Commission Implementing Regulation (EU) No 180/2014 of 20 February 2014 laying down rules for the application of Regulation (EU) No 228/2013 of the European Parliament and of the Council laying down specific measures for agriculture in the outermost regions of the Union

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EU) No 228/2013 of the European Parliament and of the Council of 13 March 2013 laying down specific measures for agriculture in the outermost regions of the Union and repealing Council Regulation (EC) No 247/2006⁽¹⁾, and in particular Article 6(2), Article 8, Articles 12(3) and 13(2), Article 14, the second subparagraph of Article 18(1) and Articles 19(3), 21(4), 27(1) and 29(2) thereof,

Whereas:

Regulation (EU) No 228/2013 has repealed and replaced Council Regulation (EC) No 247/2006⁽²⁾. Regulation (EU) No 228/2013 empowers the Commission to adopt delegated and implementing acts. In order to ensure the smooth functioning of the scheme in the new legal framework, rules should be adopted by means of such acts. The new rules should replace the implementing rules of Commission Regulation (EC) No 793/2006⁽³⁾. That Regulation is repealed by Commission Delegated Regulation (EU) No 179/2014⁽⁴⁾.
Certain agricultural products which are exempt from import duties already require an import licence. In the interests of administrative simplification, the import licence should be used to support the arrangements for exemption from import duties for those products.
A document should also be adopted to support the arrangements for exemption from import duties for other agricultural products which do not require an import licence. An exemption certificate, drawn up on the import licence form, should be used for this purpose.
Rules should be laid down for fixing the amount of aid for the supply of products under the specific supply arrangements. Such rules should take account of the additional costs of supply to the outermost regions due to their remoteness and insularity, which constitute a burden that severely handicaps them. In order to maintain the competitiveness of Union products, this aid should take account of the prices applied to exports.
The aid scheme for products supplied from the territory of the Union should be managed by means of a certificate, called an ‘aid certificate’, using the import licence form.
Management of the specific supply arrangements requires the introduction of rules on the issue of the aid certificate, which derogate from the normal rules applicable to import licences pursuant to Commission Regulation (EC) No 376/2008⁽⁵⁾.
Management of the specific supply arrangements should allow two objectives to be pursued. First, it should promote the rapid issue of licences and certificates, particularly by no longer requiring a security to be lodged beforehand in all cases, and the rapid payment of aid for supplies of products from the territory of the Union. Second, it should guarantee the control and monitoring of operations and provide the administrative authorities with the instruments they need to ascertain that the objectives of the scheme are being attained. Those objectives are to secure a regular supply of certain agricultural products and to offset the effects of the geographical situation of the outermost regions by ensuring that the advantages of the scheme are actually passed on to the stage at which the products destined for the end-users are placed on the market.
The rules for the administration of the specific supply arrangements should ensure that, within the framework of the quantities laid down in the forecast supply balances, registered operators obtain a licence or certificate for the products and quantities involved in the commercial transactions which they carry out on their own account, on presentation of documents certifying that the operation is genuine and that the application for a licence or certificate is in order.
Monitoring of operations under the specific supply arrangements requires, inter alia, the period of validity of licences and certificates to be suited to the requirements of the air and sea transport, proof to be furnished that the supply operation covered by the licence or certificate has been carried out in a short time-span, and the transfer of the rights and obligations conferred on the holder of the licence or certificate in question to be prohibited.
The benefits granted in the form of exemption from import duties and aid for products supplied from the territory of the Union has to be passed on so that they are reflected in production costs and in the prices paid by the end-users. Checks are therefore needed to ensure that the benefits are actually passed on.
Rules should be laid down on the authorisation and monitoring of exports of products covered by the specific supply arrangements to third countries and their dispatch to the rest of the Union. In particular, it is expedient to lay down the maximum quantities of processed products which may be the subject of traditional exports or consignments, as well as the quantities of products and the destinations of exports of products processed locally, with a view to encouraging regional trade.
In order to protect consumers and the commercial interests of operators, products which are not of sound and fair marketable quality, within the meaning of Article 28 of Commission Regulation (EC) No 612/2009⁽⁶⁾, should be excluded from the specific supply arrangements no later than the time when they are first placed on the market and appropriate measures should be taken where this requirement is not met.
In the context of the partnership procedures in force for the outermost regions, the competent authorities of the Member States should lay down the detailed administrative rules needed to ensure the management and monitoring of the specific supply arrangements.
In order to be able to assess how the arrangements are being implemented, the competent authorities of the Member States should be required to report to the Commission at regular intervals.
The coverage of aid applications and the documents to be attached thereto with a view to assessing their justification should be specified for each aid scheme directed at local production.
It should be possible to amend at any time aid applications containing manifest errors.
The deadlines for submitting and amending aid applications have to be complied with to enable the national authorities to programme and subsequently carry out effective checks on the correctness of applications for aid for local production. Time limits should therefore be fixed beyond which submissions can no longer be accepted. Moreover, a reduction should be applied to encourage aid applicants to respect the time limits.
Applicants should be allowed to withdraw their applications for aid for local production or parts thereof at any time, provided that the competent authority has not yet informed the applicant of any errors contained in the aid application or announced an on-the-spot check which reveals errors in the part concerned by the withdrawal.
Compliance with the rules on aid schemes managed under the integrated administration and control system should be effectively monitored. To this end, and to achieve a harmonised level of monitoring in all Member States, the criteria and technical procedures for carrying out administrative and on-the-spot checks should be set out in detail. Where appropriate, the Member States should strive to combine the various checks under this Regulation with those provided for under other Union provisions.
The minimum number of aid applicants to undergo on-the-spot checks under the various aid schemes should be determined.
The sample for the minimum rate of on-the-spot checks should be selected partly on the basis of a risk analysis and partly at random. The main factors to be taken into consideration for the risk analysis should be specified.
Where significant irregularities are found, the rate of on-the-spot checks should be increased during the current and following years in order to attain an acceptable level of assurance that the aid applications concerned are correct.
For on-the-spot checks to be effective, it is important for the inspectors to be informed of the reasons for which the aid applicants concerned have been selected for an on-the-spot check. The Member States should keep records of such information.
In order to enable the national authorities and any competent authority of the Union to follow up on-the-spot checks carried out, the details of checks should be recorded in an inspection report. Aid applicants or their representatives should be given the opportunity to sign the report. However, in the case of remote-sensing checks, the Member States should be allowed to provide for this right only in cases where the check reveals irregularities. Moreover, irrespective of the kind of on-the-spot check carried out, the aid applicant should receive a copy of the report if irregularities are found.
In order to protect the financial interests of the Union effectively, adequate measures should be adopted to combat irregularities and fraud.
Reductions and exclusions should be determined having regard to the principle of proportionality and the special problems arising in cases of force majeure, exceptional circumstances and natural disasters. Such reductions and exclusions should be graded according to the gravity of the irregularity committed and should go as far as the total exclusion from one or more aid schemes for local production for a specified period.
As a general rule, reductions and exclusions should not be applied where aid applicants have submitted factually correct information or can otherwise show that they are not at fault.
An applicant who notifies the competent national authority at any time of incorrect aid applications should not be the subject of reductions or exclusions, irrespective of the reason for the incorrectness, provided that the applicant has not been informed of the competent authority's intention to carry out an on-the-spot check and provided that the authority has not already informed the applicant of any irregularity in the application. The same should apply to incorrect data contained in the computerised database.
Where various reductions are to be applied to the same aid applicant, they should be applied independently of each other. Moreover, the reductions and exclusions provided for in this Regulation should be applied without prejudice to additional penalties under any other provisions of Union or national law.
Aid applicants who are unable to fulfil the obligations provided for under the detailed rules for implementing the programmes as a consequence of force majeure or exceptional circumstances should not lose their entitlement to the aid. It should be specified which cases, in particular, may be recognised by the competent authorities as exceptional circumstances.
In order to ensure uniform application of the principle of good faith throughout the Union, where unduly paid amounts are recovered, the conditions under which that principle may be invoked should be laid down without prejudice to the treatment of the expenditure concerned in the context of the clearance of accounts.
The detailed rules required to apply the logo aimed at ensuring greater awareness and consumption of processed and unprocessed quality agricultural products specific to the outermost regions of the Union should be adopted.
It should be the responsibility of the competent authorities in the regions concerned to adopt the additional administrative requirements needed to ensure the correct operation of the mechanisms put in place for the checks and monitoring of the use of the logo and to guarantee compliance with those obligations.
For the purposes of exempting tobacco imported into the Canary Islands from customs duties, it is necessary to define the annual period for calculating the maximum quantity of tobacco products referred to in Article 29 of Regulation (EU) No 228/2013. In addition, in order to ensure maximum flexibility, permission should be granted for the overall quantity of unmanufactured stemmed/stripped tobacco to be used for imports of other products, on the basis of a coefficient of equivalence, depending on the requirements of the local industry.
The procedures for amending the programmes need to be simplified in order to ensure a more flexible and smoother adaptation of the programmes to the actual conditions relating to the supply arrangements and the local agricultural productions. For this reason, it is necessary to postpone by two months the deadline for the submission of the annual modifications so that it is aligned to the deadline laid down in Article 32(2) of Regulation (EU) No 228/2013 for the submission of the annual implementation reports. However, major amendments need to be submitted timely to the Commission in order to allow for their thorough evaluation and an approval decision by the date of applicability of those amendments.
Member States should submit to the Commission all information relating to the implementation of the programmes and necessary to ensure their proper monitoring over time. For this reason, it is necessary to establish a minimum set of common performance indicators and the content and the deadlines for the periodical communications and statistics concerning the specific supplies arrangements and the measures to support the local production as well as for the annual implementation reports. In order to allow the notification of more reliable data concerning the aid applications relating to support for local production, the deadline for that notification should be postponed by one month.
All notifications from the Member States to the Commission that are necessary for the good functioning of the scheme should be made in accordance with Commission Regulation (EC) No 792/2009⁽⁷⁾.
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Direct Payments,

HAS ADOPTED THIS REGULATION:

CHAPTER I SPECIFIC SUPPLY ARRANGEMENTS

The forecast supply balances to be established by the Member States in accordance with Article 9(2) of Regulation (EU) No 228/2013 shall state the quantities of essential products needed to meet the supply requirements of each outermost region every calendar year.

Member States may amend their forecast supply balance. Article 40 of this Regulation shall apply to such amendments.

For the purposes of Article 12(1) of Regulation (EU) No 228/2013, products subject to the presentation of an import licence shall be exempt from import duties on production of that licence.

Import licences shall be drawn up in accordance with the specimen set out in Annex I to Regulation (EC) No 376/2008.

Article 7(5) and Articles 12, 14, 16, 17, 18, 20, 22, 25, 26, 28, 32 and 35 to 40 of Regulation (EC) No 376/2008 shall apply mutatis mutandis, without prejudice to this Regulation.

Box 20 of import licence applications and import licences themselves shall contain one of the entries listed in Part A of Annex I and one of the entries listed in Part B of Annex I.

Box 12 of import licences shall show the last day of validity.

The competent authorities shall issue import licences at the request of the parties concerned, subject to the limits of the forecast supply balances.

Import duties shall be levied on quantities which exceed those stated on the import licence. The tolerance of 5 % provided for in Article 7(4) of Regulation (EC) No 376/2008 shall be allowed, provided that the import duties relating thereto are paid.

For the purposes of Article 12(1) of Regulation (EU) No 228/2013, products not subject to the presentation of an import licence shall be exempt from import duties on production of an exemption certificate.

Exemption certificates shall be drawn up on the basis of the specimen import licence set out in Annex I to Regulation (EC) No 376/2008.

Article 7(5) and Articles 12, 14, 16, 17, 18, 20, 22, 25, 26, 28, 32 and 35 to 40 of Regulation (EC) No 376/2008 shall apply mutatis mutandis, without prejudice to this Regulation.

One of the entries listed in Part C of Annex I shall be printed or stamped in the upper left-hand box of the certificate.

Box 20 of exemption certificate applications and of exemption certificates themselves shall contain one of the entries listed in Part D of Annex I and one of the entries listed in Part B of Annex I.

Box 12 of exemption certificates shall show the last day of validity.

The competent authorities shall issue exemption certificates at the request of the parties concerned, subject to the limits of the forecast supply balances.

For the purposes of Article 10(2) of Regulation (EU) No 228/2013, Member States shall determine within the context of the programme the amount of aid to be granted in order to compensate for remoteness, insularity and distant location, taking into account:

as regards specific additional transport costs, the intermediate reloading costs involved in supplying goods to the outermost regions concerned;
as regards the specific additional costs involved in local processing, the small size of the market, the need to guarantee security of supply and the specific quality requirements for goods in the outermost regions concerned.

Aid shall be granted on presentation of a certificate (hereinafter referred to as ‘aid certificate’), which has been fully utilised.

Presenting an aid certificate to the authorities responsible for making payments shall be tantamount to applying for the aid. Except in cases of force majeure or exceptional climatic conditions, certificates shall be presented within 30 days of the date on which they are charged. Where that time limit is overrun, the aid shall be reduced by 5 % per day of delay.

The aid shall be paid by the competent authorities not later than 90 days after the date on which the utilised certificate is lodged, except in one of the following cases:

force majeure or exceptional climatic conditions;
where an administrative enquiry has been opened concerning entitlement to the aid; in such case, payment shall take place only after entitlement has been recognised.

Aid certificates shall be drawn up on the basis of the specimen import licence set out in Annex I to Regulation (EC) No 376/2008.

Article 7(5) and Articles 12, 14, 16, 17, 18, 20, 22, 25, 26, 28, 32 and 35 to 40 of Regulation (EC) No 376/2008 shall apply mutatis mutandis, without prejudice to this Regulation.

One of the entries listed in Part E of Annex I shall be printed or stamped in the upper left-hand box of the certificate.

Boxes 7 and 8 of the certificate shall be struck out.

Box 20 of aid certificate applications and of aid certificates themselves shall contain one of the entries listed in Part F of Annex I and one of the entries listed in Part G of Annex I.

Box 12 of aid certificates shall show the last day of validity.

The amount of aid applicable shall be that in force on the day on which the application for the aid certificate was lodged.

The competent authorities shall issue aid certificates at the request of the parties concerned, subject to the limits of the forecast supply balances.

For the purposes of Article 13(1) of Regulation (EU) No 228/2013, the competent authorities shall take all appropriate measures to check that the advantage is actually passed on to the end-user. In doing so, they may assess the trading margins and prices applied by the various operators concerned.

The measures referred to in the first paragraph, and in particular the control points used to determine whether the aid has been passed on, and any amendments made, shall be notified to the Commission in the context of the annual implementation report referred to in Article 32(2) of Regulation (EU) No 228/2013.

In order to be eligible for entry in the register referred to in the second subparagraph of Article 12(1) of Regulation (EU) No 228/2013, operators shall undertake to:

communicate to the competent authorities, at their request, all relevant information about their commercial activities, particularly regarding the prices and profit margins they practice;
operate exclusively in their own name and on their own accounts;
submit licence and certificate applications commensurate with their real capacity to dispose of the products concerned, such capacity being proven with reference to objective factors;
refrain from acting in a way likely to create artificial shortages of products and from marketing the available products at artificially low prices;
ensure to the satisfaction of the competent authorities that, when the agricultural products are disposed of in the outermost region concerned, the advantage is passed on to the end-user.

Operators intending to dispatch or export unprocessed, processed or packaged products under the conditions referred to in Article 13 shall, at the time of applying for entry in the register or later, declare their intention to engage in this activity and indicate the location of the packaging plant where applicable.

Processors intending to export or dispatch processed products under the conditions referred to in Articles 13 or 15 shall, at the time of applying for entry in the register or later, declare their intention to engage in this activity, indicate the location of the processing plant and, where applicable, provide analytical lists of the processed products.

Subject to Articles 2(5), 3(6), 5(7) and Articles 11 and 12, the competent authorities shall accept the import licence, exemption certificate or aid certificate application presented by operators for each consignment, provided that they are accompanied by the original or certified copy of the purchase invoice and the original or certified copy of the following documents:

regarding the import licence, or the exemption certificate:
1. the bill of lading or airway bill or multimodal transport document;
2. the certificate of origin for products originating in third countries;
regarding the aid-certificate:
1. the T2L document, or the T2LF document under the terms of Article 315(1) and (2) of Commission Regulation (EEC) No 2454/93⁽⁸⁾; or
2. a declaration type CO as set out in Article 786(2)(a), and Annex 38, Title II, box 1 of that Regulation.

The above documents may take the form of an electronic message. In case the verifying competent authority has no access to the IT system managing and producing such electronic document, it shall be replaced by a duly certified true copy print-out.

The purchase invoice, bill of lading or airway bill shall be drawn up in the name of the applicant.

The period of validity of licences and certificates shall be fixed on the basis of transportation time. That time may be extended by the competent authority in special cases where serious and unforeseeable difficulties affect the transportation time, but may not exceed two months from the date on which the licence or certificate was issued.

For the products covered by the specific supply arrangements, import licences, exemption certificates and aid certificates shall be presented to the customs authorities with a view to completing the customs formalities within no more than 15 working days from the date of the authorisation for unloading the goods. The competent authorities may reduce that maximum time.

In the case of products which have been the subject of inward processing or customs warehousing in the Azores, Madeira and the Canary Islands and subsequently released into free circulation there, the maximum period of 15 days shall start on the date on which the licences or certificates referred to in first subparagraph are applied for.

The goods shall be presented in bulk or in separate lots corresponding to the licence or certificate presented.

The licences and certificates shall be used for a single operation only when completing customs formalities.

Conformity of the products with the requirements laid down in Article 10(4) of Regulation (EU) No 228/2013 shall be examined no later than the stage of first marketing, in accordance with the standards or practices in force in the Union.

Where the product is considered not to meet the requirements laid down in Article 10(4) of Regulation (EU) No 228/2013, its entitlement under the specific supply arrangements shall be withdrawn and the corresponding quantity shall be reattributed to the forecast supply balance. Where aid has been granted in accordance with Article 5 of this Regulation the aid shall be reimbursed. Where imports have been made in accordance with Articles 2 or 3 of this Regulation, the import duty shall be paid, unless the party concerned supplies proof that the products have been re-exported or destroyed.

If the state of execution of a forecast supply balance indicates a significant increase in applications for import licences, exemption certificates or aid certificates for a given product which might jeopardise the achievement of one or more of the objectives of the specific supply arrangements, Member State shall take all necessary measures, after having consulted the authorities concerned, to ensure that the outermost region concerned is supplied with essential products, taking account of available supply and the requirements of priority sectors.

Where, after having consulted the authorities concerned, Member States decide to apply restrictions on the issue of licences and certificates, the competent authorities shall apply a uniform reduction percentage to all pending applications.

In so far as is strictly necessary to avoid disturbances on the market in the outermost regions concerned, or the pursuit of speculative actions likely to be prejudicial to the smooth functioning of the specific supply arrangements, the competent authorities may fix the maximum quantity per licence or certificate application.

The competent authorities shall notify the Commission immediately of the instances in which this Article is applied.

The notification referred to in this Article shall be made in accordance with Regulation (EC) No 792/2009.

The export or dispatch of unprocessed products which have benefited from the specific supply arrangements, or packaged or processed products containing products which have benefited from the specific supply arrangements, shall be subject to the requirements laid down in paragraphs 2 to 6.

For exported products, box 44 of the export declaration shall contain one of the entries listed in Part H of Annex I.

Quantities of products which have been exempt from import duties and which are exported shall be reattributed to the forecast supply balance.

Such products shall not be eligible for export refunds.

Quantities of products which have been exempt from import duties and are dispatched shall be reattributed to the forecast supply balance and the amount of the erga omnes import duties applicable on the day of importation shall be paid by the consignor by the time of dispatch at the latest.

Such products shall not be dispatched until the payment referred to in the first subparagraph has taken place.

Where it is impossible to establish the day of importation, products shall be considered to have been imported on the day on which the highest erga omnes import duties applied during the six-month period preceding the date of dispatch.

Quantities of products which have benefited from aid and are exported or dispatched shall be reattributed to the forecast supply balance and the aid granted shall be reimbursed by the exporter or consignor by the time of export or dispatch at the latest.

Those products shall not be dispatched or exported until the reimbursement referred to in the first subparagraph has been made.

Where it is impossible to establish the amount of aid granted, the products shall be considered to have received the highest rate of aid fixed by the Union for such products during the six-month period preceding the submission of the application for export or dispatch.

Such products may benefit from an export refund, provided that the criteria for granting such aid are met.

The competent authorities shall authorise the export or dispatch of quantities of processed products other than those referred to in paragraphs 3, 4 and 5 of this Article and in Article 15 only where the exporter certifies that those products have not benefited from specific supply arrangements.

The competent authorities shall authorise the re-export or re-dispatch of unprocessed products or packaged products other than those referred to in paragraphs 3, 4 and 5 of this Article only where the exporter certifies that those products have not benefited from specific supply arrangements.

The competent authorities shall carry out the necessary checks to ensure the accuracy of the certificates referred to in the first and second subparagraphs and shall, if necessary, recover the advantage.

Export of the following products shall not be subject to the presentation of an export licence:

the products referred to in Article 13(3);
the products referred to in Article 13(5) which do not fulfil the conditions for a grant of an export refund.

If there is a risk that regular supplies to the outermost regions might be jeopardised by a significant increase in exports of the products referred to in Article 13(1), the competent authorities may restrict quantities in such a way as to ensure that priority needs in the sectors concerned are met. That quantitative restriction shall be applied in a non-discriminatory manner.

Processors who have declared, in accordance with Article 7(3), that they intend to export in the context of traditional trade flows or regional trade, or to dispatch in the context of traditional trade flows, as referred to in Article 14(2) of Regulation (EU) No 228/2013, processed products containing raw materials which have benefited from specific supply arrangements may do so within the limits of the annual quantities indicated in Annexes II to V to this Regulation. The competent authorities shall deliver the requisite authorisations in such a way as to ensure that transactions do not exceed those annual quantities.

The list of the countries referred to in Article 14(3) of Regulation (EU) No 228/2013 is set out in Annex VI to this Regulation.

For exports within the framework of regional trade, exporters shall submit the documents specified in Article 17 of Regulation (EC) No 612/2009 to the competent authorities within the time limits laid down in Article 46 of that Regulation. Where documents have not been submitted within those time limits, the competent authorities shall recover the advantage granted under the specific supply arrangements.

The export of products referred to in this Article shall not be subject to the presentation of an export licence.

For exported products referred to in this Article, box 44 of the export declaration shall contain one of the entries listed in Part I of Annex I.

The administrative checks carried out on the import, entry, export and dispatch of agricultural products shall be exhaustive and shall involve cross-checks with the documents referred to in Article 8(1).

The physical checks carried out in the outermost region concerned on the import, entry, export and dispatch of agricultural products shall involve a representative sample amounting to at least 5 % of the licences and certificates presented in accordance with Article 9.

Commission Regulation (EC) No 1276/2008⁽⁹⁾ shall apply mutatis mutandis to those physical checks.

In special cases the Commission may request that physical checks cover different percentages.

The competent authorities shall adopt the additional rules needed to manage and monitor the specific supply arrangements in real time.

Upon request of the Commission, they shall notify the Commission of any measures they implement pursuant to the first paragraph.

SECTION 1 Forecast supply balances

Member States may amend their forecast supply balance. Article 40 of this Regulation shall apply to such amendments.

Article 1 Purpose of forecast supply balances and amendments thereto

Member States may amend their forecast supply balance. Article 40 of this Regulation shall apply to such amendments.

SECTION 2 Supplies through imports from third countries