1990R0386 — EN — 01.01.1995 — 001.001 — 1
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►B COUNCILREGULATION(EEC)No386/90
of12February1990
onthe monitoring carried outat the time of export of agricultural productsreceiving refundsor
otheramounts
(OJ L 42, 16.2.1990, p. 6)
Amended by:
Official Journal
No page date
►M1Council Regulation (EC) No 163/94 of 24 January 1994 L 24 2 29.1.1994
Corrected by:
►C1Corrigendum, OJ L 234, 17.9.1993, p. 23 (386/90)
►C2Corrigendum, OJ L 111, 30.4.1994, p. 115 (163/94)
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COUNCILREGULATION(EEC)No386/90
of12February1990
on the monitoring carried outat the time of export ofagricultural
productsreceiving refundsorotheramounts
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European EconomicCommunity, and in particular Article 43 thereof,
Having regard to the proposal from the Commission(
1),
Having regard to the opinion of the European Parliament(2),
Whereas, pursuant to Article 8 of Council Regulation (EEC) No 729/70
of 21 April 1970 on the financing of the common agriculturalpolicy(
3), aslas t amended by Regulation (EEC) No 2048/88(4),
Member States are to take the measures necessary to satisfy themselves
that transactions financed by the European Agricultural Guidance and
Guarantee Fund (EAGGF) are actually carried out and are executedcorrectly, to prevent and deal with irregularitiesand to recover s umslost as a result of irregularities or negligence;
Whereas, in its special report on the system of payment of agricultural
export refunds(
5), and in itsannual report concerning the financial year
1987(6), the Court of Auditorsdrew attention to a number of s hortcom-
ingsin certain Member Statesin the monitoring of agricultural
productsfor which refundsor other amountsare granted on export;
Whereasthe organization which, in principle, would afford the bes t
safeguards without giving rise to economic constraints and administra-tive costs outweighing the prospective gains for Community financeswould be one which combined physical monitoring on export and theauditing of accounts;
Whereas, in order to improve and harmonize the measures taken by the
Member States, a Community monitoring system should be set up;
Whereas such a monitoring system must be based in particular on
physical spot checks of goods at the time of export, including goods
exported under a simplified procedure, and on the scrutiny of thepayment application filesby the paying agencies ; whereasthe audit tobe conducted ex post facto in the undertakings concerned by thecompetent bodiesisgoverned by Council Regulation (EEC) No 4045/
89 of 21 December 1989 on scrutiny by Member States of transactions
forming part of the system of financing by the Guarantee Section of theEuropean Agricultural Guidance and Guarantee Fund and repealingDirective 77/435/EEC(
7);
Whereas the number of physical checks, including laboratory analyses
where these prove necessary must be increased in view of the impor-tance of agricultural refundswithin the Community budget,
HAS ADOPTED THIS REGULATION:
Article 1
1. ThisRegulation s etsdown certain proceduresfor monitoring
whether operationsconferring entitlement to the payment of refundson and all other amounts in respect of export transactions have beenactually carried out and executed correctly.1990R0386 — EN — 01.01.1995 — 001.001 — 2
(1) OJ No C 29, 6. 2. 1987, p. 5.
(2) OJ No C 190, 20. 7. 1987, p. 144.
(3) OJ No L 94, 28. 4. 1970, p. 13.
(4) OJ No L 185, 15. 7. 1988, p. 1.
(5) OJ No C 215, 26. 8. 1985, p. 1.
(6) OJ No C 316, 12. 12. 1988, p. 68.
(7) OJ No L 388, 30. 12. 1989, p. 18.
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2. For the purposes of this Regulation, the term ‘goods’ means
productsin res pect of which the amountsreferred to in paragraph 1are paid in accordance with Community provisions adopted within the
framework of the common agricultural policy.
Article 2
Member Statess hall carry out:
(a) physical checks on goods in accordance with Article 3, at the time
the customs export formalities are completed and before authoriza-
tion is given for the goods in question to be exported, on the basis
of documents submitted in support of the export declaration, and
(b) physical checks on substitution in accordance with Article 3a, and
►
M1►C2(c)◄◄ scrutiny of the documents in the payment
application file in accordance with Article 4.
Article 3
1. Without prejudice to any specific provisions which require more
extensive checks, the physical checks referred to in Article 2 (a) must:
(a) take the form of spot checks conducted frequently and without
prior warning;
(b) in any event, ►C1relate to a representative choice of not less
than◄5 % of the export declarationsin res pect of which applica-
tions are submitted for the amounts specified in Article 1 (1).
2. In accordance with the detailed rulesto be determined under the
procedure referred to in Article 6, the rate mentioned in paragraph 1 (b)
shall apply:
— per customs office,
— per calendar year, and— per product sector.
However, the rate of 5 % per product sector may be replaced by a rate
of 5 % covering all sectors insofar as the Member State applies a selec-tion system based on a risk analysis carried out in accordance with
criteria to be laid down in accordance with the procedure laid down
in Article 6. In this case, a minimum rate of 2 % shall be compulsoryper product sector.
3. In cases where ordinary visual inspection fails to establish that the
goods correspond to the description given in the refunds nomenclature,and where classification or the quality of the goods requires veryprecise information about the ingredients thereof, the customs authori-ties shall verify that description according to the nature of the product
by using all the senses or by applying physical measures that may go
as far as submitting the goods for analysis by laboratories speciallyequipped for the purpose.
4. The checksreferred to in thisArticle s hall be carried out without
prejudice to any measures which the customs authorities may take to
ensure that the goods leave the customs territory in the same state as
when the export authorization wasgranted.
Article 3a
In the case of export declarations accepted by an internal customs
office, a minimum rate or minimum rates of physical checks on substi-tution may be carried out by means of representative sampling by eachcustoms office of exit from the Community. The various minimumchecking rate(s) shall be determined in the light of the type of risk, inaccordance with the procedure laid down in Article 6.1990R0386 — EN — 01.01.1995 — 001.001 — 3
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Article 4
Paying agencies shall scrutinize, on the basis of the payment applica-
tion filesand other available information, in particular on the bas isof
the documentsrelating to the export and the commentsof the cus toms
services, all the evidence in these files adduced to justify the paymentof the amountsin ques tion.
Article 5
Member States shall take steps to coordinated the controls imposed on
individual operatorsand combine the verificationsprovided for in Arti-cles3 and 4 and in Regulation (EEC) No 4045/89.
Sub coordinated controlss hall be carried out, on the initiative or at the
request either of the Commission staff or of the customs authoritiesmaking the physical checks or the competent authorities scrutinizing
the payment application file or auditing the accountsex pos t facto.
Article 6
Any provisions required for the application of this Regulation shall be
adopted in accordance with the procedure laid down in Article 26 ofRegulation (EEC) No 2727/75(
1) or, asappropriate, the corres ponding
Articlesof the other Regulationson the common organization ofmarkets.
They may relate in particular to:— the method for calculating the minimum percentage referred to in
Article 3 (1) (b) and particular detailed rulesand/or derogations
therefrom with regard to specific situations,
— the goods which are to be submitted for analysis under Article 3
(3),
— the coordination of controlsbetween the competent departmentsof
the Member States and the Commission staff.
Article 7
1. In accordance with the procedure referred to in Article 6, transi-
tional measures shall be adopted with regard to the application of
Article 3 (1) and (2).
2. Before 1 January 1992, the Commission shall submit a progress
report on the application of thisRegulation to the Council and, in thelight of experience gained, shall propose any necessary amendments tothe monitoring system provided for under this Regulation.
Article 8
ThisRegulation s hall enter into force on the day of itspublication in
theOfficial Journal of the European Communities .
ThisRegulation s hall be binding in itsentirety and directly applicable
in all Member States.1990R0386 — EN — 01.01.1995 — 001.001 — 4
(1) OJ No L 281, 1. 11. 1975.