Commission Regulation (EC) No 2090/2002 of 26 November 2002 laying down detailed rules for applying Council Regulation (EEC) No 386/90 as regards physical checks carried out when agricultural products qualifying for refunds are exported
Date: 2002-11-26
Institutions: European Commission
Subjects: agricultural product, customs inspection, customs regulations, export refund

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COMMISSION REGULATION (EC) No 2090/2002

of 26 November 2002

laying down detailed rules for applying Council Regulation (EEC) No 386/90 as regards physical
checks carried out when agricultural products qualifying for refunds are exported

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Community,

Having regard to Council Regulation (EEC) No 386/90 of 12
February 1990 on the monitoring carried out at the time of
export of agricultural products receiving refunds or other
amounts (1), as amended by Regulation (EC) No 163/94 (2), and
in particular Article 6 thereof,

Whereas:

(1)

(2)

(3)

(4)

(5)

Commission Regulation (EC) No 2221/95 of 20
September 1995 laying down detailed rules for the
application of Council Regulation (EEC) No 386/90 as
regards physical checks carried out at the time of export
of agricultural products qualifying for refunds (3), as last
amended by Regulation (EC) No 2655/1999 (4), has been
In the interests of clarity and
substantially amended.
that Regulation
administrative
should be recast, at
the same time making certain
amendments which experience has shown to be desir-
able.

efficiency,

therefore,

existing

should be

inspection
taken of
Account
measures, in particular those introduced by Commission
Regulations (EC) No 2298/2001 of 26 November 2001
laying down detailed rules for the export of products
supplied as food aid (5) and (EC) No 800/1999 of 15
April 1999 laying down common detailed rules for the
application of the system of export refunds on agricul-
tural products (6), as last amended by Regulation (EC) No
1253/2002 (7).

In its supplementary report to the Council on the appli-
cation of Regulation (EEC) No 386/90 (8), the Commis-
sion stated its intention to define precisely the term
‘physical check’ as used in Article 2(a) of Regulation
(EEC) No 386/90, in order to achieve uniform applica-
tion of the Community rules in the Member States.

To make better use of the inspection possibilities, export
declarations involving small quantities of products or a
low amount of refund should be disregarded when
calculating the minimum rates of checks.

A verification of laboratory tests has shown that the
obligation to carry out a laboratory test should be
simplified where satisfactory results, obtained repeatedly,
concern the same product from the same exporter.

(1) OJ L 42, 16.2.1990, p. 6.
(2) OJ L 24, 29.1.1994, p. 2.
(3) OJ L 224, 21.9.1995, p. 13.
(4) OJ L 325, 17.12.1999, p. 12.
(5) OJ L 308, 27.11.2001, p. 16.
(6) OJ L 102, 17.4.1999, p. 11.
(7) OJ L 183, 12.7.2002, p. 12.
(8) OJ C 218, 12.8.1993, p. 14.

(6)

(7)

(8)

A measure should be introduced to take account of cases
where the number of exports dealt with by a customs
office is minimal.

Compared to the total amount of the refunds, the share
of refunds granted to goods not listed in Annex I to the
Treaty is small, while the share of physical checks carried
out on these products is large. To make better use of the
inspection resources, this discrepancy should be reduced,
in particular by lowering the inspection rate for non-
Annex I products.

There is a substantial difference between the customs
treatment of goods intended for export
in the large
ports, where there is a great diversity of products
coming from a wide range of exporters, and the customs
treatment of goods at customs offices which handle only
a limited range of products from a few exporters. In the
latter case, the goods are subjected to a much higher
level of checks. For these customs offices, the selection
of goods with a view to carrying out physical checks
should take account of the fact that the check is being
carried out on the basis of a smaller representative
sample.

(9)

In order to reduce the risk of substitution, all means of
transport or packages should be sealed, save in cases
where the products may be identified by some other
means.

(10) Measures should be taken to allow verification at any
time of whether the check rate of 5 % has been reached.

(11) Article 912c of Commission Regulation (EEC) No 2454/
93 of 2 July 1993 laying down provisions for the imple-
mentation of Council Regulation (EEC) No 2913/92
establishing the Community Customs Code (9), as last
amended by Regulation (EC) No 444/2002 (10), specifies
the office of destination where the T5 control copy
should be presented for the check on the use and/or
destination of the goods. It should therefore be stipulated
that, if the customs office of exit and the office of desti-
nation are not the same, the substitution check must be
carried out by the office to which the T5 control copy is
sent.

(9) OJ L 253, 11.10.1993, p. 1.
(10) OJ L 68, 12.3.2002, p. 11.

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(12)

(13)

(14)

(15)

To tackle the risk of substitution in the case of export
declarations accepted by an internal customs office
within a Member State, a minimum number of ‘substitu-
tion checks’ to be carried out by the customs office of
exit from the Community should be laid down. Having
regard to the place where such ‘substitution checks’ are
carried out,
take the form of simplified
checks.

they must

For the purpose of evaluating the application of Regula-
tion (EEC) No 386/90, the Member States are required
to submit annual evaluations on the implementation and
effectiveness of the checks carried out under this Regula-
tion and of the procedures applied to selecting the goods
subject to physical checks.

In the light of experience gained, appropriate and
commensurate measures are required, which must be
uniformly applied.

The measures provided for in this Regulation are in
accordance with the opinion of all
the Management
Committees concerned,

HAS ADOPTED THIS REGULATION:

Article 1

1.
This Regulation lays down the detailed rules for applying
the physical check and the substitution check referred to in
Article 2(a) and (b) of Regulation (EEC) No 386/90.

2.
This Regulation shall not apply to exports involving
Community or national food aid covered by Regulation (EC)
No 2298/2001.

3.

For the purposes of this Regulation:

— ‘customs office of export’ means the custom office as
referred to in Article 5(7)(a) of Regulation (EC) No 800/
1999,

— ‘customs office of exit’ means the customs office referred to

in Article 793(2) of Regulation (EEC) No 2454/93,

— ‘office to which the T5 control copy is sent’ means the
office of destination as referred to in Article 912c of Regu-
lation (EEC) No 2454/93.

(ii) 1 000 kg in the case of

fruit and vegetables and

products not listed in Annex I to the Treaty,

(iii) 500 kg in the case of other products;

(b) or refund amounts of less than EUR 200.

3. When implementing paragraphs 1 and 2, Member States
shall adopt appropriate provisions to prevent fraud and abuses.
Any checks made to that end may be counted for the purposes
of calculating compliance with the minimum rates of checks
referred to in paragraph 2.

Article 3

With a view to determining the basis for calculating the percen-
tage for the physical checks referred to in Article 2(a) of Regu-
lation (EEC) No 386/90, for the purposes of the first indent of
the first subparagraph of Article 3(2) of
that Regulation,
‘customs office’ shall mean all offices competent to complete
the export formalities for the products concerned.

Article 4

For the purposes of the third indent of the first subparagraph
of Article 3(2) of Regulation (EEC) No 386/90, products
covered by the same agricultural market organisation shall be
regarded as coming under one product sector.

However, products covered by the common organisations of
the markets in cereals and rice, on the one hand, and goods
not listed in Annex I to the Treaty, on the other hand, shall
each be treated as a single product sector.

Article 5

1.
For the purposes of Article 2(a) of Regulation (EEC) No
386/90, ‘physical check’ shall mean verification that the export
declaration, including documents submitted in support thereof,
corresponds with the goods as regards quantity, nature and
characteristics.

Article 2

In the cases referred to in Annex I, the methods indicated
therein shall be applied.

1. Without prejudice to the inspection measures referred to
in Article 36(4), Article 37(4) and Article 44(4) of Regulation
(EC) No 800/1999, Member States may opt
to waive the
physical and substitution checks provided for in this Regulation
on deliveries as referred to in Articles 36 and 44 of Regulation
(EC) No 800/1999.

2. When calculating the minimum rates of checks to be
carried out in accordance with Article 3(2) and Article 3a of
Regulation (EEC) No 386/90, Member States shall disregard
export declarations involving:

(a) either quantities not exceeding:

(i) 5 000 kg in the case of cereals and rice,

The customs office of export shall ensure compliance with
Article 21 of Regulation (EC) No 800/1999. Where there are
specific grounds for suspecting the sound, fair and merchan-
the customs office shall verify
table quality of a product,
compliance with the applicable Community provisions,
in
particular those relating to animal and plant health. Where the
customs office deems it necessary, it shall perform laboratory
tests, or have them performed, stating the grounds for such
tests.

2.
Physical checks concerning which the exporter has
received express or tacit prior warning shall not count as
checks.

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The first subparagraph shall not apply where the accounts of
an undertaking are audited in accordance with point 3(a) of
Annex I.

3. Where a customs office of export accepts fewer than 20
export declarations per sector per year, at least one export
declaration per sector per year must be subjected to a physical
check.

This requirement shall not apply where the customs office of
export, having carried out a risk analysis in accordance with
the second subparagraph of Article 3(2) of Regulation (EEC) No
386/90, has not checked the first two declarations and no
further exports are carried out thereafter in that sector.

4. Where the refund rate depends on the level of a particular
component, as part of the physical check the customs office of
export shall take representative samples with a view to having
the composition analysed by a competent laboratory.

Article 6

Where the Member States apply a selection system based on
risk analysis as referred to in the second subparagraph of
Article 3(2) of Regulation (EEC) No 386/90, the following rules
shall apply:

(a) The percentage of physical checks carried out on products
not listed in Annex I to the Treaty shall not be taken into
account when calculating the overall rate of 5 % for all
sectors. In this case, a minimum rate of 0,5 % shall be
compulsory for non-Annex I goods.

(b) As an exception to Article 5(4), where the refund rate
depends on the level of a particular component and the
same exporter regularly exports a product with the same
refund code or CN code, and where laboratory tests during
the past six months have revealed no non-conformities
having financial consequences greater than EUR 200 on
the gross amount of the refund, then representative samples
need be taken in only 50 % of physical checks. If laboratory
testing detects a non-conformity having financial conse-
quences greater than EUR 200 on the gross amount of the
refund, samples must be taken for all physical checks in the
following six months.

(c) For customs offices of export where a range of products
from no more than two sectors is presented for export by
no more than five exporters, physical checks may be
reduced to a minimum rate of 2 % per product sector.
Sectors with fewer than 20 export declarations per year per
customs office shall not be taken into account when deter-
mining the number of sectors. Customs offices may apply
these rules for a full calendar year, based on the statistics
for the previous calendar year, even where export declara-
tions are made by additional exporters or for additional
product sectors during the course of the year.

Article 7

In order to ensure that the goods passing through the customs
office of exit from the Community's customs territory or the
office to which the T5 control copy is sent, where this is not
the customs office of exit, are the same goods that passed
through the customs office of export, the means of transport
or packaging shall be sealed in accordance with Article 357 of
Regulation (EEC) No 2454/93.

Article 8

Each customs office of export shall make the necessary
1.
arrangements to ensure that compliance with the inspection
rate of 5 % can be verified at any time.

These arrangements must show, for each sector:

(a) the number of export declarations taken into account for

the physical checks;

(b) the number of physical checks carried out.

The competent customs officer shall produce a detailed

2.
inspection report on each physical check carried out.

Inspection reports shall bear the date and the name of the
competent officer. They shall be kept accessible for consulta-
tion at the customs office of export or at another office for
three years from the year of export.

On the control copy T5 accompanying the goods, the

3.
following shall be noted in box D:

(a) ‘Regulation (EEC) No 386/90’,

if

the customs office of

export has carried out a physical check;

(b) ‘Regulation (EC) No 2298/2001’, in the case of food aid

exports.

from the Community's
Where the customs office of exit
customs territory is located in the same Member State as the
customs office of export, this information shall appear on the
national document accompanying the goods.

Article 9

1. Where refunds are paid in advance in accordance with
Articles 26 to 31 of Regulation (EC) No 800/1999,
the
following physical checks may be taken into account to calcu-
late the minimum rate of checks to be carried out in accor-
dance with Article 3 of Regulation (EEC) No 386/90:

(a) checks on entry into or during storage as referred to in

Article 29 of Regulation (EC) No 800/1999;

(b) checks on processing as referred to in Article 28 of Regula-

tion (EC) No 800/1999:

(i) from the time of acceptance of the payment declara-
tion, where the refund is granted for one or more basic
products,

(ii) after processing, where the refund is granted for the

processed product.

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For the purposes of the first paragraph, the following require-
ments must also be met:

(a) the physical checks carried out prior to completion of the
customs export formalities must meet the same intensity
criteria as those to be carried out under Article 5 of this
Regulation;

(b) the products, goods or basic products used to manufacture
the goods subjected to previous physical checks must be
identical to those covered by the export declaration.

2. Where analyses and other physical checks are carried out
prior to the completion of customs export formalities under
Community or national rules governing either the customs
arrangements concerned or the manufacturing processes which
the products and goods have undergone, paragraph 1 shall
apply mutatis mutandis.

Article 10

1. Where the export declaration has been accepted at a
customs office of export which is not the customs office of exit
or the office to which the T5 control copy is sent, the customs
office of exit from the Community's customs territory shall
perform a substitution check in accordance with this Article. If
the customs office of exit is not the customs office to which
the T5 control copy is sent, the substitution check must be
carried out by the latter.

2.
If the customs office of export has not sealed the means
of transport or the packaging, then substitution checks shall be
carried out, wherever possible in the light of a risk analysis,
without prejudice to checks carried out under other provisions.

The number of substitution checks carried out each calendar
year shall not be less than the number of days on which export
territory
refund products
through the customs office of exit concerned.

leave the Community's customs

Where only one exporter is subject to the substitution check,
that number may not be less than half the number of days on
which export refund products leave the Community's customs
territory through the customs office of exit concerned.

3. Where, in addition to a customs seal, a veterinary seal has
been applied in compliance with the requirements of the third
country of destination, the substitution check is required only if
there is a suspicion of fraud.

4.
The substitution check shall be carried out by checking,
visually, whether the goods tally with the document which has
accompanied them from the customs office of export to the
customs office of exit.

A sample for testing shall be taken only in cases where the
customs office of exit cannot check, visually and using the
information on the packaging and in the documentation,
whether the goods tally with the accompanying document. In
such cases, Article 5(4) shall not apply.

Each customs office of exit or office to which the T5
5.
control copy is sent shall apply measures to allow verification
at any time of:

(a) the number of export declarations taken into account for

the substitution checks;

(b) the number of substitution checks carried out.

If the customs office of exit or the office to which the T5
control copy is sent has taken a sample, one of the following
shall be noted on the T5 control copy or, where applicable, on
the national document to be returned to the competent autho-
rities:

— muestra recogida

— udtaget prøve

— Probe gezogen
— ελήφθη δείγµα
— Sample taken

— échantillon prélevé

— campione prelevato

— monster genomen

— Amostra colhida

— näyte otettu

— varuprov.

A duplicate or a copy of the document shall remain at the
customs office of exit or the office to which the T5 control
copy is sent, as the case may be.

The customs office of exit or the office to which the T5
6.
inform the competent authorities
control copy is sent shall
referred to in paragraph 5 in writing, using a copy of the
original document, of the result of the tests, reporting:

(a) either one of the following:

— resultado del análisis conforme

— analyseresultat i orden

— konformes Analyseergebnis
— αποτέλεσµα της ανάλυσης σύµφωνο
— Results of tests conform

— résultat d'analyse conforme

— risultato di analisi conforme

— analyseresultaat conform

— Resultado da análise conforme

— analyysin tulos yhtäpitävä

— Analysresultatet överensstämmer med exportdeklara-

tionen

(b) or the results of the tests if there is a discrepancy between

the results and the product declared.

7. Where the substitution check reveals that the refund rules
have not been complied with, the paying agency shall inform
the customs office referred to in paragraph 5, at the latter's
request, of the action taken as a result of the findings.

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In such cases, the customs office of exit or the office to which
the T5 control copy is sent shall indicate one of the following
on the T5 control copy or, where applicable, on the national
document to be returned to the competent authorities:

— Solicitud de aplicación del apartado 7 del artículo 10 del

Reglamento (CE) no 2090/2002

Oficina de aduana de salida o de destino del T5: …

— Anmodning om anvendelse af artikel 10,

stk. 7,

i

forordning (EF) nr. 2090/2002

Identifikation af udgangstoldstedet eller bestemmelsestold-
stedet for T5: …

— Antrag auf Anwendung von Artikel 10 Absatz 7 der

Verordnung (EG) Nr. 2090/2002

Identifizierung der Ausgangszollstelle oder der Bestim-
mungsstelle des Kontrollexemplars T5: …

— Αίτηση εφαρµογής του άρθρου 10 παράγραφος 7 του κανο-

νισµού (ΕΚ) αριθ. 2090/2002
Εξακρίβωση του τελωνείου εξόδου ή του τελωνείου προορισµού
του T5: …

— Request for application of Article 10(7) of Regulation (EC)

No 2090/2002

Identity of the customs office of exit or customs office
receiving the control copy T5: …

— Demande d'application de l'article 10, paragraphe 7, du

règlement (CE) no 2090/2002

Identification du bureau de douane de sortie ou de destina-
tion du T5: …

— Domanda di applicazione dell'articolo 10, paragrafo 7, del

regolamento (CE) n. 2090/2002

Identificazione dell'ufficio doganale di uscita o di destina-
zione del T5: …

— Verzoek om toepassing van artikel 10,

lid 7, van Veror-

dening (EG) nr. 2090/2002

— Pedido de aplicação do n.o 7 do artigo 10.o do Regulamento

(CE) n.o 2090/2002

Identificação da estância aduaneira de saída ou de destino
do T5: …

— Asetuksen (EY) N:o 2090/2002 10 artiklan 7 kohdan sovel-

tamista koskeva pyyntö

Poistumistullitoimipaikan tai toimipaikan, johon T5-valvon-
takappale toimitetaan, tunnistustiedot: …

— Begäran om tillämpning av artikel 10.7 i förordning (EG) nr

2090/2002

Uppgift om utfartstullkontor eller bestämmelsetullkontor
enligt kontrollexemplaret T5: …

Article 11

Before 1 May each year, the Member States shall send the
Commission a report evaluating the implementation and effec-
tiveness of the checks carried out under this Regulation and the
procedures applied to selecting the goods subject to physical
checks.

The report to be submitted on 1 May 2003 shall cover export
declarations accepted between 1 January and 31 December
2002.

Article 12

Regulation (EC) No 2221/95 is hereby repealed with

1.
effect from 1 January 2003.

2.
References to the repealed Regulation shall be construed
as references to this Regulation and are to be read in accor-
dance with the correlation table in Annex II hereto.

Article 13

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

Identificatie van het kantoor van uitgang of van bestem-
ming van de T5: …

It shall apply from 1 January 2003 for export declarations
accepted from that date.

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

Done at Brussels, 26 November 2002.

For the Commission

Franz FISCHLER

Member of the Commission

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ANNEX I

METHODS TO BE FOLLOWED FOR PHYSICAL CHECKS

1.

(a) Where an exporter uses sealed facilities for automatic loading and calibrated automatic weighing of bulk goods,
verification that the goods tally with the export declaration shall consist of measuring the quantity by calibrated
automatic weighing and checking the nature and characteristics of the goods by representative sampling.

The customs office of export shall also check by sampling that:

— the weighing and loading systems do not permit goods to be re-routed inside these sealed circuits or any

other manipulations,

— the time limits specified for calibrated weighing equipment have not expired and that seals are intact where

sealed weighing systems are used,

— the consignments weighed are actually loaded on the means of transport specified,

— the data entered in the weighing records or certificates correspond to the data contained in the loading docu-

ments.

(b) In the rare cases where the quantity of bulk goods is not recorded by a calibrated automatic weighing system, the
customs office shall use any other means of checking which is satisfactory from the commercial point of view.

2.

(a) Where an exporter has declared goods packaged using automatic systems for bagging, canning, bottling, etc., and
calibrated automatic weighing/measuring equipment, or put up in packaging or bottles within the meaning of
Council Directives 75/106/EEC (1), 75/107/EEC (2) and 76/211/EEC (3), the total number of bags, cans, bottles,
etc., must in principle be counted and the nature and characteristics of the goods must be checked on the basis
of a representative selection made by the customs office of export. The weight or volume shall be determined by
calibrated automatic weighing/measuring or by the packaging or bottles, within the meaning of the above Direc-
tives. The customs office of export may weigh or measure one bag, can or bottle.

If the equipment has a calibrated automatic counter, the records of the automatic counter may be taken into
account for the physical check on quantity.

The second subparagraph of point 1(a) shall apply mutatis mutandis.

Where an exporter uses pallets loaded with cartons, cans, etc., the customs office of export shall select representa-
tive pallets and check whether the number of cartons, cans, etc. declared is really present. It shall select from
these pallets a number of representative cartons, cans, etc., and check whether the number of bottles, units, etc.,
is present.

(b) Where the exporter does not use facilities as referred to in the first and second subparagraphs, the customs office
of export must count the number of bags, cans, etc. The nature, characteristics and weight/volume shall be
checked on the basis of a representative selection. The preceding subparagraph shall apply mutatis mutandis.

Notwithstanding the second sentence of the preceding paragraph, where the contents and exact weight are indi-
cated on the immediate packaging of the goods, that information need be verified only in 50 % of physical checks
if the goods are packed in containers or packs intended for wholesale, and the goods are exported regularly by
the same exporter and no non-conformities having financial consequences greater than EUR 200 have been
found during the previous six months.

3.

(a) In the case of goods not listed in Annex I to the Treaty which are packaged for retail sale or subject to appro-
priate marking with details of content and weight on the immediate packaging and which either meet the require-
ments of the third subparagraph of Article 3(2) of Commission Regulation (EC) No 1520/2000, or for which the
quantities of product used are those set out in Annex C to that Regulation, the customs office of export may
begin by checking the weight and content of the non-Annex I goods put up in immediate packaging against the
details on the immediate packaging. It may weigh a unit without packaging. It shall then count and/or weigh —
in principle — the total quantity of non-Annex I goods in immediate packaging.

Points 2(a) and (b) shall apply mutatis mutandis.

The customs office may take a sample to verify that no substitution has taken place. Article 5(4) of this Regula-
tion shall not apply.

The composition of the non-Annex I goods may be assumed by the customs office of export to be correct if the
description and the content indicated on the immediate packaging are consistent with the details given in the
export declaration or the registered manufacturing formula.

(1) OJ L 42, 15.2.1975, p. 1.
(2) OJ L 42, 15.2.1975, p. 14.
(3) OJ L 46, 21.2.1976, p. 1.

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If the manufacturing formula has not yet been checked by the competent authorities, the customs office of export
shall have the auditor of the competent authorities verify the formula and the identity of the goods afterwards.

For the purposes of this method for verifying the composition of goods not listed in Annex I to the Treaty,
Member States shall introduce in advance a procedure whereby:
— the composition of non-Annex I goods can be checked through the accounts and specific documents relating

to production,

— it is verified, through the undertaking's production documents, that the non-Annex I goods produced are the
same as those covered by the export declaration and the manufacturing formula and the goods to be
exported, and

— the auditor of the competent authority can verify ex-post that the goods exported tally with the export

declaration concerned, the manufacturing formula and the goods produced.

(b) The specific documents relating to the manufacture of non-Annex I goods must be kept by the undertakings

concerned for three years from the year of export.

(c) In cases where the procedure provided for in point 3(a) is not applied, the customs office of export must take

representative samples, without prejudice to Article 16(1) of Regulation (EC) No 1520/2000.

ANNEX II

CORRELATION TABLE

This Regulation

Regulation (EC) No 2221/95

Article 1

Article 2

Article 3

Article 4

Article 5

Article 6

Article 7

Article 8

Article 9

Article 10

Article 11

Article 12

Article 13

Article 1

Article 2

Article 3

Article 4

Article 5

Article 5a

Article 6

Article 7

Article 8

Article 9

Article 9a

Article 10

Article 11