Commission Regulation (EC) No 1454/2007 of 10 December 2007 laying down common rules for establishing a tender procedure for fixing export refunds for certain agricultural products
Date: 2007-12-10
Institutions: European Commission
Subjects: award of contract, cereals, export licence, export refund, invitation to tender, milk, sugar

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Official Journal of the European Union

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COMMISSION REGULATION (EC) No 1454/2007

of 10 December 2007

laying down common rules for establishing a tender procedure for fixing export refunds for certain
agricultural products

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(2)

Having regard to the Treaty
Community,

establishing the European

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 31(14) thereof,

Having regard to Council Regulation (EC) No 1784/2003 of 29
September 2003 on the common organisation of the market in
cereals (2), and in particular Article 18 thereof,

Having regard to Council Regulation (EC) No 1785/2003 of 29
September 2003 on the common organisation of the market in
rice (3) and in particular Article 15(3) thereof,

Having regard to Council Regulation (EC) No 318/2006 of 20
February 2006 on the common organisation of the markets in
the sugar sector (4) and in particular Article 33(4), thereof,

Whereas:

(1)

In accordance with Article 31(1) of Regulation (EC) No
1255/1999 and the corresponding articles of other Regu-
lations on the common organisation of the markets in
agricultural products, the difference between quotations
or prices on the world market and in the Community
may be covered for certain agricultural 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.

(3)

(4)

(5)

(6)

(7)

In order to make the most efficient possible use of the
resources available and to increase transparency and the
competition among exporters willing to participate in the
refund scheme, refunds may be fixed by the Commission
by a tendering procedure for products in respect of
which provision was made for such a procedure in the
past.

Commission Regulations laying down detailed rules for
the application of the system of tendering for export
certain common market organisations
refunds
provide for different procedural
in respect of
tenders for export refunds.

rules

for

In order to simplify and improve effectiveness of the
management and control mechanisms, common rules
should be laid down for the management of tendering
procedures for export refunds.

In order to reduce the administrative burden on the
operators and national administrations
the tendering
procedure should be organised in conjunction with the
licence and the
application procedure for the export
tender
licence
security once the tender is successful.

should also constitute

security

the

Tenders should contain all the information necessary to
assess
them, and communications between Member
States and the Commission should be provided for.

The security should ensure that the accepted quantities
are exported pursuant to the licence issued under the
tender. Therefore, provisions should be adopted for the
the security lodged in
release and the forfeiting of
accordance with Commission Regulation (EEC) No
2220/85 of 22 July 1985 laying down common
detailed rules for the application of the system of secu-
rities for agricultural products (5).

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

(8)

lation (EC) No 1152/2007 (OJ L 258, 4.10.2007, p. 3).

(2) OJ L 270, 21.10.2003, p. 78. Regulation as last amended by Regu-

lation (EC) No 735/2007 (OJ L 169, 29.6.2007, p. 6).

(3) OJ L 270, 21.10.2003, p. 96. Regulation as last amended by Regu-

lation (EC) No 797/2006 ( OJ L 144, 31.5.2006, p. 1).

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

(4) OJ L 58, 28.2.2006, p. 1. Regulation as last amended by Regulation

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

(EC) No 1260/2007 (OJ L 283, 27.10.2007, p. 1).

(EC) No 1913/2006 (OJ L 365, 21.12.2006, p. 52).

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Experience has shown that provisions need to be laid
down to deter
from being
presented. A suitable sanctions system should therefore
be established and the cases where no sanctions are to be
applied should be determined.

inaccurate documents

It shall apply without prejudice to the derogations and specific
provisions laid down in Commission Regulations opening a
tendering procedure concerning export refunds specific to the
agricultural products mentioned in the first subparagraph.

(9)

(10)

Commission Regulations (EC) No 800/1999 of 15 April
1999 laying down common detailed rules for the appli-
cation of export refunds on agricultural products (1) and
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 (2)
should apply to the export
refunds provided for in this Regulation.

(11) As a consequence of the adoption of common rules,
Commission Regulations (EEC) No 584/75 of 6 March
1975 laying down detailed rules for the application of
the system of tendering for export refunds on rice (3)
and, (EC) No 580/2004 of 26 March 2004 establishing
a tender procedure concerning export refunds for certain
milk products (4) should be repealed.

(12)

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

HAS ADOPTED THIS REGULATION

Article 1

Scope

1.
This Regulation lays down common rules for the organi-
sation and management of tendering procedures for fixing the
amount of the export refunds for the products of the following
sectors:

(a) milk and milk products;

(b) cereals;

(c) rice;

(d) sugar.

(1) OJ L 102, 17.4.1999, p. 11. Regulation as last amended by Regu-

lation (EC) No 1001/2007 (OJ L 226, 30.8.2007, p. 9).

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

lation (EC) No 1913/2006.

(3) OJ L 61, 7.3.1975, p. 25. Regulation as last amended by Regulation

(EC) No 1948/2002 (OJ L 299, 1.11.2002, p. 18).

(4) OJ L 90, 27.3.2004, p. 58. Regulation as last amended by Regu-

lation (EC) No 128/2007 (OJ L 41, 13.2.2007, p. 6).

authorities

For the purposes of application of this Regulation ‘the
2.
competent
the
departments or bodies accredited by the Member States as
laid down in
paying agencies which fulfil
Article 6 of Council Regulation (EC) No 1290/2005 (5).

the conditions

the Member

States’

are

of

Regulations (EC) No 800/1999 and (EC) No 1291/2000
3.
shall apply, save as otherwise provided for in this Regulation.

Article 2

Opening of the Tendering Procedure

1.
For each product concerned the tendering procedure shall
be opened by Commission Regulation, hereinafter referred to as
‘Regulation opening the tendering procedure’,
in accordance
with the procedure referred to in Article 42(2) of Regulation
(EC) No 1255/1999 and the corresponding Articles of the other
Regulations on the common organisation of the markets in the
agricultural products concerned.

The Regulation opening the tendering procedure shall

2.
contain the following information:

(a)

the products covered by the tendering procedure with their
relevant CN codes;

(b) the period covered by the tender (tendering period) and the
different sub-periods when the tenders can be lodged;

(c)

the opening and closing time between which tenders may
be lodged;

(d) the global quantity covered by the tendering procedure, if

necessary;

(e)

the minimum quantity each tender must provide for;

(f)

the amount of the security;

(g) the destination to which products have to be exported, if

required;

(h) the competent authority of Member States to which tenders

are to be sent.

(5) OJ L 209, 11.8.2005, p. 1.

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3.
The information required in points (b),
paragraph 2, may be published in the Official
European Union by a notice of invitation to tender.

(d) and (h) of
the

Journal of

4.
At least six days must elapse between the entry into force
of the Regulation opening the tendering procedure or the publi-
cation of the notice of invitation to tender and the first date for
the submission of tenders.

Article 3

Submission of tenders and application for export licences

Tenders shall be lodged by operators established and
1.
registered for VAT purposes
in the Community to the
competent authorities of the Member States indicated either in
the Regulation opening the tendering procedure or in the notice
of invitation to tender.

(b) it indicates in Section 4 of the licence application the iden-
tification data of the tenderer: name, address and the VAT
registration number;

(c)

it indicates in Section 16 of the licence application the CN
code of the product;

(d)

it respects the minimum and maximum quantity indicated
in the Regulation opening the tendering procedure,
if
applicable;

(e)

it indicates in Section 20 of the licence application the
export refund offered per unit in euros and cents;

(f)

it indicates in Sections 17 and 18 of the licence application
the quantity of the product to be exported;

2.
Tenders shall be lodged in conjunction with and using the
application form for an export licence as provided for in Regu-
lation (EC) No 1291/2000.

(g)

it specifies in section No 7 of the licence application the
export destination in case of application of Article 2(2)(g);

3.
Tenders may be lodged by electronic means, using the
method made available to the operators by the Member State
concerned. The competent authorities of the Member States
may require that electronic tenders be accompanied by an
advance electronic signature within the meaning of Article
2(2) of Directive 1999/93/EC of the European Parliament and
of the Council (1). In all other cases, the competent authorities
shall
equivalent
assurances with regard to the functionalities attributed to a
signature by applying the same rules and conditions as these
defined in the Commission's provisions on electronic and
digitised
by Commission Decision
2004/563/EC, Euratom (2), and in its implementing rules (3).

signature offering

an electronic

documents,

set out

require

4.
In case of application of Article 2(2)(g), the licence appli-
cation shall bear an indication of the destinations referred to in
the Regulation opening the tendering procedure.

(h) the tenderer has lodged a security before the end of the
submission sub-period,
in accordance with the provisions
of Title III of Regulation (EC) No 2220/85 and by way of
derogation from Article 15 paragraph 2 of Regulation (EC)
No 1291/2000, and has provided proof thereof within the
same period;

(i)

it does not
tenderer other than those mentioned in this paragraph;

include any conditions introduced by the

(j)

it is presented in the official language, or one of the official
languages of
the Member State in which the tender is
lodged.

The tender security shall constitute the export

6.
security.

licence

5.

A tender shall be valid if the following conditions are met:

Tenders shall not be withdrawn nor amended after their

7.
submission.

(a)

indicates in Section 20 of

it
reference
procedure and the expiry date for
submission of the tenders;

to the Regulation opening

the licence application a
tendering
the
the sub-period of

(1) OJ L 13, 19.1.2000, p. 12.
(2) OJ L 251, 27.7.2004, p. 9.
(3) Document SEC(2005) 1578.

Article 4

Examination of tenders

The competent authorities of

1.
the Member States shall
examine tenders based on the elements mentioned in Article
3(5). They shall verify in particular the correctness of that infor-
mation and they shall decide on the validity of tenders.

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Persons authorised to receive and examine the tenders
2.
shall be under an obligation not to disclose any particulars
relating thereto to any unauthorised person.

In the case of an invalid tender the competent authorities

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

Article 5

Notification of the tenders to the Commission

All valid tenders shall be notified to the Commission by

1.
the competent authorities of the Member States.

The notifications shall not contain the data referred to in

2.
Article 3(5)(b).

3.
The notifications shall be made by electronic means, using
the method indicated to the Member States by the Commission,
within a specific period fixed by the Commission Regulations
opening the tendering procedure in question.

The form and content of the notifications shall be defined on
the basis of models made available by the Commission to the
Member States. Those models
the
Management Committee competent has been informed.

shall not apply until

4.
Nil returns shall be notified to the Commission by the
Member States within the period referred to in paragraph 3.

Article 6

Decision on the basis of the tenders

1.
On the basis of the tenders notified in accordance with
Article 5(1), the Commission shall decide, in accordance with
the procedure referred to in Article 42(2) of Regulation (EC) No
1255/1999 and the corresponding Articles of the other Regu-
lations on the common organisation of the markets in the
agricultural products concerned:

Article 7

Decisions on tenders and issuing of export licenses

1. Where a maximum export
refund has been fixed in
accordance with Article 6(1), the competent authorities of the
Member States shall accept tenders which are equal to or lower
than the maximum refund. All
tenders will be
rejected.

the other

2. Where no refund has been fixed all
rejected.

tenders shall be

The competent authorities of
accept
Article 5(1).

tenders

the Member States shall not
that have not been notified according to

The competent authorities of

3.
the Member States shall
adopt Decisions referred to in paragraph 1 after the publication
of Commission's Decision on refunds referred to in Article 6(1).

the competent authority of

No later than the fifth working day following the entry
4.
into force of the Commission's Decision fixing a maximum
the Member State shall
refund,
issue successful
the quantity
accepted, mentioning the refund offered in the tender. In case
of application of Article 2(2)(g), the licence shall bear an indi-
cation of the destinations referred to in the Regulation opening
the tender.

tenderers export

licences

for

By way of derogation from Article 23 paragraph 1 of
licence shall

5.
Regulation (EC) No 1291/2000,
become valid on its actual day of issue.

the export

(a) not to fix a maximum refund; or

Article 8

(b) to fix a maximum refund.

In the case of

tenders submitted at

the
2.
maximum refund,
in case of application of Article 2(2)(d), a
coefficient applicable to awarding the quantities tendered may
be fixed by the Commission.

the level of

Rights and obligations of successful tenderers

1.
Successful tenderers shall have the right to be awarded an
export licence in respect of the quantity and export refund
in accordance with the Decision referred to in
accepted,
Article 7(3).

The decision on refunds shall be published in the Official

3.
Journal of the European Union.

2.
Successful tenderers shall have the obligation to export the
accepted quantity within the period of validity of the licence,
and to deliver it to the destination referred to in Article 2(2)(g)
if applicable.

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Article 9

Releasing and forfeiting of the security

1.
The primary requirement within the meaning of Article
20(1) of Regulation (EC) No 2220/85 is to export the accepted
quantity, within the period of validity of the licence. In case
where the Regulation opening the tendering procedure provides
for a specified destination as referred to in Article 2(2)(g), of this
Regulation, Article 35(5) of Regulation (EC) No 1291/2000
shall apply.

2.

The security shall be released if:

(a)

the tender is invalid or rejected;

(b) the obligation referred to in Article 8(2) has been fulfilled;

(c)

in case of application of Article 6(2) the amount of the
released security shall correspond to the quantity not
accepted.

3.
The security shall be forfeited when the obligation referred
to in Article 8(2) is not fulfilled except in cases of force majeure.

Article 10

Recovery of refunds and sanctions

1. Without prejudice to Chapter 2 of Title IV of Commission
Regulation (EC) No 800/1999, where it
found that a
document presented by a tenderer for the attribution of the
rights deriving from this Regulation provides for incorrect infor-
mation and where the incorrect
information concerned is
decisive for the attribution of that right, the competent autho-

is

rities of the Member State shall exclude the tenderer from parti-
cipating in the scheme of granting export refunds through a
tendering procedure for the products covered by the procedure
in question, for a period of one year from the moment when a
final administrative decision establishing the irregularity has
been made.

Paragraph 1 shall not apply if the applicant proves, to the
2.
the situation
the competent authorities that
satisfaction of
referred to in paragraph 1 is not due to his gross negligence
or that it is due to force majeure or to obvious error.

3. Member States shall inform the Commission of the cases
of application of paragraph 1. The Commission shall keep the
information available to the other Member States.

Article 11

Repeals

Regulation (EEC) No 584/75 is repealed.

Regulation (EC) No 580/2004 is repealed from 1 July 2008.

Article 12

Entry into force

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

It shall apply for tenders which are opened after the entry into
force of this Regulation, without prejudice to the second sub-
paragraph of Article 11.

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

Done at Brussels, 10 December 2007.

For the Commission

Mariann FISCHER BOEL
Member of the Commission