Commission Regulation (EC) No 1563/2001 of 31 July 2001 amending Regulation (EC) No 1520/2000 laying down common detailed rules for the application of the system of granting export refunds on certain agricultural products exported in the form of goods not covered by Annex I to the Treaty, and the criteria for fixing the amount of such refunds
Date: 2001-07-31
Institutions: European Commission
Subjects: agricultural product, export refund, primary product, processed foodstuff

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COMMISSION REGULATION (EC) No 1563/2001

of 31 July 2001

amending Regulation (EC) No 1520/2000 laying down common detailed rules for the application of
the system of granting export refunds on certain agricultural products exported in the form of
goods not covered by Annex I to the Treaty, and the criteria for fixing the amount of such refunds

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(5)

Having regard to the Treaty establishing the European
Community,

Having regard to Council Regulation (EC) No 3448/93 of 6
December 1993 laying down the trade arrangements applicable
to certain goods resulting from the processing of agricultural
products (1), as last amended by Regulation (EC) No 2580/
2000 (2), and in particular the first subparagraph of Article 8(3)
thereof,

Whereas:

(1)

(2)

(3)

(4)

It is necessary to clarify and fine-tune certain provisions
regarding refund certificates and certain provisions
regarding the use of Annex D as provided for in
Commission Regulation (EC) No 1520/2000 (3), as
amended by Regulation (EC) No 2390/2000 (4).

In order to make the use of refund certificates more
efficient,
they must be made transferable without,
however, promoting an increase in the number of
applications for purposes of speculation. The transferee
should be designated before a certificate is applied for.

Operators retain their refund right if they have complied
with the applicable rules and have not made a specific
refund application within three months of the date on
which the customs authority accepted the export
declaration. In such cases, the guarantee or part thereof
corresponding to the refund certificate is retained.

There must be specific provisions covering refund certi-
ficates in the case of an open invitation to tender in a
non-member country in order to enable European oper-
ators to submit a bid on competitive terms. However,
for the sake of simplification, the procedure must be
based largely on what is already provided for in Article
49 of Commission Regulation (EC) No 1291/2000 of 9
June 2000 laying down common detailed rules for the
application of the system of import and export licences
and advance fixing certificates for agricultural prod-
ucts (5), as last amended by Regulation (EC) No 1095/
2001 (6).

(1) OJ L 318, 20.12.1993, p. 18.
(2) OJ L 298, 25.11.2000, p. 5.
(3) OJ L 177, 15.7.2000, p. 1.
(4) OJ L 276, 28.10.2000, p. 3.
(5) OJ L 152, 24.6.2000, p. 1.
(6) OJ L 150, 6.6.2001, p. 25.

reasons of administrative simplification,

For
special
procedures should be laid down for the release of the
guarantee,
including in particular the conditions for
partial release and a threshold below which a guarantee
that should have been retained may be released.

(6)

In order to make full use of the scope for exporting
agricultural products that benefit from refunds, there
must be provisions similar to those set out in Article 35
of Regulation (EC) No 1291/2000 and operators must
be encouraged to swiftly return certificates that have not
been fully used throughout the budget period.

(7)

Because of the amendments under this Regulation, the
references to the Articles of Regulation (EC) No 1291/
2000 will need to be adapted.

its international commitments,

(8) With a view to more efficient use of the funds available,
particularly in view of the need for the Community to
meet
there must be
procedures for adapting the threshold above which the
exemption from presenting certificates for certain expor-
ters no longer applies.
It is also necessary to make
special arrangements to enable operators that no longer
wish to take
exemption from
presenting certificates when a budgetary period is
changed to make efficient use of the threshold provided
for in Article 14(2) of Regulation (EC) No 1520/2000.
Furthermore, in order to ensure that the Community's
international commitments have been met by the end of
a budget year, there must be procedures for suspending
payments in connection with refund certificates issued
during the corresponding budget period.

advantage of

the

(9)

Given the experience acquired since the introduction of
refund certificates, the procedures provided for in Annex
F to Regulation (EC) No 1520/2000 need to be adapted.

(10)

(11)

It has to be possible to apply some of the provisions of
this Regulation as from 9 July. The date of entry into
force therefore has to be as soon as possible after the
date of publication.

The measures provided for in this Regulation are in
accordance with the opinion of
the Management
Committee on Horizontal Questions Concerning Trade
in Processed Agricultural Products Not Listed in Annex I,

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HAS ADOPTED THIS REGULATION:

(b) the date of such entry certified by the stamp of the body

or agency.

Article 1

The transfer or transfer back to the titular holder shall

4.
take effect from the date of the entry.’

Regulation (EC) No 1520/2000 is amended as follows:

1. Article 6(3) is replaced by the following:

‘3. Without prejudice to the provisions set out in Article
6a, the refund certificate shall not be transferable. It shall
be used by the holder.’

2. The following Article 6a is inserted:

‘Article 6a

1.
Obligations deriving from licences or certificates shall
not be transferable. Rights deriving from licences or certi-
ficates may be transferred by their titular holder during the
period of their validity, provided that such transfer is made
in favour of a single transferee only for each certificate or
extract therefrom and the name and address of the trans-
feree who accepts it are entered in box 20 of the applica-
tion form for a refund certificate no later than at the time
of lodging the application. Such transfer shall relate to the
amounts not yet attributed to the certificate or to all the
extracts therefrom.

the following shall be
Before the certificate is issued,
entered in box 22 and completed in accordance with the
details of
the application: “The rights may possibly be
transferred to... (name and address of the transferee)”

If no name and address of a possible transferee were speci-
fied in the application for the certificate, box 6 shall be
deleted.

Transferees may not further transfer their rights but

2.
may transfer them back to the titular holder.

In such cases, one of the following entries shall be made by
the issuing body in section 6 of the certificate:

— retrocesión al titular, el …

— tilbageføring til

indehaveren den …

— Rückübertragung auf den Bescheinigungsinhaber am …

— εκ νέου παραχώρηση στο δικαιούχο στις …

— rights transferred back to the titular holder on [date]

— rétrocession au titulaire le …

— retrocessione al titolaire in data …

— aan de titularis geretrocedeerd op …

— retrocessão ao titular em …

— palautus todistuksenhaltijalle …

— återbördad till

licensinnehavaren den …

3.
In the event of a request for transfer by the titular
holder or transfer back to the titular holder by the trans-
feree, the issuing body or the agency or agencies designated
by each Member State shall enter the following on the
certificate or, where appropriate, the extract therefrom:

(a) the name and address of the transferee as indicated in
accordance with paragraph 1 or the entry referred to in
paragraph 2;

3. In Article 7, the following paragraph 5 is added:

‘5.
A refund requested on the basis of a specific applica-
tion which is not the export declaration shall be granted on
the applicable terms, particularly those set out in Article 6.

Without prejudice to the previous subparagraph, if the time
three months specified in paragraph 4 is not
limit of
complied with, the obligation referred to in paragraph 3
cannot be deemed to have been met and consequently, the
security provided for in Article 11 shall be retained in
respect of the amount in question.’

4. The following Article 10a is inserted:

‘Article 10a

1.
This Article shall apply to refund certificates applied
for fixing the refund in advance, on the day the application
is lodged, in connection with an invitation to tender issued
in an importing non-member country.

The expression “invitation to tender” shall be understood to
mean open invitations issued by public agencies in third
countries, or by international bodies governed by public
law, to submit by a given date tenders on which a decision
will be taken by those agencies or bodies.

For the purposes of this Article, the armed forces referred
to in Article 36(1)(c) of Regulation (EC) No 800/1999 shall
be regarded as an importing country.

2.
Exporters who have submitted or wish to submit a
tender in response to an invitation to tender as referred to
in paragraph 1 may, by way of derogation from Article
8(5), (6) and (9), subject to the conditions set out in para-
graph 10, and provided the conditions specified in para-
graph 3 are fulfilled, apply for one or more certificates,
which will be issued subject to the exporter being awarded
a contract.

This Article shall apply only if the following particu-

3.
lars at least are specified in the invitation to tender:

— the importing country and the agency issuing the invi-

tation to tender,

— the closing date for the submission of tenders,

— the specific quantity of products covered by the invita-

tion to tender.

The party concerned shall communicate these particulars to
the issuing agency when applying for the certificate.

An application or applications for a certificate may not be
lodged more than 15 days before the closing date for the
submission of tenders but must be lodged at the latest by 1
p.m. on that closing date.

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The amount in respect of which the certificate or certificates
are applied for may not exceed the corresponding quantity
applying the rate fixed in advance in accordance with the
first subparagraph of paragraph 1, specified in the invitation
to tender. No account shall be taken of
tolerances or
options provided for in the invitation to tender.

Notwithstanding Article 15(2) of Regulation (EC)
the security need not be lodged when the

4.
1291/2000,
certificate is applied for.

5. Within 44 days of the closing date for submitting
tenders, except in case of force majeure, the applicant shall
inform the issuing body by letter or by written telecommu-
nication, to reach the issuing body no later than the date of
expiry of the 44-day time limit:

(a) either that he has himself been awarded a contract;

(b) or that he has not been awarded a contract;

(c) or that he has not submitted a tender;

(d) or that he is not in a position to know the outcome of
the invitation to tender within the time limit specified
for reasons which may not be ascribed to him.

6.
Applications for certificates shall not be accepted
where, during the period of issue to which applications for
refund certificates are subject, the issue of a certificate has
been suspended in accordance with the second subpara-
graph of Article 8(8).

No special measure taken subsequent to the expiry of the
said period may prevent the issue of one or more certi-
ficates in respect of the invitation to tender in question
where the applicant has fulfilled the following conditions:

(a) the information referred to in the first subparagraph of
paragraph 3 is evidenced by the appropriate docu-
ments;

(b) proof

is furnished of

the applicant's having been

awarded a contract;

(c) the contract is presented; or

(d) where absence of the contract is justified, documenta-
tion is submitted attesting the obligations entered into
with the other contracting party or parties, including
confirmation from his or their bank of the opening of
an irrevocable documentary letter of credit by the
purchaser's financial institution relating to the agreed
delivery;

(e) the security required for the issue of the certificate is

lodged.

The certificate or certificates shall be issued only for the
country referred to in the first indent of the first subpara-
graph of paragraph 3. The invitation to tender shall be
mentioned thereon.

The total amount for which the certificate or certificates are
issued shall be the corresponding total quantity applying the
rate fixed in advance in accordance with the first subpara-
graph of paragraph 1, for which the applicant was awarded
the contract and has presented the contract or documenta-
tion referred to in point (d); such amount may not exceed
the amount applied for.

By way of exemption from Article 9(1) and the first and
second subparagraphs of Article 9(2), refund certificates
issued in accordance with this article shall be valid with
effect from the day on which they are issued within the
meaning of Article 23(2) of Regulation (EC) No 1291/2000.
Refund certificates shall be valid for no longer than the end
of the eighth month following the month of issue or until
30 September of each year, which ever is the sooner. Rates
fixed in advance are therefore valid until the last day of the
certificate's validity.

No certificate may be issued for the amount corresponding
to the quantity for which the applicant has not been
awarded a contract or has failed to comply with any of the
(c) and (e) of the
conditions specified in point (a),
second subparagraph or, as the case may be, point (a), (b),
(d) and (e) of the second subparagraph.

(b),

The holder of the certificate or certificates shall be held
primarily liable for the repayment of any refund incorrectly
paid where it is established that the certificate or certificates
was or were issued on the basis of a contract or obligation,
specified in point (d), not corresponding to the invitation to
tender opened by the non-member country.

7.
In the cases referred to in paragraph 5(b), (c) and (d),
no certificate shall be issued in connection with the applica-
tion referred to in paragraph 3.

8. Where the applicant for a certificate fails to comply
with paragraph 5, no certificate shall be issued.

However, where the applicant furnishes proof to the issuing
body that the closing date for the submission of tenders has
been deferred:

— by no more than 10 days, the application shall remain
valid and the period of 44 days for notifying the partic-
ulars specified in paragraph 5 shall run with effect from
the new closing date for the submission of tenders,

— by more than 10 days, the application shall no longer

be valid.

9.

(a) If the successful tenderer demonstrates to the satis-
faction of the competent authority that the agency
that issued the invitation to tender has cancelled the
contract for reasons which are not attributable to
the tenderer and are not considered to constitute
force majeure, the competent authority shall release
the security in cases where the rate of the refund
fixed in advance in respect of the basic product
corresponding to the largest refund compared with
the other basic products used is higher than or equal
to the rate of the refund valid on the last day of the
certificate's validity.

(b) If the successful tenderer demonstrates to the satis-
faction of the competent authority that the agency
that issued the invitation to tender has obliged him
to accept changes to the contract for reasons that
are not attributable to him and are not considered
to constitute force majeure, the competent authority
may extend the validity of the certificate and the
duration of advance fixing up to 30 September.

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issued the invitation to tender

(c) If the successful tenderer furnishes proof that the
invitation to tender or
the contract concluded
following the award provided for a downward toler-
ance or option of more than 5 % and that the
agency that
is
the obligation to
invoking the relevant clause,
export shall be deemed to have been fulfilled where
the quantity exported is not more than 10 % less
than the quantity corresponding to the amount for
which the certificate was issued, on condition that
the rate of the refund fixed in advance in respect of
the basic product corresponding to the largest
refund compared with the other basic products used
is higher than or equal to the rate of the refund
valid on the last day of validity of the certificate. In
such cases the rate of 95 % referred to in Article
12(4) shall be replaced by 90 %.

(d) In comparing the rate of the refund fixed in advance
with that of the refund valid on the last day of
validity of the certificate, account shall be taken,
where applicable, of other amounts provided for
under Community rules.

By way of exemption from Article 8, applications for
10.
refund certificates may be submitted in accordance with this
article from 1 October of each budget period. Member
States shall
immediately inform the Commission of the
particulars referred to in the first subparagraph of paragraph
3, and of the amounts and date and time of submission of
each certificate applied for. The Commission shall inform
the Member State within two working days of such noti-
fication whether the third subparagraph of paragraph 12 is
applicable.

In the case of applications which have not yet been
11.
submitted,
the Commission may suspend application of
paragraph 2 under the conditions set out in the second and
third subparagraphs of Article 8(8).

12.
For the purposes of applying the first subparagraph
of paragraph 6, the Commission may consider that there is
no danger of international commitments not being met if
the sum of the amounts corresponding to a single invitation
to tender for which one or more applications for certificates
have been made by one or more operators and for which
no certificate has yet been issued does not exceed EUR 2
million.

However, this limit may be increased to EUR 4 million if
none of the reduction coefficients published since the begin-
ning of the budgetary period and referred to in Article 8(5)
exceeds 50 %.

Refund certificates shall not be issued to operators if the
amount concerned, added to the amounts for which certi-
ficates have been applied for as part of the same invitation
to tender, exceed the applicable limit.’

5. Article 12 is replaced by the following:

‘Article 12

If a reduction coefficient

to
1.
Article 8(5) and (8), part of
to the
amount lodged multiplied by the reduction coefficient shall
be released immediately.

is applied pursuant

the security equal

Should the applicant withdraw his application for a
2.
certificate, as provided for in Article 8(6), 94 % of the
security shall be released.

3.
The security shall be released in full once the holder
of the certificate has applied for refunds totalling 95 % of
the amount
for which the certificate was issued. On
application by the titular holder, Member States may
release the security by instalments in proportion to the
quantities of products for which proof as referred to in
Article 7(4) has been produced, provided that proof has
been produced that an amount equal to at least 5 % of that
indicated on the certificate has been applied for.

4. Where the refund certificate has been used for less
than 95 % of the amount for which it was issued, part of
the security equal to 25 % of the difference between 95 %
of the amount for which the certificate was issued and the
amount of refunds actually used shall be forfeited.

Furthermore,
if the total amount of the security which
would be forfeited comes to EUR 60 or less for a given
certificate, the Member State concerned shall release the
whole of the security.

5.

However,

— where the certificate or an extract from the certificate is
returned to the issuing body within a period corre-
sponding to the initial two thirds of its term of validity,
the corresponding amount of security to be forfeited
shall be reduced by 40 %; for this purpose, any part of
a day counts as a whole day;

— where the certificate or extract from the certificate is
returned to the issuing body within a period corre-
sponding to the last third of its term of validity or
during the month following the expiry date, the corre-
sponding amount of security to be forfeited shall be
reduced by 25 %.

The above paragraph shall apply only to certificates and
extracts from certificates returned to the issuing body
during the budgetary period in respect of which the certi-
ficates have been issued, provided that they are returned
more than 30 days before the end of that period.’

6. In Article 14, paragraphs 2 and 3 are replaced by the

following:

The provisions of

‘2.
this Article are applicable to
exports by operators that have not held a refund certificate
since the beginning of the budgetary period in question and
do not hold such a certificate on the date of export. The
applications submitted by the operator on the terms set out
in Annex F-VI, paragraph 2, during the budget year and
before the submission of the application for the export in
question must total

less than EUR 50 000.

For the application of the previous subparagraph,
if the
specific application is regarded by the competent authority
as being the customs declaration within the meaning of
Article 5(1) of Regulation (EC) No 800/1999, the date of
the application may, if the competent authority agrees, be
the date on which the customs authority accepted the
export declaration in question.

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This Article is applicable only in the Member State in
which the goods are manufactured or assembled.

3. Member States shall notify the Commission no later
than the fifth day of each month of the amounts of the
refunds granted pursuant to this Article from the sixteenth
day to the end of the previous month, and no later than
the twentieth day of each month of the amounts of the
refunds granted pursuant to this Article from the first to
the fifteenth day of the current month.

If the sum of the amounts notified by the Member States
reaches 20 million euro, the Commission can suspend the
application of paragraphs 1 and 2 of this Article to exports
not covered by a refund certificate.

Taking into account both the amounts notified by Member
States in application of the first subparagraph and the
European Community's meeting of international commit-
ments, the Commission may adjust the amount provided
for in the second subparagraph in respect of a budgetary
period, in which case it shall publish the new amount in
the Official Journal of the European Communities.’

7. Article 15(2) is replaced by the following:

‘2.
the
By way of derogation from paragraph 1,
following provisions of Regulation (EEC) No 1291/2000
shall not apply to the refund certificates referred to in this
Regulation:

— Articles 9, 12, 14, 21, 24, 32, 33, 35, 42, 46, 47, 49

and 50,

— Article 8(2),

— Article 8(4),

— Article 18(1),

— Article 36(5).’

8. Article 16 is amended as follows:

(a) In paragraph 3, the second subparagraph is replaced by

the following:

‘However, if the goods concerned are listed in columns
1 and 2 of Annex D, the party concerned may, at his
express request, be granted a refund, the nature and
quantity of the basic products taken into consideration
for the calculation of such refund being determined
from an analysis of the goods to be exported and in
accordance with the conversion table in Annex D. The
competent authority shall decide on the conditions
under which the analysis is to be carried out.’

(b) Paragraph 8 is replaced by the following:

‘8.
As regards exports effected between 1 October
and 15 October of each year, refunds may not be paid
before 16 October.

As regards exports effected with presentation of a
refund certificate issued in respect of a budgetary
period, and where the Commission considers that there
is a danger that the Community may not meet its
international commitments, refund payments scheduled
after the end of that period may not be made before 16

October, in which case the time limit referred to in the
first subparagraph of Article 49(8) of Regulation (EC)
No 800/1999 may be temporarily extended to three
months and 15 days.

If the previous subparagraph is applied, the Commis-
sion shall publish this provision before 20 September
in the Official Journal of the European Communities.’

9. Annex F is amended as follows:

(a) in section I, paragraph 2 is replaced by the following:

‘2. The “Export licence or advance fixing certificate” shall
be stamped “Refund certificate non-Annex I”. This
information may be computerised.

Applicants must complete boxes 4, 8, 17 and 18
and, where appropriate, 7. In boxes 17 and 18, the
amount shall be entered in euro;

Boxes 13 to 16 shall not be completed.

In box 20, applicants must state whether they plan to
use the refund certificate only in the Member State
which issued it or whether they require a refund
certificate which is valid throughout the Community.

Applicants must enter in box 20 the words “Article
8-1”, or other words to the satisfaction of
the
if the application refers to a
competent authority,
certificate provided for under Article 8(1) or the
words “Article 8-8”, or other words to the satisfaction
of the competent authority, if it refers to a certificate
provided for under Article 8(8) to (10).

Applicants must enter the place and date of applica-
tion and sign the application.

If the application concerns food aid, they must also
enter in box 20 one of the indications mentioned in
Article 10 of
this Regulation or in Article 3 of
Commission Regulation (EC) No 259/98 (*).

(*) OJ L 25, 31.1.1998, p. 39.’

(b) In section II, paragraph 3 is replaced by the following:

‘3. Application for an extract from a refund certificate

Any holder of a refund certificate may request an
from the certificate for an amount not
extract
recorded on the
exceeding the amount not yet
original certificate on the date on which the extract
is issued, particularly if the refund applications for
the planned exports will not be submitted in the
Member State which issued the refund certificate.
In this case, the amount for which an extract is
requested shall be recorded on the original certifi-
cate and an extract shall be issued, based on an
application drawn up on the form set out
in
Annex I
to Regulation (EC) No 1291/2000 and
containing the following information:

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— in boxes 1 and 2,

the name of

the agency
which issued the refund certificate from which
an extract is requested and the number of the
original certificate,

— in box 4, the name of the holder of the refund

certificate,

— in boxes 17 and 18, the amount of the extract

requested in euro.’

(c) Section IV is replaced by the following:

‘IV. Issue of refund certificates without advance fixing for

use throughout the Community

Box 21 shall be deleted.

Should the holder of
such a refund certificate
subsequently request advance fixing of the refund
rates, he must return the original certificate and
“Refund valid on
any extracts
[date], fixed in advance on [date]” shall be entered
and completed in box 22 of the certificate.’

already issued.

Article 2

This Regulation shall enter into force on the day following
its publication in the Official Journal of the European Communi-
ties.

These refund certificates shall be completed in the
same way as the certificates referred to in Section
III.

Article 1(2) and (5) shall apply to certificates applied for as
from 9 July 2001 and corresponding to exports effected as
from 1 October 2001.

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

Done at Brussels, 31 July 2001.

For the Commission

Frederik BOLKESTEIN

Member of the Commission