10.

after Article 57, the following Chapter VIa is inserted: ‘CHAPTER VIa PRIVATE STORAGE FOR THE MARKETING YEAR 2007/2008 Article 57a Tendering procedure In order to determine the aid to be granted for carrying out contracts for the private storage of white sugar, the Commission may, in accordance with the procedure laid down in Article 39(2) of Regulation (EC) No 318/2006, open a tendering procedure for a limited period by Commission Regulation, hereinafter referred to as “Regulation opening a tendering procedure”. Article 57b Opening of the tendering procedure 1. The Regulation opening a tendering procedure may be adopted until 31 July 2008. 2. The opening of the tendering procedure may be decided for the sugar stored or to be stored where the following conditions are met: (a) the average Community price for white sugar recorded within the price reporting system is below 85 % of the reference price; and (b) the recorded average prices for white sugar are likely to remain at or below that level on the basis of the market situation, account being taken of expected effects of market management mechanism and notably the withdrawal. 3. The opening of the tendering procedure may be limited to sugar stored or to be stored by sugar manufacturers approved in a Member State where the following conditions are met: (a) the average Community price for white sugar recorded within the price reporting system is below the reference price; and (b) in the Member State concerned, the average price for white sugar recorded within the price reporting system is below 80 % of the reference price. 4. The Regulation opening the tendering procedure shall contain the following information: (a) the period covered by the tender (tendering period) and the different sub-periods when the tenders can be lodged; (b) the opening and closing time between which tenders may be lodged; (c) in the case where paragraph 3 applies, the Member States where sugar is stored or will be stored; (d) the global quantity, possibly per Member State if paragraph 3 applies, covered by the tendering procedure, if applicable; (e) the storage period in compliance with Article 57j; (f) the minimum quantity each tender must provide for; (g) the amount of the security per unit; (h) the competent authority of Member States to which tenders are to be sent. 5. Invitations to tender for a limited period may be closed before the end of the tendering period in accordance with the procedure laid down in Article 39(2) of Regulation (EC) No 318/2006. Article 57c Sugar requirements Sugar for which a tender is presented shall be: (a) white sugar in crystal form in bulk and/or in big bags (800 kg or more) and/or in 50 kg bags; (b) produced within a quota during the marketing year in which the tender is made with the exclusion of white sugar withdrawn, carried forward or stored in public intervention; (c) of sound and fair marketable quality, free-flowing, with a moisture content not exceeding 0,06 %. Article 57d Submission of tenders 1. Tenders shall be lodged by approved sugar manufacturers referred to in point (a) of Article 7(1), established and registered for VAT purposes in the Community. 2. Each tender shall be lodged to the competent authority of the Member State where the storage of the sugar will take place. Where the opening of the tendering procedure is limited to one or several Member States in accordance with Article 57b(3), tenders shall only be lodged in those Member States. 3. Tenders may be lodged by electronic means, using the method made available to the operators by the Member State concerned. The competent authorities of the Member States may require that electronic tenders be accompanied by an advance electronic signature within the meaning of Article 2, point (2) of Directive 1999/93/EC of the European Parliament and of the Council (11). In all other cases, the competent authorities shall require an electronic signature offering equivalent assurances with regard to the functionalities attributed to a signature by applying the same rules and conditions as those defined in the Commission’s provisions on electronic and digitised documents, set out by Commission Decision No 2004/563/EC, Euratom (12), and in its implementing rules. 4. A tender shall be valid if the following conditions are met: (a) it indicates a reference to the Regulation opening the tendering procedure and the expiry date for the sub-period of submission of the tenders; (b) it indicates the identification data of the tenderer: name, address and the VAT registration number; (c) it indicates the quantity covered by the tender; (d) it indicates the amount of aid offered per day and per tonne in euros and cents; (e) the tenderer has lodged a security before the end of the submission sub-period, in accordance with the provisions of Title III of Regulation (EEC) No 2220/85, and has provided proof thereof within the same period; (f) it does not include any conditions introduced by the tenderer other than those mentioned in this Regulation and in the Regulation opening the tendering procedure; (g) it is presented in the official language, or one of the official languages of the Member State in which the tender is lodged. 5. Tenders shall not be withdrawn or amended after their submission. 6. The approved sugar manufacturer who lodges a tender is deemed to be aware of the provisions applicable under the tendering procedure and to have accepted them. Article 57e Examination of tenders 1. The competent authorities of the Member States shall examine tenders based on the elements mentioned in Article 57d(4). They shall decide on the validity of tenders. 2. Persons authorised to receive and examine the tenders shall be under an obligation not to disclose any particulars relating thereto to any unauthorised person. 3. In the case of an invalid tender, the competent authorities of the Member States shall inform the tenderer thereof. Article 57f Notification of the tenders to the Commission 1. All valid tenders shall be notified to the Commission by the competent authorities of the Member States. 2. The notifications shall not contain the data referred to in Article 57d(4)(b). 3. The notifications shall be made by electronic means, using the method indicated to the Member States by the Commission, within a specific period fixed by the Commission Regulation opening the tendering procedure. The form and content of the notifications shall be defined on the basis of models made available by the Commission to the Member States. 4. Nil returns shall be notified to the Commission by the Member States within the deadline referred to in paragraph 3. Article 57g Decision on the basis of the tenders 1. On the basis of the tenders notified in accordance with Article 57f(3), the Commission shall decide in accordance with the procedure laid down in Article 39(2) of Regulation (EC) No 318/2006: (a) not to fix a maximum amount of the aid; or (b) to fix a maximum amount of the aid. 2. In the case of tenders submitted at the level of the maximum aid, if Article 57b(4)(d) is applicable, a coefficient applicable to awarding the quantities tendered shall be fixed by the Commission. By way of derogation from Article 57d(5), the tenderer to which such a coefficient applies may decide to withdraw its tender. 3. The Decision on the private storage aid shall be published in the Official Journal of the European Union. Article 57h Individual decisions on tenders 1. Where a maximum amount of the aid has been fixed in accordance with Article 57g(1)(b), the competent authorities of the Member States shall accept tenders notified in accordance with Article 57f which are equal to or lower than the maximum amount without prejudice to Article 57g(2). All other tenders shall be rejected. 2. Where no maximum amount has been fixed, all tenders shall be rejected. 3. The competent authorities of the Member States shall adopt decisions referred to in paragraphs 1 and 2 after the publication of Commission’s Decision on aid referred to in Article 57g(1) and notify to tenderers of the outcome of their participation within a deadline of three working days after the publication. 4. The rights and obligations of the successful tenderer shall not be transferable. Article 57i Information related to the place of storage Within five working days after the reception of the notification from the Member State, the successful tenderer shall send to the competent authority of the Member State: (a) the address of the storage place or places and for each storage place the precise location of the silos or lots with the corresponding quantities; (b) one of the following: (i) a confirmation that the quantities covered by the tender are already in the storage place in compliance with the conditions referred to in Article 57k(c); or (ii) the date of entry into store of each of the lots which are not yet in place and the necessary time framework for placing the contractual quantity in compliance with the conditions referred to in Article 57k(c). The successful tenderer shall indicate for each lot entering the place of storage, the quantity and the precise location. Article 57j Specification of the contracts and storage period 1. After the complete transmission of information referred in to Article 57i, the competent authority of the Member State shall notify the successful tenderer that all the necessary information has been provided and that from that moment on a contract is deemed to have been concluded. 2. The contract shall include the provisions of the present Chapter, of the Regulation opening the tendering procedure, of the tender and of the information mentioned in Article 57i. 3. The date of conclusion of the contract shall be that on which the competent authority of the Member State notifies to the contracting party in accordance with paragraph 1. 4. For the sugar which was already placed into storage, the contractual storage period shall start on the day following the date of conclusion of the contract. In the case of sugar which is not yet stored, the contractual storage period shall start on the day following that on which the entire contractual quantity has been placed into storage. 5. The last day of the contractual storage period shall be 31 October 2008, subject to Article 57m. Article 57k Obligations on the contracting party Contracts shall impose at least the following obligations on the contracting party: (a) to place and keep the contractual quantity in storage during the contractual storage period, at his own risk and expense, in conditions ensuring the maintenance of the sugar requirements referred to in Article 57c, without substituting the stored products or transferring them to another storage place; however, in exceptional cases and on duly motivated request, the competent authority may authorise a relocation of the stored products; (b) to retain the weighing-in documents established at the time of entry into the storage place; (c) to make the products stored easily and individually identifiable. Each unit individually stored shall be marked so that the contract number, the product and the weight are shown; (d) to allow the competent authority to check at any time that all the obligations laid down in the contract are being observed. Article 57l Securities 1. The security lodged in accordance with Article 57d(4)(e) within the meaning of Article 20(2) of Regulation (EEC) No 2220/85 shall ensure in particular: (a) not to withdraw a tender; (b) transmit the information referred to in Article 57i for the conclusion of the contract; (c) to keep in storage the contractual quantity for the storage period under the conditions referred to in Article 57k. 2. Securities shall be released immediately where tenders are invalid, are not successful or are withdrawn in accordance with Article 57g(2). 3. Securities shall be released in respect of quantities for which the obligations have been fulfilled in accordance with 57o(2). Article 57m Shortening the term of contracts On the basis of developments on the sugar market, the Commission, may, in accordance with the procedure laid down in Article 39(2) of Regulation (EC) No 318/2006, allow the contracting party to dispose of the sugar under contract before the end of the contractual storage period. Article 57n Advance payment After 60 days of storage, a single advance payment of the aid may be made, at the contracting party’s request, provided that he lodges a security equal to the advance payment plus 10 %. In this case, the security referred to in Article 57l shall be released. The advance payment shall not exceed the amount of aid corresponding to a storage period of three months. The security referred to in the first subparagraph shall be released as soon as the balance of the aid has been paid. Article 57o Payment of aid 1. The aid, or where an advance has been granted under Article 57n, the balance of the aid shall be paid on the basis of an application for payment and only when the obligations of the contract have been met. Payment of the aid, or the balance of the aid, shall be made following the final check and within 120 days following the day when an application for the payment of aid has been lodged. 2. The requirements relating to the contractual quantity shall be regarded as being met only where the quantity is verified as specified in Article 57p(5). However Member States may decide that the requirements relating to the contractual quantity are regarded as being met on the basis of a margin of tolerance which shall not exceed 1 % of the contractual quantity. If the quantity actually stored during the contractual storage period is less than the contractual quantity, account being taken of the possible margin of tolerance, but not less than 80 % of the contractual quantity, the aid for the quantity actually stored shall be reduced by half. If the quantity actually stored during the contractual storage period is less than 80 % of the contracted quantity, no aid shall be paid. Article 57p Check 1. Within 30 days of the date of conclusion of the contract, the competent authority in the Member State shall carry out an initial check and in particular: (a) identify the silos or lots of storage; (b) verify the weight of the stored products on the basis of the weighing-in documents and the stocks and financial accounts and where possible with a physical check by sample weighting. The sample concerned shall be representative and shall correspond to at least 5 % of the total quantity; (c) take a sample representative of the contractual quantity which shall be analysed as quickly as possible to ensure that the sugar corresponds to the requirements referred to in Article 57c. 2. If the analysis confirms that the sugar does not correspond to the requirements referred to in Article 57c, the entire quantity covered by the contract shall be rejected and the security referred to in Article 57d(4)(e) shall be forfeit. 3. Where the Member State can offer duly justified reasons, the time limit laid down in the first subparagraph of paragraph 1 may be extended by 15 days. 4. The authority charged with carrying out the checks shall: (a) either seal the products by contract, storage lot or a smaller quantity at the time of the initial check; (b) or make an unannounced check to ensure that the contractual quantity is present in the storage place. The check shall be based on stocks and financial accounts and where possible with a physical check by sample weighting. The sample concerned shall be representative and shall correspond to at least 5 % of the total quantity. 5. During the final month of the storage period, the authority charged with the checking shall undertake a final check to ensure that the contractual quantity is present in the storage place by means of an unannounced check in compliance with paragraph 4(b). 6. In the case of significant irregularities affecting at least 5 % of the quantities of products covered by a single contract subject to the check, the verification shall be extended to a larger sample to be determined by the authority responsible for the checks. Article 57q Reports on checks A report shall be drawn up on the checks carried out pursuant to Article 57p, specifying: (a) the date and time of commencement of the check; (b) its duration; (c) the operations carried out providing, in particular, the details of and references to the documents and products examined; (d) the findings and conclusions. The report shall be signed by the inspector responsible and countersigned by the contracting party or, as the case may be, the person responsible for the storage, and shall be included in the payment file. Article 57r Sanctions 1. Where it is found that a document presented by a tenderer for the attribution of the rights deriving from this Chapter provides for incorrect information and where the incorrect information concerned is decisive for the attribution of that right, the competent authorities of the Member State shall exclude the tenderer from participating in the tendering procedure for granting aid for the private storage of sugar, for a period of one year from the date when a final administrative decision establishing the irregularity has been made. 2. Paragraph 1 shall not apply if the applicant proves, to the satisfaction of the competent authorities, that the situation referred to in paragraph 1 is not due to his gross negligence or that it is due to force majeure or to obvious error. 3. Member States shall inform the Commission of the cases of application of paragraph 1. The Commission shall keep the information available to the other Member States. Article 57s Communication to the Commission Member States shall notify the Commission of the quantities of sugar for which tenders have been accepted in accordance with Article 57h(1) and: (a) in respect which no contract has subsequently been concluded; or (b) in respect of which contracts have subsequently been concluded but which had to be cancelled due to non-compliance with contractual obligations; (c) which are released from contractual obligations following a Commission Decision in accordance with Article 57m. The notifications referred to in the first subparagraph shall specify the sub-period of the tendering procedure concerned and shall take place at the earliest opportunity and not later than the 10th day of the month following the month concerned. The form and content of the notifications shall be defined on the basis of models made available by the Commission to the Member States.