EN Official Journal of the European Union L 94/38

COMMISSION REGULATION (EC) No 288/2009

of 7 April 2009

laying down detailed rules for applying Council Regulation (EC) No 1234/2007 as regards Community aid for supplying fruit and vegetables, processed fruit and vegetables and banana products to children in educational establishments, in the framework of a School Fruit Scheme

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 103h(f) in conjunction with Article 4 thereof,

Whereas:

(1) Council Regulation (EC) No 13/2009 (2) has amended Regulation (EC) No 1234/2007, in order to provide for Community aid under a School Fruit Scheme to supply fruit and vegetables, processed fruit and vegetables and banana products to children in regular attendance at one of the educational establishments administered or recognised by the competent authorities of a Member State.

(2) In order to ensure the orderly implementation of their School Fruit Scheme, Member States wishing to participate in the Scheme, at national or regional level, should draw up a prior strategy for its implementation. So as to ensure the added value of School Fruit Schemes set up under this Regulation, Member States should explain in their strategy how they will guarantee the added value of their scheme, especially where regular school meals are consumed at the same time as products financed under their School Fruit Scheme. Where Member States choose to implement more than one Scheme, they should draw up a strategy for each such Scheme.

(3) A Member State's strategy should contain the key elements referred to in Article 103ga(2) of Regulation (EC) No 1234/2007, namely the budget of its scheme, including the Community and national contribution, its duration, target group, eligible products and the involvement of relevant stakeholders, such as educational and health authorities, the private sector or the children's parents. A Member State's strategy should also describe the accompanying measures that should be adopted so as to ensure the Scheme's effectiveness.

(4) Pursuant to Article 152(1) of the Treaty, a high level of health should be ensured in the definition and implementation of all Community policies. So as to ensure that the products eligible for aid offer a high level of health protection to children and to promote healthy eating habits, the Member States should exclude products with added sugar, fat, salt or sweeteners from their strategy, except where, in duly justified cases, Member States provide in their strategy that such products may be eligible under their scheme. In all cases, a Member State's list of eligible products should be endorsed by the competent national health authority.

(5) School Fruit Schemes require accompanying measures in order to be effective. Accompanying measures should not be limited to certain geographical areas or educational establishments, excluding certain children from their scope. Therefore, Member States should aim to give most children of their scheme's target group access to accompanying measures.

(6) In the interest of sound administration and budget management, Member States implementing a School Fruit Scheme should apply for Community aid on an annual basis.

(7) For the sake of transparency, an indicative allocation of Community aid per Member State, calculated on the basis of the allocation key referred to in Article 103ga(5) of Regulation (EC) No 1234/2007, should be provided for. In order to take demographic developments into account, the Commission should assess at least every three years whether that allocation is still up to date.

(8) In order to maximise the full potential of available funds, Community aid that was indicatively attributed to Member States which did not notify their strategy to the Commission in time should be reallocated between the participating Member States that notified the Commission their willingness to use more than their initial allocation of Community aid.

(9) Not only costs incurred for purchasing fruit and vegetables, processed fruits and vegetables and banana products, but also some related costs that are directly linked to the implementation of a School Fruit Scheme, should be eligible for Community aid, if provided for in a Member State's strategy. However, in order to preserve the effectiveness of the Scheme, only a small percentage of aid should be allocated to these related costs. For financial management and control purposes, these costs should represent fixed amounts, calculated on a pro rata basis.

(10) In the interest of sound administration, budget management and supervision, the conditions for granting aid, the approval of aid applicants and the conditions for a valid aid application should be specified. As regards the payment of the aid, the requirements to be met by applicants should be specified and rules on the lodging of applications, on the checks and sanctions to be applied by the competent authorities and on the payment procedure should be laid down.

(11) To protect the Community's financial interests, adequate control measures should be adopted to combat irregularities and fraud. These control measures should involve full administrative checking supplemented by on-the-spot checks. The scope, content, timing and reporting of such control measures should be specified so as to ensure an equitable and uniform approach between Member States, taking account of their different implementation of the scheme.

(12) Amounts unduly paid should be recovered and sanctions should be determined in order to deter applicants from fraudulent behaviour and serious negligence.

(13) In order to assess the effectiveness of the School Fruit Scheme, and to allow peer review and the exchange of best practices, Member States should monitor and evaluate the implementation of their School Fruit Scheme on a regular basis and send their results and findings to the Commission. Where fruit and vegetables, processed fruit and vegetables and banana products are not distributed free of charge to the target group of their scheme, Member States should assess the impact of a parental contribution on the effectiveness of their Scheme.

(14) Experience has shown that the beneficiaries of projects co-financed with Community aid are not always sufficiently aware of the role played by the Community in the relevant project. The role of the Community in the School Fruit Scheme should therefore be clearly indicated in each participating educational establishment.

(15) In order to allow the Member States sufficient time to set up their School Fruit Scheme, or to align their existing scheme with the new provisions, Member States may elaborate a strategy which contains only the main key element for the initial period from 1 August 2009 to 31 July 2010. They should also be able to postpone the adoption of accompanying measures during that transitional period.

(16) 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:

Article 1

Scope and use of terms

1. This Regulation lays down rules for implementing for Regulation (EC) No 1234/2007 as regards Community aid for supplying fruit and vegetables, processed fruit and vegetables and banana products and for certain related costs to children in educational establishments, in the framework of a School Fruit Scheme.

2. Terms used in this Regulation shall have the same meaning as when used in Regulation (EC) No 1234/2007, unless this Regulation provides otherwise.

Article 2

Target group

The aid referred to in Article 103ga of Regulation (EC) No 1234/2007 shall be targeted at children in regular attendance at any of the educational establishments administered or recognised by the competent authorities of a Member State.

Article 3

Strategy

1. Member States wishing to set up a School Fruit Scheme shall draw up the strategy referred to in Article 103ga(2) of Regulation (EC) No 1234/2007.

2. A Member State's strategy shall not cover products that are listed in Annex I to this Regulation. However, in duly justified cases, such as where a Member State wants to ensure a broad assortment of products under its scheme or wants to make its scheme more attractive, a strategy may provide that such products may become eligible, if only limited amounts of the substances referred to in that Annex are added.

Member States shall ensure that their competent health authorities endorse the list of products that shall be eligible under their School Fruit Scheme.

3. Member States shall explain in their strategy how they will guarantee the added value of their School Fruit Scheme, especially where their strategy allows the consumption of regular school meals at the same time as products financed under their School Fruit Scheme. They shall describe their control measures in their strategy.

4. Member States shall describe in their strategy which accompanying measures they will adopt to ensure the successful implementation of their scheme. Those measures may focus on improving the target group's knowledge on the fruit and vegetable sector or healthy eating habits, such as the development of websites or the organisation of farm visits or gardening sessions.

5. Member States may choose the appropriate geographical and administrative level at which they wish to implement a ‘School Fruit Scheme’. If they choose to implement more than one scheme, they shall provide a strategy for each scheme. A Member State which implements multiple schemes may establish a coordination framework.

Article 4

Aid for the supply of fruit and vegetables, processed fruit and vegetables and banana products to children

1. Member States setting up a School Fruit Scheme may apply for the aid referred to in Article 103ga of Regulation (EC) No 1234/2007 for a period running from 1 August to 31 July of one or more years, by notifying their strategy to the Commission by 31 January of the year in which that period starts.

2. Member States that already have a school fruit scheme, or other school distribution schemes that include fruit, prior to the entry into force of this Regulation shall qualify for Community aid subject to the conditions set out in Article 103ga(6) of Regulation (EC) No 1234/2007. They shall notify their strategy to the Commission by the deadline provided for in paragraph 1.

3. Annex II to this Regulation provides for an indicative allocation of Community aid per Member State, calculated on the basis of the allocation key referred to in Article 103ga(5) of Regulation (EC) No 1234/2007. The Commission shall assess at least every three years whether Annex II is still consistent with that allocation key.

4. The allocations of Community aid reserved for Member States that did not notify the Commission by 31 January of the year in which the period referred to in paragraph 1 starts, or that requested only part of their initial allocation, shall be reallocated among the participating Member States which notified the Commission, by the deadline referred to in paragraph 1, of their willingness to use more than their initial allocation of Community aid.

The reallocation of Community aid referred to in the first subparagraph shall be implemented in proportion to the initial allocation of the Member State, calculated on the basis of the allocation key referred to in Article 103ga(5) of Regulation (EC) No 1234/2007.

The Commission shall decide on the definitive allocation of Community aid to the Member States by 31 March of the year in which the period referred to in paragraph 1 starts.

Article 5

Eligible costs

1. The following costs are eligible for the Community aid referred to in Article 103ga of Regulation (EC) No 1234/2007:

(a) costs for fruits and vegetables, processed fruit and vegetables and banana products covered by the School Fruit Scheme referred to in Article 3(1) and delivered to the educational establishment.

(b) related costs, which are costs that are directly linked to the implementation of a School Fruit Scheme and shall only include: (i) costs for purchasing, renting, hiring and leasing of equipment, if provided for in the strategy; (ii) costs for monitoring and evaluation referred to in Article 12, which shall be directly linked to the School Fruit Scheme; (iii) costs for communication, which shall include costs for the poster referred to in Article 14(1).

Where costs for transport and distribution of the products covered by a School Fruit Scheme are invoiced separately, such costs shall not exceed 3 % of the costs for the products.

Where products are supplied free of charge to educational establishments, Member States may accept invoices for transport and distribution, subject to a ceiling set in the strategy of the Member State.

The costs for communication referred to in point (b)(iii) of the first subparagraph may not be financed under other Community aid schemes.

2. The total amount for costs under points (b)(i) and (iii) of the first subparagraph of paragraph 1 shall represent a fixed amount and be subject to a ceiling not exceeding 5 % of the Member State's envelope of Community aid, following the definitive allocation of Community aid referred to in Article 4(4).

For the year in which the evaluation exercise pursuant to Article 12 takes place, the total amount for costs under points (b)(i) and (ii) of the first subparagraph of paragraph 1 shall not exceed 10 % of the Member State's envelope of Community aid for the year in which the evaluation takes place, following the definitive allocation of Community aid referred to in Article 4(4).

Article 6

General conditions for granting the aid

1. Member States shall ensure that the aid provided for under their strategy shall be distributed to the aid applicants where these applicants have made a valid aid application to their competent authorities. An aid application shall only be valid if lodged by an applicant which has been approved for that purpose by the competent authorities of the Member State in which the educational establishment to which the products are supplied is located.

2. Member State may select aid applicants from among the following bodies:

(a) educational establishments;

(b) educational authorities in respect of the products distributed to the children within their area;

(c) suppliers and/or distributors of the products;

(d) organisations acting on behalf of one or more educational establishments or educational authorities and specifically established for that purpose;

(e) any other public or private body to manage: (i) the distribution of fruit and vegetables, processed fruit and vegetables and banana products to educational establishments in the framework of a School Fruit Scheme set up under, or aligned with, this Regulation; (ii) the evaluation and/or communication.

Article 7

General conditions for approval of aid applicants

Approval shall be conditional on the following written commitments by the applicant to the competent authority:

(a) to use products financed under a School Fruit Scheme set up under, or aligned with, this Regulation for consumption by the children of its educational establishment or of the establishments in respect of which it will apply for aid;

(b) to repay any aid unduly paid for the quantities concerned, if it has been found that these products have not been distributed to the children referred to in Article 2 or have been paid for products that are not eligible under this Regulation;

(c) in case of fraud or serious negligence, to pay an amount equal to the difference between the amount initially paid and the amount to which the applicant is entitled;

(d) to make supporting documents available to the competent authorities at their request;

(e) to submit to any check decided on by the competent authority of the Member State, in particular the scrutiny of records and physical inspection.

Member States may make approval conditional on additional written commitments by the applicant to the competent authority.

Article 8

Specific conditions for the approval of certain applicants

If the aid is applied for by an applicant referred to in points (c) to (e) of Article 6(2), the applicant shall make a written commitment, in addition to those referred to in Article 7, to keep records of the names and addresses of the educational establishments or, where appropriate, educational authorities and the products and quantities sold or supplied to these establishments or authorities.

Article 9

Suspension and withdrawal of approval

If it is found that an applicant for aid no longer meets the conditions laid down in Articles 6, 7 and 8, or any other obligation under this Regulation, approval shall be suspended for a period of between one and twelve months or be withdrawn, depending on the seriousness of the irregularity. Such action shall not be taken in cases of force majeure or if the Member State finds that the irregularity was not committed deliberately or by negligence or was of minor importance. Approval, once withdrawn, may be restored at the applicant's request after a minimum period of 12 months.

Article 10

Aid applications

1. Aid applications shall be made in a manner which shall be specified by the competent authority of the Member State and shall include at least the following information:

(a) the quantities distributed;

(b) the name and address or identification number of the educational establishment or educational authority to which the information referred to in point (a) relates; and

(c) the number of children in the respective educational establishment of the target group as identified in the strategy of the Member State.

2. Member States shall specify the frequency of applications in line with their strategy, but aid application periods shall not cover more than 5 months. If the scheme runs during more than 6 months of the period referred to in Article 4(1), the total number of aid applications per period shall be at least three.

3. Except in cases of force majeure, aid applications shall, in order to be valid, be correctly filled in and be lodged by the last day of the third month following the end of the period to which they relate.

4. The amounts shown in the application shall be supported by documentary evidence held available for the competent authorities. This evidence shall show the price of the delivered products and shall be receipted or accompanied by proof of payment.

Article 11

Payment of the aid

1. As regards suppliers, organisations or bodies referred to in points (c) to (e) of Article 6(2), aid shall only be paid:

(a) on presentation of a receipt for the quantities actually delivered; or

(b) on the basis of the report of an inspection made by the competent authority before final payment of the aid, establishing that the payment requirements have been met; or

(c) if the Member State so authorises, on presentation of alternative proof that the quantities delivered for the purposes of this Regulation have been paid for.

2. The aid shall be paid by the competent authority within three months of the day of lodging of the correctly filled and valid aid application. The Member States shall determine the form and content of a valid aid application.

3. If the time limit referred to in Article 10(3) is overrun by less than two months the aid shall still be paid but reduced:

(a) by 5 % if the overrun is one month or less;

(b) by 10 % if the overrun is more than a month but less than two months.

Once the time limit referred to in Article 10(3) is overrun by two months, the aid shall be reduced by 1 % per additional day.

Article 12

Monitoring and evaluation

1. Member States shall monitor the implementation of their School Fruit Scheme on an annual basis. Monitoring shall draw upon the data originating from management and control obligations, including those set out in Articles 10 and 11. Member States shall provide for adequate structures and forms to ensure regular monitoring of programme implementation.

2. Member States shall evaluate the implementation of their School Fruit Scheme and assess its effectiveness. For the period running from 1 August 2010 to 31 July 2011, Member States shall notify the results of their evaluation exercise to the Commission by 29 February 2012. For subsequent periods, Member States shall evaluate the implementation of their scheme at least every five years and notify their results every five years following that date.

3. Where a Member State does not notify the results of its evaluation exercise by the date referred to in paragraph 2, or every five years following that date, the amount of the next allocation will be reduced as follows:

(a) by 5 % if the delay is one month or less;

(b) by 10 % if the delay is more than one month but less than two months.

Once the time limit referred to in subparagraph 1 is delayed by two months, the aid shall be reduced by 1 % per additional day.

Article 13

Controls and sanctions

1. Member States shall take all necessary measures to ensure compliance with this Regulation. These measures shall include full administrative checking of aid applications, which shall be supplemented by on-the-spot checks as specified in paragraphs 2 to 8.

2. Administrative checks shall be conducted on all aid applications and shall include checking of supporting documents as defined by the Member States, relating to product delivery. The administrative checks shall be supplemented by on-the-spot checks carried out in particular on:

(a) the records referred to in Article 8, including financial records such as purchase and sales invoices and bank extracts;

(b) use of the subsidised products in accordance with this Regulation, particularly if there are grounds for suspecting any irregularity.

3. The total number of on-the-spot checks carried out in respect of each period running from 1 August to 31 July shall cover at least 5 % of the aid distributed at national level and at least 5 % of all the applicants referred to in Article 6.

When the number of applicants in a Member State is less than hundred, the on-the-spot checks shall be carried out on the premises of five applicants.

When the number of applicants in a Member State is less than five, 100 % of the applicants shall be controlled.

4. On-the-spot checks shall be conducted throughout the period from 1 August to 31 July and shall cover a period of at least the previous twelve months.

5. The applicants subjected to on-the-spot checks shall be selected by the competent control authority taking due account of the different geographical areas, and on the basis of a risk analysis taking into consideration in particular the recurrent nature of errors and the findings of checks carried out in past years. The risk analysis shall also take account of the different amount of aid involved and type of applicants referred to in Article 6(2).

6. In cases where the applicant referred to in points (b) to (e) of Article 6(2) applies for the aid, the on-the-spot check carried out on the premises of the applicant shall be supplemented by on-the-spot checks on the premises of at least two educational establishments or at least of 1 % of the educational establishments stated on the applicant's roll, whichever is the greater.

7. Provided that the purpose of the control is not jeopardised, advance notice, strictly limited to the minimum time period necessary, may be given.

8. The competent control authority shall draw up a control report on each on-the-spot check. The report shall describe precisely the different items controlled.

The control report shall be divided into the following parts:

(a) a general part containing, in particular, the following information: (i) the scheme, the period covered, the controlled aid applications, the quantities of products covered under the School Fruit Scheme, the participating educational establishments an estimate based on the available data of the number of children for which the aid was paid and the financial amount involved; (ii) the responsible persons present;

(b) a part describing separately the checks carried out and containing, in particular, the following information: (i) the documents checked; (ii) the nature and extent of checks carried out; (iii) remarks and findings.

9. For recovery of unduly paid amounts, Article 73(1), (3), (4) and (8) of Commission Regulation (EC) No 796/2004 (3) shall apply mutatis mutandis.

10. Without prejudice to Article 9, in case of fraud or serious negligence for which he/she is responsible, the applicant shall, in addition to the recovery of unduly paid amounts in accordance with paragraph 9 of this Article, pay an amount equal to the difference between the amount initially paid and the amount the applicant is entitled to.

Article 14

European ‘School Fruit Scheme’ poster

1. Member States participating in the European ‘School Fruit Scheme’ shall communicate to the public that the scheme has received financial support from the European Community. In this respect, Member States may make use of a poster produced in accordance with the minimum requirements laid down in Annex III, which shall be permanently situated at a clearly visible and legible place at the main entrance of the participating educational establishment.

2. Where Member States decide not to make use of the poster referred to in paragraph 1, they shall clearly explain in their strategy how they will inform the public about the European Community's financial contribution to their scheme. Posters, websites or any other instrument of information or publicity on a Member State's School Fruit Scheme shall in any event exhibit the European flag and the following sentence: ‘Our (type of educational establishment) participates in the European “School Fruit Scheme” with the financial support of the European Community.’

3. References to the financial contribution made available by the European Community shall receive at least the same visibility as contributions from other private or public entities supporting a Member State's scheme.

Article 15

Notifications

1. Member States shall make the notifications referred to in Article 4(1) and (2) to the Commission, by 31 January of the year in which the period mentioned in Article 4(1) starts. These notifications shall be sent by e-mail to AGRI-HORT-SCHOOLFRUIT@ec.europa.eu, in a format to be decided by the Commission.

Starting from 2010, Member States shall notify the Commission each year, following the end of the period referred to in Article 4(1) by 30 November of the year in which the period mentioned in Article 4(1) ends:

(a) the results of the monitoring exercise, where provided for under Article 12;

(b) the on-the-spot checks carried out pursuant to Articles 13 and 16 and the related findings.

2. The form and content of the notifications mentioned in paragraph 1 shall be defined on the basis of guidance made available by the Commission to the Member States. Those models shall not apply until the Management Committee for Common Organisation of Agricultural Markets has been informed.

3. The Commission shall publish the Member States' strategies and the results of their monitoring and evaluation exercise on a regular basis.

4. Where a Member State changes the strategy referred to in Article 3, it shall notify the Commission without delay of its new strategy, by e-mail to the address referred to in the first subparagraph of paragraph 1.

Article 16

Transitional provisions

1. For the period running from 1 August 2009 to 31 July 2010, Member States may draw up a strategy which contains only the following key elements: budget, target group and eligible products and, by derogation from Article 3(2), abstain from having their list of eligible products endorsed by their competent health authorities. They may also postpone the implementation of accompanying measures until the end of that period.

2. For the period referred to in paragraph 1, and by way of derogation from Article 4(1) and (2), Member States may notify their strategy by 31 May 2009, whereas the Commission shall only decide on the definitive allocation of Community aid by 31 July 2009.

3. For the period referred to in paragraph 1, and by way of derogation from Article 11(2), aid shall be paid by the competent authority within four months of the day of lodging of the correctly filled and valid application referred to in Article 6(1), while the percentage of the on-the-spot checks referred to in Article 13(3) shall cover at least 10 % of the aid and 10 % of the aid applicants.

Article 17

Entry into force

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

It shall apply from 15 April 2009.

This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 7 April 2009. For the Commission Mariann FISCHER BOEL Member of the Commission

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

(2) OJ L 5, 9.1.2009, p. 1.

(3) OJ L 141, 30.4.2004, p. 18.

ANNEX I List of products that shall be excluded from a School Fruit Scheme that is co-financed with Community aid Products with: — Added sugar — Added fat — Added salt — Added sweeteners

ANNEX II Indicative allocation of Community aid per Member State Member State Co-financing rate (in %) Children 6-10 abs. numbers EUR Austria 50 439 035 1 320 400 Belgium 50 592 936 1 782 500 Bulgaria 75 320 634 1 446 100 Cyprus 50 49 723 175 000 Czech Republic 73 454 532 1 988 100 Denmark 50 343 807 1 034 000 Estonia 75 62 570 282 400 Finland 50 299 866 901 200 France 51 3 838 940 11 778 700 Germany 52 3 972 476 12 488 300 Greece 59 521 233 1 861 300 Hungary 69 503 542 2 077 900 Ireland 50 282 388 849 300 Italy 58 2 710 492 9 521 200 Latvia 75 99 689 450 100 Lithuania 75 191 033 861 300 Luxembourg 50 29 277 175 000 Malta 75 24 355 175 000 Netherlands 50 985 163 2 962 100 Poland 75 2 044 899 9 222 800 Portugal 68 539 685 2 199 600 Romania 75 1 107 350 4 994 100 Slovakia 73 290 990 1 276 500 Slovenia 75 93 042 419 200 Spain 59 2 006 143 7 161 900 Sweden 50 481 389 1 447 100 UK 51 3 635 300 11 148 900 EU 27 58 25 920 489 90 000 000