(1)

Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products (3) and Commission Regulation (EC) No 2090/2002 of 26 November 2002 laying down detailed rules for applying Council Regulation (EEC) No 386/90 as regards physical checks carried out when agricultural products qualifying for refunds are exported (4) provide for the rules concerning physical controls and substitution checks by customs on export products for which an export refund is claimed. In the light of experience gained, problems mentioned by Member States in their annual reports on physical checks and recommendations of the European Court of Auditors, appropriate amendments are required.

(2)

Before affixing seals the customs office of export should visually check the conformity between the refund products and the documents. Visual conformity checks aim at improving the general control measures in the framework of the customs procedure and they are of a different nature than substitution checks as described in Article 10(4) of Regulation (EC) No 2090/2002 or physical checks as described in Article 5 of the same Regulation. The visual conformity check shall confirm to customs that the products loaded are of the kind as mentioned in the documents. In principle products or goods are not unloaded and packaging is not opened or removed. In case a visual conformity check reveals that the conformity could be a problem, customs can decide to execute a physical check in accordance with Regulation (EEC) No 386/90. A minimum level of 10 % of visual conformity checks is deemed to be effective, proportionate and dissuasive. For information reasons, the customs office of export should note its conformity check on the control copy T5 or its equivalent.

(3)

Customs should be informed on the rate of export refunds at stake when selecting export declarations for physical or substitution checks. This information should therefore be mentioned in the export declaration and in the control copy T5 or equivalent document. However, in some Member States the authorities concerned already dispose of the same information. Consequently exporters may be exempted from the obligation to mention this information either in the export declaration, or in the T5 control copy or equivalent document, or in both.

(4)

In order to ensure effective application of the obligation to mention the export refund rate, provisions need to be laid down to deter inaccurate information. A suitable penalty system should therefore be established. In case of substantial differences between the refund calculated according to the export refund rate mentioned and the export refund actually applicable customs would be particularly misled not to execute the necessary controls. In particular if the exporter indicates a rate representing an export refund less than EUR 1 000 and the refund applicable is more than EUR 10 000, the penalty should be effective, proportionate and dissuasive.

(5)

In order to concentrate controls more on export products covering a relatively high amount of refunds, the selection thresholds, under which controls are generally disregarded for calculating the minimum control rates, expressed in quantities or in amounts of refunds are raised.

(6)

Predictability of customs controls due to a steady control pattern by customs authorities should be minimised. Therefore, customs authorities' timing of arriving at the exporter's premises and of executing controls should vary. In parallel, exporters should be more tightly bound to non-substitution of products after the export declaration was lodged and before customs arrive, by identifying the export products before their being loaded. The registration of customs authorities' physical controls should be adapted accordingly.

(7)

When a Member State applies the third subparagraph of Article 3(2) of Regulation (EEC) No 386/90 it should be possible to apply the specific provisions set up by Article 6 of Regulation (EC) No 2090/2002.

(8)

Substitution checks should be targeted to all exports which were not physically checked at the start of the procedure. The number of substitution checks and specific substitution checks together must cover a representative part of the exports leaving the Community's customs territory. The number of these checks should therefore be based on a percentage of the number of T5 control copies or equivalent documents, rather than in the number of days that refund products leave the Community's customs territory.

(9)

In order to decide whether substitution checks or specific substitution checks are required the customs office of exit should actively check the presence and soundness of seals. A minimum level of 10 % of checks on seals is deemed to be effective, proportionate and dissuasive.

(10)

The provisions on annual reports in Annex III to Regulation (EC) No 2090/2002 should be adapted accordingly.

(11)

Regulations (EC) No 800/1999 and (EC) No 2090/2002 should therefore be amended accordingly.

(12)

The Management Committees concerned have not delivered an opinion within the time limit set by their chairman,

1.

Article 5 is amended as follows:

2.

After Article 8, the following Article 8a is inserted:

(*1)   OJ L 172, 5.7.2005, p. 24.’;"

3.

In Article 51, the following paragraph 1a is inserted:

4.

Annexes XIII and XIV, the text of which are set out in Annex I to this Regulation, are added.

1.

Article 2 is amended as follows:

2.

in Article 5(2), the following subparagraph is added:

‘Member States shall ensure that there are variations in the start of the physical check at the exporter’s premises by comparison with the indicated time for starting loading as referred to in Article 5(7) of Regulation (EC) No 800/1999.’;

3.

in Article 6, the following subparagraph is added:

‘When applying the third subparagraph of Article 3(2) of Regulation (EEC) No 386/90, a Member State may apply the rules provided for in the first subparagraph.’;

4.

in Article 8, paragraph 2 is replaced by the following:

5.

Article 10 is amended as follows:

6.

in Annex I, paragraph 1, the following point (c) is added:

7.

Annex III is amended in accordance with the Annex II to this Regulation.