CELEX: 31991R0963
Language: en
Date: 1991-04-20 00:00:00
Title: Commission Regulation (EEC) No 963/91 of 18 April 1991 on a standing invitation to tender to determine levies and/or refunds on exports of white sugar and amending Regulation (EEC) No 983/90

20 . 4. 91                               Official Journal of the European Communities                              No L 100/9
                                       COMMISSION REGULATION (EEC) No 963/91
                                                        of 18 April 1991
                  on a standing invitation to tender to determine levies and/or refunds on exports
                                of white sugar and amending Regulation (EEC) No 983/90
THE COMMISSION OF THE EUROPEAN COMMUNITIES,                         amended by Regulation (EEC) No 1714/88 (7), should not
                                                                    apply ; whereas, for the same reasons, appropriate provi­
                                                                   sions should be laid down with regard to export licences
                                                                    issued in connection with the standing invitation to
Having regard to the Treaty establishing the European               tender and there should be a derogation from Commis­
Economic Community,                                                 sion Regulation (EEC) No 2630/81 of 10 September 1981
                                                                   on special detailed rules for the application of the system
                                                                   of import and export licences for sugar (8), as last amended
                                                                   by Regulation (EEC) No 1714/88 ; whereas, however, the
Having regard to Council Regulation (EEC) No 1785/81                provisions of Commission Regulation (EEC) No 3719/88
of 30 June 1981 on the common organization of the                  of 16 November 1988 laying down common detailed
markets in the sugar sector ('), as last amended by Regula­        rules for the application of the system of import and
tion (EEC) No 464/91 (2), and in particular Articles 13 (2),       export licences and advance fixing certificates for agricul­
 18 (5), 19 (4) and (7) and the second subparagraph of             tural products (9), as last amended by Regulation (EEC) No
Article 39 thereof,                                                 1 599/90 (10), and those of Commission Regulation (EEC)
                                                                   No 120/89 of 19 January 1989 laying down common
                                                                   detailed rules for the application of the export levies and
                                                                   charges on agricultural products (' '), should remain
                                                                   applicable ;
Having regard to Council Regulation (EEC) No . 608/72 of
23 March 1972 laying down rules to be applied in the
case of considerable price rises on the world sugar
markets (3), and in particular Article 1 (1 ) thereof,             Whereas the second subparagraph of Article 3 (1 ) of
                                                                   Commission Regulation (EEC) No 3155/85 of 11
                                                                   November 1985 providing for the advance fixing of
                                                                   monetary compensatory amounts (12), as last amended by
Whereas, in view of the situation on the Community and             Regulation (EEC) No 3247/89 (u), provides that, where
world sugar markets, a standing invitation to tender               the levy or refund is fixed in advance by means of
should be issued as soon as possible for the export of             tenders, applications to fix the monetary compensatory
white sugar in respect of the 1991 /92 marketing year              amount in advance shall be accepted only if the party
which, having regard to possible fluctuations in world             concerned has declared in writing at the time of submis­
prices for sugar, must provide for the determination of            sion of the tender that he will also apply to fix the mone­
export levies and/or export refunds ;                              tary compensatory amount in advance if the tender is
                                                                   accepted in whole or in part ; whereas, in such cases, the
                                                                   obligation to lodge an application to fix the levy or refund
                                                                   in advance following acceptance of the tender involves an
                                                                   obligation to request at the same time advance fixing of
Whereas the general rules governing invitations to tender          the monetary compensatory amount ; whereas, for reasons
for the purpose of determining export refunds for sugar            peculiar to the market in sugar, when an operator intends
were laid down in Council Regulation (EEC) No 766/68
                                                                   to make use of the facility of fixing a monetary compen­
of 18 June 1968 laying down general rules for granting
                                                                   satory amount in advance in connection with an export
export refunds on sugar (4), as last amended by Regulation         levy or refund fixed in advance under a tendering proce­
(EEC) No 1489/76 0 ;                                               dure he only makes up his mind to do so at the moment
                                                                   when the application for the export licence is made ;
                                                                   whereas it is only after he has been declared successful in
                                                                   respect of a levy or refund for the quantity of sugar indi­
Whereas, in view of the specific nature of the transactions        cated in his tender that the said monetary compensatory
involved, special detailed rules should be laid down in            amount can be fixed in advance ; whereas, in conse­
this Regulation, and those provided for in Commission              quence, a derogation should be made from the said provi­
Regulation (EEC) No 394/70 of 2 March 1970 on detailed             sion in the case of this tendering procedure, so that
rules for granting export refunds on sugar (6), as last
                                                                   0 OJ    No L 152, 18 . 6. 1988 , p. 23 .
(') OJ  No  L 177, 1 . 7. 1981 , p. 4.                             (8) OJ  No L 258 , 11 . 9. 1981 , p. 16.
(2) OJ  No  L 54, 28 . 2. 1991 , p. 22.                            0 OJ    No L 331 , 2. 12. 1988 , p. 1 .
(3) OJ  No  L 75, 28 . 3 . 1972, p. 5.                             (I0) OJ No L 151 , 15. 6. 1990, p. 29.
(4) OJ  No  L 143, 25. 6. 1968 , p. 6.                             (") OJ  No L 16, 20 . 1 . 1989, p. 19.
0   OJ  No  L 167, 26. 6. 1976, p. 13 .                            (12) OJ No L 310, 21 . 11 . 1985, p. 22.
(6) OJ  No  L 50, 4. 3. 1970, p. 1 .                               H OJ    No L 314, 28 . 10 . 1989, p. 51 .
 ---pagebreak--- No L 100/ 10                           Official Journal of the European Communities                                 20 . 4. 91
application for advance fixing of the monetary compensa­         — Wednesday 8 May 1991 shall end on Tuesday 7 May
tory amount at the time when the application for the                  1991 at 10.30 a.fn.,
export licence is made should be possible ;                      —- Wednesday 15 May 1991 shall end on Tuesday 14
                                                                     May 1991 at 10.30 a.m.,
Whereas the measures provided for in this Regulation are
in accordance with the opinion of the Management                 — Wednesday 20 November 1991 shall end on Tuesday
                                                                      19 November 1991 at 10.30 ' a.m .
Committee for Sugar,
                                                                 4. Notwithstanding paragraph 2, no partial invitations
                                                                 to tender will be issued on Wednesday 25 December
HAS ADOPTED THIS REGULATION :                                    1991 and Wednesday 1 January 1992
                                                                 5. The time limits laid down in this Regulation are
                          Article 1                              expressed in Belgian time.
1 . A standing invitation to tender shall be issued in                                     Article 5
order to determine export levies and/or export refunds on
white sugar. During the period of validity of this standing      1.    Offers in connection with this tender must be in
invitation, partial invitations to tender shall be issued.       writing, and must be either delivered by hand, against a
                                                                 receipt, to the competent authority in a Member State, or
2.    The standing invitation to tender shall remain open        addressed to that authority by registered letter, telex, tele­
until 20 May 1992.                                               gram or fax message.
                                                                 2.    An offer must indicate :
                          Article 2
                                                                 (a) the reference number of the invitation to tender to
The standing invitation to tender and the partial invita­            which the offer relates ;
tions shall be conducted in accordance with Regulation           (b) the name and address of the tenderer ;
(EEC) No 766/68 and with the following provisions.
Regulation (EEC) No 394/70 shall not apply.                      (c) the quantity of white sugar to be exported ;
                                                                 (d) the amount of the export levy or, where applicable, of
                          Article 3
                                                                     the export refund, per 100 kilograms of white sugar,
                                                                     expressed in the currency of the Member State in
1.    The notice of the invitation to tender shall be                which the tender is submitted ;
published in the Official Journal of the European                (e) the minimum amount of the security to be lodged
Communities. Member States may also publish the notice,              covering the quantity of sugar indicated in (c),
or have it published elsewhere.                                      expressed in the currency of the Member State in
                                                                     which the tender is submitted.
2.    The notice shall indicate in particular the terms of
the invitation to tender.                                        3.    An offer shall be valid only if :
3. The notice may be amended during the period of                (a) the quantity to be exported is not less than 250 tonnes
validity of the standing invitation to tender. It shall be so        of white sugar ;
amended if the terms of the invitation to tender are modi­
                                                                 (b) proof is furnished before expiry of the time limit for
fied during that period.                                             the submission of tenders that the tenderer has lodged
                                                                     the security indicated in the tender ;
                          Article 4                              (c) it includes a declaration by the tenderer that if his
                                                                     tender is successful he will, within the period laid
1 . The period during which tenders may be submitted                 down in Article 12 (b), apply for an export licence or
in response to the first partial invitation to tender :              licences in respect of the quantities of white sugar to
(a) shall begin on 20 April 1991 ;                                   be exported ;
(b) shall end on 2 May 1991 at 10.30 a.m.                        (d) it includes a declaration by the tenderer that if his
                                                                     tender is successful he will :
2. The periods during which tenders may be submitted                 — where the obligation to export resulting from the
in response to the second and subsequent partial invita­                 export licence referred to in Article 12 (b) is not
tions :                                                                  fulfilled, supplement the security by payment of
(a) shall begin on the first working day following the end               the amount referred to in Article 13 (4), and
    of the preceding period ;                                        — within 30 days following the expiry of the export
                                                                         licence in question, notify the agency which issued
(b) shall end at 10.30 a.m. on the Wednesday of the                      the licence of the quantity or quantities in respect
    following week.                                                      of which the licence was not used ;
3.    Notwithstanding paragraph 2 (b), the period for the        (e) it contains all the information required under
submission of tenders which was to end on :                           paragraph 2.
 ---pagebreak---  20 . 4. 91                              Official Journal of the European Communities                             No L 100/ 11
 4. A tender may stipulate that it is to be regarded as                 resulting from the licence referred to under Article 12
 having been submitted only if :                                        (b) in accordance with the terms of Article 33 of that
                                                                        Regulation.
(a) the minimum export levy or, where applicable, the
      maximum export refund is fixed on the day of the                  The part of the security or the security which is not
      expiry of the period for the submission of the tenders            released shall be forfeit in respect of the quantity of
      in question ;                                                     sugar for which the corresponding obligations have
                                                                        not been fulfilled.
(b) the tender, if successful, relates to all or a specified
      part of the tendered quantity.                               4.     In case of force majeure, the competent authority of
                                                                   the Member State concerned shall take such action as it
5.      A tender which is not submitted in accordance with         considers necessary having regard to the circumstances
the provisions of this Regulation, or which contains terms         invoked by the party concerned.
other than those indicated in the present invitation to
tender, shall not be considered.
                                                                                             Article 7
6.      Once submitted, a tender may not be withdrawn.              1 . Tenders shall be examined in private by the com­
                                                                   petent authority concerned. The persons present at the
                                                                   examination shall be under an obligation not to disclose
                            Article 6                              any particulars relating thereto.
                                                                   2.     Tenders shall be communicated to the Commission
 1 . A security of ECU 9 per 100 kilograms of white
                                                                   forthwith and in such a manner that the tenderers remain
sugar to be exported under this invitation to tender must
be lodged by each tenderer. Without prejudice to Article           anonymous .
 13 (4), this security shall in the case of successful ten­
derers and at the time of the application referred to in                                     Article 8
Article 12 (b) become the security for the export licence.
                                                                   1.     After the tenders received have been examined, a
2. The security may be lodged at the tenderer's choice,            maximum quantity may be fixed for the partial invitation
either in cash or in the form of a guarantee given by an           concerned.
establishment complying with criteria laid down by the
Member State in which the tender is submitted.
                                                                   2. A decision may be taken to make no award under a
                                                                   specific partial invitation to tender.
3. Except in cases of force majeure the security referred
to in paragraph 1 will be released :
                                                                                             Article 9
(a) to unsuccessful tenderers in respect of the quantity for
     which no award has been made ;                                1 . In the light of the current state and foreseeable
                                                                   development of the Community and world sugar markets,
(b) to successful tenderers who have not applied for the           there shall be fixed either :
     relevant export licence within the period referred to in
     Article 12 (b), to the extent of ECU 8 per 100 kilo­          — a minimum export levy,
     grams of white sugar.                                              or
                                                                   — a maximum export refund.
     However, this part of the releasable security shall be
     reduced by the amount representing the difference             2. Subject to Article 10, where a minimum export levy
     existing, as applicable :                                     is fixed, a contract shall be awarded to every tenderer
                                                                   whose tender quotes a rate of refund equal to or greater
     — between the maximum amount of the export                    than such minimum levy.
          refund fixed for the partial invitation concerned
         and the maximum amount of the export refund               3 . Subject to Article 10, where a maximum export
         fixed for the following partial invitation when the       refund is fixed, a contract shall be awarded to every
          latter amount is higher than the former,                 tenderer whose tender quotes a rate of refund equal to or
         or                                                        less than such maximum refund and to every tenderer
     — between the minimum amount of the export levy               who has tendered for an export levy.
         fixed for the partial invitation concerned and the
         minimum amount of the export levy fixed for the                                     Article 10
          following partial invitation when the latter amount
         is lower than the former ;                                1 . Where a maximum quantity has been fixed for a
                                                                   partial invitation to tender :
(c) to successful tenderers for the quantity for which they
     have fulfilled, within the meaning of Article 29 (b)          — if a minimum levy is fixed, a contract shall be
     and the first subparagraph of Article 30 ( 1 ) (b) (i) of         awarded to the tenderer whose tender quotes the
     Regulation (EEC) No 3719/88, the export obligation                 highest levy ; if the maximum quantity is not fully
 ---pagebreak--- No L 100/ 12                           Official Journal of the European Communities                                    20. 4. 91
     covered by that award, awards shall be made to other             quantity, the application not being revocable and
    tenderers in descending order of levies quoted until             Article 12 of Regulation (EEC) No 120/89 not
    the entire maximum quantity has been accounted for,               applying in such a case. The application shall be
— if a maximum refund is fixed, contracts shall be                    lodged in accordance with the relevant provisions of
    awarded in accordance with the first indent ; if after            Regulation (EEC) No 3719/88, not later than :
    such awards a quantity is still outstanding, or if there         — the last working day preceding the date of the
    are no tenders quoting an export levy, contracts shall                partial invitation to tender to be held the following
    be awarded in ascending order of refunds quoted until                 week,
    the entire maximum quantity has been accounted for,
                                                                          or
    to tenderers quoting a refund.
                                                                     — if no partial invitation to tender is due to be held
2. However, where an award to a particular tenderer in                    that week, the last working day of the following
accordance with the provisions of paragraph 1 would                       week ;
result in the maximum quantity being exceeded, that
award shall be limited to such quantity as is still available.   (c) the obligation to export the tendered quantity and, if
Where two or more tenderers quote the same levy or the               this obligation is not fulfilled, to pay, where necessary,
same refund and awards to all of them would result in the            the amount referred to in Article 13 (4).
maximum quantity being exceeded, then the quantity
available shall be awarded as follows :                          This right and these obligations are not transferable.
— by being divided among the tenderers concerned in
    proportion to the total quantities in each of their                                     Article 13
    tenders, or
— by being apportioned among the tenderers concerned             1 . The first paragraph of Article 9 of Regulation (EEC)
    by reference to a maximum tonnage to be fixed for            No 2630/81 shall not apply to the white sugar to be
    each of them, or
                                                                 exported in accordance with this Regulation.
— by the drawing of lots.
                                                                 2. Export licences, issued in connection with a partial
                                                                 invitation to tender shall be valid from the day of issue
                          Article 11
                                                                 until the end of the fifth calendar month following that
                                                                 in which the partial invitation was issued.
1 . The competent authority of the Member State                  However, export licences issued in respect of the partial
concerned shall immediately notify applicants of the             invitations held after 1 May 1992 will be valid only until
result of their participation in the invitation to tender. In    30 September 1992.
addition, that authority shall send successful tenderers a
statement of award.
                                                                 3 . The export licences issued in respect of the partial
                                                                 invitations held between 2 May and 11 September 1991
2.     The statement of award shall indicate :                   will be usable only from 12 September 1991 .
(a) the reference number of the invitation to which the          4. Except in cases of force majeure, if the obligation to
    tender relates ;                                             export resulting from the export licence referred to under
(b) the quantity of white sugar to be exported ;                 Article 12 (b) has not been fulfilled and if the security
                                                                 referred to in Article 6 is less than :
(c) the export levy to be charged, or where applicable the
    export refund to be granted, per 100 kilograms of            (a) the export levy indicated on the licence reduced by
    white sugar of the quantity referred to in (b).                   the levy referred to in the second subparagraph of
                                                                     Article 18 (1 ) of Regulation (EEC) No 1785/81 in
                                                                      force on the last day of validity of the said licence ;
                          Article 12                                  or
                                                                 (b) the sum of the export levy indicated on the licence
Every successful tenderer shall have :                                and the refund referred to in Article 2 of Regulation
                                                                      (EEC) No 766/68 in force on the last day of validity of
(a) the right to receive in the circumstances referred to             the said licence ;
     under (b), in respect of the quantity awarded, an
    export licence indicating, as appropriate, the export             or
     levy or the export refund quoted in his tender ;
                                                                 (c) the export refund referred to in Article 2 of Regulation
(b) the obligation to lodge, in accordance with the rele­             (EEC) No 766/68 in force on the last day of validity of
    vant provisions of Regulation (EEC) No 3719/88, an                the licence reduced by the refund indicated on the
     application for an export licence in respect of that             said licence,
 ---pagebreak---  20 . 4. 91                             Official Journal of the European Communities                             No L 100/ 13
then, for the quantity in respect of which the said obliga­            the intervention price for that sugar applicable with
tion was not fulfilled, the licence holder shall be charged            effect from 1 July 1991 .
an amount equal to the difference between the result of
                                                                   3.     For the calculation of the differences referred to in
the calculation made under (a), (b) or (c), as the case may
be, and the security referred to in Article 6 (1 ).                paragraph 2, the intervention prices in question shall be
                                                                   increased by the corresponding storage levy referred to in
                                                                   the second subparagraph of Article 8 (2) of Regulation
                           Article 14                              (EEC) No 1785/81 .
If the tenderer intends to apply for advance fixing of the         4. For the purpose of applying this Article, the
monetary compensatory amount under this standing invi­             Member State issuing the relevant export licence shall at
tation to tender, the provisions of the second paragraph of        the time of issue complete section 'special particulars' by
Article 3 (1 ) of Regulation (EEC) No 3155/85 shall not            adding the following :
apply.                                                                 'to be adjusted in accordance with adjudication Regu­
                                                                       lation (EEC) No 963/91 for exports which take place
                           Article 15                                  after 30 June ...' (1991 or 1992 as applicable).
                                                                   5. Upon presentation by the holder of the export
 1 . If the terms of Article 12 of Regulation (EEC) No             licence concerned, or by the assignee when the licence
766/68 apply, the export refunds and export levies fixed           has been transferred, to the Member State that issued it
in advance under the terms of the present invitation to            and before the customs formalities for the quantities
tender :
                                                                   concerned have been carried out, that Member State shall
                                                                   enter the adjustment to be made in section 'special parti­
(a) before 1 July 1991 for the sugar exported as from that         culars' and shall duly certify and stamp that section.
      date ;
(b) before 1 July 1992 for the sugar exported as from that
                                                                   6.     For the adjustment referred to in paragraph 1 (b) the
      date,
                                                                   provisions of paragraphs 2 to 5 shall be applicable
                                                                   mutatis mutandis.
shall be adjusted.                                                 7.     The Member States shall inform the Commission as
2.      For the adjustment referred to in paragraph 1 (a) :        quickly as possible of the quantities of sugar for which an
                                                                   adjustment under this Article has been made.
(a) in the event of the fixing of an intervention price for
      white sugar applicable with effect from 1 July 1991                                   Article 16
     which is greater than that in force on 30 June 1991 ,
      the export refund and the export levy shall be adjusted     The following indents shall be added to Article 4 (3) of
      by an amount equal to the difference expressed in            Regulation (EEC) No 983/90 of 19 April 1990 on a
      ecus per 1 00 kilograms existing between the interven­      standing invitation to tender to determine levies and/or
      tion price for white sugar applicable with effect from       refunds on exports of white sugar (') :
      1 July 1991 and the intervention price for that sugar       '— Wednesday 1 May 1991 shall end on Thursday 2 May
      in force on 30 June 1991 ;                                        1991 at 10.30 a.m.,
(b) in the event of the fixing of an intervention price for         — Wednesday 8 and Wednesday 15 May 1991 shall end
     white sugar applicable with effect from 1 July 1991                 on Tuesday 7 and Tuesday 14 May 1991 respectively
     which is lower than that in force on 30 June 1991 , the             at 10.30 a.m .'
     export refund and the export levy shall be adjusted by
     an amount equal to the difference expressed in ecus                                    Article 17
     per 100 kilograms existing between the intervention
     price for white sugar in force on 30 June 1991 and           This Regulation shall enter into force on 20 April 1991 .
                   This Regulation shall be binding in its entirety and directly applicable in all Member
                   States.
                   Done at Brussels, 18 April 1991 .
                                                                             For the Commission
                                                                              Ray MAC SHARRY
                                                                         Member of the Commission
                                                                  (') OJ No L 100, 20. 4. 1990, p. 9.