COUNCIL REGULATION (EC) No 3448/93of 6 December 1993 laying down the trade arrangements applicable to certain goods resulting from the processing of agricultural products

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Economic Community, and in particular Articles 43 and 113 thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the European Parliament (2),

Having regard to the opinion of the Economic and Social Committee (3),

Whereas Articles 38 to 47 of the Treaty provide for the establishment of a common agricultural policy covering the agricultural products listed in Annex II to the Treaty;

Whereas certain agricultural products are used in numerous goods not covered by Annex II to the Treaty;

Whereas it is necessary to provide for measures under the common agricultural policy and the common commercial policy to take account of the impact of trade in such goods on the objectives of Article 39 of the Treaty and of how measures adopted to implement Article 43 of the Treaty affect the economic position of such goods, given the differences between the costs of procuring agricultural products within and outside the Community and the differences in the prices of agricultural products;

Whereas the Treaty lays down that agricultural policy and commercial policy are Community policies; whereas it is necessary to establish for certain goods resulting from the processing of agricultural products general and comprehensive rules, applicable throughout the Community, relating to trade in these goods, in order to attain the objectives of the Treaty;

Whereas Council Regulation (EEC) No 3033/80 of 11 November 1980 laying down the trade arrangements applicable to certain goods resulting from the processing of agricultural products (4) provides for the levying on imports of certain goods of a charge consisting of a fixed component for the protection of the processing industry and a variable component to offset any difference between the prices of the relevant agricultural products in the Community and on the world market;

Whereas the overall approach of the arrangements introduced by Regulation (EEC) No 3033/80 must be maintained, with certain extensions as explained below and certain adjustments; whereas, on the one hand, it is appropriate to draw up, in respect of the goods to which the arrangements currently apply, set out in Table 1 of Annex B, the list of agricultural products for which price differences between the world market and the Community market can be offset on importation, and, on the other hand, it must be possible to identify among those agricultural products the basic products for which such differences are actually recorded, the quantities of other agricultural products, assimilated products or products resulting from their processing being converted into equivalent quantities of basic products;

Whereas certain amendments are needed to the rules applicable to trade in these goods to take account of developments in the Community's agreements and in the common agricultural policy;

Whereas certain goods falling within Chapters 1 to 24 of the combined nomenclature are not covered by Regulation (EEC) No 3033/80; whereas these goods are also obtained using agricultural products subject to the common agricultural policy; whereas the charges applied to imports of such goods must therefore likewise cover the difference between the world market prices and the prices on the Community market for the agricultural products used in their production and ensure the protection of the processing industry concerned; whereas it is therefore necessary to consolidate the rules applying to all the goods obtained in significant proportion from agricultural products;

Whereas, under agreements entered into, the Community is to limit such charges to covering, in whole or in part, differences in the price of agricultural products used in the production of the goods in question; whereas it is accordingly necessary to establish for these goods that part of the overall charge which covers the differences between the prices of the agricultural products taken into account;

Whereas, for the basic products concerned, the offsetting of the price differences between the world market and the Community market takes the form of agricultural levies; whereas it is necessary to maintain a close link between the calculation of the agricultural component of the charge applicable to goods and that applicable to basic products imported in the unaltered state;

Whereas, in order to avoid undue administrative formalities, negligible amounts should not be applied and Member States should be permitted to refrain from adjusting amounts relating to a given transaction where the balance of the amounts concerned is itself negligible;

Whereas the implementation of preferential agreements should not complicate the procedures applicable to trade with third countries; whereas the implementing rules must therefore ensure that goods declared for export under a preferential arrangement are not in fact exported in accordance with the general arrangements and vice versa;

Whereas arrangements must be made for export refunds on certain agricultural products used in the manufacture of goods not covered by Annex II to the Treaty in order not to penalize producers of the said goods for the prices at which they are obliged to procure their supplies as a result of the common agricultural policy; whereas such refunds may cover only the difference between the price of an agricultural product on the Community market and world market respectively; whereas these arrangements should accordingly be established as part of the common organization of the markets concerned;

Whereas Article 13 of Council Regulation (EEC) No 1766/92 of 30 June 1992 on the common organization of the market in cereals (5) and the corresponding Articles of certain other regulations on the common organization of the markets in agricultural products provide for the granting of such refunds; whereas the implementing rules should be adopted under the management committee procedure referred to in Article 23 of Regulation (EEC) No 1766/92 and the corresponding Articles of the other Regulations concerned; whereas the amounts of the refunds should be fixed under the same procedure as the amounts of the refunds for the agricultural products exported in the unaltered state; whereas the implementing rules for the said procedure must be established having regard essentially to the manufacturing processes of the goods concerned; whereas the implementing rules should accordingly be established on the same basis;

Whereas the mechanism of agricultural protection provided for by this Regulation may prove defective under exceptional circumstances; whereas that risk may also arise in the context of preferential agreements; whereas in order to avoid in such cases leaving the Community market without defence against disturbances which could result from this, it is appropriate to provide for all necessary measures to be taken rapidly;

Whereas Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community customs code (6) should be made applicable to trade covered by this Regulation;

Whereas the distinction drawn between agricultural products covered by Annex II to the Treaty and goods not covered by Annex II is a criterion specific to the Community, based on the situation of agriculture and the food industry in the Community; whereas the situation may be appreciably different in certain third countries with which the Community concludes agreements; whereas, therefore, provision must be made in such agreements for the possibility of extending the general rules applicable to processed agricultural products not covered by Annex II to the Treaty, mutatis mutandis, to certain agricultural products covered by Annex II to be Treaty;

Whereas the Regulation requires detailed implementing rules; whereas it is appropriate for those detailed rules to be laid down after consulting a management committee on which the Member States are represented; whereas the rules should include, in particular, rules on fixing the quantities of basic products considered to have been used in the manufacture of goods covered by Regulation (EEC) No 3033/80 and listed in Table 1 of Annex B to this Regulation, which replace Council Regulation (EEC) No 3034/80 of 11 November 1980 fixing the quantities of basic products considered to have been used in the manufacture of goods covered by Regulation (EEC) No 3033/80 (7),

HAS ADOPTED THIS REGULATION:

Article 1

1. This Regulation determines the trade arrangements applicable to certain goods defined in the third indent of paragraph 2:

(a) in the manufacture of which one or more agricultural products have been used, either unprocessed or after processing, or

(b) which, in accordance with Article 13 (2), are considered to be manufactured from agricultural products, or

(c) which are classified under the same (eight-digit) combined nomenclature code as the goods referred to in (a) and (b).

2. For the purposes of this Regulation:

- 'agricultural products` shall mean products covered by Annex II to the Treaty;

- 'basic products` shall mean certain agricultural products covered by Annex A to this Regulation or assimilated to those products or resulting from their processing for which differences are established between prices on the Community market and prices on the world market. Those price differences are considered representative of price differences for all eligible products.

However:

(i) where a preferential agreement provides for the offsetting of differences in prices for agricultural products other than those listed in Annex A, additional basic products may be included among the eligible products pursuant to that agreement;

(ii) where a preferential agreement concluded with a specific area provides for a special offsetting method, the difference between prices on the Community market and prices on the world market may be replaced by the difference defined in that agreement.

- 'goods` shall mean products not covered by Annex II to the Treaty listed in Annex B to this Regulation, obtained wholly or partly from agricultural products.

3. This Regulation may also apply to certain agricultural products in the framework of preferential trade.

In that case the list of those agricultural products subject to the rules governing trade in goods shall be established by the agreement concerned.

TITLE I TRADE ARRANGEMENTS

CHAPTER 1 Importation

Article 2

1. On importation into the Community, the goods listed in Annex B shall be subject to a charge; this charge shall take account of:

(a) the production and marketing conditions of those goods;

(b) the difference between the prices on the Community market of the agricultural products considered to have been used in their production and

- the prices of imports from third countries, where the total cost of the basic products in question is higher in the Community, or,

- if provided for by a preferential agreement, the prices of the agricultural products in certain third countries.

2. For the goods listed in Table 1 of Annex B, the charge referred to in paragraph 1 shall consist of:

- an ad valorem duty, which is the fixed component of the charge, to take account of the production and marketing conditions of the goods;

- an 'agricultural component` to offset the price differences referred to in point (b) of paragraph 1.

The agricultural component may take account only of the price differences for the agricultural products referred to in Annex A, products which are assimilated to them or products resulting from their processing.

It may take the form of a variable component established in line with the conditions laid down in Article 3 or of a fixed component established in line with the conditions laid down in Article 5.

3. For the goods listed in Table 2 of Annex B, the agricultural component shall consist of a duty or a specific amount established per measurement unit.

Where provided for by a preferential agreement, this agricultural component may be replaced by one of the forms referred to in paragraph 2.

4. Subject to Article 10, the levying of any customs duty or charge having equivalent effect other than the charge provided for in paragraph 1 shall be prohibited.

Article 3

1. The Commission shall fix a variable component for each of the goods listed in Table 1 of Annex B.

The variable component shall be determined on the basis of the quantities of basic products set pursuant to Article 13 (2) considered to have been used in the manufacture of the goods in question, and the price differences referred to in paragraph 2.

A list of basic products, to which the quantities of agricultural products must be converted, shall be established in accordance with Article 13 (1).

2. For each of the basic products the Commission shall:

- either establish the difference between:

(a) the average threshold price applicable over the reference period for which the variable components are fixed, and

(b) the average cif price (excluding special cif prices) or, where appropriate, the free-at-frontier prices used for fixing the levy applicable during the period preceding the period for which the variable component was fixed;

- or, in the case of isoglucose, adopt the average levies referred to in Article 16 (6) of Regulation (EEC) No 1785/81 (8) applicable over the period preceding the period for which the components are fixed.

3. The period referred to in paragraph 2 shall be one quarter. It may be subdivided into two subperiods of one and two months if the quarter is spread over two calendar years or two marketing years, or it may be longer than one quarter within the framework of preferential agreements.

For the purposes of calculating the cif prices, the free-at-frontier prices or the levies, the figures for the last 20 days of the period preceding the period for which the component is fixed shall not be taken into consideration.

4. If one of the figures used for calculating the price difference referred to in paragraph 2 is not available for one or more basic products, the Commission shall replace the missing figure with the corresponding figure for the closest period available, corrected, where appropriate, by the monthly gradation of payments or with any other known details affecting comparison between the missing figure and the figure chosen to replace it.

When the figure which was not available is determined, the Commission may fix the corrected variable components if, by reason of the application of the preceding subparagraph, trade is seriously disrupted or is in danger of being seriously disrupted.

Article 4

1. Where the Common Customs Tariff lays down a maximum charge, the charge provided for in Article 2 (2) may not exceed this maximum.

Where the maximum charge may be applied only under specific conditions, these conditions shall be determined in accordance with the procedure laid down in Article 11 (1) of Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (9).

2. Where the maximum charge includes an additional duty on various kinds of sugar, expressed as sucrose (AD S/Z), or on flour (AD F/M), such additional duty shall be calculated, as appropriate, taking either sugar or flour as the sole agricultural product.

The quantity of sugar or flour shall be determined under the conditions laid down in Article 13 (1).

Where the quantities of sugar or flour actually used, as provided for in Article 13 (1), are not known, these quantities shall be determined under the same conditions as applied for the purposes of establishing the agricultural component.

3. The Commission shall determine for each period referred to in Article 3 (3):

(a) the amount of the additional duties, calculated in accordance with paragraph 2 of this Article;

(b) the price differences applicable to the additional duties, determined in accordance with Article 3 (2).

Article 5

1. If the levies applicable to imports of the basic products referred to in Annex A are replaced by fixed amounts, the variable components applicable to the goods referred to in Table 1 of Annex B shall be calculated on the basis of these amounts.

2. For each basic product to be taken into account in calculating the agricultural component of the charge, the amount established when Article 3 (2) is applied shall be replaced by the amount applicable to the basic product considered to have been used.

3. The date from which the fixed amounts applicable to imports of basic products shall be taken into account in establishing the agricultural component of the charge shall be determined in accordance with the procedure laid down in Article 16.

Article 6

1. For the purposes of determining the agricultural component in the case of trade in the framework of preferential agreements with countries that satisfy the requirements of Community legislation for processed agricultural products:

(a) the quantities of agricultural products used, as determined in accordance with Article 13 (2), may be replaced by the quantities actually used in the manufacture of the imported goods if the Community has concluded a customs cooperation agreement covering the establishment of such quantities; in this case, conversion coefficients may be established taking account of the parties' respective definitions of these basic products to make them directly comparable;

(b) the price difference referred to in Article 3 (2) may be replaced by a system of direct offsetting of the differences in agricultural prices in the Community and the region concerned or by direct offsetting vis-à-vis a jointly established price recognized for the region concerned;

(c) where application of point (b) results in differences with little impact on the goods covered, this arrangement may be replaced by a system of flat-rate amounts or rates.

2. The agricultural components referred to in paragraph 1 may apply for a period different from the period allowed for non-preferential trade.

3. The ad valorem duties corresponding to the agricultural component of the charge for the goods in Table 2 of Annex B may be replaced by another agricultural component where provided for by a preferential agreement.

4. The detailed rules for applying paragraphs 1 to 3 shall be adopted in accordance with the procedure laid down in Article 16 if the preferential agreement concerned determines:

- the agricultural prices adopted in the agreement,

- the period for which these agricultural components are fixed,

- any goods and agricultural products subject to the rules of the Agreement.

Any component or components not determined in the agreement in question shall be adopted by the Council in accordance with the procedure laid down in Article 113 of the Treaty.

5. The other implementing rules necessary in order to establish preferential arrangements shall be determined in accordance with the procedure laid down in Article 16.

These implementing rules shall cover in particular:

- completion and circulation of the documents necessary for granting these arrangements,

- the measures necessary to avoid diversion of trade.

Article 7

1. Where a preferential agreement provides for the reduction or phasing out of the part of the charge referred to in Article 2 (1) (a), this shall be the fixed component in the case of the goods listed in Table 1 of Annex B. In the case of the other goods covered by the agreement, this part of the charge shall be obtained by deducting from the total charge the agricultural component provided for in the agreement unless the agreement makes provision for determining this part by some other means.

2. Where a preferential agreement provides for a reduction in the agricultural component of the charge, the detailed rules for determining and managing such reduced agricultural components shall be adopted in accordance with the procedure laid down in Article 16, provided the agreement specifies:

- the products eligible for these reductions,

- the quantities of goods or value of any quotas to which these reductions apply or the method of calculating these quantities or values,

- the reduction in the agricultural component for each basic product concerned.

Any component or components not determined in the agreement in question shall be adopted by the Council in accordance with the procedure laid down in Article 113 of the Treaty.

CHAPTER 2 Exportation

Article 8

1. On exportation of the goods, the agricultural products which have been used and which satisfy the conditions laid down in Article 9 (2) of the Treaty may qualify for refunds established pursuant to the regulations on the common organization of the market in the sectors concerned.

No export refund may be granted on agricultural products incorporated into goods not covered by a common organization of the market providing for export refunds on products exported in the form of such goods.

2. The list of goods qualifying for refunds shall be established, taking account of:

- the impact of the difference between the prices on the Community market and on the world market of the agricultural products used in their production,

- the need to cover this difference in whole or in part, to allow exportation of the agricultural products used in the goods concerned.

The list shall be drawn up pursuant to the regulations on the common organization of the agricultural markets.

3. The common implementing rules for the refund arrangements referred to in this Article shall be adopted in accordance with the procedure laid down in Article 16.

The amounts of the refunds shall be fixed in accordance with the same procedure as for the granting of refunds on the agricultural products concerned when they are exported in the unprocessed state.

4. Where the arrangements for the direct offsetting referred to in Article 6 (1) (b) are established within the framework of a preferential agreement, the amounts payable on exports to the country or countries concerned by the agreement shall be determined jointly and on the same basis as the agricultural component of the charge under the conditions laid down in the agreement.

These amounts shall be established in accordance with the procedure laid down in Article 16. The implementing rules which may be necessary pursuant to this paragraph, and in particular measures to ensure that goods declared for export under a preferential arrangement are not in fact exported under a non-preferential arrangement or vice versa, shall be adopted by the same procedure.

Where methods of analysing the agricultural products used are necessary, the methods specified for the agricultural products in question in the case of refunds on exports to third countries shall be used.

Article 9

Where, pursuant to a regulation on the common organization of a particular market, levies, charges or other measures are applied to exports of an agricultural product listed in Annex A, appropriate measures with regard to certain goods the export of which is likely to hinder achievement of the objective in the agricultural sector in question, because of their high content of the agricultural product concerned and the uses to which they may be put, may be decided, in accordance with the procedure laid down in Article 16, taking due account of the specific interest of the processing industry.

TITLE II GENERAL PROVISIONS

Article 10

Where there is a danger that a reduction in the agricultural component applicable to imports of goods under a preferential agreement could disturb the agricultural markets or the markets in the goods concerned, the safeguard clauses applicable to imports of the agricultural products concerned shall also apply to the goods listed in Annex B.

For the purposes of assessing the disturbances in question, account shall be taken of the characteristics of the goods actually imported under the preferential arrangements compared with the characteristics of the goods traditionally imported prior to the introduction of these arrangements.

Article 11

The quantity of agricultural products covered by the regulations on the common organization of markets which is not subject to levies or charges having an equivalent effect to customs duties, for the purpose of, or as a result of, exporting such goods, shall be determined in accordance with Regulation (EEC) No 2913/92.

The quantity of goods admitted under inward processing arrangements and, therefore, not subject to the charge provided for in Article 2 for the purpose of, or as a result of, exporting other goods shall be that actually used in the manufacture of the goods.

Article 12

1. Table 1 of Annex B may be amended by the Council acting in accordance with the procedure laid down in Article 113 of the Treaty.

2. Table 2 of Annex B may be amended in accordance with the procedure laid down in Article 16, in order to adapt it to the agreements concluded by the Community.

3. The Commission shall adapt the Annexes to this Regulation to any amendments to the combined nomenclature in order to keep unchanged the arrangements in force prior to such amendments.

Article 13

1. In order to establish the agricultural component of the charge, a list of basic products for non-preferential trade shall be adopted in accordance with the procedure laid down in Article 16.

The basic products shall be selected on the basis of their importance in international trade and the representative nature of their price levels for all the other agricultural products to be taken into account.

The quantities of other agricultural products considered to have been used shall be converted where appropriate to equivalent quantities of basic products taking due account of the equivalence ratios adopted by the Council in the framework of the common agricultural policy.

2. The quantities of basic products considered to have been used for the manufacture of goods referred to in this Regulation or, where appropriate, of agricultural products following the trade arrangements laid down by this Regulation, where the composition of those goods or products has not been established, shall be adopted in accordance with the procedure laid down in Article 16.

3. Without prejudice to assimilations adopted by the Council under the common agricultural policy, certain agricultural products may be treated as basic products, in accordance with the procedure laid down in Article 16, for the purposes of establishing terms for comparison of prices.

4. The characteristics of the basic products necessary in order to establish the terms for comparison of prices shall be determined in accordance with the procedure laid down in Article 16.

Article 14

1. The threshold or thresholds below which the amounts established in accordance with Article 3 (2) shall be fixed at zero may be laid down in accordance with the procedure laid down in Article 16. The non-application of the amounts established in accordance with Article 3 (2) may be made subject to special conditions, in accordance with the same procedure, in order to avoid creating artificial trade flows.

2. A threshold below which Member States may refrain from applying amounts to be granted or levied pursuant to this Regulation, in connection with a given economic transaction, may be established in accordance with the procedure laid down in Article 16 if the balance of these amounts is lower than the threshold.

Article 15

The Commission shall be assisted by a management committee on horizontal questions concerning trade in processed agricultural products not listed in Annex II, hereinafter referred to as 'the committee`, composed of representatives of the Member States and chaired by the representative of the Commission.

Article 16

In cases where reference is made to the procedure defined in this Article, the following provisions shall apply. The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall deliver its opinion on the draft within a time limit which the chairman may lay down according to the urgency of the matter. The opinion shall be delivered by the majority laid down in Article 148 (2) of the Treaty in the case of decisions which the Council is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States within the committee shall be weighted in the manner set out in that Article. The chairman shall not vote.

The Commission shall adopt measures which shall apply immediately. However, if these measures are not in accordance with the opinion of the committee, they shall be communicated by the Commission to the Council forthwith. In that event, the Commission may defer application of the measures which it has decided for up to one month from the date of such communication.

The Council, acting by a qualified majority, may take a different decision within one month.

Article 17

The committee may examine any other matter referred to it by its chairman, either on the chairman's own initiative or at the request of a Member State.

Article 18

In accordance with the procedure laid down in Article 16:

- the amounts resulting from application of this Regulation may be amended when, during any three-monthly period:

- a threshold price is altered or

- a production refund or aid applicable in all the Member States is introduced, amended or abolished;

- measures may be taken to bring the provisions of this Regulation into line with any technical amendments which may be made to the relevant regulations on agricultural products.

Article 19

Methods of qualitative and quantitative analysis of the goods and the other technical provisions necessary for identifying them or for determining their composition shall be adopted in accordance with the procedure laid down in Article 10 of Regulation (EEC) No 2658/87.

Article 20

The Member States shall communicate to the Commission the information necessary for implementing this Regulation, on the one hand, on imports, exports and, even where appropriate, production of the goods and, on the other, on the administrative implementingmeasures adopted. The detailed rules for communication of this information shall be laid down in accordance with the procedure laid down in Article 16.

Article 21

Regulation (EEC) No 3033/80 shall be repealed on 1 January 1994. References to Regulation (EEC) No 3033/80 shall be treated as references to this Regulation.

Regulation (EEC) No 3034/80 shall be repealed on the date of entry into force of the regulation adopted pursuant to Article 13.

Article 22

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

It shall apply from 1 January 1994.

2. The application of this Regulation to caseins falling within CN code 3501 10 and to caseinates and other casein derivatives falling within CN code 3501 90 90 shall be deferred until a further decision by the Council.

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

Done at Brussels, 6 December 1993.

For the Council

The President

W. CLAES

(1) OJ No C 126, 7. 5. 1993, p. 13.

(2) OJ No C 315, 22. 11. 1993.

(3) OJ No C 304, 10. 11. 1993, p. 8.

(4) OJ No L 323, 29. 11. 1980, p. 1. Regulation as last amended by Regulation (EEC) No 1436/90 (OJ No L 138, 31. 5. 1990, p. 9).

(5) OJ No L 181, 1. 7. 1992, p. 21.

(6) OJ No L 302, 19. 10. 1992, p. 1.

(7) OJ No L 323, 29. 11. 1980, p. 7. Regulation as last amended by Commission Regulation (EEC) No 572/91 (OJ No L 63, 9. 3. 1991, p. 24).

(8) OJ No L 177, 1. 7. 1981, p. 4.

(9) OJ No L 256, 7. 9. 1987, p. 1.

ANNEX A

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ANNEX B

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