Commission Regulation (EC) No 1138/2005 of 15 July 2005 on a standing invitation to tender to determine levies and/or refunds on exports of white sugar for the 2005/2006 marketing year
Date: 2005-07-15
Institutions: European Commission
Subjects: award of contract, export levy, export refund, white sugar

16.7.2005

EN

Official Journal of the European Union

L 185/3

COMMISSION REGULATION (EC) No 1138/2005

of 15 July 2005

on a standing invitation to tender to determine levies and/or refunds on exports of white sugar for
the 2005/2006 marketing year

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty
Community,

establishing the European

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), and in particular Articles 22(2), 27(5) and
(15) and 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 2005/2006 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.

agricultural products (3) and Commission Regulation
(EEC) No 120/89 of 19 January 1989 laying down
the
for
common detailed rules
levies and charges on agricultural products (4)
export
must continue to apply.

the application of

(4)

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

HAS ADOPTED THIS REGULATION:

Article 1

1.
A standing invitation to tender shall be issued in order to
determine export levies and/or export refunds on white sugar
covered by CN code 1701 99 10 for all destinations excluding
and
Albania, Croatia, Bosnia
Montenegro (5)
of
the
Macedonia. During the period of validity of this standing invi-
tation, partial invitations to tender shall be issued.

and Herzegovina,
former Yugoslav Republic

Serbia

and

The standing invitation to tender shall be open until

2.
27 July 2006.

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.

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.

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 (2). However,
(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

Commission

Regulation

(1) OJ L 178, 30.6.2001, p. 1. Regulation as

last amended by
Commission Regulation (EC) No 39/2004 (OJ L 6, 10.1.2004,
p. 16).

(2) OJ L 144, 28.6.1995, p. 14. Regulation as last amended by Regu-

lation (EC) No 96/2004 (OJ L 15, 22.1.2004, p. 4).

Article 3

The Member States shall establish a notice of invitation to
1.
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,

2.
invitation to tender.

in particular, the terms of the

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

lation (EC) 636/2004 (OJ L 100, 6.4.2004, p. 25).

(4) OJ L 16, 20.1.1989, p. 19. Regulation as last amended by Regu-

lation (EC) No 910/2004 (OJ L 163, 30.4.2004, p. 63).

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

Resolution 1244 of 10 June 1999.

(1)

(2)

(3)

L 185/4

EN

Official Journal of the European Union

16.7.2005

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

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

Article 4

Tenders shall be valid only if the following conditions are

2.
met:

The period during which tenders may be submitted in

1.
response to the first partial invitation to tender:

(a) shall begin on 22 July 2005;

(a)

tenders shall contain:

(b) shall end on Thursday 28 July 2005 at 10.00, Brussels local

(i)

the procedure to which the tender relates;

time.

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;

(ii)

the name and address of the tenderer;

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

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

— 11 and 25 August 2005,

— 8, 15, 22 and 29 September 2005,

— 6, 13, 20 and 27 October 2005,

— 10 and 24 November 2005,

— 8 and 22 December 2005,

— 5 and 19 January 2006,

— 2 and 16 February 2006,

— 2, 16 and 30 March 2006,

— 6 and 20 April 2006,

— 4 and 18 May 2006,

— 1, 8, 15, 22, and 29 June 2006,

— 13 and 27 July 2006.

Article 5

1.

Tenders in connection with this tendering procedure:

(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;

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

white sugar;

(c) proof is furnished before expiry of the time-limit for the
the tenderer has lodged the

tenders that

submission of
security indicated in the tender;

(d) tenders include a declaration by the tenderer that if their
tender is successful they 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;

(e)

tenders include a declaration by the tenderer that if their
tender is successful they will:

(i) where the obligation to export resulting from the export
fulfilled,
the amount

licence referred to in Article 12(2)
supplement
referred to in Article 13(4);

the security by payment of

is not

(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.

16.7.2005

EN

Official Journal of the European Union

L 185/5

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:

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

(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,

(a)

the difference between the maximum amount of the export
invitation concerned and the
refund fixed for the partial
the
maximum amount of
following partial
is
higher than the former;

invitation, when the latter amount

refund fixed for

the export

(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.

(b) the difference between the minimum amount of the export
invitation concerned and the
the
is

levy fixed for the partial
minimum amount of
following partial
lower than the former.

invitation, when the latter amount

levy fixed for

export

the

5.

Once submitted, a tender may not be withdrawn.

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.

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.

In cases of force majeure, the competent authority of the
4.
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.

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).

Article 7

2.
The security referred to in paragraph 1 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
which no award has been made;

tenderers in respect of

the quantity for

(b) to successful

tenderers who have not applied for

the
relevant export licence within the period referred to in the
to the extent of
second subparagraph of Article 12(2),
EUR 10 per 100 kilograms of white sugar;

(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 Regu-
lation.

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

communicated to the
2.
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 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

the

After

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

received have been examined,

a
invitation

tenders

A decision may be taken to make no award under a

2.
specific partial invitation to tender.

L 185/6

EN

Official Journal of the European Union

16.7.2005

Article 9

In the light of the current state and foreseeable devel-
there
the Community and world sugar markets,

1.
opment of
shall be fixed either:

(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
reference to a maximum tonnage to be fixed for each of
them, or

(a) a minimum export levy, or

(c) or by drawing lots.

(b) a maximum export refund.

Article 11

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.

1.
The competent authority of the Member State concerned
shall immediately notify applicants of the result of their parti-
cipation in the invitation to tender. It shall also send statements
of award to the successful tenderers.

2.

Statements of award shall indicate at least:

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.

(a)

the procedure to which the tender relates,

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

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 invi-
tation to tender and if a maximum export refund is fixed,
contracts shall be awarded in accordance with the first subpar-
agraph; 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.

(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

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.

2.
in
Every successful tenderer shall be obliged to lodge,
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:

2. Where an award to a particular tenderer in accordance
in the maximum quantity
with paragraph 1 would result
being exceeded, that award shall be limited to such quantity
as is still available. Where offers quote the same export levy
or refund and would, if accepted for the full quantity in respect
of which they have been submitted, cause the maximum
quantity to be exceeded, awards will be made:

(a)

the last working day preceding the date of the partial invi-
tation to tender to be held the following week;

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

the last working day of the following week.

16.7.2005

EN

Official Journal of the European Union

L 185/7

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

he rights and obligations referred to in paragraphs 1, 2

4.
and 3 shall not be transferable.

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
if the security referred to in Article 6 is less
been fulfilled,
than:

Article 13

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.

(a)

levy indicated on the licence,

the export
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;

2.
Export licences issued in connection with a partial invi-
tation 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.

(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;

However, export licences issued in respect of the partial invi-
tations held after 1 May 2006 will be valid only until
30 September 2006.

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
2006 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).

(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
less the refund indicated on the said licence.
the licence,

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).

3.
The export licences issued in respect of the partial invi-
tations held between 28 July 2005 and 30 September 2005 will
be usable only from 1 October 2005.

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

Article 14

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

Done at Brussels, 15 July 2005.

For the Commission

Mariann FISCHER BOEL
Member of the Commission

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