Commission Regulation (EC) No 149/2009 of 20 February 2009 amending Regulation (EC) No 214/2001 laying down detailed rules for the application of Council Regulation (EC) No 1255/1999 as regards intervention on the market in skimmed milk powder
Date: 2009-02-20
Institutions: European Commission
Subjects: common organisation of markets, intervention agency, intervention buying, market intervention, private stock, skimmed milk powder, storage

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Official Journal of the European Union

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COMMISSION REGULATION (EC) No 149/2009

of 20 February 2009

amending Regulation (EC) No 214/2001 laying down detailed rules for the application of Council
Regulation (EC) No 1255/1999 as regards intervention on the market in skimmed milk powder

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

of skimmed milk powder at fixed price to a quantity
offered of 109 000 tonnes for the period 1 March to
31 August.

Having regard to the Treaty
Community,

establishing the European

Having regard to Council Regulation (EC) No 1234/2007 of
22 October 2007 establishing a common organisation of agri­
cultural markets and on specific provisions for certain agri­
cultural products (Single CMO Regulation) (1), and in particular
Article 43, in conjunction with Article 4 thereof,

Whereas:

Article 10(1)(f) of Regulation (EC) No 1234/2007
skimmed milk
provides
powder.

intervention of

for public

Commission Regulation (EC) No 214/2001 (2) has laid
down the detailed rules concerning the public inter­
vention of skimmed milk powder.

In view of new arrangements and in the light of the
is appropriate to amend and,
experience gained,
where necessary, simplify the detailed rules governing
intervention on the market in skimmed milk powder.

it

(1)

(2)

(3)

(4)

(6)

(7)

(8)

(9)

In order to comply with the limit of 109 000 tonnes it is
appropriate to provide for a reflexion period during
which, before a decision is taken on the offers, special
measures can be taken applying in particular to pending
offers. Those measures may consist of closure of inter­
vention, application of an allocation percentage and
rejection of pending offers. They require swift action
and the Commission should be enabled to take all
necessary measures without delay. In view of the public
holidays in April 2009, derogation should be made as
regards the dates for submitting the offers in order to
ensure compliance with the limit of 109 000 tonnes to
be purchased at fixed price.

the security shall ensure that

the offers
The level of
therefore a security of
presented are not withdrawn,
EUR 5 per 100 kg shall apply to all the tenders in the
framework of this Regulation.

skimmed milk powder has been
Private storage of
abolished
(EC)
No 1152/2007 (3), the references to this scheme should
be deleted.

Regulation

Council

by

Small residual quantities,
left in storehouses, should be
avoided and quantities up to 5 000 kg should be offered
to awarded tenderers.

Article 10(1)(f) of Regulation (EC) No 1234/2007 sets a
new standard of 34 %, by weight of the fat free dry
matter, for protein in skimmed milk powder, therefore
the definition of the eligible product should be amended.

(10)

Regulation (EC) No 214/2001 should be amended
accordingly.

(5)

Article 13(1)(d) in conjunction with Article 18(2)(e) of
Regulation (EC) No 1234/2007 limit public intervention

(11)

The measures provided for in this Regulation are in
accordance with the opinion of
the Management
Committee for the Common Organisation of the Agri­
cultural Markets,

(1) OJ L 299, 16.11.2007, p. 1.
(2) OJ L 37, 7.2.2001, p. 100.

(3) OJ L 258, 4.10.2007, p. 3.

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HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EC) No 214/2001 is amended as follows:

1. Article 1 is replaced by the following:

‘Article 1

This Regulation lays down the detailed rules for intervention
on the market in skimmed milk powder as provided for in
Article
(EC)
10(1)(f)
No 1234/2007 (*), as regards:

Regulation

Council

of

(a) buying-in at fixed price as referred in Article 13(1)(d) in
conjunction with Article 18(1)(c) of Regulation (EC) No
1234/2007;

(b) buying-in under a standing invitation to tender as
(EC)

in Article

Regulation

13(3)

of

referred
No 1234/2007;

(c)

the sale of skimmed milk powder from public storage in
a standing invitation to tender.

___________
(*) OJ L 299, 16.11.2007, p. 1.’

2. Article 2 is amended as follows:

(a) paragraph 1 is amended as follows:

intervention agency

‘1.
The
in only
complies with
powder which
skimmed milk
Article 10(1)(f) of Regulation (EC) No 1234/2007 and
paragraphs 2 to 7 of this Article and which is offered for
intervention in the period from 1 March to 31 August.’;

shall buy

Protein adjustment,
phase.

if applicable, shall occur in liquid

However,
if the Commission so agrees, Member States
may set up a system of self-checking under their own
supervision for certain quality requirements and certain
approved undertakings.

___________
(*) OJ L 15, 17.1.2002, p. 19.’

3.

in Article 4(1), the second subparagraph is replaced by the
following:

‘The certificate shall contain the information referred to in
points (a), (b) and (c) of Article 2(6) and a confirmation that
the skimmed milk powder has been produced from skimmed
milk in an approved undertaking in the Community and
protein adjustment,
if applicable, occurred in liquid phase,
as laid down in Article 10(1)(f) of Regulation (EC) No
1234/2007.’

4. the title of Section 2 is amended as follows:

‘ S e c t i o n 2
Procedure for buying-in at fixed price’

5. Article 5 is amended as follows:

(a) paragraph 2 is amended as follows:

(i) The second subparagraph is deleted;

(ii) a new subparagraph is added:

‘Offers submitted on a Saturday, Sunday or public
holiday shall be deemed to be received by the inter­
vention agency on the first working day following
the day on which they were submitted.

Offers submitted in the period from 6 to 13 April
2009 shall be deemed to be received by the inter­
vention agency on 14 April 2009.’

(b) paragraph 2 is replaced by the following:

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

‘2.
The competent authorities shall check the quality
of skimmed milk powder using the analytical methods
set out in Annex I to this Regulation on the basis of
samples taken in accordance with the rules set out in
Annex III to this Regulation. The checks must establish
that, except authorised raw materials used for protein
adjustment as referred to in Annex I(4)(b) to Council
Directive 2001/114/EC (*)
the skimmed milk powder
does not contain other products, in particular buttermilk
or whey, as defined in Annex I to this Regulation.

‘(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 is submitted, no later than the day on which
the offer is received.’;

(c) a new paragraph is added:

Offers may not be withdrawn after they have been

‘5.
received by the intervention agency.’

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6. Article 6 is replaced by the following:

‘Article 6

the offer, delivery of

the skimmed milk
Maintenance of
powder to the warehouse designated by the intervention
agency within the time limit laid down in Article 7(2) of
this Regulation and compliance with the requirements of
constitute primary
Article 2 of
requirements within the meaning of Article 20 of
Commission Regulation (EEC) No 2220/85 (*).

this Regulation shall

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

7. Article 7 is amended by the following:

(a) paragraph 1 is replaced by the following:

‘1.
After checking the offer, and on the fifth working
day following the day of receipt of the offer to sell, the
intervention agency shall issue a delivery order provided
that the Commission does not adopt special measures in
accordance with Article 9a(3).

The delivery order shall be dated and numbered and shall
show:

(a)

the quantity of
delivered;

the skimmed milk powder to be

(b) the final date for delivery;

The skimmed milk powder shall be deemed to be
4.
taken over by the intervention agency on the day when
the full quantity of skimmed milk powder covered by the
delivery order enters the storage depot designated by the
intervention agency, but no earlier than the day after the
delivery order is issued.’

8.

in Article 8, paragraph 2 is deleted;

9. the following Article 9a is added in Section 2:

‘Article 9a

Not later than 14.00 (Brussels time) each Monday, the
1.
Member States shall
inform the Commission of the quan­
tities of skimmed milk powder which, during the preceding
week, have been the subject of an offer to sell in accordance
with Article 5.

Once it

is observed that

the offers referred to in
2.
in a certain year, approach 80 000 tonnes, the
Article 5,
Commission shall
inform the Member States as of which
date they shall communicate the information referred to in
paragraph 1 each working day before 14.00 (Brussels time)
for the quantities of skimmed milk powder offered the
preceding working day.

In order to comply with the limit

3.
referred to in
Article 13(1)(d) of Regulation (EC) No 1234/2007 the
Commission shall
the
decide, without
Committee referred to in Article 195(1) of the same Regu­
lation:

assistance of

(c)

the storage depot to which it must be delivered.

(a)

to close intervention buying-in at fixed price;

Delivery orders shall not be issued for quantities that had
not been notified in accordance with Article 9a(1).’;

(b) paragraphs 3 and 4 are replaced by the following:

‘3.
The security provided for in Article 5(3)(c) shall be
released as soon as the seller has delivered the quantity
indicated on the delivery order within the time limit laid
down therein and conformity with the requirements of
Article 2 has been established.

(b) where acceptance of the full quantity offered on a certain
day would lead to the maximum quantity being
exceeded, to set a single percentage by which the total
quantity of the offers received on that day from each
seller are reduced;

(c) where appropriate, to reject offers for which no delivery

order has been issued.

Where the skimmed milk powder does not conform to
the requirements laid down in Article 2, the skimmed
milk powder shall be rejected and the security shall be
forfeited in respect of the quantities rejected.

By way of derogation from Article 5(5) of this Regulation, a
seller which is subject to a reduced acceptance of his offer as
referred in point
this paragraph may decide to
withdraw his offer within five working days from the publi­
cation of the regulation fixing the reduction percentage.’;

(b) of

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10. Article 11 is replaced by the following:

‘Article 11

1.
The intervention agency shall choose the nearest
available warehouse to the place where the skimmed milk
powder is stored.

However,
the intervention agency may choose another
situated within a maximum distance of
warehouse
350 km provided that the choice of that warehouse does
not result in additional storage costs.

The intervention agency may choose a warehouse situated
beyond that distance if the resulting expenditure, including
storage and transport costs, is lower. In that case the inter­
vention agency shall notify the Commission of its choice
forthwith.

the

agency

buying-in

intervention

2. Where
the
skimmed milk powder is in a Member State other than
the one in whose territory the offered skimmed milk
powder is stored, no account shall be taken, in calculating
the maximum distance referred to in paragraph 1 of the
distance between the store of the vendor and the border of
the Member State of the purchasing intervention agency.

Beyond the maximum distance

3.
referred to in
paragraph 1, the additional transport costs borne by the
intervention agency shall be EUR 0,05 per tonne and per
kilometre.’;

11. Article 13 is replaced by the following:

for the submission of

‘2.
tenders in
The time limit
response to the individual
invitations to tender shall be
11.00 (Brussels time) on the third Tuesday of the month
except for the fourth Tuesday of August. If Tuesday is a
public holiday the time limit shall be 11.00 (Brussels time)
on the previous working day.’

13.

in Article 15, paragraph 3 is amended as follows:

(a) point (a) is replaced by the following:

‘(a) they relate to skimmed milk powder manufactured
during the 31 days or, where applicable, four weeks
preceding the closing date for submission of tenders
as referred to in Article 14(2).’;

(b) point (d) is replaced by the following:

‘(d) 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.’

14. Article 16 is replaced by the following:

‘Article 16

Maintenance of the offer, delivery of the skimmed milk
powder to the warehouse designated by the intervention
agency within the time limit laid down in Article 19(3)
of this Regulation and compliance with the requirements
of Article 2 thereof shall constitute primary requirements
within the meaning of Article 20 of Regulation (EEC) No
2220/85.’;

‘Article 13

Where the Commission decides that skimmed milk powder
is to be bought in through an open standing invitation to
to Article 13(3) of Regulation (EC)
tender pursuant
No 1234/2007 in conjunction with 18(2)(e) of the said
Regulation and in accordance with the procedure referred
to in Article 195(2) thereof, Articles 2, 3, 4, 10, 11 and 12
of this Regulation shall apply unless otherwise provided in
this Section.’

15.

in Article 17, paragraph 2 is replaced by the following:

‘2.
In the light of the tenders received for each invitation
to tender, the Commission shall fix a maximum buying-in
price in accordance with the procedure referred to in
Article 195(2) of Regulation (EC) No 1234/2007.’

16. Article 19 is amended as follows:

12. Article 14(2) is replaced by the following:

(a) paragraph 2 is replaced by the following:

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The intervention agency shall

‘2.
immediately issue
to successful tenderers a dated and numbered delivery
order indicating:

(a)

the quantity to be delivered;

11.00 (Brussels time) on the third Tuesday of the month.
However, in August it shall be 11.00 (Brussels time) on the
fourth Tuesday and in December it shall be 11.00 (Brussels
time) on the second Tuesday. If Tuesday is a public holiday
the time limit shall be 11.00 (Brussels time) on the
previous working day.’

(b) the final date for delivery of the skimmed milk

19. Article 24c is amended as follows:

powder;

(c)

the storage depot to which it must be delivered.

(a) paragraph 6 is replaced by the following:

Delivery orders shall not be issued for quantities that
had not been notified in accordance with Article 17(1).’;

(b) paragraph 4 is replaced by the following:

‘4.
The security provided for in Article 15(3)(d) shall
be released as soon as the seller has delivered the
quantity indicated on the delivery order within the
time limit laid down therein and conformity with the
requirements of Article 2 has been established.

Where the skimmed milk powder does not conform to
the requirements laid down in Article 2, the skimmed
milk powder shall be rejected and the security shall be
forfeited in respect of the quantities rejected.’

17. Article 20 is amended as follows:

the acceptance of all

‘6. Where after
successful
tenders the quantity left in the warehouse is less than
5 000 kg, this remaining quantity shall be offered by
the intervention agency to the successful
tenderers
starting with the one who offered the highest price.
The successful tenderer shall be offered the option to
buy the remaining quantity for the same price as the
one awarded to him.’;

(b) the following paragraph is added:

‘7.
No later than the third working day of the week
the decision referred to in
following publication of
Article
the
shall
Commission the name and address of each tenderer
corresponding to the coded number referred to in
Article 24a(1).’

24a(2), Member

States

send

(a) paragraph 1 is replaced by the following:

20.

in Article 24e, the following paragraph is added:

‘1.
The intervention agency shall pay the successful
tenderer the price indicated in his tender as referred in
Article 15(2)(c) between the 120th and the 140th day
following the date on which the skimmed milk powder
is taken over, provided that it is found to comply with
Article
and
Article 15(3)(a).’;

2(1),

and

(2),

(5),

(3),

(7)

(6)

Except

in cases of

force majeure,

‘3.
the successful
tenderer has not complied with the requirement provided
for in paragraph 2 of this Article the tendering security
referred to in Article 23(3)(c) shall be forfeited and the
sale of the quantities involved shall be cancelled.’

if

(b) paragraph 2 is deleted.

21. Chapter III is deleted;

18.

in Article 22, paragraph 2 is replaced by the following:

22. Chapter IV is deleted;

‘2.
The time limit
response to the individual

for the submission of

tenders in
invitations to tender shall be

23. Annex I is replaced by the text set out in the Annex to this

Regulation.

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Article 2

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

It shall apply from 1 March 2009.

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

Done at Brussels, 20 February 2009.

For the Commission

Mariann FISCHER BOEL
Member of the Commission

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ANNEX

‘ANNEX I

COMPOSITIONAL REQUIREMENTS, QUALITY CHARACTERISTICS AND ANALYTICAL METHODS

Parameters

Content and quality characteristics

Reference method

Protein content

Fat content

Water content

Titratable acidity in ml of decinormal
sodium hydroxide solution

Lactate content

Additives

Phosphatase test

Minimum 34,0 % of the non-fat dry matter

Maximum 1,00 %

Maximum 3,5 %

Maximum 19,5 ml

Maximum 150 mg/100 g

None

Negative,
phosphatasic activity per
stituted milk

i.e., not more than 350 mU of
recon­

litre of

Solubility index

Maximum 0,5 ml (24 °C)

Burnt-particles index

Maximum 15,0 mg, i.e. disc B minimum

Micro-organism content

Maximum 40 000 per gram

Detection of coliforms

Negative in 0,1 g

Detection of buttermilk (2)

Negative (3)

Detection of rennet whey (4)

Detection of acid whey (4)

Taste and smell

Appearance

None

None

Clean

White or slightly yellowish colour, free from
impurities and coloured particles

Antimicrobial substances

Negative (5)

(1)

(1)

(1)

(1)

(1)

(1)

(1)

(1)

(1)

(1)

(1)

(1)

(1)

Method approved by the
competent authority

(1)

(1)

(1)

(1) The reference methods to be applied shall be those laid down in Commission Regulation (EC) No 273/2008 (OJ L 88, 29.3.2008, p. 1).
(2) “Buttermilk” means the by-product of butter manufacture obtained after churning of the cream and separation of the solid fat.
(3) The absence of buttermilk can be established either by an on-the-spot inspection of the production plan carried out without prior
notice at least once a week, or by a laboratory analysis of the end product indicating a maximum of 69,31 mg of FEDP per 100 g.
(4) “Whey” means the by-product of cheese or casein manufacture obtained by the action of acids, rennet and/or chemico-physical

processes.

(5) Raw milk used for the manufacture of skimmed milk powder must meet the requirements specified in Section IX of Annex III to

Regulation (EC) No 853/2004.’