Commission Regulation (EC) No 159/2008 of 21 February 2008 amending Regulations (EC) No 800/1999 and (EC) No 2090/2002 as regards physical checks carried out when agricultural products qualifying for refunds are exported
Date: 2008-02-21
Institutions: European Commission
Subjects: agricultural product, customs inspection, export monitoring, export refund

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COMMISSION REGULATION (EC) No 159/2008

of 21 February 2008

amending Regulations (EC) No 800/1999 and (EC) No 2090/2002 as regards physical checks carried
out when agricultural products qualifying for refunds are exported

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty
Community,

establishing the European

Having regard to Council Regulation (EEC) No 386/90 of
12 February 1990 on the monitoring carried out at the time
of export of agricultural products receiving refunds or other
amounts (1), and in particular Article 6 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, and
the corresponding provisions of the other regulations on the
common organisation of the markets in agricultural products,

Whereas:

(1)

Commission Regulation (EC) No 800/1999 of 15 April
1999 laying down common detailed rules for the appli-
cation of the system of export refunds on agricultural
products (3)
and Commission Regulation (EC) No
2090/2002 of 26 November 2002 laying down
detailed rules for applying Council Regulation (EEC) No
386/90 as regards physical checks carried out when agri-
cultural products qualifying for refunds are exported (4)
provide for the rules concerning physical controls and
substitution checks by customs on export products for
which an export
In the light of
refund is claimed.
experience gained, problems mentioned by Member
States in their annual reports on physical checks and
recommendations of the European Court of Auditors,
appropriate amendments are required.

(2)

Before affixing seals the customs office of export should
visually check the
refund
products and the documents. Visual conformity checks

conformity between the

(1) OJ L 42, 16.2.1990, p. 6. Regulation as last amended by Regulation

(EC) No 14/2008 (OJ L 8, 11.1.2008, p. 1).

(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). Regulation
(EC) No 1784/2003 will be replaced by Regulation (EC) No
1234/2007 as from 1.7.2008.

(3) 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).

(4) OJ L 322, 27.11.2002, p. 4. Regulation as last amended by Regu-

lation (EC) No 1001/2007.

aim at improving the general control measures in the
framework of the customs procedure and they are of a
different nature than substitution checks as described in
Article 10(4) of Regulation (EC) No 2090/2002 or
physical checks as described in Article 5 of the same
Regulation. The visual conformity check shall confirm
to customs that the products loaded are of the kind as
mentioned in the documents. In principle products or
goods are not unloaded and packaging is not opened
or removed. In case a visual conformity check reveals
that the conformity could be a problem, customs can
decide to execute a physical check in accordance with
Regulation (EEC) No 386/90. A minimum level of
10 % of visual conformity checks is deemed to be
effective, proportionate and dissuasive. For information
reasons, the customs office of export should note its
its
conformity check on the control copy T5 or
equivalent.

Customs should be informed on the rate of export
refunds at stake when selecting export declarations for
physical or substitution checks. This information should
therefore be mentioned in the export declaration and in
the control copy T5 or equivalent document. However,
in some Member States the authorities concerned already
dispose of the same information. Consequently exporters
may be exempted from the obligation to mention this
information either in the export declaration, or in the T5
control copy or equivalent document, or in both.

In order to ensure effective application of the obligation
to mention the export refund rate, provisions need to be
laid down to deter inaccurate information. A suitable
penalty system should therefore be established. In case
of substantial differences between the refund calculated
according to the export refund rate mentioned and the
export refund actually applicable customs would be par-
ticularly misled not to execute the necessary controls. In
particular if the exporter indicates a rate representing an
export refund less than EUR 1 000 and the refund
applicable is more than EUR 10 000,
the penalty
should be effective, proportionate and dissuasive.

to concentrate

controls more on export
In order
products covering a relatively high amount of refunds,
selection thresholds, under which controls are
the
generally disregarded for
calculating the minimum
control rates, expressed in quantities or in amounts of
refunds are raised.

(3)

(4)

(5)

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(6)

In parallel, exporters

Predictability of customs controls due to a steady control
pattern by customs authorities should be minimised.
Therefore, customs authorities' timing of arriving at the
exporter's premises and of executing controls should
should be more tightly
vary.
bound to non-substitution of products after the export
declaration was lodged and before customs arrive, by
identifying the
their being
loaded. The registration of customs authorities' physical
controls should be adapted accordingly.

export products before

(7) When a Member State applies the third subparagraph of
Article 3(2) of Regulation (EEC) No 386/90 it should be
possible to apply the specific provisions set up by
Article 6 of Regulation (EC) No 2090/2002.

(8)

Substitution checks should be targeted to all exports
which were not physically checked at the start of the
procedure. The number of
substitution checks and
specific substitution checks together must cover a repre-
sentative part of the exports leaving the Community's
customs territory. The number of these checks should
therefore be based on a percentage of the number of
T5 control copies or equivalent documents, rather than
in the number of days that refund products leave the
Community's customs territory.

(9)

In order to decide whether substitution checks or specific
substitution checks are required the customs office of exit
should actively check the presence and soundness of
seals. A minimum level of 10 % of checks on seals is
deemed to be effective, proportionate and dissuasive.

(10)

The provisions on annual reports in Annex III to Regu-
lation
adapted
accordingly.

2090/2002

(EC) No

should

be

(11)

Regulations (EC) No 800/1999 and (EC) No 2090/2002
should therefore be amended accordingly.

(12)

The Management Committees
concerned have not
delivered an opinion within the time limit set by their
chairman,

HAS ADOPTED THIS REGULATION:

Regulation (EC) No 800/1999 is amended as follows:

Article 1

1. Article 5 is amended as follows:

(a) The fourth subparagraph of paragraph 7 is replaced by

the following:

‘The products shall be identified by appropriate means
starting loading. The
before the indicated time for
competent
to make
customs office must be able
physical checks and identify the goods for transport to
the office of exit
the
Community.’

from the customs territory of

(b) In paragraph 8, the following subparagraph is added:

‘Before affixing seals, the customs office shall visually
check the conformity of the products with the export
declarations. The number of visual checks shall not be
less than 10 % of the number of export declarations,
other
than those in respect of which the products
covered by them have been physically checked or
selected for a physical check under Article 2 of Regu-
lation (EEC) No 386/90. The customs office shall note
this check in box D of the control copy T5 or equivalent
document by one of the entries listed in Annex XIII. For
the year 2008, the rate of controls shall be calculated on
the export declarations accepted from
the basis of
1 April 2008.’;

2. After Article 8, the following Article 8a is inserted:

‘Article 8a

The exporter shall mention the rate of export refunds in EUR
per unit of products or goods on the date of advanced
fixing, as mentioned in the export license or certificate of
Regulation (EC) No 1291/2000 or the refund certificate of
Chapter III of Regulation (EC) No 1043/2005 (*), in box 44
of the export declaration or its electronic equivalent and in
box 106 of the control copy T5 or its equivalent. If the
export refunds have not been fixed in advance, information
on previous refund payments for the same products or
goods not older than 12 months may be used.
the
product or good to be exported does not cross the border
of another Member State and if the national currency is not
EUR, the rates of refunds may be mentioned in national
currency.

If

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The competent authorities may exempt the exporter of the
requirements provided for
the
administration operates a system by which the services
concerned are informed with the same information.

in the first paragraph if

4. Annexes XIII and XIV, the text of which are set out in Annex

I to this Regulation, are added.

Regulation (EC) No 2090/2002 is amended as follows:

Article 2

The exporter may choose to mention one of the entries
listed in Annex XIV for export declarations and T5 control
copies and equivalent documents covering an amount of
export refunds less than EUR 1 000.

1. Article 2 is amended as follows:

___________
(*) OJ L 172, 5.7.2005, p. 24.’;

3. In Article 51, the following paragraph 1a is inserted:

to the

‘1a. Without prejudice
second paragraph of
Article 8a, where it is found that the rate of export refund
pursuant
rate
to Article 8a was not mentioned,
mentioned will be deemed to be zero.
If the amount of
export
refund calculated according to the information
pursuant to Article 8a is lower than the amount applicable,
the refund due for the relevant exportation shall be that
applicable to the products actually exported, reduced by:

the

(a) 10 % of the difference between the calculated refund and
that applicable to the actual export if the difference is
more than EUR 1 000;

(b) 100 % of the difference between the calculated refund
and that applicable to the actual export if the exporter
indicated that the refunds would be less than EUR 1 000
and the refund applicable is more than EUR 10 000;

(c) 200 % of the difference between the calculated refund
intentionally

and that applicable where the exporter
provides false information.

The first subparagraph shall not apply if the exporter proves
the
to the satisfaction of
situation referred to in that subparagraph is due to force
majeure, to obvious error, or, where applicable, that it was
based on correct previous payment information.

the competent authorities that

(a) paragraph 2 is replaced by the following:

‘2. When calculating the minimum rates of checks to
be carried out
in accordance with Article 3(2) and
Article 3a of Regulation (EEC) No 386/90, Member
States shall disregard export declarations for physical
controls
equivalent
documents for substitution checks involving:

control

copies

and

T5

or

(a) either quantities not exceeding:

(i) 25 000 kg in the case of cereals and rice,

(ii) 5 000 kg in the case of products not listed in

Annex I to the Treaty,

(iii) 2 500 kg in the case of other products;

(b) or refund amounts of less than EUR 1 000.’;

(b) paragraph 3 is replaced by the following:

‘3. When implementing paragraphs 1 and 2, Member
States shall adopt appropriate provisions to prevent fraud
and abuses. Any checks made to that end may be
the purposes of calculating compliance
counted for
with the minimum rates of checks
referred to in
paragraph 2 if the Member State applies risk analysis
in accordance with Commission Regulation (EC) No
3122/94 (*).
___________
(*) OJ L 330, 21.12.1994, p. 31.’;

2.

in Article 5(2), the following subparagraph is added:

The first subparagraph shall not apply when Article 51(1)
applies for penalties based on the same elements fixing the
right to export refunds.’;

‘Member States shall ensure that there are variations in the
start of the physical check at the exporter’s premises by
comparison with the indicated time for starting loading as
referred to in Article 5(7) of Regulation (EC) No 800/1999.’;

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3.

in Article 6, the following subparagraph is added:

‘When applying the third subparagraph of Article 3(2) of
Regulation (EEC) No 386/90, a Member State may apply
the rules provided for in the first subparagraph.’;

the year 2008, Member States may decide to
For
calculate the rate of controls as referred in the second
subparagraph on the basis of T5 control copies and
equivalent documents accepted either from 1 January
2008 or from 1 April 2008.’;

4.

in Article 8, paragraph 2 is replaced by the following:

(b) paragraph 2a is replaced by the following:

The competent customs officer shall produce a detailed

‘2.
inspection report on each physical check carried out.

Inspection reports shall at least bear:

(a)

the place, date,
time of completion,
means of transport and the name and signature of the
competent officer, and

time of arrival,

(b) date and time of receipt of information as referred to in
point
(b) of Article 5(7) of Regulation (EC) No
800/1999, the indicated time for starting loading and
completion of
in the
means of transport.

the loading of

the products

‘2a.
The customs office of exit or the office to which
the T5 control copy or equivalent document is sent shall
check the seals. The number of checks shall not be less
than 10 % of the total number of T5 control copies and
equivalent documents other than those selected for a
substitution check pursuant to paragraph 2.

If the customs office of exit or the office to which the T5
the seals affixed on
finds that
control copy is sent
departure have been removed other
than under
customs supervision or have been broken or that the
dispensation from sealing under Article 357(4) of Regu-
lation (EEC) No 2454/93 has not been granted, a specific
substitution check shall be carried out. For the year
2008, Member States may decide to calculate the rate
of controls as referred in the first subparagraph on the
basis of T5 control copies and equivalent documents
accepted either from 1 January 2008 or from 1 April
2008.’;

The reports shall be kept accessible for consultation at the
customs office which executed the physical control, or at
one place in the Member State for three years from the
year of export.’;

(c)

the first subparagraph of paragraph 4 is replaced by the
following:

5. Article 10 is amended as follows:

(a) paragraph 2 is replaced by the following:

‘2.
If the customs office of export had not executed a
physical control within the meaning of Article 2(a) of
Regulation (EEC) No 386/90, substitution checks shall be
carried out, wherever possible in the light of a risk
analysis, without prejudice to paragraph 2a and to
checks carried out under other provisions.

‘The substitution check referred to in paragraph 2 shall
be carried out by means of a visual check that
the
products or goods correspond to the documents which
accompanied them from the office of exportation to the
customs office of exit or the office to which the T5
control copy is sent.
If such a visual check on the
complete cargo would be insufficient to check substi-
tution, other physical control methods, where necessary
including partial unloading, shall be used.’;

(d) point (a) of paragraph 5 is replaced by the following:

The total of the minimum number of substitution checks
and specific substitution checks under this paragraph and
paragraph 2a carried out each calendar year shall not be
less than 8 % of the number of T5 control copies and
equivalent documents covering products for which a
refund is claimed and which leave the Community’s
customs territory at the customs office of exit.

‘(a) the number of T5 control copies and equivalent
documents taken into account for the purposes of
the substitution checks referred to in paragraph 2
and for the purposes of checks on seals and for
specific substitution checks referred to in paragraph
2a;’;

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(e)

the first subparagraph of paragraph 5a is replaced by the
following:

‘Every substitution check referred to in paragraphs 2 and
2a shall be the subject of a report drawn up by the
competent official who carries it out. The report shall
permit monitoring of the checks carried out and shall
bear the date and the name of the official. The checks on
seals referred to in paragraph 2a, and the cases of
removed or broken seals
registered in
accordance with Article 912c(3) of Regulation (EEC)
No 2454/93.’;

shall be

(f)

the first subparagraph of paragraph 7 is replaced by the
following:

‘Where the substitution check reveals that the refund
rules have not been complied with, the paying agency
shall inform the customs office referred to in paragraph
5 of the action taken as a result of the findings.’;

‘(c) Where an export declaration only covers part of the
cargo of a ship, the customs office shall ensure super-
vision of the physical departure of the whole cargo. To
this end, when the loading process is completed, the
customs office shall verify the total weight of the cargo
loaded by use of the information under point (a) or (b),
with, where appropriate the information in commercial
documents.’;

7. Annex III is amended in accordance with the Annex II to

this Regulation.

Article 3

This Regulation shall enter into force on the third day following
that of
the European
Union.

its publication in the Official

Journal of

6.

in Annex I, paragraph 1, the following point (c) is added:

It shall apply from 1 April 2008.

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

Done at Brussels, 21 February 2008.

For the Commission

Mariann FISCHER BOEL
Member of the Commission

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In Regulation (EC) No 800/1999 the following Annexes XIII and XIV are added:

ANNEX I

‘ANNEX XIII

Entries referred to in Article 5(8)

— in Bulgarian:

Проверка за съответствие — Регламент (ЕО) № 800/1999

— in Spanish:

— in Czech:

— in Danish:

— in German:

— in Estonian:

— in Greek:

— in English:

— in French:

— in Italian:

— in Latvian:

Control de conformidad Reglamento (CE) no 800/1999

Kontrola souladu Nařízení (ES) č. 800/1999

Overensstemmelseskontrol forordning (EF) nr. 800/1999

Konformitätskontrolle Verordnung (EG) Nr. 800/1999

Vastavuskontroll. Määrus (EÜ) nr 800/1999

Έλεγχος αντιστοιχίας — Κανονισμός (ΕΚ) αριθ. 800/1999

Conformity check Regulation (EC) No 800/1999

Contrôle de conformité Règlement (CE) no 800/1999

Controllo di conformità regolamento (CE) n. 800/1999

Regulas (EK) Nr. 800/1999 atbilstības pārbaude

— in Lithuanian:

Atitikties patikrinimo Reglamentas (EB) Nr. 800/1999

— in Hungarian:

Megfelelőségi ellenőrzés 800/1999/EK rendelet

— in Maltese:

— in Dutch:

— in Polish:

— in Portuguese:

— in Romanian:

Verifika ta' konformità r-Regolament (KE) Nru 800/1999

Conformiteitscontrole Verordening (EG) nr. 800/1999

Kontrola zgodności Rozporządzenie (WE) nr 800/1999

Verificação de concordância Regulamento (CE) n.o 800/1999

Control de conformitate Regulamentul (CE) nr. 800/1999

— in Slovak:

Kontrola zhody Nariadenie (ES) č. 800/1999

— in Slovenian:

Preverjanje skladnosti z Uredba (ES) št. 800/1999

— in Finnish:

— in Swedish:

Vastaavuustarkastus. Asetus (EY) N:o 800/1999

Kontroll av överensstämmelse Förordning (EG) nr 800/1999

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ANNEX XIV

Entries referred to in Article 8a

— in Bulgarian:

Сума на възстановяване под 1 000 EUR

— in Spanish:

— in Czech:

— in Danish:

— in German:

— in Estonian:

— in Greek:

— in English:

— in French:

— in Italian:

— in Latvian:

Restitución inferior a 1 000 EUR

Částka náhrady nižší než 1 000 EUR

Restitutioner mindre end 1 000 EUR

Erstattung weniger als 1 000 EUR

Eksporditoetus alla 1 000 EURO

Επιστροφή μικρότερη από 1 000 EUR

Refunds less than EUR 1 000

Restitution inférieure à 1 000 EUR

Restituzione inferiore a 1 000 EUR

Kompensācija, kas ir mazāka par EUR 1 000

— in Lithuanian:

Išmokos mažesnės negu 1 000 EUR

— in Hungarian:

1 000 eurónál kevesebb visszatérítés

— in Maltese:

Rifużjonijiet ta' anqas minn EUR 1 000

— in Dutch:

— in Polish:

Restitutie minder dan 1 000 EUR

Refundacja poniżej 1 000 EUR

— in Portuguese:

Restituição inferior a 1 000 EUR

— in Romanian:

Restituire inferioară valorii de 1 000 EUR

— in Slovak:

Náhrady nižšie ako 1 000 EUR

— in Slovenian:

— in Finnish:

— in Swedish:

Nadomestila manj kot 1 000 EUR

Alle 1 000 euron tuet

Bidragsbelopp lägre än 1 000 euro’

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ANNEX II

Annex III to Regulation (EC) No 2090/2002 is amended as follows:

(1) paragraph 1 is amended as follows:

(a) point 1.1 is replaced by the following:

‘1.1. The number of export declarations per sector per customs office not excluded under Article 2 when
the Member State applies the third subparagraph of
calculating the minimum rate of checks.
If
Article 3(2) of Regulation (EEC) No 386/90,
the report shall mention the total number of export
declarations per sector in its territory not excluded under Article 2 when calculating the minimum rate
of checks.’

(b) points 1.3 and 1.4 are replaced by the following:

‘1.3. The number and percentage of physical checks carried out per sector per customs office. If the Member
State applies the third subparagraph of Article 3(2) of Regulation (EEC) No 386/90, the report shall mention
the total number and percentage of physical checks carried out per sector in its territory.

1.4.

If applicable, a list of customs offices applying reduced rates of checks pursuant to Article 6(c). If the
Member State applies the third subparagraph of Article 3(2) of Regulation (EEC) No 386/90, and if it applies
Article 6, the report shall mention the number and percentage of physical checks carried out per sector per
customs office defined in that article.’;

(2) paragraph 2 is amended as follows:

(a) points 2.1, 2.2 and 2.3 are replaced by the following:

‘2.1. The number of T5 control copies and equivalent documents per customs office of exit where the products

for which a refund is claimed leave the Community’s customs territory, noted as:

(a) the number of T5 control copies and equivalent documents covering exports which were physically

controlled as meant in Article 3(2) of Regulation (EEC) No 386/90;

(b) the number of T5 control copies and equivalent documents covering export declarations which were not

physically controlled as meant in Article 3(2) of Regulation (EEC) No 386/90;

(c) the total number of T5 control copies and equivalent documents.

2.2. The number and percentage of checks, broken down in substitution checks and specific substitution checks
referred to in paragraphs 2 and 2a of Article 10, carried out per customs office of exit where the products
for which a refund is claimed leave the Community’s customs territory.

2.3. The number of T5 control copies and equivalent documents for which the seals affixed on departure have
been removed other than under customs supervision, or the seals have been broken or the dispensation
from sealing under Article 357(4) of Regulation (EEC) No 2454/93 has not been granted.’;

(b) the point 2.4 is deleted;

(c) the following point 2.8 is added:

‘2.8. For the year 2008, Member States shall

Article 10(2) and Article 10(2a).’

indicate how the rate of controls is calculated pursuant to

(3) in paragraph 3, point 3.1 is replaced by the following:

‘3.1. A description of the procedures for the selection of consignments for physical checks, for substitution checks

and for specific substitution checks and their effectiveness.’