Commission Regulation (EC) No 580/2004 of 26 March 2004 establishing a tender procedure concerning export refunds for certain milk products
Date: 2004-03-26
Institutions: European Commission
Subjects: award of contract, export refund, milk product

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Official Journal of the European Union

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COMMISSION REGULATION (EC) No 580/2004

of 26 March 2004

establishing a tender procedure concerning export refunds for certain milk products

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 26(3) and
Article 31(3)(b) and (14) thereof,

Whereas:

According to Article 31(1) of Regulation (EC) No 1255/
1999 the difference between the prices in world trade
and in the Community may be covered for certain milk
products by export refunds to the extent necessary to
enable those products to be exported within the limits
resulting from agreements concluded in accordance with
Article 300 of the Treaty.

export

refunds

for
This Regulation should cover
skimmed milk powder and butter covered by certain
product codes listed in section 9 of Annex I to Commis-
sion Regulation (EEC) No 3846/87 of 17 December
1987 establishing an agricultural product nomenclature
for export refunds (2). For the purpose of this Regulation
the products in question should be in a bulk pack. In
addition, it is necessary to limit the scope of footnote 13
to section 9 in relation to skimmed milk powder by
setting a maximum limit
for non-lactic additions to
ensure that offers are made for a standard product.

In order to achieve an efficient administration of Com-
munity funds, to take better account of changing export
possibilities for the products concerned and to increase
transparency and the opportunity for operators to parti-
cipate in the export scheme, refunds for those products
should be fixed by a tender procedure, as was already
provided for in Article 17(2) of Council Regulation (EEC)
No 804/68 (3).

(1)

(2)

(3)

(4)

The destinations for which refunds may be fixed are
indicated in Commission Regulation (EC) No 1523/2003
of 28 August 2003 fixing the export refund on milk and
milk products (4).

(10)

(1) OJ L 160, 26.6.1999, p. 48. Regulation as last amended by
Commission Regulation (EC) No 186/2004 (OJ L 29, 3.2.2004, p.
6).

(2) OJ L 366, 24.12.1987, p. 1. Regulation as last amended by Regu-

lation (EC) No 118/2003 (OJ L 20, 24.1.2003, p. 3).

(3) OJ L 148, 28.6.1968, p. 13. Regulation repealed by Regulation (EC)

No 1255/1999.

(4) OJ L 217, 29.8.2003, p. 51.

(5)

(6)

(7)

(8)

(9)

To ensure equal treatment for all interested parties, all
Commission decisions relating to the tender should be
published in the Official Journal of the European Union.

In order to reduce the administrative burden on opera-
tors and national administrations the tendering proce-
dure should be incorporated in the export licence appli-
cation procedure and the tender security should also
constitute the licence security. Tenders should contain
the data needed to assess them, and communications
between Member States and the Commission should be
provided for.
the data
concerned, tenders should not be examined in public.

the sensitivity of

In view of

A tendering security should ensure that the accepted
quantities are exported pursuant to the licence issued
the invitation to tender. The security should
under
accordingly be
are not
forfeited where quantities
exported. Therefore provisions should be adopted for
the lodging,
the
tendering security in addition to Commission Regulation
(EEC) No 2220/85 of 22 July 1985 laying down
common detailed rules for the application of the system
of securities for agricultural products (5).

the release and the forfeiting of

A maximum export refund should be fixed. However,
situations may arise on the market in which economic
or other aspects urge that none of the tenders received
be accepted.

Detailed rules should be laid down to ensure that
tenderers are notified of the outcome of the invitation to
tender and that the necessary licences are issued for the
export of the quantities allocated.

By way of derogation from 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 (6), the rights deriving from licences
should be confined to the successful tenderers to avoid
speculation.

(5) OJ L 205, 3.8.1985, p. 5. Regulation as last amended by Regulation

(EC) No 1932/1999 (OJ L 240, 10.9.1999, p. 11).

(6) OJ L 152, 24.6.2000, p. 1. Regulation as last amended by Regu-

lation (EC) No 322/2004 (OJ L 58, 26.2.2004, p. 3).

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(11)

Commission Regulation (EC) No 174/1999 of 26
January 1999 laying down special detailed rules for the
application of Council Regulation (EEC) No 804/68 as
regards export licences and export refunds in the case of
milk and milk products (1), applies to all export licences
and export refunds in the dairy sector. To the extent
necessary derogations from this Regulation should be
provided. They should concern the refund amount
applicable, the provision relating to applications lodged
on Thursdays and the product code of the nomenclature
for refunds indicated in licences. In addition, as licences
issued in the context of
the tender are for specific
products,
the provisions in relation to the use of a
licence for another product should not be applicable. To
licences have the same validity period the
ensure all
closing date for the submission of tenders should be
taken as the commencement date.

(12)

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

HAS ADOPTED THIS REGULATION:

Article 1

Scope

This Regulation provides for a tender procedure for fixing
export refunds on the following milk products, listed in section
9 of Annex I to Regulation (EEC) No 3846/87, of Community
origin:

(a) skimmed milk powder in bags of at least 25 kilograms net
weight and containing no more than 0,5 % by weight of
added non-lactic matter falling under product code ex
0402 10 19 9000;

(b) natural butter in blocks of at least 20 kilograms net weight
falling under product codes ex 0405 10 19 9500 and ex
0405 10 19 9700;

(c) butteroil in containers of at least 190 kilograms net weight

falling under product code ex 0405 90 10 9000.

Article 2

Tendering procedure

1.
The standing invitation to tender shall be opened in
accordance with the procedure referred to in Article 42(2) of
Regulation (EC) No 1255/1999 guaranteeing equality of access
for all persons established in the Community.

The standing invitation to tender

2.
following:

shall contain the

(a) the tendering periods;

(b) opening and closing time between which tenders may be

submitted;

(c) the minimum quantity each tender must provide for;

(d) the amount of the tendering security; and

(e) the address of the competent authorities of the Member

States to which tenders shall be submitted.

3. Member States shall
inform operators by the means
which they consider the most appropriate as regards the appli-
cation of the tendering procedure.

Article 3

Submission of tenders

1. Written tenders shall be submitted to the competent
authority of a Member State in conjunction with and using the
application form for an export licence as provided for in Regu-
lation (EC) No 1291/2000. They shall be submitted by one of
the following means:

(a) delivered by hand against acknowledgement of receipt; or

(b) addressed to that authority either by registered letter or

telegram; or

(c) addressed to that authority by telex, fax or electronic mail
where the authority accepts such forms of communication.

2.

Tenders may not be withdrawn.

A tender shall be valid if the following conditions are

3.
complied with:

(a) it indicates:

(i) in section 20 a reference to this Regulation and the

expiry date for the submission of tenders;

(ii) in section 4 the name, address, e-mail address and tele-
phone number of the tenderer. However the omission
of the e-mail and telephone number shall not render
the tender invalid;

(iii) in section 16 the product code preceded by ‘ex’ as
mentioned in Article 1,
in section 15 the product
description indicated in Article 1 and in sections 17
and 18 the quantity of the product to be exported;

(iv) in section 20 the export refund per 100 kilograms

expressed in euro and cents,

(v) the intended destination;

(b) it respects the minimum quantity laid down in the standing

invitation to tender;

(1) OJ L 20, 27.1.1999, p. 8. Regulation as last amended by Regulation

(EC) No 1948/2003 (OJ L 287, 5.11.2003, p. 13).

(c) it does not

include any conditions other

than those

mentioned in this paragraph;

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(d) the tenderer has lodged the tendering security before the
end of the period during which tenders may be submitted
and has provided proof
thereof within the same time
period.

Article 6

Accepting tenders

By way of derogation from Article 9 of Regulation (EC) No
174/1999 the tender security shall constitute the export
licence security.

1. Where a maximum export refund is fixed, the competent
authority of the Member States shall accept tenders which are
equal to or lower than the maximum refund and reject all
others. Where no refund is fixed all tenders shall be rejected.

Persons authorised to receive tenders shall not disclose

4.
any particulars relating thereto to any unauthorised persons.

The competent authority of

the Member States shall
2.
adopt the decisions referred to in paragraph 1 when the deci-
sion on refunds has been published.

Article 4

Article 7

Examination of tenders and submission to the Commis-
sion

1.
Tenders shall be examined by the competent authority of
the Member States. They shall not be examined in public.
Persons authorised to be present at the examination of the
tenders shall be under an obligation not to disclose any particu-
lars relating thereto to any unauthorised person.

Rights and obligations of successful tenderers

1.

The successful tenderers shall have:

(a) the right to receive an export licence in respect of the quan-
tity and export refund, in accordance with the decision as
referred to in Article 6(1);

(b) the obligation to export the tendered quantity in accord-
ance with Article 31(b) and Article 32(1)(b)(i) of Regulation
(EC) No 1291/2000.

2.
All valid tenders shall be communicated to the Commis-
sion by the Member States in the form specified in the Annex,
without mentioning the tenderers by name, within two hours
of the end of each tendering period.

2.
By way of derogation from Article 9(1) of Regulation (EC)
No 1291/2000, the right referred to in point 1 shall not be
transferable.

Where no tenders are submitted, Member States shall notify the
Commission thereof within the same time period.

In the case of an invalid tender the competent authority

3.
of the Member State shall inform the tenderer thereof.

4. Member States shall, not later than the third working day
of the week following the publication of the decision referred
to in Article 5, communicate to the Commission the name and
address of each tenderer corresponding to the number indi-
cated in column 2, points 1, 2, 3 and 4 of the Annex.

Article 5

Decision on refunds

the Commission shall decide,

On the basis of the tenders notified in accordance with Article
4(2),
in accordance with the
procedure referred to in Article 42(2) of Regulation (EC) No
for each tendering period to fix a maximum
1255/1999,
refund according to Article 31(4) and (5) of that Regulation or
to grant no refunds.

The decision on refunds shall be published in the Official
Journal of the European Union.

Article 8

Export licences

1.

By way of derogation from Regulation (EC) No 174/1999

(a) the amount of the refund referred to in Article 1 of that
Regulation shall be the amount resulting from the tender;

(b) Article 5(2) and (3) of that Regulation shall not apply;

(c) section 16 of licences referred to in Article 5(1) of that
Regulation shall show the 12-digit product code of the
nomenclature for refunds preceded by ‘ex’;

(d) the period of validity of the export licence referred to in
Article 6 of that Regulation shall be from the closing date
for the submission of tenders until the end of the fourth
month following that date.

By way of derogation from Article 10 of Regulation (EC)
2.
No 174/1999 an export licence shall be issued to the successful
tenderer immediately after the acceptance of tenders in accord-
ance with Article 6 in respect of the quantity awarded to him.

3.
In addition to the indication in section 22 of the licence
provided for in Article 12(1) of Regulation (EC) No 174/1999,
the licence shall
indicate in that section a reference to this
Regulation, the expiry date of the period for the submission of
tenders and the amount of refund applicable. Section 21 of the
licence shall not apply.

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Article 9

Releasing and forfeiting of the tendering security

2. Where the obligation referred to in Article 7(1)(b) is not
fulfilled the tendering security shall be forfeited in accordance
with Article 12 of Regulation (EC) No 174/1999, except in
cases of force majeure.

1.

The tendering security shall be released if:

(a) the tender is invalid or rejected;

Article 10

Entry into force

(b) the obligation referred to in Article 7(1)(b) has been

fulfilled.

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

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

Done at Brussels, 26 March 2004.

For the Commission

Franz FISCHLER

Member of the Commission

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1. SKIMMED MILK POWDER

ANNEX

2. 80 % BUTTER

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3. 82 % BUTTER

4. BUTTEROIL