Commission Regulation (EC) No 318/2004 of 23 February 2004 amending Regulation (EC) No 2771/1999 laying down detailed rules for the application of Council Regulation (EC) No 1255/1999 as regards intervention on the market in butter and cream
Date: 2004-02-23
Institutions: European Commission
Subjects: butter, cream, intervention price, intervention stock, market intervention

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COMMISSION REGULATION (EC) No 318/2004
of 23 February 2004
amending Regulation (EC) No 2771/1999 laying down detailed rules for the application of Council
Regulation (EC) No 1255/1999 as regards intervention on the market in butter and cream

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Community,

Having regard to Council Regulation (EC) No 1255/1999 of 17
May 1999 on the common organisation of the market in milk
and milk products (1), and in particular Article 10 thereof,

(7)

(8)

The detailed rules provided for in this Regulation should
be applicable as of 1 March 2004, date on which Article
6(1) of Regulation (EC) No 1255/1999, as amended by
Regulation (EC) No 1787/2003, applies.

The measures provided for in this Regulation are in
the Milk and Milk
accordance with the opinion of
Products Management Committee,

Whereas:

(1)

(2)

(3)

(4)

(5)

Articles 4(1) and 6(1) of Regulation (EC) No 1255/1999,
as amended by Regulation (EC) No 1787/2003, provide
for reductions of the intervention prices and the inter-
vention system for butter. It is therefore necessary to lay
down in Commission Regulation (EC) No 2771/1999 (2)
detailed rules with regard to an intervention system for
the buying-in of butter at fixed prices.

Moreover, in accordance with Article 6(1) of Regulation
(EC) No 1255/1999, the Commission may decide to
suspend intervention buying-in once certain quantities
offered for intervention have been reached. In order to
put the Commission into the position to take such a
decision, provisions should be adopted for the Commis-
sion to follow the quantities of butter offered for public
intervention.

Once these quantities have been reached, the Commis-
sion may also decide to carry on buying-in by way of a
standing tendering procedure. Relevant detailed rules
should be determined.

Proper management of intervention stock requires the
butter to be resold as soon as outlets become available.
In the light of experience gained concerning the sale of
butter from intervention stocks, in particular with regard
to quantitative requirements and pricing,
it is appro-
priate to introduce a tendering procedure for the sale of
butter from public intervention.

The intervention agency shall sell the intervention butter
according to the date when it was placed in storage. In
order to meet demand, the tenderers should have the
possibility to distinguish between sweet cream and sour
cream butter in their offer and the selling price fixed
may vary according to the location of the butter offered
for sale.

(6)

Regulation (EC) No 2771/1999 should therefore be
amended accordingly.

(1) OJ L 160, 26.6.1999, p. 48. Regulation as last amended by Regu-

lation (EC) No 1787/2003 (OJ L 270, 21.10.2003, p. 121).

(2) OJ L 333, 24.12.1999, p. 11. Regulation as last amended by Regu-

lation (EC) No 359/2003 (OJ L 53, 28.2.2003, p. 17).

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EC) No 2771/1999 is amended as follows:

1. Article 2 is replaced by the following:

‘Article 2

Once the Commission has observed,

in accordance
1.
with Article 8(4), that the market price in one or more
Member States is lower than 92 % of the intervention price,
for two weeks in succession, it shall commence buying in
butter offered for
intervention in the Member State(s)
concerned in the period from 1 March to 31 August, at
90 % of the intervention price, in accordance with the first
subparagraph of Article 6(1) of Regulation (EC) No 1255/
1999.

Once the Commission has observed,

2.
in accordance
with Article 8(4), that the market price in the Member
State(s) concerned is equal to or higher than 92 % of the
intervention price,
it shall
suspend buying in.’

for two weeks in succession,

2. Article 4(3) is replaced by the following:

‘3.
The butter shall have been made during the 23 days
preceding the day on which the intervention agency
received the offer to sell.’

3. In Article 6(1), the first subparagraph is replaced by the

following:

‘Where the butter is offered to intervention in a Member
State other than that in which it was produced, buying-in
shall be subject to the presentation of a certificate supplied,
not later than 45 days after the day on which the offer was
received, by the competent agency of the Member State of
production.’

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4. In Article 8(2), the following subparagraph is added:

Article 11

‘If the prices recorded are unchanged for a period of five or
more consecutive weeks, Member States shall provide the
Commission with their evaluation of the reasons why prices
have remained unchanged during the period in question.’

5. In Chapter II, Section 3 is replaced by the following:

‘SECTION 3

Pr oce dur e for buy i ng -i n of bu tte r a t 90 % of th e
i nte r v e n ti on pr i ce

Article 9

Once the Commission has decided to commence buying in
the intervention agency
butter pursuant
concerned shall proceed in accordance with this Section.

to Article 2(1),

Article 10

1.
Sellers shall submit a written offer against issuance of
a receipt, or by any written means of telecommunication
with proof of receipt.

2.

Offers shall contain:

(a) the name and address of the seller;

(b) the quantity offered;

(c) the place where the butter is held.

3.

Offers shall be valid only if:

(a) they relate to a quantity of butter meeting the require-

ments of Article 4(4);

(b) they are accompanied by a written undertaking by the

seller to comply with Articles 4(3) and 14(2);

(c) proof is furnished that the seller has lodged a security of
EUR 5 per 100 kg in the Member State in which the
offer was submitted no later than the day on which the
offer is received.

The undertaking provided for in paragraph 3(b),

4.
if
forwarded initially to the intervention agency, shall be
deemed to be tacitly renewed for subsequent offers until
explicitly cancelled by the seller or by the intervention
agency, provided that:

(a) the original offer stipulates that the seller intends to
avail himself/herself of the provisions of this paragraph;

(b) subsequent offers refer to the provisions of this para-

graph and to the date of the original offer.

5.
The intervention agency shall record the day on which
the offer was received, the quantities involved and their
respective dates of manufacture and the place where the
butter offered is stored.

Offers may not be withdrawn after they have been

6.
received by the intervention agency.

Maintenance of the offer and delivery of the butter to the
depot designated by the intervention agency within the time
limit laid down in Article 12(2) shall constitute primary
requirements within the meaning of Article 20 of Commis-
sion Regulation (EEC) No 2220/85 (*).

Article 12

1.
After checking the offer, and within five working days
following the day of receipt, the intervention agency shall
issue a dated and numbered delivery order showing:

(a) the quantity to be delivered;

(b) the final date for delivery of the butter;

(c) the cold storage depot to which it must be delivered.

2. Within 21 days of the day of receipt of the offer to
sell, the seller shall deliver the butter to the loading bay of
the cold store. Delivery may be in several consignments.

Any costs incurred in unloading the butter at the loading
bay of the cold store shall be borne by the seller.

3.
The security referred to in Article 10(3)(c) shall be
released as soon as the seller has delivered all the quantity
indicated on the delivery order within the time limit laid
down therein.

Where the checks referred to in Article 4(1) show that the
butter does not conform to the requirements laid down in
that Article, the security shall be forfeit in respect of the
quantity delivered. As regards the remaining quantities,
buying-in shall be cancelled and the security be released.

Except in cases of force majeure, where the seller fails
4.
to deliver the butter within the time limit laid down in the
delivery order, the security provided for in Article 10(3)(c)
shall be forfeit in proportion to the quantities not delivered
and buying-in shall be cancelled in respect of these quanti-
ties not yet delivered.

5.
For the purpose of this Article, the butter shall be
deemed to be delivered to the intervention agency on the
day when the full quantity of butter covered by the offer
enters the storage depot designated by the intervention
agency, but no earlier than the day following that on which
the delivery order was issued.

The rights and obligations resulting from the sale shall

6.
not be transferable.

Article 13

1.
The intervention agency shall pay the seller for each
quantity of butter taken over, between the 45th and 65th
days after the day of the taking over, provided that compli-
ance with Articles 3 and 4 has been confirmed.

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For the purpose of this Article, the day of the taking
2.
over shall mean the day on which the butter enters the cold
store designated by the intervention agency, but no earlier
than the day following that on which the delivery order
referred to in Article 12(1) was issued.

(**) OJ L 216, 5.8.1978, p. 1. Regulation as last amended
by Regulation (EC) No 1259/96 (OJ L 163, 2.7.1996, p.
10).’

Article 14

1.
The butter shall be put through a trial storage period.
This period shall be fixed at 30 days starting from the day
of taking over.

2.
By their offers, sellers shall undertake that, where the
inspection on entry into the store designated by the inter-
vention agency shows that the butter does not meet the
requirements of Articles 3 and 4, or where, at the end of
the trial storage period, the minimum organoleptic quality
of the butter proves to be below that set in Annex I:

(a) they will take back the butter in question and

(b) they will pay the storage costs of the butter concerned
from the day on which it was taken over until the date
of its removal from storage.

The storage costs to be paid shall be determined on the
removal and
basis of
storage costs laid down pursuant to Article 6 of Council
Regulation (EEC) No 1883/78 (**).

the standard amounts for entry,

Article 15

Not

later

1.
than 12 noon (Brussels time) of each
Tuesday, the Member States shall inform the Commission of
the quantities of butter which, during the preceding week,
have been the subject of an offer to sell in accordance with
Article 10.

Once it is observed that the offers reach 75 % of the
2.
quantities referred to in the second subparagraph of Article
6(1) of Regulation (EC) No 1255/1999 for the respective
year, the information referred to in paragraph 1 of this
Article shall be communicated each day before 12 noon
for the quantities of butter offered the
(Brussels time)
preceding day.

Once it is observed that the offers reach the quantities
referred to in the second subparagraph of Article 6(1) of
Regulation (EC) No 1255/1999 for the respective year
buying-in may be suspended in accordance with the proce-
dure referred to in Article 42(2) of that Regulation.

Article 15a

In the case of suspension of buying-in in accordance with
Articles 2(2) or the second subparagraph of Article 15(2),
no new offers shall be accepted as of the day following the
day of
the decision suspending
buying-in.

the entry into force of

(*) OJ L 205, 3.8.1985, p. 5.

6. After Article 15a, the following Section 3a is inserted:

‘SECTION 3a

P r oc e d u r e for b u y i n g - i n of b u t t e r b y te nde r i n g

Article 16

1. Where the Commission decides to commence buying-
in butter through an open standing invitation to tender
pursuant
to the second subparagraph of Article 6(1) of
Regulation (EC) No 1255/1999 and in accordance with the
procedure referred to in Article 42(2) thereof, Articles 3, 4,
5, 6, 12, 13 and 14 of this Regulation shall apply unless
otherwise provided in this Section.

A notice of invitation to tender shall be published in

2.
the Official Journal of the European Union.

3.
The closing date for submission of tenders for each
individual invitation to tender shall fall on every second and
fourth Tuesday of the month at noon (Brussels time), except
the second Tuesday in August.
If Tuesday is a public
holiday, the closing date shall be the last preceding working
day at noon (Brussels time).

Article 17

Interested parties shall participate in the tendering
1.
procedure announced by the intervention agency of a
Member State either by submitting a written tender against
issuance of a receipt, or by any written means of telecom-
munication with proof of receipt.

2.

Tenders shall contain:

(a) the name and address of the tenderer;

(b) the quantity offered;

(c) the proposed price per 100 kilograms of butter, exclu-
sive of national
taxes and charges, delivered to the
loading bay of the cold store, expressed in euro to no
more than two decimal places;

(d) the place where the butter is held.

3.

Tenders shall be valid only if:

(a) they relate to a quantity of butter meeting the require-

ments of Article 4(4);

(b) they are accompanied by the written undertaking by the

tenderer to comply with Articles 4(3) and 14(2);

(c) proof is furnished that the tenderer has lodged a security
of EUR 5 per 100 kg for the invitation to tender
concerned, in the Member State in which the tender was
submitted, before the closing date for submission of
tenders.

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The undertaking provided for in paragraph 3(b),

if
4.
forwarded initially to the intervention agency, shall be
deemed to be tacitly renewed for subsequent tenders until
explicitly cancelled by the tenderer or by the intervention
agency, provided that:
(a) the original tender stipulates that the tenderer intends to

avail himself of the provisions of this paragraph;

(b) subsequent tenders refer to the provisions of this para-

graph and to the date of the original tender.

5.
The intervention agency shall record the day on which
the tender was received, the quantities involved and their
respective dates of manufacture and the place where the
butter offered is stored.

6.
Tenders may not be withdrawn after the closing date
referred to in Article 16(3) for the submission of tenders
relating to the invitation to tender concerned.

Article 17a

Maintenance of the tender after the closing date for submis-
sion of tenders, and delivery of the butter to the depot
designated by the intervention agency within the time limit
laid down in Article 17d(3), shall constitute primary require-
ments within the meaning of Article 20 of Regulation (EEC)
No 2220/85.

Article 17b

The Member States shall inform the Commission of
1.
the quantities and prices offered by tenderers, no later than
9 a.m. (Brussels time) on the day following the closing date
referred to in Article 16(3).

In the light of the tenders received for each invitation
2.
to tender, the Commission shall fix a maximum buying-in
price, by reference to the intervention prices applicable, in
accordance with the procedure referred to in Article 42(2)
of Regulation (EC) No 1255/1999.

A decision may be taken not to proceed with the invi-

3.
tation to tender.

Article 17c

Tenders shall be refused if the price proposed is higher than
the maximum price referred to in Article 17b(2), applying
to the tendering procedure concerned.

The intervention agency shall immediately issue to the
2.
successful tenderer a dated and numbered delivery order
indicating:

(a) the quantity to be delivered;

(b) the final date for delivery of the butter;

(c) the cold storage depot to which it must be delivered.

3. Within 21 days of the closing date for submission of
tenders, the successful tenderer shall deliver the butter to
the loading bay of the cold store. Delivery may be in several
consignments.

Any costs incurred in unloading the butter at the loading
bay of
the cold store shall be borne by the successful
tenderer.

The security provided for in Article 17(3)(c) shall be
4.
released as soon as the successful tenderer has delivered all
the quantity indicated on the delivery order within the time
limit laid down therein.

Where the checks referred to in Article 4(1) show that the
butter does not conform to the requirements laid down in
that Article, the security shall be forfeit in respect of the
quantity delivered. As regards the remaining quantities,
buying-in shall be cancelled and the security be released.

5.
Except in cases of force majeure, where the successful
tenderer fails to deliver the butter within the time limit laid
down in the delivery order, the security provided for in
Article 17(3)(c) shall be forfeit in proportion to the quanti-
ties not delivered, and buying-in shall be cancelled in
respect of the quantities not yet delivered.

For the purpose of this Article, the butter shall be
6.
deemed to be delivered to the intervention agency on the
day when the full quantity of butter covered by the delivery
order enters the storage depot designated by the interven-
tion agency, but no earlier than the day following that on
which the delivery order was issued.’

7. In Chapter II, Section 5 is replaced by the following:

‘SECTION 5

Pr oc e dur e for sale s of bu tte r b y t e nde r i ng

Article 17d

Article 21

1.
Tenderers shall be informed immediately by the inter-
vention agency of the outcome of their participation in the
tendering procedure.

tenders have been unsuccessful,

Where
securities
provided for in Article 17(3)(c) shall be released immedi-
ately.

the

The rights and obligations resulting from the tendering
procedure shall not be transferable.

Butter shall be sold by means of a standing invitation

1.
to tender organised by each intervention agency.

Sales shall concern butter taken into storage before 1

2.
September 1999.

3.
A standing invitation to tender shall be published in
the Official Journal of the European Union at least eight days
before the first closing date laid down for the submission of
tenders.

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The intervention agencies shall draw up a notice of
4.
standing invitation to tender indicating in particular the
closing date and address for submission of tenders.

(e) if appropriate, an indication of

the kind of butter
referred to in Article 4(6)(e) for which the offer is being
submitted.

They shall also indicate, for the butter they hold:

3.

Offers shall not be valid unless:

(a) the locations of the cold store where the butter to be

sold is in store,

(a) they relate to at least five tonnes or, if the quantity avail-
able in a cold store is less than five tonnes, to the actual
quantity available;

(b) the quantity for sale in each cold store.

5.
Intervention agencies shall keep an up-to-date list of
the information referred to in paragraph 4, which they shall
make available to interested parties on request. They shall
also publish regular updates of the list in an appropriate
form, to be indicated in the notice of standing invitation to
tender.

Intervention agencies

6.
arrangements to enable interested parties:

shall make

the necessary

(a) to examine samples of the butter put up for sale at their

own expense before submitting a tender;

(b) to verify the results of the analyses referred to in Article
8 of Commission Regulation (EC) No 213/2001 (*).

Article 22

Intervention

1.
individual
tendering rounds during the term of validity of the standing
invitation to tender.

organise

agencies

shall

2.
The closing date for submission of tenders for each
individual round shall be 12 noon (Brussels time) on the
second and fourth Tuesdays of the month, except for the
second Tuesday of August and the fourth Tuesday of
December. If Tuesday is a public holiday the time limit shall
be 12 noon (Brussels time) on the previous working day.

Article 23

Tenders under

round shall be
1.
submitted by written offer against issuance of a receipt, or
by any written means of telecommunication with proof of
receipt.

each individual

(b) proof

is provided that

the tenderer has

lodged a
tendering security of EUR 70 per tonne, in the Member
State where the tender is submitted, for the tendering
round in question before the closing date for submission
of tenders.

Tenders may not be withdrawn after the closing date

4.
provided for in Article 22(2).

Article 24

For the purposes of the tendering security provided for in
Article 23(3), the primary requirements within the meaning
of Article 20 of Regulation (EEC) No 2220/85 are fulfilled
as regards the taking-over of the butter within the time limit
laid down in Article 24f(2) of this Regulation.

Article 24a

The Member States shall inform the Commission of
1.
the quantities and prices offered by tenderers and the quan-
tity of butter offered for sale, no later than 9 a.m. (Brussels
time) on the day following the closing date referred to in
Article 22(2).

2.
A minimum selling price for the butter on the basis of
the offers received under each round shall be fixed in
accordance with the procedure referred to in Article 42(2)
of Regulation (EC) No 1255/1999. This price may vary
according to the location of the quantities of butter offered
for sale.

It may be decided to make no award under the round.

Article 24b

Tenders shall be submitted to the intervention agency
holding the butter for which an offer is made.

Offers shall be rejected if the price offered is lower than the
established minimum price.

2.

Offers shall contain:

(a) the name and address of the tenderer;

(b) the quantity desired;

(c) the price in euro tendered per 100 kilograms, not
including national taxes and charges, delivered to the
loading-bay of the cold store;

(d) if appropriate, the cold store where the butter is held

and, if desired, a substitute cold store;

Article 24c

The intervention agency shall make the award in

1.
accordance with paragraphs 2 to 5.

2.
The butter shall be allocated on the basis of its date of
entry into storage, starting with the oldest product of the
total quantity or, as the case may be, the oldest of the quan-
tity of sweet or sour cream butter available in the cold store
designated by the tenderer.

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the successful
3. Without prejudice to Article 24b,
tenderer shall be the tenderer offering the highest price. If
the full quantity available is not allocated, the remainder
shall be awarded to the other tenderers on the basis of the
prices tendered, starting with the highest price.

in
4. Where acceptance of a tender would result
contracts being awarded in excess of the quantity of butter
available in a particular cold store, only the quantity avail-
able shall be awarded to the tenderer in question.

However, the intervention agency may designate other cold
stores to make up the quantity set out
in the tender,
provided the tenderer agrees.

5. Where acceptance of two or more tenders offering the
same price for butter in a particular cold store would lead
to contracts being awarded in excess of the quantity avail-
able, the award shall be made by allocating the quantity
available in proportion to the quantities tendered for.

However, should such allocation lead to the award of quan-
tities of less than five tonnes, the award shall be made by
drawing lots.

Article 24d

Successful tenderers shall remove the butter awarded
2.
to them within 30 days of the closing date for the submis-
sion of tenders. Removal may be effected by instalments of
not less than five tonnes each. However, where the quantity
remaining in a cold store is less than five tonnes, that
smaller quantity may be delivered.

Except in cases of force majeure, if the butter has not been
removed within the period laid down in the first sub-
paragraph,
the cost of storing shall be borne by the
successful tenderer from the day following that on which
the period expired. Moreover, storage shall be at his/her
own risk.

The

3.
security lodged in accordance with Article
23(3)(b) shall be released immediately in respect of quanti-
ties removed within the period provided for in the first sub-
paragraph of paragraph 2 of this Article.

It shall be forfeit in the case of the second subparagraph of
paragraph 2.

In the event of force majeure referred to in the second sub-
paragraph of paragraph 2, the intervention agency shall take
such action as it considers necessary having regard to the
circumstances invoked.

The rights and obligations resulting from the tendering
procedure shall not be transferable.

Article 24g

Article 24e

The intervention agency shall

immediately inform
1.
tenderers of the outcome of their participation in the invita-
tion to tender.

Securities provided for in Article 23(3)(b) lodged for unsuc-
cessful tenders shall be released immediately.

2.
Before removing the butter and within the period
specified in Article 24f(2), successful tenderers shall pay the
intervention agency the amount corresponding to their
tender for each quantity that they wish to withdraw.

Article 24f

Once the amount referred to in Article 24e(2) has
issue a removal

1.
been paid the intervention agency shall
order indicating:
(a) the quantity in respect of which the corresponding

amount has been paid;

(b) the cold store in which the butter is in store;
(c) the final date for removal of the butter.

Member States shall inform the Commission not later than
Tuesday of each week of the quantities of butter which,
during the preceding week:
(a) have been the subject of a sale contract;

(b) have been taken over.

(*) OJ L 37, 7.2.2001, p. 1.’

Article 2

the entry into force of

The purchase of butter suspended in certain Member States at
this Regulation shall
the time of
continue to be suspended until a new decision in that respect is
taken by the Commission and published in the Official Journal
of the European Union.

Article 3

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

It shall apply as of 1 March 2004.

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

Done at Brussels, 23 February 2004.

For the Commission
Franz FISCHLER
Member of the Commission