Commission Regulation (EC) No 1043/2005 of 30 June 2005 implementing Council Regulation (EC) No 3448/93 as regards the system of granting export refunds on certain agricultural products exported in the form of goods not covered by Annex I to the Treaty, and the criteria for fixing the amount of such refunds

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to Council Regulation (EC) No 3448/93 of 6 December 1993 laying down the trade arrangements applicable to certain goods resulting from the processing of agricultural products⁽¹⁾, and in particular the first subparagraph of Article 8(3) thereof,

Whereas:

1. Commission Regulation (EEC) No 3615/92 of 15 December 1992 on the determination of the quantities of agricultural products to be taken into account for the calculation of refunds payable in the case of the export of goods referred to in Council Regulation (EEC) No 3035/80⁽²⁾, Commission Regulation (EC) No 3223/93 of 25 November 1993 on statistical information relating to the payment of export refunds on certain agricultural products exported in the form of goods covered by Council Regulation (EEC) No 3035/80⁽³⁾ and Commission Regulation (EC) No 1520/2000 of 13 July 2000 laying down common detailed rules for the application of the system of granting export refunds on certain agricultural products exported in the form of goods not covered by Annex I to the Treaty, and the criteria for fixing the amounts of such refunds⁽⁴⁾, all relate to the export of certain agricultural products in the form of goods not covered by Annex I to the Treaty. Most of those regulations have been substantially amended several times. It is necessary to amend all of those regulations, and in the interests of clarity, simplification and administrative efficiency it is appropriate that they be replaced by a single regulation.

2. Council Regulations (EEC) No 2771/75⁽⁵⁾ and (EC) Nos 1255/1999⁽⁶⁾, 1260/2001⁽⁷⁾, 1784/2003⁽⁸⁾ and 1785/2003⁽⁹⁾ on the common organisation of the markets in eggs, milk and milk products, sugar, cereals and rice provide that, to the extent required to allow the agricultural products in question to be exported in the form of certain processed goods not listed in Annex I to the Treaty on the basis of world market quotations or prices for such products, the difference between such quotations or prices and prices in the Community may be covered by an export refund. The granting of refunds on all those agricultural products exported in the form of goods not covered by Annex I to the Treaty should be subject to common rules.

3. Export refunds should be paid for goods which are obtained directly from basic products, from products obtained from the processing of basic products and from products assimilated to either of these categories. The method for determining the amount of the export refund in each of those cases should be established.

4. To ensure correct application of the provisions of Regulations on the common organisation of markets relating to the granting of export refunds, such refunds should not be granted on goods from third countries used in the manufacture of goods which are exported after having been in free circulation in the Community.

5. Commission Regulation (EC) No 800/1999⁽¹⁰⁾ laid down common rules for the application of the system of export refunds on agricultural products. However, the manner in which those rules are to be applied to goods not covered by Annex I to the Treaty needs to be clarified.

6. Respect of the international commitments entered into by the Community implies that refunds granted on exports of agricultural products incorporated in goods not covered by Annex I to the Treaty may not exceed the refunds that would be payable on those products when exported in the unaltered state. Account should be taken of this when rates of refund are fixed and assimilation rules drawn up.

7. Commission Regulation (EEC) No 2825/93 of 15 October 1993 laying down certain detailed rules for the application of Council Regulation (EEC) No 1766/92 as regards the fixing and granting of adjusted refunds in respect of cereals exported in the form of certain spirit drinks⁽¹¹⁾ provides that the rate of the export refund is to be that applicable on the day on which the cereals are placed under control for the manufacture of spirit drinks. Therefore, the placing of cereals under customs control for the production of the spirit drinks referred to in Article 2 of Regulation (EEC) No 2825/93 should be deemed equivalent to export for the purpose of granting of export refunds.

8. Spirit drinks are considered less sensitive than other goods to the price of the agricultural products used in their manufacture. However, Protocol 19 of the Act of Accession of the United Kingdom, Ireland and Denmark provides that the necessary measures must be decided to facilitate the use of Community cereals in the manufacture of spirit drinks obtained from cereals.

9. Potato starch should be assimilated to maize starch for the purposes of determining export refunds. However, it should be possible to fix a specific refund rate for potato starch in market situations where its price is significantly lower than that of maize starch.

10. In order to qualify for a refund the agricultural products used and in particular the goods manufactured from such products must be exported. Any exception to that rule should be interpreted restrictively. However, during the process of manufacturing the goods, producers may incur losses of raw materials for which Community prices have nevertheless been paid while the losses incurred by producers established outside the Community are limited to world market prices. In addition, in the process of manufacturing certain goods by-products are obtained which differ markedly in value from the principal products. In some instances these by-products can be used only as animal feed. Therefore, it is necessary to lay down common rules for determining the concept of the quantity of products actually used in the process of manufacturing the exported goods.

11. Many goods manufactured by an undertaking under clearly defined technical conditions and having constant characteristics and quality follow a regular export pattern. To ease export formalities, a simplified procedure should be adopted for such goods whereby the manufacturer communicates to the competent authorities such information as the latter consider necessary concerning the conditions of manufacture of the goods. Where the quantities of agricultural products actually used in the manufacture of the exported goods are registered with the competent authorities, provision should be made for annual confirmation of such registration in order to reduce the risks associated with failure to communicate changes in those quantities.

12. Many agricultural products are subject to natural and seasonal variability. The agricultural product content of exported goods may consequently vary. The amount of the refund should therefore be determined on the basis of the quantities of agricultural products actually used in the manufacture of the exported goods. However, for certain goods of a simple and relatively constant composition, the amount of the refund should, for ease of administration, be determined on the basis of fixed quantities of agricultural products.

13. When fixing the rate of refund for basic products or assimilated products, account should be taken of production refunds, aids or other measures having similar effect which are applicable, in accordance with the relevant regulation on the common organisation of the market in the product.

14. Certain goods having similar characteristics may have been obtained by various techniques from different base materials. Exporters should be required to identify the nature of the base materials and to make certain declarations in respect of the manufacturing process where such information is necessary to determine entitlement to a refund or the appropriate refund rate to apply.

15. It is appropriate when calculating the quantities of agricultural products actually used to have regard to the dry matter content in the case of starches, and certain glucose and maltodextrin syrups.

16. Where the world trade situation, the specific requirements of certain markets or international trade agreements so require, it should be possible to differentiate the refund on certain goods according to destination.

17. Management of the amounts of refunds which may be granted during a budget year on certain agricultural products exported in the form of goods not covered by Annex I to the Treaty may result in a need to fix different rates for exports with or without advance fixing of the rate of refund on the basis of developments on Community and world markets.

18. The amount of refunds that may be granted in any budget year is limited in accordance with the international commitments entered into by the Community. It should be made possible to export goods not covered by Annex I to the Treaty under conditions which are known in advance. In particular, it should be possible to obtain an assurance that such exports are eligible for a refund compatible with the Community's commitments. Where that is no longer the case, exporters should be informed sufficiently in advance. The issue of refund certificates makes it possible to follow up on refund applications and guarantee to their holders that they will be able to benefit from a refund up to the amount for which the certificate is issued, provided that they meet with the other conditions for refund laid down by Community rules. Management measures should be laid down for the system of refund certificates. In particular, provision should be made for a reduction coefficient to be applied where applications for refund certificates exceed available amounts. In certain circumstances provision should be made for the issue of refund certificates to be suspended.

19. Refund certificates serve to ensure compliance with the international commitments entered into by the Community. They also make it possible to determine in advance the refund which can be granted on agricultural products used in the manufacture of goods exported to third countries. This purpose differs, in some respects, from the objectives of export licences issued for basic products exported in the unaltered state which are subject to international commitments involving quantitative restrictions. It is therefore necessary to specify which general provisions applicable to agricultural licences and certificates, currently laid down by Commission Regulation (EC) No 1291/2000 of 9 June 2000 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products⁽¹²⁾, should not apply in respect of refund certificates.

20. Furthermore, it is necessary to specify how certain provisions of Regulation (EC) No 1291/2000 relating to certificates fixing the export refund in advance applied for in connection with an invitation to tender issued in an importing third country should apply to refund certificates. For the most part refund rates are be fixed or modified on Thursdays. In order to reduce the risk of applications for advance fixing in respect of products being lodged for speculative reasons, where an application for advance fixing is lodged on a Thursday, the application should be deemed to have been submitted on the following working day.

21. The conditions for the release of the security pertaining to certificates subject to Commission Regulation (EEC) No 2220/85 of 22 July 1985 laying down common detailed rules for the application of the system of securities for agricultural products⁽¹³⁾, should be laid down. The obligations which are considered as primary requirements and against which security is lodged should be specified together with the evidence to be furnished in fulfilment of the obligations and upon which the relevant security may be released.

22. It is highly likely that certificate applications will be received for greater amounts than can be granted. The budget year should therefore be divided into periods so that certificates can be made available both to operators who export at the end of the budget year and to those who export at the beginning of the budget year. Where appropriate, a reduction coefficient should be applied to all amounts requested during a particular period.

23. Certain types of exports are not subject to limits on the payment of refunds as a result of international commitments entered into by the Community. Such exports should be free from any obligation to present a refund certificate.

24. Most exporters receive less than EUR 75 000 a year in refunds. Taken together, these exports account for only a small part of the total amount of refunds granted on agricultural products exported in the form of goods not covered by Annex I to the Treaty. It should be possible to exempt such exports from the requirement to present a certificate. However, in order to prevent exploitation it is necessary to limit application of this exemption to the Member State in which the exporter is established.

25. Monitoring arrangements should be established, based on the principle that the exporter should declare to the competent authorities, each time goods are exported, the quantities of products used to manufacture the exported goods. The competent authorities should take any measure they consider necessary to verify the accuracy of such declarations.

26. The authorities responsible for checking the exporter’s declaration may not possess sufficient evidence to enable them to accept the declaration of the quantities used, even if it is based on a chemical analysis. Such situations are particularly likely to arise when the goods to be exported have been manufactured in a Member State other than the exporting Member State. Therefore, the competent authorities of the exporting Member State should be able, if necessary, to obtain directly from the competent authorities of the other Member States all the information which the latter authorities are able to obtain concerning the conditions of manufacture of the goods.

27. In consultation with the competent authorities of the Member State in which the goods are manufactured, operators should be permitted to make a simplified declaration of the products used, in the form of aggregated quantities of those products, provided they keep a detailed record of the products used and make it available to the said authorities.

28. It is not always possible for the exporter to know the precise quantities of agricultural products used in respect of which he can claim a refund, particularly if he is not the manufacturer. Therefore, the exporter is not always able to declare such quantities. It is therefore necessary to provide an alternative method for calculating the refund which the person concerned may ask to be applied, restricted to certain goods, based on the chemical analysis of those goods, and using a table drawn up for that purpose.

29. Commission Regulation (EC) No 2571/97 of 15 December 1997 on the sale of butter at reduced prices and the granting of aid for cream, butter and concentrated butter for use in the manufacture of pastry products, ice-cream and other foodstuffs⁽¹⁴⁾, provides that butter and cream may made available at reduced prices to industries which manufacture certain goods. This should be taken into account when refunds are calculated on the basis of chemical analysis.

30. Article 21 of Regulation (EC) No 800/1999 provides that no refund is to be granted on products that are not of sound and fair marketable quality on the day of acceptance of the export declaration. In order to ensure that this rule is uniformly applied it should be clarified that for a refund to be granted on the products that are indicated in Article 1 of Council Directive 92/46/EEC of 16 June 1992 laying down the health rules for the production and placing on the market of raw milk, heat-treated milk and milk-based products⁽¹⁵⁾, or Article 1 of Council Directive 89/437/EEC of 20 June 1989 on hygiene and health problems affecting the production and the placing on the market of egg products⁽¹⁶⁾, and appear in Annex II to this Regulation, the products concerned must be prepared in accordance with the requirements of those Directives and carry the required health mark.

31. Article 31(10) of Regulation (EC) No 1255/1999 when read in conjunction with Article 31(12) thereof, limits the requirement that milk products on which an export refund is paid, must be of Community origin to certain goods having a high milk content. Measures should therefore be introduced for implementing and monitoring that requirement.

32. Article 28 of Regulation (EC) No 800/1999 limits the period during which basic agricultural products or goods may remain under prefinancing of the refund arrangements to the unexpired term of the export licence. However, refund certificates issued towards the end of the budget period have a shorter validity period, which cannot, due to the international commitments of the Community, extend beyond 30 September. In order to ensure sufficient flexibility to enable exporters to make full use of those short duration refund certificates, specific provisions should be laid down in respect of those certificates in so far as they limit the period during which basic agricultural products or goods may remain under prefinancing of the refund arrangements to the unexpired term of the export licence.

33. It is appropriate to ensure the uniform application throughout the Community of the provisions on the granting of refunds on goods not covered by Annex I to the Treaty. To that end, each Member State should inform the other Member States, via the Commission, of the monitoring arrangements applied in its territory to the various types of exported goods.

34. It is essential to enable the Commission to monitor satisfactorily measures adopted concerning export refunds granted. Therefore, the Commission should have at its disposal certain statistical information, which should be transmitted to it by the competent authorities of the Member States. The format and scope of that information should be specified.

35. Adequate time should be allowed for the transition from the administrative arrangements for refund certificates under Regulation (EC) No 1520/2000 to the administrative arrangements provided for in this Regulation. This Regulation should therefore apply to applications submitted from 8 July 2005 for certificates for use from 1 October 2005.

36. The measures provided for in this Regulation are in accordance with the opinion of the Management Committee on horizontal questions concerning trade in processed agricultural products not listed in Annex I to the Treaty,

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