Commission Regulation (EC) No 1130/2009 of 24 November 2009 laying down common detailed rules for verifying the use and/or destination of products from intervention (codified version)
Commission Regulation (EC) No 1130/2009 of 24 November 2009 laying down common detailed rules for verifying the use and/or destination of products from intervention (codified version)
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(f) in conjunction with Article 4 thereof,
Whereas:
Commission Regulation (EEC) No 3002/92 of 16 October 1992 laying down common detailed rules for verifying the use and/or destination of products from intervention(2) has been substantially amended several times(3). In the interests of clarity and rationality the said Regulation should be codified.
Regulation (EC) No 1234/2007 provides for the application of an intervention system.
Certain products removed from intervention may be subject to a specific use and/or destination. A system of supervision should be set up to ensure that such products are not diverted from their use and/or destination.
In those cases where two or more Member States are involved in the supervision, Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code(4) should apply.
Other authorities as well as customs authorities competent to issue the T5 control copy and to verify the use and/or destination of intervention goods have to be designated.
In order to ensure equal treatment of sales from intervention stocks at a reduced price level and comparable schemes which provide for the granting of an aid, notably export refunds, to ensure equal treatment for operators in the Member States and to facilitate the recovery of economic advantages unduly granted, it is appropriate to provide for the payment of an amount equal to the amount of the security unduly released.
For reasons of simplification and efficiency, it is appropriate to stipulate that the T5 control copy, after the necessary checks have been carried out, is to be sent directly to the agency holding the security, and that where two or more Member States are involved, the T5 control copies are to be sent directly by each separate Member State to the agency holding the security.
It seems desirable, in order to simplify administrative procedures, to provide for greater flexibility than is afforded by the control copy in the case of exports in accordance with the system laid down in Articles 412 to 442a of Regulation (EEC) No 2454/93 which provides that, when a carriage operation starts within the Community and is to end outside it, no formalities need be carried out at the customs office for the frontier station.
In certain cases, products from intervention are sold at a price calculated by taking account of the amount of the refund applicable for third countries or a particular third country. Therefore, entitlement to the export refund is deducted from the selling price.
In order to ensure proper completion of the operation, a security is to be lodged. The amount of this security is calculated by taking account of the various aspects of the operation concerned, in particular the risk of deflection of trade and full compliance with the undertakings given by operators.
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for the Common Organisation of Agricultural Markets,
HAS ADOPTED THIS REGULATION:
CHAPTER I GENERAL PROVISIONS
Without prejudice to the specific derogations provided for in the Community rules relating to certain agricultural products, this Regulation lays down common detailed rules for verifying the use and/or destination of products removed from intervention stock pursuant to Article 25 of Regulation (EC) No 1234/2007, where such products are subject to a specific use and/or destination.
For the purposes of this Regulation, ‘dispatch’ means the consignment of goods from one Member State to another and ‘exportation’ means the consignment of goods from a Member State to a destination outside the customs territory of the Community.
For the purposes of this Regulation, the Belgo-Luxembourg Economic Union (BLEU) shall be considered as a single Member State.
From the time of their removal from intervention stock until the use and/or destination specified has been verified, the products referred to in Article 1 shall be subject to control, comprising physical checks, scrutiny of documents and audit of accounts, by the designated control bodies, hereafter referred to as ‘the competent control authority’.
In order to avoid any discrimination on the basis of the origin of the products, each Member State shall designate, for each specific measure or part of such measure, one single control body for the verification of the use and/or destination of the relevant products, irrespective of their origin (Community or national).
Member States shall take all necessary measures to ensure that the control referred to in paragraph 1 is effected and that the intervention products are not replaced by other products.
Those measures shall in particular prescribe that:
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firms which deal with intervention products or processed intervention products by, for instance, buying, selling, stocking, transporting, transhipping, repackaging, working or processing shall submit to any measures of inspection or supervision considered necessary and keep such records as to enable the authorities to carry out any checks that they consider necessary;
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the products referred to in point (a) shall be stocked and transported separately from other products in such a way that they can be identified.
Member States shall communicate to the Commission the measures taken pursuant to this paragraph.
The T5 control copy procedure referred to in Article 912a(2) of Regulation (EEC) No 2454/93, shall apply where the control referred to in paragraph 1 of this Article is to be carried out in whole or in part:
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in a Member State other than that in which the products are removed from intervention stock;
or
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in a Member State other than that in which the security was lodged.
The T5 control copy shall be issued and used in accordance with the provisions of Regulation (EEC) No 2454/93 unless otherwise stipulated in this Regulation.
Where the selling intervention agency, in accordance with Article 3(1), does not issue a T5 control copy, it shall provide a removal order. Member States may allow extracts of a removal order to be issued.
For the purposes of this Regulation, ‘intervention agency’ and ‘agency’ shall both mean paying agency or intervention agency.
The removal order or extract shall be presented to the competent control authority by the person concerned.
The T5 control copy referred to in Article 2(3) shall be issued by:
-
the selling intervention agency where intervention products are dispatched to another Member State in the same state as that in which they were removed from intervention stock, hereafter referred to as ‘the unaltered state’;
or
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the competent control authority, where intervention products are dispatched after processing to another Member State;
or
-
the customs office of departure:
-
on production of a removal order, issued by the intervention agency, where intervention products are exported in the unaltered state and are to cross the territory of one or more other Member States;
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on production of a control document, issued by the competent control authority and stating that processing took place under control, where intervention products are exported after processing and are to cross the territory of one or more other Member States.
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Where products pursuant to Article 39 of Regulation (EC) No 1234/2007 are stocked in a Member State other than that where the selling intervention agency is situated, the selling intervention agency shall issue the T5 control copy or have it issued under its responsibility.
Member States may:
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allow the T5 control copy to be issued by an authority designated for that purpose instead of by the selling agency;
-
decide that authorised stockholders of intervention products can issue a T5 control copy under the responsibility of the intervention agency. Authorisation shall be granted to the stockholder according to the conditions of Article 912g of Regulation (EEC) No 2454/93 mutatis mutandis.
In those cases, issue shall be subject to production of a removal order.
The removal order and the control document as referred to in paragraph 1 shall bear a serial number and shall give:
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a description of the products, such description being made in the manner prescribed for completion of box 31 of the T5 control copy referred to in Article 2(3), and where appropriate, any other information necessary for the purposes of control;
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the number and type of packages, and the marks and numbers borne by such packages;
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the gross and net mass of the products;
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a reference to the applicable regulation;
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the information to be provided in boxes 104 and 106 of the T5 control copy, including the number of the contract of sale with the intervention agency.
The control document shall show the number of the preceding T5 control copy or removal order.
The removal order and the control document shall be kept by the office of departure.
The person concerned shall provide one original and two copies of the T5 control copy. The authority issuing the T5 control copy shall send a copy, for information, to the agency where the security is lodged pursuant to Article 5, and shall keep a copy.
The original T5 control copy shall be returned to the person concerned, or his representative, who shall present it to the competent control authority in the Member State of use and/or destination.
The original of the T5 control copy shall, after appropriate endorsement by the competent control authority in the Member State of use and/or destination, be sent back directly to the agency holding the security referred to in Article 5.
The full name and address of the agency holding the security shall be entered in box B of the T5 control copy by the person concerned.
Where only some of the products mentioned in the T5 control copy have complied with the prescribed provisions, the competent authority shall indicate the quantity of products that complied with those provisions in the section of the T5 control copy headed ‘Control of use and/or destination’, and also the date or dates on which the operation was carried out.
Proof that the requirements as to control laid down in Article 2(1) have been complied with shall be provided as follows:
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for products in respect of which the removal from intervention stock and the use and/or destination have been verified by the authority of a single Member State, by the production of documents specified by that Member State;
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for products in respect of which the use and/or destination have been verified by the authorities in one or more Member States other than that in which the removal from intervention stock took place, by all T5 control copies issued for control of use and/or destination, duly certified and endorsed by the competent control authorities;
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for products in respect of which the use and/or destination have been verified by the authorities in both the Member State where the removal from intervention stock took place and in one or more other Member States, by means of the documents referred to in both points (a) and (b);
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for products in respect of which the export formalities and departure from the customs territory of the Community took place in the Member State where the final processing took place and in which the security was lodged, by the document or documents laid down by that Member State for proof of exportation and by the documents referred to in points (a) and/or (b), if these cover the processing.
Where a security is required in order to guarantee the proper use and/or destination of the products referred to in Article 1, it shall be lodged prior to the taking over of the products. Such security shall be lodged:
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in the case of products to be processed or to be processed and exported, with the intervention agency of the Member State in which processing is to take place or to commence;
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in all other cases, with the selling intervention agency.
Where a security is lodged with the intervention agency of a Member State other than that where the selling intervention agency is situated, the former shall forthwith forward to the selling intervention agency a communication in writing, showing:
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the number of the relevant regulation;
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the date and/or number of tender/sale;
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the contract number;
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the name of the buyer;
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the amount of the security in euro;
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the product;
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the quantity of products;
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the date on which the security was lodged;
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the use and/or destination (where appropriate).
The selling intervention agency shall check the security data.
Where, after the release in whole or in part of the security referred to in Article 5, it is established that the products in whole or in part did not reach the prescribed use and/or destination, the competent authority of the Member State where the security has been released shall require, in accordance with Article 9(1) of Council Regulation (EC) No 1290/2005(5), the operator concerned to pay an amount equal to the amount of the security which would have been forfeited if the failure had been taken into account before the release of the security. This amount shall be increased by interest calculated from the date of release to the day preceding the date of payment.
The receipt by the competent authority of the amount referred to in the first subparagraph shall constitute the recovery of the economic advantage unduly granted.
The payment shall be made within 30 days from the day of receipt of the demand for payment.
Where the time limit for payment is not met, Member States may decide that, instead of payment, the amount to be received shall be deducted from subsequent payments to the operator concerned.
The interest rate shall be calculated in accordance with the provisions of national law but may not be less than the rate applicable for the recovery of national amounts.
No interest shall be levied, or at the most, only an amount to be determined by the Member State corresponding to the undue profit, if the release of the security was an error of the competent authority.
Member States may refrain from demanding the payment referred to in paragraph 1 where the amount does not exceed EUR 60, provided that, under national law, such cases are covered by similar rules.
The sums recovered in accordance with paragraph 1 shall be made to the paying agency and recorded in the accounts by that agency as a revenue assigned to the European Agricultural Guarantee Fund (EAGF) in the month in which the money is actually received.
Where the prescribed provisions on the use and/or destination cannot be complied with as a result of force majeure, the authority of the Member State in which the security was lodged or, if no security was lodged, the authority in the Member State in which the removal from intervention stock took place shall, at the request of the person concerned, decide:
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that the time limit prescribed for the transaction shall be extended for such a period as may be considered necessary in view of the circumstances invoked;
or
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if the products have been irretrievably lost, that control shall be deemed to have been carried out.
However, in those cases of force majeure where the measures referred to in points (a) and (b) are not appropriate, the competent authority shall inform the Commission, which may provide for the necessary measures in accordance with the procedure referred to in Article 195 of Regulation (EC) No 1234/2007.
The request referred to in paragraph 1 shall be lodged within 30 days of that on which information was received by the person concerned that circumstances indicating a possible case of force majeure had arisen, but within the period laid down in the specific Regulation for producing the evidence needed to release the security.
The person concerned shall furnish proof of the circumstances relied upon as constituting force majeure.
Article 1
Without prejudice to the specific derogations provided for in the Community rules relating to certain agricultural products, this Regulation lays down common detailed rules for verifying the use and/or destination of products removed from intervention stock pursuant to Article 25 of Regulation (EC) No 1234/2007, where such products are subject to a specific use and/or destination.
For the purposes of this Regulation, ‘dispatch’ means the consignment of goods from one Member State to another and ‘exportation’ means the consignment of goods from a Member State to a destination outside the customs territory of the Community.
For the purposes of this Regulation, the Belgo-Luxembourg Economic Union (BLEU) shall be considered as a single Member State.
Article 2
From the time of their removal from intervention stock until the use and/or destination specified has been verified, the products referred to in Article 1 shall be subject to control, comprising physical checks, scrutiny of documents and audit of accounts, by the designated control bodies, hereafter referred to as ‘the competent control authority’.
In order to avoid any discrimination on the basis of the origin of the products, each Member State shall designate, for each specific measure or part of such measure, one single control body for the verification of the use and/or destination of the relevant products, irrespective of their origin (Community or national).
Member States shall take all necessary measures to ensure that the control referred to in paragraph 1 is effected and that the intervention products are not replaced by other products.
Those measures shall in particular prescribe that:
-
firms which deal with intervention products or processed intervention products by, for instance, buying, selling, stocking, transporting, transhipping, repackaging, working or processing shall submit to any measures of inspection or supervision considered necessary and keep such records as to enable the authorities to carry out any checks that they consider necessary;
-
the products referred to in point (a) shall be stocked and transported separately from other products in such a way that they can be identified.
Member States shall communicate to the Commission the measures taken pursuant to this paragraph.
The T5 control copy procedure referred to in Article 912a(2) of Regulation (EEC) No 2454/93, shall apply where the control referred to in paragraph 1 of this Article is to be carried out in whole or in part:
-
in a Member State other than that in which the products are removed from intervention stock;
or
-
in a Member State other than that in which the security was lodged.
The T5 control copy shall be issued and used in accordance with the provisions of Regulation (EEC) No 2454/93 unless otherwise stipulated in this Regulation.
Where the selling intervention agency, in accordance with Article 3(1), does not issue a T5 control copy, it shall provide a removal order. Member States may allow extracts of a removal order to be issued.
For the purposes of this Regulation, ‘intervention agency’ and ‘agency’ shall both mean paying agency or intervention agency.
The removal order or extract shall be presented to the competent control authority by the person concerned.
Article 3
The T5 control copy referred to in Article 2(3) shall be issued by:
-
the selling intervention agency where intervention products are dispatched to another Member State in the same state as that in which they were removed from intervention stock, hereafter referred to as ‘the unaltered state’;
or
-
the competent control authority, where intervention products are dispatched after processing to another Member State;
or
-
the customs office of departure:
-
on production of a removal order, issued by the intervention agency, where intervention products are exported in the unaltered state and are to cross the territory of one or more other Member States;
-
on production of a control document, issued by the competent control authority and stating that processing took place under control, where intervention products are exported after processing and are to cross the territory of one or more other Member States.
-
Where products pursuant to Article 39 of Regulation (EC) No 1234/2007 are stocked in a Member State other than that where the selling intervention agency is situated, the selling intervention agency shall issue the T5 control copy or have it issued under its responsibility.
Member States may:
-
allow the T5 control copy to be issued by an authority designated for that purpose instead of by the selling agency;
-
decide that authorised stockholders of intervention products can issue a T5 control copy under the responsibility of the intervention agency. Authorisation shall be granted to the stockholder according to the conditions of Article 912g of Regulation (EEC) No 2454/93 mutatis mutandis.
In those cases, issue shall be subject to production of a removal order.
The removal order and the control document as referred to in paragraph 1 shall bear a serial number and shall give:
-
a description of the products, such description being made in the manner prescribed for completion of box 31 of the T5 control copy referred to in Article 2(3), and where appropriate, any other information necessary for the purposes of control;
-
the number and type of packages, and the marks and numbers borne by such packages;
-
the gross and net mass of the products;
-
a reference to the applicable regulation;
-
the information to be provided in boxes 104 and 106 of the T5 control copy, including the number of the contract of sale with the intervention agency.
The control document shall show the number of the preceding T5 control copy or removal order.
The removal order and the control document shall be kept by the office of departure.
The person concerned shall provide one original and two copies of the T5 control copy. The authority issuing the T5 control copy shall send a copy, for information, to the agency where the security is lodged pursuant to Article 5, and shall keep a copy.
The original T5 control copy shall be returned to the person concerned, or his representative, who shall present it to the competent control authority in the Member State of use and/or destination.
The original of the T5 control copy shall, after appropriate endorsement by the competent control authority in the Member State of use and/or destination, be sent back directly to the agency holding the security referred to in Article 5.
The full name and address of the agency holding the security shall be entered in box B of the T5 control copy by the person concerned.
Where only some of the products mentioned in the T5 control copy have complied with the prescribed provisions, the competent authority shall indicate the quantity of products that complied with those provisions in the section of the T5 control copy headed ‘Control of use and/or destination’, and also the date or dates on which the operation was carried out.