COMMISSION  REGULATION (EC) No 2221/95 of 20 September 1995 laying down detailed rules for the application of  Council Regulation (EEC) No 386/90 as regards physical checks carried out at the time of export of  agricultural products qualifying for refunds
THE COMMISSION OF THE EUROPEAN  COMMUNITIES
,
Having regard to the Treaty establishing the European Community,
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), as  amended by Regulation (EC) No 163/94  (2), and in particular Article 6 thereof,
Whereas Commission Regulation (EEC) No 2030/90  (3) lays down rules for the application of  Regulation (EEC) No 386/90; whereas it lays down detailed rules confined to the specifications  strictly necessary for the Community system to be applied rapidly, subject to subsequent additions  in the light of experience gained, in particular as regards the quality aspects of the physical  checks in question;
Whereas account should be taken of existing measures on checking, and in particular those contained  in the following instruments:
-  Commission Regulation (EEC) No 2200/87 of 8 July 1987 laying down general rules for the  mobilization in the Community of products to be supplied as Community food aid  (4), as amended by  Regulation (EEC) No 790/91  (5),
-  Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for  the application of the system of export refunds on agricultural products  (6), as last amended by  Regulation (EC) No 1384/95  (7);
Whereas in its supplementary report to the Council of the application of Regulation (EEC) No 386/90   (8), the Commission stated its intention to define precisely the term 'physical check` as used in  Article 2 (a) of Regulation (EEC) No 386/90, in order to achieve uniform application of the  Community rules in the Member States;
Whereas measures should be taken allowing verification at any time of whether the check rate of 5   % has been reached;
Whereas a measure should be introduced to take account of cases where the number of exports dealt  with by a customs office is minimal;
Whereas to tackle the risk of substitution in the case of export declarations accepted by an  internal customs office within a Member State, a minimum number of 'substitution checks` to be  carried out by the customs office of exit from the Community should be laid down; whereas having  regard to the place where such 'substitution checks` are carried out, they must take the form of  simplified checks;
Whereas, in order to reduce the risk of substitution, all means of transport or packages should be  sealed, save in exceptional cases where the products may be identified by some other means;
Whereas, Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community customs  code  (9), as amended by the Act of Accession of Austria, Finland and Sweden, and the rules for the  application thereof laid down by Commission Regulation (EEC) No 2454/93  (10), as last amended by  Regulation (EC) No 1762/95  (11), apply to exports of all industrial or agricultural products;  whereas special provisions may have to be adopted in the case of agricultural products qualifying  for export refunds;
Whereas, in order to facilitate the practical implementation of the new provisions and for the sake  of clarity and administrative efficiency, Regulation (EEC) No 2030/90 should be replaced;
Whereas, in the light of experience gained, appropriate, commensurate measures are required, which  must be uniformly applied;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the  relevant Management Committees,
This Regulation lays down detailed rules for the application of the  physical checks referred to in Article 2 (a) of Regulation (EEC) No 386/90 and the substitution  checks referred to in Article 3 (a) of that Regulation.
1.  This Regulation:
(a)  shall apply to exports to third countries of agricultural goods and to similar operations as  referred to in Articles 34 and 42 of Regulation (EEC) No 3665/87 on which refunds are applied for,  save in cases where paragraph 2 is applied;
(b)  shall not apply to exports involving Community food aid as referred to in Regulation (EEC) No  2200/87, for which a special control system exists.
2.  Without prejudice to the control measures referred to in Articles 35 (4) and 42 (4) of  Regulation (EEC) No 3665/87, Member States may opt to waive the physical checks and the  substitution checks on the deliveries referred to in Articles 34 and 42 of Regulation (EEC) No  3665/87 in the case of exporters qualifying for the procedure referred to in Article 35 of  Regulation (EEC) No 3665/87 and, where applicable, that referred to in Articles 488 to 494 of  Regulation (EEC) No 2454/93.
3.  When calculating the minimum rate of checks to be carried out in accordance with Article 3 of  Regulation (EEC) No 386/90, Member States may opt to disregard export operations involving  quantities not exceeding:
-  5  000 kg in the case of cereals and rice,
-  500 kg in the case of other products.
4.  Member States which take up the options provided for in paragraph 2 and 3 shall adopt  appropriate provisions to prevent deflections and abuses.
With a view to determining the basis for calculating the percentage for the physical  checks under Article 2 (a) of Regulation (EEC) No 386/90, for the purposes of the first indent of  the first subparagraph of Article 3 (2) of the said Regulation 'customs office` shall mean all  offices competent to complete the export formalities for the products in question.
For the purposes of the third indent of the first subparagraph of Article 3 (2) of  Regulation (EEC) No 386/90, products covered by the same agricultural market organization shall be  regarded as coming under one product sector.
However, products falling within the cereals and rice sectors, and goods falling otuside Annex II  to the Treaty, shall be deemed to constitute a single product sector.
1.  For the purposes of Article 2 (a) of Regulation (EEC) No 386/90 'physical check`  shall mean verification that the export declaration, including documents submitted in support  thereof, and the goods correspond as regards quantity, nature and characteristics.
Where the situation described in the Annex arises, the methods indicated therein shall be applied.
The customs office of export must be mindful of the provisions of Article 13 of Regulation (EEC) No  3665/87.
2.  Physical checks of which the exporter has received express or tacit prior warning shall not  count as physical checks.
The first subparagraph shall not apply to cases where the accounts of an undertaking are checked in  accordance with point 3 (a) of the Annex.
3.  If a customs office of export accepts fewer than 20 export declarations per sector per year, at  least one export declaration per sector per year must be subjected to a physical check.
4.  If the rate of refund depends on a particular content, the customs office of export shall take,  as part of the physical check, representative samples for analysis of the ingredients by a  competent laboratory.
In order to ensure the identity of the goods for export between the customs office of  export and the customs office of exit from the customs territory of the Community, the means of  transport or packages shall be sealed in accordance with Article 349 of Regulation (EEC) No  2454/93.
1.  Each customs office of export shall apply measures to ensure that achievement of  the check rate of 5  % can be verified at any time.
The measures must show, per sector:
-  the number of export declarations which are taken into account for the physical checks,
and -  the number of physical checks carried out.
2.  The competent customs officer must produce a detailed examination account on each physical  check carried out.
The examination account shall bear the date and the name of the competent officer. It must be kept  at the customs office of export or at another office for three years from the year of export in  such a way that it can be readily consulted.
3.  On the control copy T 5 which accompanies the goods, the following shall be noted in box D:
(a)  '386/90`, if the customs office of export has carried out a physical check;
(b)  '2200/87`, in the case of Community food aid exports.
Where the customs office of exit is situated in the same Member State as the customs office of  export, the notation shall be on the national document accompanying the goods.
1.  In the case of payment of advances on refunds in accordance with Articles 25 to 29  of Regulation (EEC) No 3665/87, the physical checks carried out by the competent authorities:
-  on entry into or during storage in the case referred to in Article 28 of that Regulation,
-  from the time processing begins in the case referred to in Article 27 of that Regulation,
may be taken into account for calculating the minimum rate of checks referred to in Article 3  Regulation (EEC) No 386/90, provided that the following conditions are fulfilled:
(a)  the physical checks carried out prior to the completion of the customs export formalities meet  the same strict criteria as those to be carried out pursuant to Article 5 of this Regulation;
and (b)  the products and goods which have been the subject of previous physical checks are identical  to those which are the subject of the export declaration.
2.  In the case of analyses and other physical checks carried out prior to the completion of the  customs export formalities under Community or national provisions governing either the customs  arrangements in question or the manufacturing processes which the products and goods have  undergone, paragraph 1 shall apply mutatis mutandis.
1.  Where the export declaration has been accepted at a customs office of export which  is not the customs office of exit, the customs office of exit from the customs territory of the  Community shall perform a substitution check in accordance with the conditions laid down in this  Article.
2.  Without prejudice to control measures based on other provisions, substitution checks shall be  carried out, as far as possible, in the light of a risk analysis, at least once a day, if the  customs office of export has not sealed the means of transport or the package.
3.  Where, in accordance with the requirements of the third country of destination, a veterinary  seal has been applied as well as a customs seal the substitution check shall be carried out only in  the event of suspected fraud.
4.  The substitution check shall be carried out by checking, visually, whether the goods tally with  the document which has accompanied them from the customs office of export to the customs office of  exit.
A sample for analysis shall be taken only in cases where the customs office of exit cannot check  visually and by means of the information on the packaging and the documentation, whether the goods  tally with the document. In these circumstances, Article 5 (4) of this Regulation shall not apply.
5.  Each customs office of exit shall apply measures to ensure that:
-  the number of export declarations which are taken into account for the substitution checks,
and -  the number of substitution checks carried out,
can be identified at any time.
If the customs office of exit has taken a sample, 'sample taken` shall be noted on the control copy  T5, or - where appropriate - on the national document to be returned to the competent authorities.
A duplicate or a copy of the document shall remain at the customs office of exit.
6.  The customs office of exit shall inform in writing the competent authorities referred to in  paragraph 5 of the result of the analysis, reporting:
-  either 'results of analysis conform`,
-  or the results of the analysis if there is a discrepancy between the result and the product  declared.
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Regulation (EEC) No 2030/90 is hereby repealed.
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This Regulation shall enter into force on the seventh day following its publication in  the Official Journal of the European Communities.
It shall apply from 1 January 1996 for export declarations accepted on or after that date.
This Regulation shall be binding in its entirety and directly applicable in all  Member States.