COMMISSION REGULATION (EC) No 659/97 of 16 April 1997 laying down detailed rules for the application of Council Regulation (EC) No 2200/96 as regards intervention arrangements in the fruit and vegetables sector

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to Council Regulation (EC) No 2200/96 of 28 October 1996 on the common organization of the market in fruit and vegetables (1), and in particular Articles 30 (6), 48 and 57 thereof,

Whereas Title IV of Regulation (EC) No 2200/96 establishes the intervention arrangements for the products referred to in Article 1 (2) thereof; whereas the detailed rules of application must therefore be laid down;

Whereas, in relation to products, the terms 'not put up for sale` and 'withdrawn from the market` should be treated as equivalent and should be included in a single definition; whereas it should also be clarified that the provisions on packaging requirements do not apply to the products withdrawn from the market;

Whereas the marketing years for the products listed in Annex II to Regulation (EC) No 2200/96 must be established;

Whereas, to apply the limits laid down in Article 23 and 24 of Regulation (EC) No 2200/96, the 'marketed quantity` of a given product marketed by a producer organization must be defined, taking account of the production actually disposed of by the producer organization in question, the production from other producer organizations and the production of producers not affiliated to any producer organization;

Whereas Article 28 of Regulation (EC) No 2200/96 requires Member States to notify the Commission of the prices recorded on representative producer markets for certain products and for certain periods; whereas a list of those markets and of the products in question should therefore be drawn up;

Whereas Article 26 of Regulation (EC) No 2200/96 establishes the Community withdrawal compensation for the products listed in Annex II to that Regulation; whereas a system should be introduced for paying this compensation in such a way as to ensure that the limits laid down in Article 23 of Regulation (EC) No 2200/96 are complied with at all times;

Whereas, to prevent irregularities in applying the scheme and to ensure its transparency, the producer organizations must notify the responsible monitoring authorities in advance of each withdrawal; whereas, in the absence of this notification, the product can be disposed of only after authorization from the Member State; whereas, furthermore, a communications system for the producer organizations and the Member States should be set up;

Whereas, for the implementation of Article 25 of Regulation (EC) No 2200/96, the time limits should be laid down for presenting the measures taken by the Member States to ensure environmentally sound practice in the withdrawal operations;

Whereas the first, second and third indents of point (a) of Article 30 (1) of Regulation (EC) No 2200/96 provide that the fruit and vegetables withdrawn from the market in accordance with Article 23 (1) and which remain unsold may be distributed free, both within and outside the Community, as humanitarian aid to certain needy categories of the population through charitable organizations; whereas the charitable organizations should be approved beforehand;

Whereas, in the case of free distribution of fruit and vegetables withdrawn from the market, the transport costs are to be borne by the Community pursuant to Article 30 (6) of Regulation (EC) No 2200/96; whereas it must be stipulated that those costs must be paid to the consignor who has borne the cost of transport; whereas flat rates should be laid down for the defrayal of such costs;

Whereas, in the case of free distribution of apples and citrus fruits withdrawn from the market, the actual costs of sorting and packaging may be defrayed by the Community pursuant to Article 30 (6) of Regulation (EC) No 2200/96, up to a specific limit; whereas, to qualify for this measure, the charitable organizations and the producer organizations must conclude contractual agreements; whereas provisions governing such agreements should be laid down;

Whereas the procedures for the physical and documentary monitoring of the intervention and free distribution operations must be laid down; whereas, in cases of infringement, deterrent penalties that are in line with the seriousness of the offence should be stipulated; whereas the monitoring operations must cover the producer organizations and charitable organizations involved;

Whereas, for the 1997 marketing year and as a transitional measure, producer organizations which have submitted an operational programme in accordance with Commission Regulation (EC) No 411/97 (2) should be allowed to supplement the Community withdrawal compensation;

Whereas it is necessary to repeal Commission Regulation (EEC) No 3587/86 (3), as last amended by Regulation (EC) No 1363/95 (4), Commission Regulation (EEC) No 827/90 (5), as last amended by Regulation (EC) No 771/95 (6), Commission Regulation (EEC) No 2103/90 (7), as amended by Regulation (EC) No 1363/95, Regulation (EEC) No 2276/92 (8), as last amended by Regulation (EC) No 1363/95, and Commission Regulation (EC) No 113/97 (9), whose provisions have become obsolete or are to be replaced by this Regulation;

Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Fresh Fruit and Vegetables and the Committee of the European Agricultural Guidance and Guarantee Fund,

HAS ADOPTED THIS REGULATION:

CHAPTER I

Intervention arrangements

Article 1

This Regulation lays down the detailed rules for the application of the intervention arrangements provided for in Title IV of Regulation (EC) No 2200/96 and applies to the products referred to in Article 1 (2) thereof.

Article 2

1. For the purposes of this Regulation, products 'withdrawn from the market` and 'not put up for sale` mean products which are not sold via a producer organization, in accordance with the intervention arrangements referred to in Regulation (EC) No 2200/96.

2. Products withdrawn from the market must comply with the standards in force if such standards have been adopted pursuant to Article 2 of Regulation (EC) No 2200/96. However, in that event, the standards on packaging and wrapping shall not apply.

Article 3

1. For each product the 'marketed quantity` of a producer organization, as referred to in Article 23 (3) of Regulation (EC) No 2200/96, shall be the sum of:

(a) the production of members actually sold through the producer organization or processed by it;

(b) the production of members of a producer organization sold directly by its members as provided for in the first and fourth indents of Article 11 (1) (c) (3) of Regulation (EC) No 2200/96;

(c) the production of members of other producer organizations marketed through the producer organization concerned in accordance with the second and third indents of Article 11 (1) (c) (3) thereof.

The marketed quantity referred to in the first subparagraph shall not include the marketed production of members of a producer organization who are authorized to sell in accordance with the second and third indents of Article 11 (1) (c) (3).

2. The marketed production referred to in Article 23 (4) of Regulation (EC) No 2200/96 shall be equivalent to the marketed quantity as defined in paragraph 1.

Article 4

The marketing years for products qualifying for Community withdrawal compensation in accordance with Article 23 (3) of Regulation (EC) No 2200/96 shall be as listed in Annex I to this Regulation.

The marketing years for products listed in Article 1 (2) of Regulation (EC) No 2200/96 other than those referred to in the first paragraph shall run from 1 January to 31 December.

Article 5

1. For the products listed in Annex II to Regulation (EC) No 2200/96, payment of the Community withdrawal compensation referred to in Article 26 of that Regulation shall be subject to presentation, to the competent authority of the Member State, of an application by the producer organizations referred to in Articles 11 and 13 thereof or by associations of such organizations.

Where Article 13 (3) of Regulation (EC) No 2200/96 is applied, the producer organization concerned shall no longer benefit from the provisions laid down in the said Regulation.

2. The application referred to in paragraph 1 shall cover a period of at least one month. It shall be accompanied by supporting documents confirming the quantity of each product marketed and the quantity of each product not put up for sale by the producer organization, and specifying:

(a) the production of members actually sold through the producer organization or processed by it;

(b) the production of members of other producer organizations marketed through the producer organization concerned in accordance with the second and third indents of Article 11 (1) (c) (3) of Regulation (EC) No 2200/96;

(c) the production delivered by each grower who is not a member of any producer organization in accordance with Article 24 of that Regulation.

3. When considering each application, the Member States shall ensure that the quantity not put up for sale since the beginning of the marketing year in question complies with the limits laid down in Articles 23 and 24 of Regulation (EC) No 2200/96. If these limits have been exceeded, the Community withdrawal compensation shall be paid only with due regard to these limits and to the compensation already paid. Surplus quantities shall be included when the next application is considered.

Article 6

Without prejudice to Article 22 of this Regulation, for payment of the withdrawal compensation for products not listed in Annex II to Regulation (EC) No 2200/96 and the grant of a supplement to the Community withdrawal compensation as provided for in points (a) and (b) of Article 15 (3) of Regulation (EC) No 2200/96, Regulation (EC) No 411/97 shall apply.

Article 7

1. The representative markets referred to in Article 28 (1) of Regulation (EC) No 2200/96 shall be those listed in Annex II to this Regulation.

2. Member States shall inform the Commission weekly by electronic mail for each marketing day of the production prices recorded on the representative markets for the products and during the periods listed in Annex III. The Commission shall forward this information to the Member States.

Article 8

1. The producer organizations or associations thereof shall notify each withdrawal operation at least 24 hours in advance to the competent national authorities, listing the products intended for intervention together with the estimated quantity of each product concerned.

However, if it has not been possible to give prior notice of a withdrawal operation the products withdrawn may not be disposed of until the Member State has given its authorization.

The producer organizations shall attest, in writing, that the products withdrawn comply with the standards in force if such standards have been adopted pursuant to Article 2 of Regulation (EC) No 2200/96.

They shall notify the competent national authorities of the measures taken to ensure that withdrawal operations are environmentally sound.

2. The producer organizations or associations thereof shall supply the following information to the Member States, which shall communicate it to the Commission:

(a) the stocks of apples and pears available on the first day of each month;

(b) at the start of the marketing year, the declaration of areas cultivated per product and, where applicable, per variety.

Article 9

1. Before the 10th day of each month, the Member States shall forward to the Commission by electronic mail an estimate of the products not put up for sale in the previous month, broken down by product.

2. At the end of each marketing year, the Member States shall forward to the Commission for each product concerned the details set out in Annex IV. These details shall be sent:

(a) not later than 30 June following each marketing year in the case of tomatoes, aubergines, cauliflowers, apricots, peaches, nectarines, grapes, melons, watermelons and products not listed in Annex II to Regulation (EC) No 2200/96;

(b) not later than 30 November following each marketing year in the case of lemons, pears, apples, satsumas, clementines and sweet oranges.

3. If the Member States do not forward the details referred to in paragraph 2, or if those forwarded details appear erroneous in the light of the objective facts in the Commission's possession, the Commission may suspend payment of the advance payments on the defrayal of expenses referred to in Article 5 (2) (a) of Council Regulation (EEC) No 729/70 (10) pending the forwarding of the requisite details.

Article 10

Member States shall notify to the Commission by 15 September 1997 at the latest the national framework provided for in the third paragraph of Article 25 of Regulation (EC) No 2200/96.

Member States shall inform the Commission of any amendments to the abovementioned framework.

CHAPTER II

Free distribution

Article 11

1. In accordance with the first and third indents of Article 30 (1) (a) of Regulation (EC) No 2200/96, products withdrawn from the market during a given marketing year may be made available to charitable organizations approved by the Member States for free distribution, at their request.

2. In order to qualify for approval, the charitable organizations shall undertake to:

(a) comply with this Regulation;

(b) keep separate accounts for the operations in question;

(c) accept the checks provided for by Community provisions.

3. Member States shall approve charitable organizations in at least one of the following categories:

(a) charitable organizations authorized to distribute on the Member State's territory products which have been withdrawn there;

(b) charitable organizations authorized to distribute on Community territory;

(c) charitable organizations authorized to distribute Community products in third countries.

Member States shall notify lists of approved charitable organizations as referred to in points (b) and (c) of the first subparagraph to the Commission, which shall publish them in the 'C` series of the Official Journal of the European Communities.

Article 12

The institutions as referred to in the second indent of Article 30 (1) (a) of Regulation (EC) No 2200/96 which are designated by the Member States must comply with the conditions pursuant to Article 11 (2) of this Regulation.

Article 13

Member States shall take measures to facilitate contacts and operations between the producer organizations concerned and the charitable organizations approved in accordance with Article 11 (2).

At the end of each marketing year, Member States shall forward to the Commission the information specified in Annex VI concerning the free distribution operations.

Article 14

1. Free distribution outside the Community as part of humanitarian aid shall be carried out by the charitable organizations referred to in Article 11 (3) (c) in accordance with paragraphs 2 and 3 of this Article.

2. The products dispatched shall not be eligible for export refunds. The customs export document, the transit document and any T5 document issued shall be endorsed 'without refund`.

3. Member States shall submit to the Commission the plans for each free distribution operation and shall send the Commission a copy of the notification to the FAO Consultative Subcommittee on Surplus Disposal, on authorization of the operation by the Commission.

The Commission shall decide on a case-by-case basis whether to authorize such operations in the light of the guarantees of successful conclusion and the market situation.

At the end of each operation, Member States shall forward to the Commission the information specified in Annex VI.

Article 15

1. The costs of transport linked to the free distribution of all products withdrawn from the market shall be met by the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) on the basis of the flat-rate amounts determined in accordance with the distance between the point of withdrawal and the place of delivery set out in Annex V.

In the case of free distribution outside the Community, the flat-rate amounts set out in Annex V shall cover the distance between the point of withdrawal and the point of exit from the Community.

2. The transport costs shall be paid to the consignor who has actually borne the financial cost of the transport operation in question.

Payment of the said amounts shall be subject to presentation of supporting documents, certifying, in particular:

- the names of the beneficiary bodies,

- the quantity of the products concerned,

- acceptance by the charitable organization,

- the means of transport used.

Article 16

1. In the case of apples and citrus fruits withdrawn from the market, the costs of sorting and packaging linked to free distribution shall be borne by the Guarantee Section of the EAGGF, up to the amount set out in paragraph 2 of Annex V, where free distribution is performed under a contractual agreement between the producer organizations and the charitable organizations concerned.

2. For the purposes of paragraph 1 the producer organizations shall, at the start of the marketing year, enter into contractual agreements with charitable organizations approved in accordance with Article 11 (2) and (3) and notify them to the competent national authorities as soon as they are concluded. The authorities in question may set a final date for the conclusion of such agreements.

3. Agreements shall be concluded subject to there being products withdrawn from the market. The quantities stipulated in the agreements may be increased during the marketing year, depending on the market situation.

4. Agreements shall be concluded for a single marketing year within the meaning of Regulation (EC) No 2200/96 and shall specify:

- the likely quantity of each product,

- the means of transport envisaged,

- the planned rate of delivery,

- the agreed place where the product will be made available,

- the obligation on the producer organization to make available ready sorted products packed in packages of less than 25 kg,

- an estimate of beneficiaries by administrative unit.

5. Member States shall forward to the Commission, not later than one month after the conclusion of the agreements, the information specified in paragraph 4.

6. Payment of the costs of sorting and packaging shall be made to the producer organizations which performed the sorting and packaging and shall be subject to the presentation of supporting documents, certifying, in particular:

- the names of the beneficiary bodies,

- the quantity of the products concerned,

- the actual costs of sorting and packaging,

- acceptance by the charitable organization.

CHAPTER III

Checks and penalties

Article 17

1. Member States shall take all the necessary measures to ensure that the provisions of Title IV of Regulation (EC) No 2200/96 are complied with, and in particular those set out in paragraphs 2, 3 and 4 of this Article.

2. Member States shall perform physical and documentary checks on the withdrawals made by all producer organizations at least once during the marketing year. For each product, these checks shall involve at least 20 % of the total quantity withdrawn.

They shall, in addition, ensure that the products not put up for sale comply with the standards in force if such standards have been adopted pursuant to Article 2 (2) of Regulation (EC) No 2200/96.

In cases where Article 30 (2) of Regulation (EC) No 2200/96 applies, Member States shall check all the quantities withdrawn.

3. Member States shall carry out documentary checks on intervention operations to ensure that the accounts are correct and that there is effective verification of compliance with the conditions for payment of the Community withdrawal compensation or of financing from the operational fund referred to in Article 15 (1) of Regulation (EC) No 2200/96.

Checks shall be undertaken on each producer organization at least once each marketing year and, for each product, must involve at least 10 % of the applications for payment.

4. Where checks reveal significant irregularities, the competent authorities shall carry out additional checks during the marketing year in progress and shall increase the frequency of checks in the following marketing year.

Article 18

1. Member States shall take the necessary measures to ensure that free distribution operations both inside and outside the Community comply with the provisions in force.

They shall, in particular:

(a) ensure that the operations in question are properly carried out;

(b) verify the final use made of the products by the charitable organization, in particular by demanding from them a certificate of acceptance certifying the use of the products;

(c) check the final destination of the products.

2. Checks shall be both documentary and physical and shall concern both the producer organizations and the charitable bodies concerned. They may be random in nature and each year shall cover at least 10 % of the quantities distributed.

3. With regard to distribution within the Community and without prejudice to Article 39 of Regulation (EC) No 2200/96, the competent authorities of the Member State on whose territory the free distribution takes place shall undertake checks on the use of the products and their final destination.

4. At the request of the Member State, the Commission shall assist it in monitoring free distribution operations outside the Community.

Article 19

1. The beneficiary of Community withdrawal compensation or of financing from the operational fund shall be under the obligation to pay back double the amounts unduly paid, plus interest calculated by reference to the time that has elapsed between payment and reimbursement by the beneficiary where checks carried out in accordance with Article 17 show that:

(a) the products not put up for sale do not comply with the provisions on standards laid down in Article 2 of Regulation (EC) No 2200/96;

(b) the products not put up for sale have not been disposed of as provided for in Article 30 of that Regulation;

(c) the disposal of the products not put up for sale causes substantial environmental damage.

However, the penalty referred to in the first subparagraph shall not be applied where the beneficiary proves to the satisfaction of the competent national authority that the irregularities were not intentional on his part or were not the result of gross negligence. In such cases, the beneficiary shall repay only the amount unduly paid, plus interest.

The rate of interest shall be that applied by the European Monetary Institute to transactions in ecus published in the 'C` series of the Official Journal of the European Communities and in force on the date on which undue payment is made, plus three percentage points.

2. Sums recovered, with the interest accrued, shall be paid to the responsible paying agency and deducted from expenditure financed by the EAGGF.

3. In the event of a false declaration made deliberately or by serious negligence, the producers' organization concerned shall be debarred from receiving Community withdrawal compensation for the marketing year following that in respect of which the false declaration was discovered.

Article 20

1. Where irregularities attributable to producer organizations or to approved charitable bodies or institutions as referred to in Articles 11 and 12 are detected in the course of free distribution pursuant to checks carried out in accordance with Article 18, paragraphs 2 to 7 of this Article shall apply.

2. Approval as referred to in Article 11 (2) shall be withdrawn from charitable organizations. This shall take effect immediately and continue for at least one marketing year, and may be extended depending on the seriousness of the irregularity.

3. Institutions as referred to in Article 12 shall not be eligible to be the beneficiaries of free distribution operations in the following marketing year.

4. The charitable organization or institution which received the product withdrawn from the market shall be obliged to repay the value of the products it received plus interest calculated by reference to the time which has elapsed between receipt of the product and repayment by the beneficiary.

5. Article 19 (3) shall apply to the producer organization concerned.

Furthermore, the producer organization shall be obliged to reimburse double the amounts received in respect of sorting and packaging costs, plus interest calculated by reference to the time which has elapsed between payment and reimbursement by the beneficiary.

The consignor who received the transport costs as referred to in Article 15 shall be obliged to reimburse double the amounts received for transport plus interest calculated by reference to the time which has elapsed between payment and reimbursement by the beneficiary.

6. The rate of interest shall be that applied by the European Monetary Institute to its operations in ecus published in the 'C` series of the Official Journal of the European Communities in force on the date of undue payment, increased by three percentage points.

7. The amounts recovered, plus the interest thereon, shall be paid to the competent paying agency and deducted from expenditure financed by the EAGGF.

Article 21

Articles 19 and 20 of this Regulation shall apply without prejudice to other penalties to be adopted in accordance with Article 48 of Regulation (EC) No 2200/96.

CHAPTER IV

Transitional and final provisions

Article 22

For 1997, producer organizations which have submitted a draft operational programme for approval in accordance with Articles 3 or 15 of Regulation (EC) No 411/97 are hereby authorized to grant, at their own risk, supplements to the Community withdrawal compensation, in accordance with Article 15 (3) (b) of Regulation (EC) No 2200/96.

Article 23

Regulations (EEC) No 3587/86, (EEC) No 827/90, (EEC) No 2103/90, (EEC) No 2276/92 and (EC) No 113/97 are hereby repealed.

Article 24

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

However, for each product listed in Annex I to Regulation (EC) No 2200/96, it shall apply from the start of the 1997/98 marketing year.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 16 April 1997.

For the Commission

Franz FISCHLER

Member of the Commission

(1) OJ No L 297, 21. 11. 1996, p. 1.

(2) OJ No L 62, 4. 3. 1997, p. 9.

(3) OJ No L 334, 27. 11. 1986, p. 1.

(4) OJ No L 132, 16. 6. 1995, p. 8.

(5) OJ No L 86, 31. 3. 1990, p. 13.

(6) OJ No L 77, 6. 4. 1995, p. 9.

(7) OJ No L 191, 24. 7. 1990, p. 19.

(8) OJ No L 220, 5. 8. 1992, p. 22.

(9) OJ No L 20, 23. 1. 1997, p. 26.

(10) OJ No L 94, 28. 4. 1970, p. 13.

ANNEX I

MARKETING YEARS FOR THE PRODUCTS LISTED IN ANNEX II TO REGULATION (EC) No 2200/96

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ANNEX II

LIST OF REPRESENTATIVE MARKETS

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Cauliflowers

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Apples

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Pears

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Tomatoes

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ANNEX III

As provided for in Article 6 (2) of this Regulation, Member States shall notify daily producer prices recorded for the following products and periods:

I.A

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I.B

Other products:

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ANNEX IV

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STATUS REPORT ON INTERVENTIONS >END OF GRAPHIC>

ANNEX V

1. Transport costs under free distribution arrangements (first, second and third indents of Article 30 (1) (a) of Regulation (EC) No 2200/96)

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2. The costs of sorting and packaging for apples and citrus fruits shall be borne by the Community up to a maximum of ECU 11 per 100 kg net.

ANNEX VI

Details concerning free distribution operations:

(a) as regards free distribution within the Community:

- product distributed (variety, commercial category),

- quantity distributed,

- name and headquarters of the producer organization making the withdrawals,

- name and headquarters of the approved charitable organization or institution appointed by the Member State in receipt of the product,

- end use of the product,

- type of packaging used, specifying whether recycled or not,

- means of transport used and the name of the transporter,

- date of delivery and date of receipt,

- estimated number of beneficiaries, by administrative unit,

- date the agreement between the producer organization and the approved charitable body was concluded;

(b) as regards free distribution outside the Community:

- product distributed (variety, commercial category),

- quantity distributed,

- name and headquarters of the producer organization making the withdrawals,

- name and headquarters of the approved charitable organization carrying out distribution,

- name and address of the approved charitable organization in receipt of the product,

- country and place of final destination,

- description of the end use of the product (the population group for which it is intended),

- means of transport used and the name of the transporter,

- date of delivery and date of receipt,

- estimated number of beneficiaries, by administrative unit,

- date the agreement between the producer organization and the approved charitable body was concluded.