Commission Regulation (EC) No 1290/2003 of 18 July 2003 on a standing invitation to tender to determine levies and/or refunds on exports of white sugar for the 2003/04 marketing year
Date: 2003-07-18
Institutions: European Commission
Subjects: award of contract, export levy, export licence, export refund, marketing, white sugar

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COMMISSION REGULATION (EC) No 1290/2003

of 18 July 2003

on a standing invitation to tender to determine levies and/or refunds on exports of white sugar
for the 2003/04 marketing year

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

HAS ADOPTED THIS REGULATION:

Having regard to the Treaty establishing the European
Community,

Article 1

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:

(1)

(2)

(3)

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 2003/04 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 general rules governing invitations to tender for the
purpose of determining export refunds for sugar estab-
lished by Article 28 of Regulation (EC) No 1260/2001
should be applied.

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 1159/
2003 (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 325/2003 (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), must continue to apply.

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 for all destinations excluding
Albania, Croatia, Bosnia and Herzegovina, Serbia and Monte-
negro (9) and the former Yugoslav Republic of Macedonia.
During the period of validity of this standing invitation, partial
invitations to tender shall be issued.

The standing invitation to tender shall be open until 29

2.
July 2004.

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 this Regulation.

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 Union. 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

(4)

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

The period during which tenders may be submitted in

1.
response to the first partial invitation to tender:

(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 162, 1.7.2003, p. 25.
(5) OJ L 152, 24.6.2000, p. 1.
(6) OJ L 47, 21.2.2003, p. 21.
(7) OJ L 16, 20.1.1989, p. 19.
(8) OJ L 293, 16.11.1996, p. 3.

(a) shall begin on 25 July 2003;

(b) shall end on Thursday 31 July 2003 at 10.00, Brussels local

time.

(9) Including Kosovo as defined in United Nations Security Council

Resolution 1244 of 10 June 1999.

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The periods during which tenders may be submitted in

2.
response to the second and subsequent partial invitations:

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

the preceding period;

(d) the offer includes a declaration by the tenderer that if his
tender is successful he will, within the period laid down in
the second subparagraph of Article 12(2), apply for an
export licence or licences in respect of the quantities of
white sugar to be exported;

(b) shall end at 10.00, Brussels local time:

(e) the offer includes a declaration by the tenderer that if his

— on 14 and 28 August 2003,

— on 4, 11, 18 and 25 September 2003,

— on 2, 9, 16, 23 and 30 October 2003,

— on 6, 13 and 27 November 2003,

— on 11 and 23 December 2003,

— on 8 and 22 January 2004,

— on 5 and 19 February 2004,

— on 4 and 18 March 2004,

— on 1, 15 and 29 April 2004,

— on 13 and 27 May 2004,

— on 3, 10, 17 and 24 June 2004,

— on 1, 15 and 29 July 2004.

tender is successful he will:

(i) where the obligation to export

resulting from the
is not
licence referred to in Article 12(2)
export
fulfilled, supplement the security by payment of the
amount referred to in Article 13(4);

(ii) within 30 days following the expiry of

the export
licence in question, notify the authority which issued
the licence of the quantity or quantities in respect of
which the licence was not used.

A tender may stipulate that it is to be regarded as having
3.
been submitted only if one or both of the following conditions
is/are met:

(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,

Article 5

1.

Offers in connection with this tender:

(a) must be in writing and must be delivered by hand to the
competent authority in a Member State, against a receipt;
or

(b) must be addressed to that authority either by registered

letter or telegram; or

(c) must be addressed to that authority by telex, fax or elec-
tronic mail, where the authority accepts such forms of
communication.

An offer shall be valid only if the following conditions

2.
are met:

(a) the offer indicates:

(i) the reference of the invitation to tender;

(ii) the name and address of the tenderer;

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

(iv) 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;

(v) the amount of the security to be lodged covering the
quantity of sugar indicated in (iii), expressed in the
currency of the Member State in which the tender is
submitted;

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

the tendered quantity.

4.
A tender which is not submitted in accordance with para-
graphs 1 and 2, or which contains conditions other than those
indicated in the present
invitation to tender, shall not be
considered.

5.

Once submitted, a tender may not be withdrawn.

Article 6

A security of EUR 11 per 100 kilograms of white sugar
1.
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(2).

The security referred to in paragraph 1 may be lodged at
2.
the tenderer's choice, either in cash or in the form of a guar-
antee 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

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

which no award has been made;

white sugar;

(c) 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;

(b) to successful tenderers who have not applied for the rele-
vant export licence within the period referred to in the
second subparagraph of Article 12(2), to the extent of
EUR 10 per 100 kilograms of white sugar;

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(c) to successful tenderers for the quantity for which they have
fulfilled, within the meaning of Articles 31(b)
and
32(1)(b)(i) of Regulation (EC) No 1291/2000 the export
obligation resulting from the licence referred to under
Article 12(2) in accordance with the terms of Article 35 of
that Regulation.

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:

In the case referred to under (b) of the first subparagraph, the
releasable part of the security shall be reduced, as applicable,
by:

(a) a minimum export levy, or

(b) a maximum export refund.

(a) the difference between the maximum amount of the export
invitation concerned and the
the export refund fixed for the
is

refund fixed for the partial
maximum amount of
following partial
higher than the former;

invitation, when the latter amount

(b) the difference between the minimum amount of the export
invitation concerned and the
levy fixed for the partial
minimum amount of the export levy fixed for the following
partial invitation, when the latter amount is lower than the
former.

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 for the release
of the security 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 30 minutes of the expiry of the deadline
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 same time limit.

Article 8

After

the tenders

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

received have been examined, a
invitation

2. Without prejudice to Article 10, where a minimum
levy is fixed, a contract shall be awarded to every
export
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 and 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.

Where a maximum quantity has been fixed for a partial invita-
tion to tender and if a maximum export refund is fixed,
contracts shall be awarded in accordance with the first subpara-
graph; 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
of export refunds quoted until the entire maximum quantity
has been accounted for.

2. 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:

(a) by division among the tenderers concerned in proportion

to the total quantities in each of their tenders; or

(b) by apportionment among the tenderers concerned by refer-
ence to a maximum tonnage to be fixed for each of them;
or

A decision may be taken to make no award under a

2.
specific partial invitation to tender.

(c) by the drawing of lots.

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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).

Export licences issued in connection with a partial invita-
2.
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 2004 shall be valid only until 30
September 2004.

Should technical difficulties arise which prevent export being
carried out by the expiry date referred to in the second subpar-
agraph above, 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
2004 at the latest, provided that export is not subject to the
rules laid down in Articles 4 or 5 of Council Regulation (EEC)
No 565/80 (1).

Article 12

3.
Export licences issued in respect of the partial invitations
held between 31 July and 30 September 2003 shall be valid
only from 1 October 2003.

1.
Every successful tenderer shall have the right to receive,
in the circumstances referred to in paragraph 2, an export
licence covering the quantity awarded,
indicating the export
levy or refund quoted in the tender, as the case may be.

in
Every successful tenderer shall be obliged to lodge,
2.
accordance with the relevant provisions of Regulation (EC) No
1291/2000, an application for an export licence in respect of
the quantity that has been awarded to him, the application not
being revocable in derogation from Article 12 of Regulation
(EEC) No 120/89.

The application shall be lodged not later than:

(a) the last working day preceding the date of the partial invi-

tation to tender to be held the following week;

Except in cases of force majeure, the holder of the licence
4.
shall pay the competent authority a specific amount in respect
of the quantity for which the obligation to export resulting
from the export licence referred to in Article 12(2) has not
been fulfilled, 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;

(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;

(b) if no partial invitation to tender is due to be held that week,

the last working day of the following week.

(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,

3.
Every successful tenderer shall be obliged to export the
tendered quantity and, if this obligation is not fulfilled, to pay,
where necessary, the amount referred to in Article 13(4).

The rights and obligations referred to in paragraphs 1, 2

4.
and 3 shall not be transferable.

The amount to be paid referred to in the first paragraph shall
be 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 13

Article 14

1.
The period for the issue of export licences referred to in
Article 9(1) of Regulation (EC) No 1464/95 shall not apply to
the white sugar to be exported under this Regulation.

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

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

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

Done at Brussels, 18 July 2003.

For the Commission

Franz FISCHLER

Member of the Commission