22.2.2008 EN Official Journal of the European Union L 48/19
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 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), 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 application 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 agricultural 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 refund is claimed. In the light of 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 conformity between the refund products and the documents. Visual conformity checks 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 conformity check on the control copy T5 or its equivalent.
(3) 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.
(4) 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 particularly 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.
(5) In order to concentrate controls more on export products covering a relatively high amount of refunds, the selection thresholds, under which controls are generally disregarded for calculating the minimum control rates, expressed in quantities or in amounts of refunds are raised.
(6) 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 vary. In parallel, exporters should be more tightly bound to non-substitution of products after the export declaration was lodged and before customs arrive, by identifying the export products before their being loaded. The registration of customs authorities' physical controls should be adapted accordingly.
(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 representative 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 Regulation (EC) No 2090/2002 should be adapted accordingly.
(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,
Regulation (EC) No 800/1999 is amended as follows:
1. Article 5 is amended as follows:
(a) The fourth subparagraph of paragraph 7 is replaced by the following:
(b) In paragraph 8, the following subparagraph is added:
2. After Article 8, the following Article 8a is inserted:
3. In Article 51, the following paragraph 1a is inserted:
(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 and that applicable where the exporter intentionally provides false information.
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:
1. Article 2 is amended as follows:
(a) paragraph 2 is replaced by the following:
(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:
2. in Article 5(2), the following subparagraph is added:
3. in Article 6, the following subparagraph is added:
4. in Article 8, paragraph 2 is replaced by the following:
(a) the place, date, time of arrival, time of completion, means of transport and the name and signature of the competent officer, and
(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 the loading of the products in the means of transport.
5. Article 10 is amended as follows:
(a) paragraph 2 is replaced by the following:
(b) paragraph 2a is replaced by the following:
(c) the first subparagraph of paragraph 4 is replaced by the following:
(d) point (a) of paragraph 5 is replaced by the following:
‘(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;’;
(e) the first subparagraph of paragraph 5a is replaced by the following:
(f) the first subparagraph of paragraph 7 is replaced by the following:
6. in Annex I, paragraph 1, the following point (c) is added:
‘(c) Where an export declaration only covers part of the cargo of a ship, the customs office shall ensure supervision 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.
This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Union.
It shall apply from 1 April 2008.
This Regulation shall be binding in its entirety and directly applicable in all Member States.