Commission Regulation (EC) No 670/2009 of 24 July 2009 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 as regards public intervention by invitation to tender for the purchase of durum wheat or paddy rice, and amending Regulations (EC) No 428/2008 and (EC) No 687/2008

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

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

Whereas:

Pursuant to Article 13(3) and Article 18(2) of Regulation (EC) No 1234/2007, as amended by Council Regulation (EC) No 72/2009⁽²⁾, the Commission may decide, as from 1 July 2009 for durum wheat and 1 September 2009 for paddy rice, on public intervention if the market situation and, particularly, trends in market prices so justify it. There is a need to lay down the conditions under which public intervention may occur, in the event of the Commission deciding that such intervention is necessary and to reiterate which authorities are competent, in this area, in the Member States, in accordance with the provisions of Commission Regulation (EC) No 884/2006 of 21 June 2006 laying down detailed rules for the application of Council Regulation (EC) No 1290/2005 as regards the financing by the European Agricultural Guarantee Fund (EAGF) of intervention measures in the form of public storage operations and the accounting of public storage operations by the paying agencies of the Member States⁽³⁾, by specifying that such authorities shall intervene, for the purposes of this Regulation, as ‘intervention agencies’, including when paying agencies act directly.
In order to ensure that the public intervention system operates as simply and efficiently as possible, the rules relating to the approval of intervention centres by intervention agencies in the Member States should be defined, and the provisions relating to such approval should be decided upon. To this end, the conditions necessary for the approval of storage premises at intervention centres should be defined.
The conditions under which offers of durum wheat and paddy rice sent for intervention can be considered admissible, and the conditions for the take-over of products by such agencies must be as uniform as possible throughout the Community. In order to ensure that all operators are treated equally, the procedures applicable to purchases and, specifically, the admissibility of bids, acceptances and checks relating thereto should therefore be defined.
If storage premises at an approved intervention centre, situated in a Member State other than that in which the main activity of the operator is carried out, allow operators to deliver their products as cheaply as possible, the said operators should have the possibility of submitting their tenders in the Member State concerned. In order to avoid these operators being subject to additional administrative restrictions, they should therefore be authorised to carry out the formalities relating to the tenders using their VAT registration number in the Member State in which they carry out their main activity and be allowed to lodge, in order to substantiate their bid, a security obtained in the said Member State.
In order to ensure simplified and satisfactory management of the intervention measure, a batch presented should be homogenous and, in the case of rice, composed of rice of the same variety. A minimum quantity should also be established, below which the intervention agency is not obliged to accept the bid, but nevertheless taking into account the fact that a minimum additional tonnage may prove necessary in order to take into account the conditions and practices of the wholesale trade or environmental regulations in force in a Member State. In order to provide operators with information regarding applicable minimum amounts, intervention agencies should specify these minimum amounts in each tender notice that they publish and, if necessary, establish such amounts at a level higher than that laid down in this Regulation.
Durum wheat and paddy rice whose quality does not permit suitable further use or storage should not be accepted for intervention. The methods necessary for establishing the quality of durum wheat and paddy rice must, to this end, be defined.
Durum wheat is a cereal covered by minimum quality criteria for human consumption and must satisfy the health standards laid down by Council Regulation (EEC) No 315/93 of 8 February 1993 laying down Community procedures for contaminants in food⁽⁴⁾. These standards should apply when the product concerned is taken over under the present intervention scheme.
The risks inherent in exceeding the maximum admissible contaminant thresholds can be identified by the paying agencies or intervention agencies on the basis of information received from bidders and their own analysis criteria. In order to limit the financial costs, there is therefore justification for requiring analyses, under the responsibility of the agencies prior to the taking-over of products, only on the basis of a risk analysis enabling the quality of the products on entry into the intervention scheme to be guaranteed. Where a Member State takes a decision at the time of purchase of a product and that decision is inadequate in the light of the risk analysis required by these rules, that Member State should however be directly liable if it later emerges that the product did not comply with the minimum standards prescribed. Such a decision would not make it possible to guarantee the quality of the product and, therefore, ensure its proper preservation. Consequently, the circumstances under which a Member State is to be held liable should be specified.
When fixing the minimum quality of paddy rice, consideration should be given in particular to weather conditions in the rice-growing areas of the Community.
The checks to ensure that the products offered are actually present at the storage premises nominated by the bidder and that the requirements established regarding the weight and quality of goods offered are complied with should be precisely laid down. A distinction should be made between, on the one hand, acceptance of the goods offered after the quantity and compliance with the minimum quality requirements have been checked and, on the other hand, fixing the price to be paid to the bidder after the necessary tests have been carried out to identify the precise characteristics of each lot based on representative samples.
To allow sound management of this intervention measure, tenders for durum wheat and rice are firm and definitive. They may not therefore be amended or withdrawn and it is necessary for the submission of bids to be subject to the lodging of a security and to specify the means of its release and possible forfeit to the Community budget in the event of non-compliance with certain conditions regarding the admissibility of the said offers.
Article 18(2) and (4)(a) of Regulation (EC) No 1234/2007 states that the intervention price of durum wheat is fixed by the Commission by means of tendering procedures, without prejudice to price increases and reductions for quality purposes. These price variations linked to the main quality criteria for durum wheat need to be specified.
Article 18(4)(b) of Regulation (EC) No 1234/2007 states that the intervention price is fixed for paddy rice of a specific standard quality defined in point A of Annex IV to that Regulation and that, if the quality of the rice offered for intervention differs from that standard quality, the intervention price is to be adjusted by applying price increases or reductions. The application of such increases or reductions should reflect price differences observed on the paddy rice market for quality reasons. To this end, the basic characteristics of paddy rice should be taken into account, thereby allowing an objective assessment of its quality to be made; an assessment of moisture content, milling yield and grain defects, using simple and effective methods, meets this requirement.
For the purposes of harmonisation, checks on intervention stock should be carried out under the conditions set out in Article 2 of Regulation (EC) No 884/2006.
For the purposes of ensuring the efficient management of the system, the information required by the Commission should be sent electronically and communicated on the basis of methods made available to Member States by the Commission.
The provisions relating to the rice sector made in this Regulation replace those currently in force and made in Commission Regulation (EC) No 489/2005 of 29 March 2005 laying down detailed rules for implementing Council Regulation (EC) No 1785/2003 as regards determining the intervention centres and the taking over of paddy rice by the intervention agencies⁽⁵⁾. However, in order to harmonise the rules applying to rice and durum wheat, it is appropriate not to repeat certain provisions contained in Regulation (EC) No 489/2005.
The provisions relating to durum wheat made in this Regulation replace those currently in force and made in Commission Regulation (EC) No 428/2008 of 8 May 2008 on determining the intervention centres for cereals⁽⁶⁾. Provision should therefore be made for these no longer to apply to durum wheat as of 1 July 2009.
The provisions relating to durum wheat made in this Regulation replace those currently in force and made in Commission Regulation (EC) No 687/2008 of 18 July 2008 establishing procedures for the taking-over of cereals by intervention agencies or paying agencies and laying down methods of analysis for determining the quality of cereals⁽⁷⁾. Provision should therefore be made for these no longer to apply to durum wheat as of 1 July 2009.
Regulations (EC) No 428/2008 and (EC) No 687/2008 should therefore be amended and Regulation (EC) No 489/2005 repealed.
In accordance with Article 8 of Regulation (EC) No 72/2009, the new provisions relating to public intervention measures made in Regulation (EC) No 1234/2007 are to apply as of 1 July 2009 as regards durum wheat and 1 September 2009 as regards the rice sector. The detailed rules for the application of these measures should therefore apply as of the same dates.
The Management Committee for the Common Organisation of Agricultural Markets has not delivered an opinion within the time limit set by its Chair,

HAS ADOPTED THIS REGULATION:

CHAPTER I PROVISIONS COMMON TO THE APPROVAL OF INTERVENTION CENTRES, PURCHASES AND BIDS

This Regulation establishes, for the durum wheat and rice sectors, the detailed rules of application governing public intervention buying-in, as provided for in Article 13(3) and in Article 18(2) of Regulation (EC) No 1234/2007.

The buying-in referred to in paragraph 1 is carried out by the paying agencies or agencies approved by them, in accordance with Article 2(1) of Regulation (EC) No 884/2006, hereinafter referred to as ‘intervention agencies’.

The intervention centres to be designated by the Commission, in accordance with Article 41 of Regulation (EC) No 1234/2007, shall be subject to prior approval by the intervention agencies, pursuant to the provisions of this Regulation and the rules laid down in Regulation (EC) No 884/2006, particularly with regard to responsibility and checks, in accordance with Article 2 of that Regulation.

Before an intervention centre can be approved, the intervention agencies shall ensure that the storage premises at that centre meet at least the following standards:

a storage capacity of at least 20 000 tonnes for durum wheat or 10 000 tonnes for rice, for all storage premises at that centre;
a minimum stock exit capacity to allow, for each storage site, the removal of at least 5 % of the storage capacity per working day, or 1 000 tonnes for durum wheat and 500 tonnes for rice.

The information relating to the list of intervention centres and their storage premises, designated by the Commission in accordance with Article 41 of Regulation (EC) No 1234/2007, shall be amended and made available to Member States and the public in accordance with Articles 23 and 24 of this Regulation.

By means of a notice of call for tender, the intervention agencies shall purchase durum wheat or paddy rice following the opening of the tender by means of a Regulation adopted by the Commission, hereinafter referred to as ‘Regulation opening the tendering procedure’, in accordance with the procedure referred to in Article 195(2) of Regulation (EC) No 1234/2007.

The Regulation opening the tendering procedure shall state, in particular:

the name of the product, with its CN code;
the dates of the tenders;
the deadline (date and time) for the submission of bids;
the closing date of the tendering period;
the Member State(s) or region(s) concerned, in the event of the second subparagraph of Article 18(2) of Regulation (EC) No 1234/2007 applying.

With regard to paddy rice, the tender may be restricted to one or several types of rice as defined in Annex III, Part I, I.2 to Regulation (EC) No 1234/2007 (‘round grain rice’, ‘medium grain rice’, ‘long grain rice A’ or ‘long grain rice B’).

A period of at least six days must separate the date of entry into force of the Regulation opening the tendering procedure and the scheduled deadline for the first submission of bids.

The call for tender published by the intervention agency shall stipulate in particular the minimum quantities to which bids must refer. These quantities shall be at least 10 tonnes for durum wheat and 20 tonnes for rice.

However, if the conditions and practices of the wholesale trade or environmental regulations in force in a Member State justify the application of minimum quantities larger than those laid down in the first subparagraph above, these quantities shall be laid down in the call for tender by the relevant intervention agency.

The obligations resulting from the tendering procedure shall not be transferable.

The purchases referred to in Article 3 shall take place on the basis of bids submitted by operators to intervention agencies in the Member States, with bids being submitted in writing or electronically, with acknowledgement of receipt.

In order for a bid to be admissible by the intervention agency, it must include the following:

a form supplied by the Member States, based on a harmonised model produced by the Commission and meeting the conditions laid down in Article 24, including, at least, the following information:
1. the name of the bidder; its address and VAT registration number in the Member State in which it performs its main activity, or its farm registry number;
2. the product offered, indicating, in the case of rice, the type and variety;
3. the place where the product is stored at the time that the bid is submitted;
4. the storage facilities at the intervention centre for which the bid is made at the lowest price;
5. the quantity offered, the year in which the product offered was harvested, an indication of its Community origin and the Community area of production;
6. the price proposed per tonne for merchandise corresponding to the minimum quality for durum wheat or the standard quality for rice, sent to the storage facility at the designated intervention centre, and not unloaded, and expressed in EUR to a maximum of two decimal points. This price shall not exceed the reference price referred to in Article 8(a) of Regulation (EC) No 1234/2007 in respect of durum wheat or the reference price referred to in Article 8(b) of the same Regulation in the case of paddy rice;
7. for rice, the pesticide treatments carried out after harvest, specifying the doses used;
8. the main characteristics of the product offered;
the following documents are to be enclosed:
1. evidence that the bidder has lodged a security of EUR 30 per tonne for durum wheat or EUR 50 per tonne for paddy rice, prior to the deadline for submission of bids; this security may be lodged in the Member State where the bidder conducts its main activity if it submits a bid in another Member State;
2. a declaration from the bidder confirming that the quantities offered are situated in the storage facilities referred to in point (a)(iii) of this paragraph;
3. a declaration from the bidder to the effect that the bid relates to a homogenous batch, and that, with regard to rice, this batch consists of paddy rice of the same variety and that the minimum quantities are those laid down in the call for tender published by the intervention agency.

The intervention agency shall register the bids received, the date on which they were received and the quantities concerned.

Bids shall be firm and definitive.

Intervention agencies shall verify the admissibility of bids on the basis of the requirements specified in Article 4(2).

If the bid is not admissible, the operator concerned shall be notified thereof immediately by the intervention agency.

The compliance of the documents referred to in Article 4(2)(b)(ii) and (iii) may be verified once the admissibility of bids has been established by the intervention agency, if necessary with the assistance of the intervention agency responsible for the storage facility designated by the bidder, in accordance with Article 22(3).

In the event of one or another of the documents referred to in the first subparagraph above not complying, the bid shall be cancelled and Article 9(2) shall apply.

By 14.00 (Brussels time) on the day after the deadline for submission of bids at the latest, the intervention agency shall notify the Commission of the admissible bids, subject to the conditions laid down in Article 24. The tenderers shall not be identified.

If no admissible tenders are received, the Member State shall notify the Commission thereof within the same time limit.

Admissible bids which have not been communicated to the Commission shall be excluded from the tender.

On the basis of the bids communicated in accordance with Article 6(1) of this Regulation, the Commission shall decide either not to proceed with bids received or establish the maximum buying-in price, in accordance with the procedure set out in Article 195(2) of Regulation (EC) No 1234/2007.

Once a maximum buying-in price has been established by the Commission, in accordance with Article 7, the intervention agencies shall accept admissible bids equal to or below the maximum amount. All other bids shall be rejected.

If no maximum buying-in price has been established, all bids shall be rejected.

Intervention agencies, either following publication of the regulation or notification of the decision establishing the maximum buying-in price referred to in Article 7, or specifying that bids have not been successful, shall take the decisions referred to in paragraphs 1 and 2.

Each tenderer shall be informed by the relevant agency of the result of the tender bid by no later than the working day following the publication or notification referred to in paragraph 3.

The actual presence of products in the storage facility designated by the bidder in accordance with Article 4(2)(a)(iii), the presentation of a homogeneous batch, the continuation of the bid communicated to the Commission and the take-over of the product by the relevant agency shall be the main requirements within the meaning of Article 20(2) of Commission Regulation (EEC) No 2220/85⁽⁸⁾.

If the main requirements referred to in paragraph 1 above are not complied with, the security shall be forfeit save in cases of force majeure, and shall be entered as assigned revenue in accordance with Article 12 of Commission Regulation (EC) No 883/2006⁽⁹⁾.

For the purposes of applying this Article, intervention agencies shall carry out checks on the quantities present in the places of storage by applying mutatis mutandis the rules and conditions laid down in Regulation (EC) No 884/2006 as regards checks on the physical presence of products stored under public storage operations, and more specifically those provided for under point B.III of Annex I to that Regulation. These checks shall be carried out on at least 5 % of the bids and 5 % of the quantities offered, on the basis of a risk analysis.

The security shall be released from the time that the decision referred to in Article 8(3) is published, if the bid is rejected.

With regard to bids selected, the security shall be released within five working days following the date on which the take-over record referred to in the third subparagraph of Article 18(1) is drawn up.

The date or dates for delivery to the storage centre at the approved intervention centre designated by the bidder shall be established by the intervention agency and notified to the bidder as soon as possible.

However, if products cannot be delivered to the storage facility at the intervention centre designated by the bidder, the intervention agency shall designate storage facilities at another approved intervention centre, or storage facilities at another intervention centre, to which delivery must place, at the lowest cost, and shall set the delivery date or dates.

All products shall be delivered to the storage centre at the approved intervention centre by no later than the end of the third month following the month in which the bid was received, and no later than 30 June for durum wheat or 31 August for paddy rice.

The representative of the intervention agency shall take the goods over in the presence of the bidder or his duly authorised agent.

The quantity delivered must be weighed in the presence of the bidder or his duly authorised agent and a representative of the intervention agency who must be independent vis-à-vis the bidder.

However, the representative of the intervention agency may also be the storekeeper. In that case:

within 30 days of take-over, the intervention agency shall itself conduct an inspection involving at least a volumetric check; any difference between the quantity determined by weighing and the quantity estimated in accordance with the volumetric method must not exceed 5 %;
where the tolerance is not exceeded, the storekeeper shall bear all costs relating to any quantities missing, at a later weight check, compared to the weight entered in the accounts on take-over;
where the tolerance is exceeded, weighing shall take place forthwith. The cost of weighing shall be borne by the storekeeper if the weight determined is less than that recorded, or by the Member State if it is more.

The cost of transporting merchandise to the storage facility at the intervention centre designated by the bidder as cheaply as possible, in accordance with Article 4(2)(a)(iv), shall be met by the bidder, where the distance involved is equal to or less than 100 km. Transport costs over 100 km shall be borne by the intervention agency.

If the storage facility at the intervention centre designated by the bidder is changed by the intervention agency in accordance with the second subparagraph of Article 10(1), the additional transport costs (except for the first 20 km) shall be met by the intervention agency. However, transport costs over 100 km shall be borne by the intervention agency in their entirety.

The costs to be met by the intervention agency, referred to in paragraphs 1 and 2 above shall be reimbursed by the Commission, on a non-flat rate basis, in accordance with Article 4(1)(c) of Regulation (EC) No 884/2006.

SECTION 1 GENERAL RULES

Before an intervention centre can be approved, the intervention agencies shall ensure that the storage premises at that centre meet at least the following standards:

a storage capacity of at least 20 000 tonnes for durum wheat or 10 000 tonnes for rice, for all storage premises at that centre;
a minimum stock exit capacity to allow, for each storage site, the removal of at least 5 % of the storage capacity per working day, or 1 000 tonnes for durum wheat and 500 tonnes for rice.

Article 1 Scope and definitions

Article 2 Appointment and approval of intervention centres

Before an intervention centre can be approved, the intervention agencies shall ensure that the storage premises at that centre meet at least the following standards:

a storage capacity of at least 20 000 tonnes for durum wheat or 10 000 tonnes for rice, for all storage premises at that centre;
a minimum stock exit capacity to allow, for each storage site, the removal of at least 5 % of the storage capacity per working day, or 1 000 tonnes for durum wheat and 500 tonnes for rice.