export by no more thanfive exporters, physical checks may be reduced to a minimum rateof 2 % per product sector. Sectors withfewer th an 20 export
declarations per year per customs office shall not be taken into
account when determining the number of sectors. Customs officesmay apply these rules for a full calendar year, based on the statis-tics for the previous calendar year, even where export declarationsare made by additional exporters or for additional product sectorsduring the course of the year.
Article 7
In order to ensure that the goods passing through the customs office of
exit from the Community's customs territory or the office to which the
T5 control copy is sent, where this is not the customs office of exit, arethe same goods that passed through the customs office of export, themeans of transport or packaging shall be sealed in accordance withArticle 357 of Regulation (EEC) No 2454/93.
Article 8
1. Each customs office of export shall make the necessary arrange-
ments to ensure that compliance with the inspection rate of 5 % can be
verified at any time.
These arrangements must show, for each sector:
(a) the number of export declarations taken into account for the
physical checks;
(b) the number of physical checks carried out.
2. The competent customs officer shall produce a detailed inspection
report on each physical check carried out.2002R2090 — EN — 15.03.2003 — 001.001 — 5
▼B
Inspection reports shall bear the date and the name of the competent
officer. They shall be kept accessible for consultation at the customsoffice of export or at another office for three years from the year of
export.
3. On the control copy T5 accompanying the goods, the following
shall be noted in box D:
(a) ‘Regulation (EEC) No 386/90’, if the customs office of export has
carried out a physical check;
(b) ‘Regulation (EC) No 2298/2001’, in the case of food aid exports.
Where the customs office of exit from the Community's customs terri-
tory is located in the same Member State as the customs office ofexport, this information shall appear on the national document accom-panying the goods.
Article 10
1. Where the export declaration has been accepted at a customs
office of export which is not the customs office of exit or the officeto which the T5 control copy is sent, the customs office of exit fromthe Community's customs territory shall perform a substitution checkin accordance with this Article. If the customs office of exit is not the
customs office to which the T5 control copy is sent, the substitution
check must be carried out by the latter.
2. If the customs office of export has not sealed the means of trans-
port or the packaging, then substitution checks shall be carried out,
wherever possible in the light of a risk analysis, without prejudice tochecks carried out under other provisions.
The number of substitution checks carried out each calendar year shall
not be less than the number of days on which export refund products
leave the Community's customs territory through the customs office ofexit concerned.
Where only one exporter is subject to the substitution check, that
number may not be less than half the number of days on which exportrefund products leave the Community's customs territory through thecustoms office of exit concerned.
3. Where, in addition to a customs seal, a veterinary seal has been
applied in compliance with the requirements of the third country ofdestination, the substitution check is required only if there is a suspi-cion of fraud.
4. The substitution check shall be carried out by checking, visually,
whether the goods tally with the document which has accompaniedthem from the customs office of export to the customs office of exit.
A sample for testing shall be taken only in cases where the customs
office of exit cannot check, visually and using the information on thepackaging and in the documentation, whether the goods tally with theaccompanying document. In suchcases, Article 5(4) sh all not apply.
5. Each customs office of exit or office to which the T5 control
copy is sent shall apply measures to allow verification at any time of:
(a) the number of export declarations taken into account for the substi-
tution checks;
(b) the number of substitution checks carried out.
If the customs office of exit or the office to which the T5 control copy
is sent has taken a sample, one of the following shall be noted on the
T5 control copy or, where applicable, on the national document to bereturned to the competent authorities:
— muestra recogida
— udtaget prøve2002R2090 — EN — 15.03.2003 — 001.001 — 6
▼M1
▼B
▼B
— Probe gezogen
—ελήφθη δείγµα
— Sample taken
— échantillon prélevé
— campione prelevato— monster genomen— Amostra colhida
— näyte otettu
— varuprov.
A duplicate or a copy of the document shall remain at the customs
office of exit or the office to which the T5 control copy is sent, as the
case may be.
6. The customs office of exit or the office to which the T5 control
copy is sent shall inform the competent authorities referred to in para-graph 5 in writing, using a copy of the original document, of the resultof the tests, reporting:
(a) either one of the following:
— resultado del análisis conforme
— analyseresultat i orden— konformes Analyseergebnis—αποτέλεσµα της ανάλυσης σύµφωνο
— Results of tests conform
— résultat d'analyse conforme— risultato di analisi conforme— analyseresultaat conform— Resultado da análise conforme
— analyysin tulos yhtäpitävä
— Analysresultatet överensstämmer med exportdeklarationen
(b) or the results of the tests if there is a discrepancy between the
results and the product declared.
7. Where the substitution check reveals that the refund rules have
not been complied with, the paying agency shall inform the customsoffice referred to in paragraph 5, at the latter's request, of the actiontaken as a result of the findings.
In such cases, the customs office of exit or the office to which the T5
control copy is sent shall indicate one of the following on the T5control copy or, where applicable, on the national document to be
returned to the competent authorities:
— Solicitud de aplicación del apartado 7 del artículo 10 del Regla-
mento (CE) n
o2090/2002
Oficina de aduana de salida o de destino del T5: …
— Anmodning om anvendelse af artikel 10, stk. 7, i forordning (EF)
nr. 2090/2002
Identifikation af udgangstoldstedet eller bestemmelsestoldstedet for
T5: …
— Antrag auf Anwendung von Artikel 10 Absatz 7 der Verordnung
(EG) Nr. 2090/2002
Identifizierung der Ausgangszollstelle oder der Bestimmungsstelle
des Kontrollexemplars T5: …
—Αίτηση εφαρµογής του άρθρου 10 παράγραφος 7 του κανο-
νισµού (ΕΚ) αριθ. 2090 /2002
Εξακρίβωση του τελωνείου εξόδου ή του τελωνείου προορ-
ισµού του T5: …
— Request for application of Article 10(7) of Regulation (EC) No
2090/2002
Identity of the customs office of exit or customs office receiving the
control copy T5: …
— Demande d'application de l'article 10, paragraphe 7, du règlement
(CE) no2090/20022002R2090 — EN — 15.03.2003 — 001.001 — 7
▼B
Identification du bureau de douane de sortie ou de destination du
T5: …
— Domanda di applicazione dell'articolo 10, paragrafo 7, del regola-
mento (CE) n. 2090/2002
Identificazione dell'ufficio doganale di uscita o di destinazione del
T5: …
— Verzoek om toepassing van artikel 10, lid 7, van Verordening (EG)
nr. 2090/2002
Identificatie van het kantoor van uitgang of van bestemming van de
T5: …
— Pedido de aplicação do n.o7 do artigo 10.odo Regulamento (CE) n.o
2090/2002Identificação da estância aduaneira de saída ou de destino do T5:
…
— Asetuksen (EY) N:o 2090/2002 10 artiklan 7 kohdan soveltamista
koskeva pyyntö
Poistumistullitoimipaikan tai toimipaikan, johon T5-valvontakap-
pale toimitetaan, tunnistustiedot: …
— Begäran om tillämpning av artikel 10.7 i förordning (EG) nr 2090/
2002
Uppgift om utfartstullkontor eller bestämmelsetullkontor enligt
kontrollexemplaret T5: …
Article 11
Before 1 May each year, the Member States shall send the Commission
a report evaluating the implementation and effectiveness of the checkscarried out under this Regulation and the procedures applied toselecting the goods subject to physical checks.
The report to be submitted on 1 May 2003 shall cover export declara-
tions accepted between 1 January and 31 December 2002.
Article 12
1. Regulation (EC) No 2221/95 is hereby repealed with effect from
1 January 2003.
2. References to the repealed Regulation shall be construed as refer-
ences to this Regulation and are to be read in accordance with thecorrelation table in Annex II hereto.
Article 13
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 2003 for export declarations accepted
from that date.
This Regulation shall be binding in its entirety and directly applicable
in all Member States.2002R2090 — EN — 15.03.2003 — 001.001 — 8
▼B
ANNEX I
METHODSTOBEFOLLOWEDFORPHYSICALCHECKS
1. (a) Where an exporter uses sealed facilities for automatic loading and cali-
brated automatic weighing of bulk goods, verification that the goods
tally with the export declaration shall consist of measuring the quantity
by calibrated automatic weighing and checking the nature and character-
istics of the goods by representative sampling.
The customs office of export shall also check by sampling that:
— the weighing and loading systems do not permit goods to be re-routed
inside these sealed circuits or any other manipulations,
— the time limits specified for calibrated weighing equipment have not
expired and that seals are intact where sealed weighing systems are
used,
— the consignments weighed are actually loaded on the means of trans-
port specified,
— the data entered in the weighing records or certificates correspond to
the data contained in the loading documents.
(b) In the rare cases where the quantity of bulk goods is not recorded by a
calibrated automatic weighing system, the customs office shall use any
other means of checking which is satisfactory from the commercial point
of view.
2. (a) Where an exporter has declared goods packaged using automatic systems
for bagging, canning, bottling, etc., and calibrated automatic weighing/
measuring equipment, or put up in packaging or bottles within the
meaning of Council Directives 75/106/EEC (1), 75/107/EEC (2) and 76/
211/EEC (3), the total number of bags, cans, bottles, etc., must in prin-
ciple be counted and the nature and characteristics of the goods must be
checked on the basis of a representative selection made by the customs
office of export. The weight or volume shall be determined by calibrated
automatic weighing/measuring or by the packaging or bottles, within the
meaning of the above Directives. The customs office of export may
weighor measure one bag, can or bottle.
If the equipment has a calibrated automatic counter, the records of the
automatic counter may be taken into account for the physical check on
quantity.
The second subparagraph of point 1(a) shall apply mutatis mutandis .
Where an exporter uses pallets loaded with cartons, cans, etc., the
customs office of export shall select representative pallets and check
whether the number of cartons, cans, etc. declared is really present. It
shall select from these pallets a number of representative cartons, cans,
etc., and check whether the number of bottles, units, etc., is present.
(b) Where the exporter does not use facilities as referred to in the first and
second subparagraphs, the customs office of export must count the
number of bags, cans, etc. The nature, characteristics and weight/volume
shall be checked on the basis of a representative selection. The preceding
subparagraphsh all apply mutatis mutandis .
Notwithstanding the second sentence of the preceding paragraph, where
the contents and exact weight are indicated on the immediate packaging
of the goods, that information need be verified only in 50 % of physical
checks if the goods are packed in containers or packs intended for whole-sale, and the goods are exported regularly by the same exporter and no
non-conformities having financial consequences greater than EUR 200
have been found during the previous six months.
3. (a) In the case of goods not listed in Annex I to the Treaty which are pack-
aged for retail sale or subject to appropriate marking withdetails of
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 1520/2000, or for which the quantities of product
used are those set out in Annex C to that Regulation, the customs office
of export may begin by checking the weight and content of the non-
Annex I goods put up in immediate packaging against the details on the
immediate packaging. It may weigh a unit without packaging. It shall2002R2090 — EN — 15.03.2003 — 001.001 — 9
(1) OJ L 42, 15.2.1975, p. 1.
(2) OJ L 42, 15.2.1975, p. 14.
(3) OJ L 46, 21.2.1976, p. 1.
▼B
then count and/or weigh — in principle — the total quantity of non-
Annex I goods in immediate packaging.
Points 2(a) and (b) shall apply mutatis mutandis .
The customs office may take a sample to verify that no substitution has
taken place. Article 5(4) of this Regulation shall not apply.
The composition of the non-Annex I goods may be assumed by the
customs office of export to be correct if the description and the contentindicated on the immediate packaging are consistent with the details
given in the export declaration or the registered manufacturing formula.
If the manufacturing formula has not yet been checked by the competent
authorities, the customs office of export shall have the auditor of the
competent authorities verify the formula and the identity of the goods
afterwards.
For the purposes of this method for verifying the composition of goods
not listed in Annex I to the Treaty, Member States shall introduce in
advance a procedure whereby:
— the composition of non-Annex I goods can be checked through the
accounts and specific documents relating to production,
— it is verified, through the undertaking's production documents, that
the non-Annex I goods produced are the same as those covered by
the export declaration and the manufacturing formula and the goods
to be exported, and
— the auditor of the competent authority can verify ex-post that the
goods exported tally with the export declaration concerned, the manu-
facturing formula and the goods produced.
(b) The specific documents relating to the manufacture of non-Annex I
goods must be kept by the undertakings concerned for three years from
the year of export.
(c) In cases where the procedure provided for in point 3(a) is not applied,
the customs office of export must take representative samples, without
prejudice to Article 16(1) of Regulation (EC) No 1520/2000.2002R2090 — EN — 15.03.2003 — 001.001 — 10
▼B
ANNEX II
CORRELATIONTABLE
This Regulation Regulation (EC) No 2221/95
Article 1 Article 1
Article 2 Article 2
Article 3 Article 3
Article 4 Article 4
Article 5 Article 5
Article 6 Article 5a
Article 7 Article 6
Article 8 Article 7
Article 9 Article 8
Article 10 Article 9
Article 11 Article 9aArticle 12 Article 10
Article 13 Article 112002R2090 — EN — 15.03.2003 — 001.001 — 11