Commission Regulation (EC) No 1331/2002 of 23 July 2002 on a standing invitation to tender to determine levies and/or refunds on exports of white sugar for the 2002/03 marketing year
Date: 2002-07-23
Institutions: European Commission
Subjects: award of contract, export levy, export refund, marketing, white sugar

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COMMISSION REGULATION (EC) No 1331/2002

of 23 July 2002

on a standing invitation to tender to determine levies and/or refunds on exports of white sugar for
the 2002/03 marketing year

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(4)

Having regard to the Treaty establishing the European
Community,

Having regard to Council Regulation (EC) No 1260/2001 of 19
June 2001 on the common organisation of the markets in the
sugar sector (1), as amended by Commission Regulation (EC) No
680/2002 (2), and in particular Article 22(2), Article 27(5) and
(15) and Article 33(3) thereof,

Whereas:

In view of the situation on the Community and world
sugar markets, a standing invitation to tender should be
issued as soon as possible for the export of white sugar
in respect of the 2002/03 marketing year which, having
regard to possible fluctuations in world prices for sugar,
must provide for the determination of export levies and/
or export refunds.

The standing invitation to tender
the 2001/02
marketing year established by Commission Regulation
(EC) No 1430/2001 (9), as amended by Regulation (EC)
No 693/2002 (10), is to remain open until a date to be
determined. The closing date should therefore be fixed.

for

(5)

The Management Committee for Sugar has not delivered
an opinion within the time limit set by its chairman,

HAS ADOPTED THIS REGULATION:

Article 1

A standing invitation to tender shall be issued in order to
1.
determine export levies and/or export refunds on white sugar
covered by CN code 1701 99 10 and, during the period of
validity of this standing invitation, partial invitations to tender
shall be issued.

The standing invitation to tender shall remain open until

2.
31 July 2003.

The general rules governing invitations to tender for the
purpose of determining export refunds for sugar were
established by Article 28 of Regulation (EC) No 1260/
2001.

Article 2

The standing invitation to tender and the partial
invitations
shall be conducted in accordance with Article 28 of Regulation
(EC) No 1260/2001 and with the following provisions.

(1)

(2)

(3)

In view of the specific nature of the operation, appro-
priate provisions should be laid down with regard to
export licences issued in connection with the standing
invitation to tender and there should be a derogation
from Commission Regulation (EC) No 1464/95 of 27
June 1995 on special detailed rules for the application of
the system of import and export licences in the sugar
sector (3); as last amended by Regulation (EC) No 996/
2002 (4). However, 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 products (5), as last amended by Regulation
(EC) No 2299/2001 (6), and Commission Regulation
(EEC) No 120/89 of 19 January 1989 laying down
common detailed rules for the application of the export
levies and charges on agricultural products (7), as last
amended by Regulation (EC) No 2194/96 (8), should
continue to apply.

(1) OJ L 178, 30.6.2001, p. 1.
(2) OJ L 104, 20.4.2002, p. 26.
(3) OJ L 144, 28.6.1995, p. 14.
(4) OJ L 152, 12.6.2002, p. 11.
(5) OJ L 152, 24.6.2000, p. 1.
(6) OJ L 308, 27.11.2001, p. 19.
(7) OJ L 16, 20.1.1989, p. 19.
(8) OJ L 293, 16.11.1996, p. 3.

Article 3

1.
The Member States shall establish a notice of invitation to
tender. The notice of invitation to tender shall be published in
the Official Journal of the European Communities. Member States
may also publish the notice, or have it published, elsewhere.

The notice shall indicate, in particular, the terms of the

2.
invitation to tender.

3.
The notice may be amended during the period of validity
of the standing invitation to tender. It shall be so amended if
the terms of the invitation to tender are modified during that
period.

Article 4

The period during which tenders may be submitted in

1.
response to the first partial invitation to tender:

(a) shall begin on 26 July 2002;

(b) shall end on Thursday 1 August 2002 at 10.00 a.m.

(9) OJ L 192, 14.7.2001, p. 3.
(10) OJ L 107, 24.4.2002, p. 5.

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The periods during which tenders may be submitted in

2.
response to the second and subsequent partial invitations:

licence of the quantity or quantities in respect of which
the licence was not used;

(a) shall begin on the first working day following the end of

the preceding period;

(b) shall end at 10.00 a.m. on 1, 8, 22 and 29 August 2002, 5,
12, 19 and 26 September 2002, 3, 10, 17, 24 and 31
October 2002, 7, 14, 21 and 28 November 2002, 5 and
19 December 2002, 3, 16 and 30 January 2003, 13 and 27
February 2003, 13 and 27 March 2003, 10 and 24 April
2003, 8 and 22 May 2003, 5, 12, 19 and 26 June 2003, 3,
10, 17 and 31 July 2003.

The times specified in this Regulation are Belgian local

3.
times.

Article 5

1.
Offers in connection with this tender must be in writing,
and must be either delivered by hand, against a receipt, to the
competent authority in a Member State, or addressed to that
authority either by registered letter or telegram, or, where the
authority accepts such forms of communication, by telex, fax
or electronic mail.

2.

An offer must indicate:

(a) the reference of the invitation to tender;

(b) the name and address of the tenderer;

(c) the quantity of white sugar to be exported;

(d) the amount of the export levy or, where applicable, of the
export refund, per 100 kilograms of white sugar, expressed
in euro to three decimal places;

(e) the minimum amount of the security to be lodged covering
the quantity of sugar indicated in (c), expressed in the
the Member State in which the tender is
currency of
submitted.

3.

Tenders shall be valid only if:

(a) the quantity to be exported is not less than 250 tonnes of

white sugar;

(b) proof is furnished before expiry of the time limit for the
submission of tenders that the tenderer has lodged the
security indicated in the tender;

(c) it includes a declaration by the tenderer that if this tender is
successful he will, within the period laid down in Article
12(b), apply for an export licence or licences in respect of
the quantities of white sugar to be exported;

(d) it includes a declaration by the tenderer that if his tender is

successful he will:

— where the obligation to export resulting from the export
licence referred to in Article 12(b)
fulfilled,
supplement the security by payment of the amount
referred to in Article 13(4), and

is not

— within 30 days following the expiry of

the export
licence in question, notify the agency which issued the

(e) it contains all the information required under paragraph 2.

A tender may stipulate that it is to be regarded as having

4.
been submitted only if:

(a) the minimum export

the
maximum export refund is fixed on the day of the expiry of
the period for the submission of the tenders in question;

levy or, where applicable,

(b) the tender, if successful, related to all or a specified part of

the tendered quantity.

5.
A tender which is not submitted in accordance with this
Regulation, or which contains conditions other than those indi-
cated in the present invitation to tender, shall not be consid-
ered.

6.

Once submitted, a tender may not be withdrawn.

Article 6

1.
A security of EUR 11 per 100 kilograms of white sugar
to be exported under this invitation to tender must be lodged
by each tenderer. Without prejudice to Article 13(4), where a
tender is successful this security shall become the security for
the export licence at the time of the application referred to in
Article 12(b).

2.
The security may be lodged at the tenderer’s choice, either
in cash or in the form of a guarantee given by an establishment
complying with criteria laid down by the Member State in
which the tender is submitted.

Except in cases of force majeure, the security referred to in

3.
paragraph 1 shall be released:

(a) to unsuccessful tenderers in respect of the quantity for

which no award has been made;

(b) to successful tenderers who have not applied for the rele-
vant export licence within the period referred to in Article
12(b), to the extent of EUR 10 per 100 kilograms of white
sugar.

this part of

However,
the releasable security shall be
reduced by the amount representing the difference, as
applicable:

the partial

— between the maximum amount of the export refund
fixed for
invitation concerned and the
maximum amount of the export refund fixed for the
following partial invitation, when the latter amount is
higher than the former, or

— between the minimum amount of the export levy fixed
for the partial invitation concerned and the minimum
amount of the export levy fixed for the following partial
invitation, when the latter amount is lower than the
former;

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(c) to successful tenderers for the quantity for which they have
fulfilled, within the meaning of Article 31(b) and Article
32(1)(b)(i) of Regulation (EC) No 1291/2000, the export
obligation resulting from the licence referred to under
Article 12(b) in accordance with the terms of Article 35 of
that Regulation.

The part of the security or the security which is not released
shall be forfeit in respect of the quantity of sugar for which the
corresponding obligations have not been fulfilled.

4.
In case of force majeure, the competent authority of the
Member State concerned shall take such action as it considers
necessary having regard to the circumstances invoked by the
party concerned.

Article 7

1.
Tenders shall be examined in private by the competent
authority concerned. The persons present at the examination
shall be under an obligation not to disclose any particulars
relating thereto.

Tenders

submitted shall be

2.
communicated to the
Commission by the Member States without the tenderers being
mentioned by name and must be received by the Commission
within one hour and thirty minutes of the expiry of the dead-
line for the weekly submission of tenders stipulated in the
notice of invitation to tender.

Where no tenders are submitted, the Member States shall notify
the Commission of this within the time limit specified in the
first subparagraph.

Article 8

After

the tenders

1.
maximum quantity may be fixed for the partial
concerned.

received have been examined, a
invitation

A decision may be taken to make no award under a

2.
specific partial invitation to tender.

Article 9

1.
In the light of the current state and foreseeable develop-
ment of the Community and world sugar markets, there shall
be fixed either:

— a minimum export levy, or

— a maximum export refund.

2. Without prejudice to Article 10, where a minimum
export
levy is fixed, a contract shall be awarded to every
tenderer whose tender quotes a rate of levy equal to or greater
than such minimum levy.

3. Without prejudice to Article 10, where a maximum
export refund is fixed, a contract shall be awarded to every
tenderer whose tender quotes a rate of refund equal to or less
than such maximum refund and to every tenderer who has
tendered for an export levy.

Article 10

1. Where a maximum quantity has been fixed for a partial
invitation to tender:

— if a minimum export levy is fixed, a contract shall be
awarded to the tenderer whose tender quotes the highest
export levy; if the maximum quantity is not fully covered
by that award, awards shall be made to other tenderers in
descending order of export levies quoted until the entire
maximum quantity has been accounted for,

— if a maximum export refund is fixed, contracts shall be
awarded in accordance with the first indent; if after such
awards a quantity is still outstanding, or if there are no
tenders quoting an export levy, awards shall be made to
tenderers quoting an export refund in ascending order or
export refunds quoted until the entire maximum quantity
has been accounted for.

2.
However, where an award to a particular tenderer in
accordance with paragraph 1 would result in the maximum
quantity being exceeded, that award shall be limited to such
quantity as is still available. Where two or more tenderers quote
the same levy or the same refund and awards to all of them
would result in the maximum quantity being exceeded, then
the quantity available shall be awarded as follows:

— by division among the tenderers concerned in proportion to

the total quantities in each of their tenders, or

— by apportionment among the tenderers concerned by refer-
ence to a maximum tonnage to be fixed for each of them,
or

— by the drawing of lots.

Article 11

1.
The competent authority of the Member State concerned
shall immediately notify applicants of the result of their partici-
pation in the invitation to tender. In addition, that authority
shall send successful tenderers a statement of award.

2.

The statement of award shall indicate at least:

(a) the reference of the invitation to tender;

(b) the quantity of white sugar to be exported;

(c) the amount, expressed in euro, of the export levy to be
charged, or, where applicable, of the export refund to be
granted per 100 kilograms of white sugar of the quantity
referred to in (b).

Article 12

Every successful tenderer shall have:

(a) the right to receive, in the circumstances referred to under
(b), an export licence covering the quantity awarded, indi-
cating the export levy or refund quoted in the tender, as the
case may be;

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(b) the obligation to lodge,

in accordance with the relevant
provisions of Regulation (EC) No 1291/2000, an applica-
tion for an export licence in respect of that quantity, the
application not being revocable and Article 12 of Regula-
tion (EEC) No 120/89 not applying in such a case. The
application shall be lodged not later than:
— the last working day preceding the date of the partial
invitation to tender to be held the following week, or
— if no partial invitation to tender is due to be held that

week, the last working day of the following week;

(c) the obligation to export the tendered quantity and, if this
the

fulfilled, to pay, where necessary,

obligation is not
amount referred to in Article 13(4).

Such rights and obligations shall not be transferable.

Article 13

Article 9(1) of Regulation (EC) No 1464/95 shall not

1.
apply to the white sugar to be exported under this Regulation.

2.
Export licences issued in connection with a partial invita-
tion to tender shall be valid from the day of issue until the end
of the fifth calendar month following that in which the partial
invitation was issued.

However, export licences issued in respect of the partial invita-
tions held from 1 May 2003 shall be valid only until 30
September 2003.

Should technical difficulties arise which prevent export being
carried out by the expiry date laid down in paragraph 2, the
competent authorities in the Member State which issued the
export licence may, at the written request of the holder of that
licence, extend its validity to 15 October 2003 at the latest,
provided that export is not subject to the rules laid down in
Article 4 or 5 of Council Regulation (EEC) No 565/80 (1).

Export licences issued in respect of the partial invitations
3.
held between 1 August 2002 and 30 September 2002 shall be
valid only from 1 October 2002.

4.
Except in cases of force majeure, if the obligation to export
resulting from the export licence referred to in Article 12(b) has
not been fulfilled and if the security referred to in Article 6 is
less than:

(a) the export

levy indicated on the licence,

less the levy
referred to in the second subparagraph of Article 33(1) of
Regulation (EC) No 1260/2001 in force on the last day of
validity of the said licence, or

(b) the sum of the export levy indicated on the licence and the
refund referred to in Article 28(2) of Regulation (EC) No
1260/2001 in force on the last day of validity of the said
licence, or

(c) the export refund referred to in Article 28(2) of Regulation
(EC) No 1260/2001 in force on the last day of validity of
the licence, less the refund indicated on the said licence,

then, for the quantity in respect of which the said obligation
was not fulfilled, the licence holder shall be charged an amount
equal to the difference between the result of the valuation made
under (a), (b) or (c), as the case may be, and the security referred
to in Article 6(1).

Article 14

The standing invitation to tender issued in Regulation (EC) No
1430/2001 shall be closed on 26 July 2002.

Article 15

This Regulation shall enter into force on the day of its publica-
tion in the Official Journal of the European Communities.

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

Done at Brussels, 23 July 2002.

For the Commission

Franz FISCHLER

Member of the Commission

(1) OJ L 62, 7.3.1980, p. 5.