EN Official Journal of the European Union L 240/14

COMMISSION REGULATION (EC) No 828/2009

of 10 September 2009

laying down detailed rules of application for the marketing years 2009/2010 to 2014/2015 for the import and refining of sugar products of tariff heading 1701 under preferential agreements

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (1), and in particular Article 156 in conjunction with Article 4 thereof,

Having regard to Council Regulation (EC) No 1528/2007 of 20 December 2007 applying the arrangements for products originating in certain states which are part of the African, Caribbean and Pacific (ACP) Group of States provided for in agreements establishing, or leading to the establishment of, Economic Partnership Agreements (2), and in particular Article 9(5) thereof,

Having regard to Council Regulation (EC) No 732/2008 of 22 July 2008 applying a scheme of generalised tariff preferences for the period from 1 January 2009 to 31 December 2011 and amending Regulations (EC) No 552/97, (EC) No 1933/2006 and Commission Regulations (EC) No 1100/2006 and (EC) No 964/2007 (3), and in particular Article 11(7) thereof,

Whereas:

(1) Article 7(1) of Regulation (EC) No 1528/2007 eliminates, as from 1 October 2009, the import duties of tariff heading 1701 for the regions and states listed in its Annex I to that Regulation. However, if imports reach the double threshold specified in Article 9 of Regulation (EC) No 1528/2007, this preference may be suspended for the regions or states listed in Annex I thereto and which are not least-developed countries listed in Annex I to Regulation (EC) No 732/2008. In accordance with Article 9(2), a regional safeguard threshold should be fixed.

(2) Article 11(3) of Regulation (EC) No 732/2008 suspends entirely, as from 1 October 2009, the Common Customs Tariff duties on the products under tariff heading 1701 for the countries which according to its Annex I to that Regulation benefits from the special arrangements for the least-developed countries.

(3) In accordance with Article 11(6) of Regulation (EC) No 732/2008, for the period from 1 October 2009 to 30 September 2015, imports of products under tariff heading 1701 require an import licence.

(4) To simplify the licensing procedure, each reference number should be linked to a country listed under Annex I of this Regulation. To avoid fraudulent applications, this list shall be limited to those countries identified as current or potential sugar exporters to the European Union. Any country not currently listed in Annex I to this Regulation but listed either in Annex I to Regulation (EC) No 1528/2007 or in Annex I to Regulation (EC) No 732/2008 is eligible to be included in Annex I of this Regulation. To this effect, such a country shall request the Commission to be listed in Annex I of this Regulation.

(5) Commission Regulation (EC) No 376/2008 of 23 April 2008 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products (4) should apply to import licences issued under this Regulation, except as otherwise provided by this Regulation.

(6) To ensure uniform and equitable treatment for all operators, the period in which licence applications may be submitted and licences issued should be determined.

(7) In accordance with Article 5 of Commission Regulation (EC) No 1301/2006 of 31 August 2006 laying down common rules for the administration of import tariff quotas for agricultural products managed by a system of import licences (5), operators should submit, to the Member States in which they are registered for VAT purposes, proof that they have been trading sugar during a certain period. Nevertheless, operators approved in accordance with Article 7 of Commission Regulation (EC) No 952/2006 of 29 June 2006 laying down detailed rules for the application of Council Regulation (EC) No 318/2006 as regards the management of the Community market in sugar and the quota system (6) should be able to participate in the trading of preferential sugar.

(8) Sugar imported for refining needs specific monitoring by the Member States. Therefore operators should specify as from the import licence application if the imported sugar is intended for refining or not.

(9) To avoid speculation or merchandising of import licences and to ensure that the applicant has commercial contacts with the exporting third country, import licence applications should be accompanied by an export document issued by a competent authority of the exporting third country for a quantity equal to the quantity of the import licence application.

(10) In accordance with Article 11(4) of Regulation (EC) No 732/2008 and Article 8 of Regulation (EC) No 1528/2007, the importer has to undertake to purchase the products of CN code 1701 at a price not lower than 90 % of the reference price (on a c.i.f. basis) set in Article 8 paragraph 1 point (c) of Regulation (EC) No 1234/2007.

(11) When the quantities resulting from import licence applications exceed the quantities specified in Article 9(1)(a) of Regulation (EC) No 1528/2007, the issuance of licenses by Member States should be subject to an allocation coefficient to be fixed by the Commission similarly to what provided by Regulation (EC) No 1301/2006. In accordance with Article 9(2) of Regulation (EC) No 1528/2007, that coefficient should be calculated on a regional level.

(12) Article 9(2) of Regulation (EC) No 1528/2007 increases the possibility of exceeding the quantities specified in Article 9(1) of Regulation (EC) No 1528/2007. The Commission should therefore report on the application of the transitional safeguard mechanism for sugar and, if necessary, make appropriate proposals. This report should include an overview of the import flows during the first marketing years of application of this regulation, analyse future trade developments and evaluate any possible risk of an overshoot and the quantities involved.

(13) The thresholds for the management of the transitional safeguard mechanism for sugar are based on imports during a specific marketing year. Import licences should therefore be valid between 1 October and 30 September.

(14) Article 8 of Regulation (EC) No 1528/2007 restricts the benefit of the elimination of import duties to those importers who pay a price not lower than 90 % of the reference price on a c.i.f. basis. In international trade, such contracts imply that the importer bears full responsibility of the sugar as from the date of loading. For licences valid until 30 September for which the sugar was loaded at the latest by 15 September, small delays in the logistic chain other than force majeure could lead to physical imports after 30 September. To avoid the risk of paying the full import duty of EUR 419 per tonne and the forfeit of the security, importers should be given the possibility to import that sugar loaded at the latest by 15 September of a marketing year based on an import licence issued for that marketing year. Therefore Member States should extend the validity of the import licence if the importer submits proof that the sugar was loaded at the latest by 15 September.

(15) The distinction ‘sugar intended for refining’ and ‘sugar not intended for refining’ is not linked to the distinction between white and raw sugar as defined in points 1 and 2 of Part II of Annex III of Regulation (EC) No 1234/2007. Therefore the CN codes authorised for imports under each group of import licences should be identified.

(16) For the sake of sound management of the agreements, the Commission should receive the relevant information in good time.

(17) Article 153(3) of Regulation (EC) No 1234/2007 restricts, during the first three months of each marketing year and within the limit referred to in Article 153(1) of Regulation (EC) No 1234/2007, the issuing of import licences to full-time refiners. During that period, only full-time refiners should be able to apply for import licences for sugar for refining. Such licences shall be valid to the end of the marketing year for which they are issued.

(18) The obligation to refine sugar should be verified by the Member States. If the original holder of the import licence is not able to provide the proof, a penalty should be paid.

(19) All imported sugar refined by an approved operator should be based on an import licence for sugar for refining. Quantities for which such proof cannot be given should be charged a penalty.

(20) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for the Common Organisation of Agricultural Markets,

HAS ADOPTED THIS REGULATION:

CHAPTER I

GENERAL PROVISIONS

Article 1

Scope

1. This Regulation lays down for the marketing years 2009/2010 to 2014/2015 detailed rules applying on imports of products of tariff heading 1701 referred to in:

(a) Article 9(1) of Regulation (EC) No 1528/2007;

(b) Article 11(4) of Regulation (EC) No 732/2008.

2. Imports from third countries which are least-developed countries (LDC) listed in Annex I to Regulation (EC) No 732/2008, whether they belong to African, Caribbean and Pacific Group of States (ACP countries) or not (NON-ACP countries), shall be duty free and quota free and shall bear the reference numbers as shown in Part I of Annex I to this Regulation.

3. Imports from the ACP countries which are not least-developed countries (NON-LDC) listed in Annex I to Regulation (EC) No 732/2008 shall be duty free subject to the transitional safeguard mechanism for sugar in accordance with the provisions referred to in Article 9 of Regulation (EC) No 1528/2007 and shall bear the reference numbers as shown in Part II of Annex I to this Regulation.

In accordance with Article 9(2) of Regulation (EC) No 1528/2007, a regional safeguard threshold is set up in Part II of Annex I to this Regulation for each marketing year.

4. A country listed in Annex I to Regulation (EC) No 1528/2007 or in Annex I to Regulation (EC) No 732/2008 is eligible to be added to Annex I to this Regulation. To this effect, such a country shall request to the Commission to be listed in Annex I of this Regulation.

Article 2

Definitions

For the purposes of this Regulation:

(a) ‘tel quel weight’ means the weight of the sugar in the natural state;

(b) ‘refining’ means the processing of raw sugars into white sugars as defined in points 1 and 2 of Part II of Annex III to Regulation (EC) No 1234/2007, and any equivalent technical operation applied to bulk white sugar.

CHAPTER II

IMPORT LICENCES

Article 3

Applicability of Regulation (EC) 376/2008

Regulation (EC) No 376/2008 shall apply save as otherwise provided for in this Regulation.

Article 4

Import licence applications and import licences

1. Import licence applications shall be submitted each week, from Monday to Friday, starting on the second Monday of September prior to the marketing year for which they are applied.

No applications may be lodged from Friday 11 December 2009 1 p.m. (Brussels time) till Friday 1 January 2010 1 p.m. (Brussels time).

2. Article 5 of Regulation (EC) No 1301/2006 shall apply mutatis mutandis. However, the submission of proof provided for in that Article may not be required for operators approved in accordance with Article 7 of Regulation (EC) No 952/2006.

3. Import licence applications and import licences shall contain the following entries:

(a) in box 8: the country of origin (one of the countries listed in Annex I to this Regulation). The word ‘yes’ being marked with a cross;

(b) in box 16, a single eight digit CN code;

(c) in boxes 17 and 18: the quantity of sugar in white sugar equivalent;

(d) in box 20: (i) ‘sugar intended for refining’ or ‘sugar not intended for refining’; (ii) at least one of the entries listed in part A of Annex V; (iii) the marketing year to which they are related;

(e) in box 24: at least one of the entries listed in part B of Annex V.

4. Import licence applications shall be accompanied by:

(a) proof that the applicant has lodged a security of EUR 20 per tonne of the quantity of sugar indicated in box 17 of the licence;

(b) the originals of the export licences issued by the competent authorities of the exporting third country in accordance with the model set out in Annex III, for a quantity equal to that mentioned in the licence applications;

(c) in the case of sugar for refining, the undertaking by the applicant to refine the quantities of sugar in question before the end of the third month following that in which the import licence concerned expires;

(d) for the marketing years 2009/2010, 2010/2011, 2011/2012, the applicant’s pledge to purchase the sugar at a price not lower than 90 % of the reference price (on a c.i.f. basis) set in Article 8(c) of Regulation (EC) No 1234/2007 for the relevant marketing year as well as a binding document relating to the transaction and signed by both the buyer and the supplier.

The export licences referred to in point (b) may be replaced by certified copies, issued by the competent authorities of the exporting third country, of the proof of origin provided for in Article 14 of Annex II to Regulation (EC) No 1528/2007 for countries listed in Annex I to that Regulation or Articles 67 to 97 of Commission Regulation (EEC) No 2454/93 (7) for countries not listed in Annex I of Regulation (EC) No 1528/2007 but listed in Annex I to Regulation (EC) No 732/2008.

5. The originals of the export licences referred to in paragraph 4, point (b) or the certified copies referred to in the second subparagraph of paragraph 4 shall be kept by the competent authority of the Member State.

6. Where it is found that a document submitted by an applicant in accordance with paragraph 4 provides false information and where such information is decisive for the attribution of preferential import licences, the competent authorities of the Member States shall exclude the applicant from the licence application system for the current and following marketing year, unless the applicant proves, to the satisfaction of the competent authority, that this is not due to his gross negligence or that it is due to force majeure or to obvious error.

Article 5

Transitional Safeguard mechanism for sugar

1. When the total quantity resulting from the licence applications for reference numbers 09.4231 to 09.4247 exceeds 3,5 million tonnes and the total quantity resulting from the licence applications for reference numbers 09.4241 to 09.4247 exceeds the quantity referred to in Annex II for the marketing year concerned, the Commission shall fix an allocation coefficient for the reference numbers 09.4241 to 09.4247 which the Member States shall apply to the quantities covered by each application for these reference numbers.

The allocation coefficient for a reference number is calculated in proportion to the available quantity of the regional safeguard threshold for that reference number and marketing year concerned.

If, after applying the allocation coefficients to the weekly applications, the quantity resulting from the licence applications for reference numbers 09.4231 to 09.4247 are less than 3,5 million tonnes or the quantity resulting from the licence applications for reference numbers 09.4241 to 09.4247 are less than the quantity referred to in Annex II for the marketing year concerned, the greater difference is distributed between the reference numbers 09.4241 to 09.4247 with an allocation coefficient less than 100 % in proportion to the weekly quantity not allocated for that reference number. For those reference numbers, the allocation coefficient is recalculated taking account of this increased allocation.

The algorithm used for the calculation of the allocation coefficient is laid down in Annex IV.

2. In case allocation coefficients are fixed pursuant to paragraph 1, the Commission shall suspend the submission of applications for licences until the end of the marketing year for the reference numbers for which the regional safeguard threshold has been reached. However, the Commission shall withdraw the suspension and readmit applications when quantities become available again according to the notifications referred to in Article 9(3).

3. The Commission shall present before 31st March 2013 a report on the functioning of the transitional safeguard mechanism for sugar, and, if necessary, make appropriate proposals. The report shall take account of sugar trade flows from third countries referred to in Annex I to this Regulation.

Article 6

Issue of import licences

1. On Thursday or Friday at the latest of each week, Member States shall issue licences for the applications submitted the preceding week and notified as provided for in Article 9(1), as the case may be taking account of the allocation coefficient fixed by the Commission in accordance with Article 5(1).

Import licences shall not be issued for quantities that had not been notified.

2. Licences shall be valid as from their date of issue or 1 October of the marketing year for which they are issued whatever is the latest.

Licences shall be valid to the end of the third month following their start validity date without exceeding 30 September of the marketing year for which they are issued.

Article 7

Extension of validity of import licences

For import licences with a validity ending on 30 September of a marketing year and at the request of the import licence holder, the competent body of the Member State of issue shall extend the period of validity of the import licence to 31 October if the titular holder submits proof, such as the bill of lading; acceptable to that competent body of the Member State of issue, that the sugar was loaded at the latest by 15 September of that marketing year. Member States shall notify this to the Commission not later than the first working day of the week following the extension of the validity.

Article 8

Release for free circulation

Import licences containing in box 20 the entry ‘sugar intended for refining’ may be used for the import of CN codes 1701 11 10, 1701 91 00, 1701 99 10 or 1701 99 90.

Import licences containing in box 20 the entry ‘sugar not intended for refining’ may be used for the import of CN codes 1701 11 90, 1701 91 00, 1701 99 10 or 1701 99 90.

Article 9

Notifications to the Commission

1. Member States shall notify the Commission, between Friday 1 p.m. (Brussels time) and the following Monday 6 p.m. (Brussels time), of the quantities of sugar, including nil returns, for which import licence applications have been submitted in accordance with Article 4.

2. Member States shall notify the Commission, between Friday 1 p.m. (Brussels time) and the following Monday 6 p.m. (Brussels time), the quantities of sugar, including nil returns, for which import licences have been issued as from the preceding Thursday in accordance with Article 6.

3. Member States shall notify the Commission, between Friday 1 p.m. (Brussels time) and the following Monday 6 p.m. (Brussels time), of the quantities, including nil returns, covered by unused or partly used import licences and corresponding to the difference between the quantities entered on the back of the import licences and the quantities for which they were issued.

4. The quantities mentioned under paragraphs 1, 2 and 3 shall be broken down by reference number, country of origin, the eight-digit CN code, the marketing year concerned and whether or not they involve sugar intended for refining. They shall be expressed in kilograms white sugar equivalent.

5. Member States shall notify the Commission before 1 March and for the previous marketing year of the quantities of sugar which has actually been refined, broken down by reference number and country of origin and expressed in kilograms ‘tel quel’ weight and in white sugar equivalent.

6. The notifications shall be transmitted electronically in accordance with models and methods made available to the Member States by the Commission.

7. Member States shall forward details of the quantities of products released for free circulation in accordance with Article 308d of Regulation (EEC) No 2454/93.

CHAPTER III

TRADITIONAL SUPPLY NEEDS

Article 10

Full-time refiners’ regime

1. Only full-time refiners may apply for import licences for sugar intended for refining with a start validity date during the first three months of each marketing year. By way of derogation from the second subparagraph of Article 6(2) such licences shall be valid to the end of the marketing year for which they are issued.

2. If, before the 1 January of each marketing year, applications for import licences for sugar for refining for that marketing year are equal or superior to the total of the quantities referred to in Article 153(1) of Regulation (EC) No 1234/2007, the Commission shall inform the Member States that the limit of the traditional supply needs for that marketing year has been reached at Community level.

From the date of that notification, paragraph 1 shall not apply for the marketing year concerned.

Article 11

Proof of refining and penalties

1. Each original holder of an import licence for sugar for refining shall, within six months following the expiry of the import licence concerned, provide the Member State which issued it with proof acceptable to it that refining has taken place within the period set in Article 4(4)(c).

Where such a proof is not provided, the applicant shall pay, before 1 June following the marketing year concerned, an amount equal to EUR 500 per tonne for the quantities of sugar concerned, except for exceptional reasons of force majeure.

2. Sugar producers approved in accordance with Article 57 of Regulation (EC) No 1234/2007 shall declare to the competent authority in the Member State before 1 March following the marketing year concerned the quantities of sugar which they have refined in that marketing year, stating:

(a) the quantities of sugar corresponding to import licences for sugar for refining;

(b) the quantities of sugar produced in the Community, giving the references of the approved undertaking which produced that sugar;

(c) other quantities of sugar, stating their origin.

Producers shall pay, before 1 June following the marketing year concerned, an amount equal to EUR 500 per tonne for the quantities of sugar referred to in point (c) of the first subparagraph for which they cannot provide proof acceptable to the Member State that they were refined, except for exceptional reasons of force majeure.

CHAPTER IV

FINAL PROVISION

Article 12

This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Union.

It shall apply until 30 September 2015.

This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 10 September 2009. For the Commission Mariann FISCHER BOEL Member of the Commission

(1) OJ L 299, 16.11.2007, p. 1.

(2) OJ L 348, 31.12.2007, p. 1.

(3) OJ L 211, 6.8.2008, p. 1.

(4) OJ L 114, 26.4.2008, p. 3.

(5) OJ L 238, 1.9.2006, p. 13.

(6) OJ L 178, 1.7.2006, p. 39.

(7) OJ L 253, 11.10.1993, p. 1.

ANNEX I REFERENCE NUMBERS Part I: Least Developed Countries Group Label Third Country Reference number NON-ACP-LDC Bangladesh Cambodia Laos Nepal 09.4221 ACP-LDC Benin Democratic Republic of Congo Ethiopia Madagascar Malawi Mozambique Senegal Sierra Leone Sudan Tanzania Togo Zambia 09.4231

Part II: Non Least-Developed Countries Region Third Country Reference number Regional safeguard threshold 2009/2010 (tonnes white sugar equivalent) Regional safeguard threshold 2010/2011 (tonnes white sugar equivalent) Regional safeguard threshold 2011/2012 2012/2013 2013/2014 2014/2015 (tonnes white sugar equivalent) CentralAfrica-NON-LDC 09.4241 10 186,1 10 186,1 10 186,1 Western Africa-NON-LDC Côte d’Ivoire 09.4242 10 186,1 10 186,1 10 186,1 SADC-NON-LDC Swaziland 09.4243 166 081,2 174 631,9 192 954,5 EAC-NON-LDC Kenya 09.4244 12 907,9 13 572,4 14 996,5 ESA-NON-LDC Mauritius Zimbabwe 09.4245 544 711,6 572 755,9 632 850,9 PACIFIC-NON-LDC Fiji 09.4246 181 570,5 190 918,6 210 950,3 CARIFORUM-NON-LDC Barbados Belize Dominican Republic Guyana Jamaica Trinidad & Tobago 09.4247 454 356,6 477 749,0 527 875,6

ANNEX II 2009/2010 (tonnes white sugar equivalent) 2010/2011 (tonnes white sugar equivalent) 2011/2012 2012/2013 2013/2014 2014/2015 (tonnes white sugar equivalent) 1 380 000 1 450 000 1 600 000

ANNEX III Model export licence referred to in Articles 4(4)(b)

ANNEX IV I. Definitions: TACPLDC= Cumulated week application ACP_LDC countries (reference number 09.4231) N= reference number for ACP-NON-LDC countries (09.4241 to 09.4247) RSTN= Regional Safeguard Threshold reference number N WAN= Week application for reference number N CWAN= Cumulated week applications for reference number N without the last communication ACN= Allocation coefficient for reference number N RESQ= Residual quantity to be distributed after application of ACN RESQN= Residual quantity for reference number N II. Calculation of the allocation coefficient referred to in Article 5(1) II.1. For each N: ACN = ((RSTN – CWAN)/WAN * 100) % If ACN is negative, ACN is put to 0 % If ACN is 100 % or more, ACN is put to 100 % II.2. If (TACPLDC + Σ ((CWAN + ACN * WAN) for all regions with a RST) is less than 3,5 million tonnes OR Σ ((CWAN + ACN * WAN) for all regions with a RST) is less than RST Then: RESQ = Maximum of 3,5 Million tonnes – (TACPDLC + Σ ((CWAN + ACN * WAN) for all regions with a RST)) and RST – Σ ((CWAN + ACN * WAN) for all regions with a RST)) When ACN is less than 100 %: RESQN = RESQ * (((1–ACN) * WAN)/(Σ (((1–ACN) * WAN) for reference numbers with ACN < 100 %))) ‘new ACN’ = ((‘old ACN’*WAN) + RESQN)/WAN