COMMISSION REGULATION (EEC) No 1722/93 of 30 June 1993 laying down detailed rules for the application of Council Regulations (EEC) No 1766/82 and (EEC) No 1418/76 concerning production refunds in the cereals and rice sectors respectively

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Economic Community,

Having regard to Council Regulation (EEC) No 1766/92 of 30 June 1992 on the common organization of the market in cereals (1), and in particular Article 7 thereof,

Having regard to Council Regulation (EEC) No 1418/76 of 21 June 1976 on the common organization of the market in rice (2), as last amended by Regulation (EEC) No 1544/93 (3), and in particular Article 9 thereof,

Whereas, in view of the special situation of the market in starch, and particularly the need to keep prices competitive in relation to starch produced in third countries and imported as goods in respect of which the import arrangements do not provide sufficient protection for Community producers, Regulations (EEC) No 1766/92 and (EEC) No 1418/76 provide for the grant of a production refund to enable the user industries concerned to have access to starch and certain derivatives at a lower price than that which would result from applying the rules of the common organization of the market in the products in question;

Whereas, pursuant to Article 7 of Regulation (EEC) No 1766/92 and Article 9 of Regulation (EEC) No 1418/76, it is necessary to adopt detailed rules for the grant of production refunds, including rules for control and payment, so that he same rules are applied in all Member States;

Whereas the abovementioned Regulations provide for a list to be drawn up of of products the manufacture of which uses starch giving rise to entitlement to the refund; whereas such a list must be capable of amendment on the basis of fixed criteria;

Whereas, to ensure that control measures are effective, provision should be made for beneficiaries of the refund to be approved in advance by the Member States in whose territory the abovementioned products are manufactured;

Whereas it is necessary to define how the production refund is to be calculated how often it is to be fixed; whereas the most satisfactory calculation method is at present based on the difference between the intervention price for cereals and the price used to calculate the import levy; whereas, for reasons of stability, the production refund should as a general rule be fixed every month; whereas, as a means of checking that the production refund is of the correct value, the prices of maize and wheat should be monitored on the world and Community markets;

Whereas production refunds are to be paid for the use of starch and certain derived products in the manufacture of certain goods; whereas detailed information is required to facilitate the appropriate control and payment of the production refunds to applicants; whereas the competent authority in the Member State concerned should be empowered to require applicants to supply any information and allow any checks or inspections necessary to effect such controls;

Whereas the manufacturer of the product may not necessarily use basic starch; whereas it is therefore necessary to draw up a list of certain products derived from starch the use of which will give the manufacturer the right to receive the refund;

Whereas the origin of the raw materials of the starch used in the manufacture of products eligible for production refunds must be specified;

Whereas the special characteristics of esterified or etherified starch could lead to certain speculative processing operations designed to receive the production refund more than once; whereas, so as to prevent such speculation, measures are needed to ensure that esterified or etherified starch is not reprocessed into a raw material the use of which gives the right to apply for a refund;

Whereas the production refund should not be paid until processing has taken place; whereas, once processing has taken place, payment should be made within five months following verification by the competent authority that the starch has been processed; whereas, however, it should be possible for the manufacturer to receive an advance before completion of the controls;

Whereas the agricultural conversion rate for the refund applicable in national currency should be specified, without prejudice to the possibility of advance fixing in accordance with Articles 13 to 17 of Commission Regulation (EEC) No 1068/93 (4);

Whereas 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 (5), as last amended by Regulation (EEC) No 3745/89 (6), applies to the arrangements provided for in this Regulation; whereas, therefore, the primary requirements of the obligations incumbent on manufacturers and guaranteed by the lodging of a security should be defined;

Whereas this Regulation incoporates, whilst adapting them, the provisions of Commission Regulation (EEC) No 2169/86 (7), as last amended by Regulation (EEC) No 1398/91 (8), whereas that Regulation should therefore be repealed;

Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,

HAS ADOPTED THIS REGULATION:

Article 1

1. A production refund (hereinafter called 'refund') may be granted to natural or legal persons using starch extracted from wheat, maize, rice, broken rice or potatoes, or certain derived products, in the manufacture of the goods listed in Annex I.

2. The list referred to in paragraph 1 may be amended to take account of the level of competition with third countries, and the degree of protection against such competition afforded by the mechanisms of the common agricultural policy, the Commission Customs Tariff or otherwise.

3. At the time of the decision to grant a refund, other factors shall be taken into account, in particular:

- the progress made in the technology of starch manufacture and utilization,

- the degree to which starch is incorporated in the final product and/or the relative value of starch in the final product and/or the importance of the product as an outlet for starch, in the light of competition with other products.

4. The grant of a refund for a product may not cause distortion in the conditions of competition with other products which are not eligible for such refunds.

5. Should it be estabished that distortion has occurred following the grant of a refund, that refund shall:

- be abolished, or

- adjusted, in so far as is necessary to eliminate the distortion in the conditions of competition.

6. Starches imported into the Community under an import scheme which gives rise to a levy reduction may not benefit from a production refund.

7. The decisions provided for in this Article shall be adopted by the Commission in accordance with the procedure laid down in Article 23 of Regulation (EEC) No 1766/92 and Article 27 of Regulation (EEC) No 1418/76, as applicable.

Article 2

For the purposes of this Regulation the following definitions shall apply:

- 'starch' means basic starch or a product derived from starch as listed in Annex II to this Regulation,

- 'approved products' means any of the products listed in Annex I,

- 'the manufacturer' means the user of the starch for the production of approved products.

Article 3

1. In cases where a refund is granted, it shall be fixed once a month.

2. The refund per tonne of starch shall be calculated on the basis inter alia of the difference between:

(i) the intervention price for cereals for the month in question taking account of the diffrences in the market prices for maize; and

(ii) the average of the cif prices used to calculate the import levy for maize during the first 25 days of the month preceding the month of application, mulitplied by a coefficient of 1,60.

3. In the event of significant fluctuations in the market prices for maize and/or wheat in the Community or on the world market during the period defined in paragraph 1, the refund calculated in accordance with paragraph 2 may be altered to take account of such fluctuations.

4. The refund payable shall be that calculated in accordance with paragraph 2 and, where applicable, paragraph 3, multiplied by the coefficient indicated in Annex II which corresponds to the CN code of the starch actually used to manufacture the approved products.

5. The refund fixed in accordance with paragraphs 1 to 4 shall, where necessary, be corrected by the accession compensatory amountg applicable for the type of starch in question.

6. The decisions provided for in this Article shall be adopted by the Commission in accordance with the procedure laid down in Article 23 of Regulation (EEC) No 1766/92 and Article 27 of Regulation (EEC) No 1418/76, as applicable.

Article 4

1. Manufacturers who intend to claim refunds should apply to the competent authority in the Member State where the starch is be used, giving the following information:

(a) the name and address of the manufacturer;

(b) the range of products in which starch is used, including those which are on the list in Annex I and those which are not, giving a full description and the CN codes;

(c) where different from (a), the address(es) of the place(s) where the starch is to be processed into an approved product.

Member States may ask the manufacturer for additional information.

2. Manufacturers shall submit a written undertaking to the competent authority, allowing the competent authorities to carry out all checks and inspections required to monitor the use of the starch and that they will provide any information required.

3. The competent authority shall take measures to ensure that the manufacturer is established and officially recognized in the Member State.

4. On the basis of the information specified in paragraphs 1 and 2, the complete authority shall draw up a list of approved manufacturers which it shall keep up to date. Only manufacturers thus approved shall be entitled to claim a refund in accordance with Article 5.

Article 5

1. If the manufacturer wishes to apply for a refund, he must address himself in writing to his competent authority to obtain a refund certificate.

2. The application must specify:

(a) the name and address of the manufacturer;

(b) the quantity of starch to be used;

(c) in the case of manufacture of a product falling within CN code 3505 10 50, the quantity of starch which will be used;

(d) the place(s) where the starch will be used;

(e) the planned dates of the processing operations.

3. The application shall be accompanied by:

- the lodging of a security in accordance with Article 8,

- a declaration by the supplier of the starch that the product to be used has been produced in accordance with footnote 4 of Annex II.

4. Member States may require additional information.

Article 6

1. As soon as applications submitted in accordance with Article 5 are received, the competent authority shall verify them and shall issue the refund certificate forthwith.

2. Member States shall use national forms for the refund certificate which, without prejudice to the other provisions of Community legislation, shall contain at least the information specified in paragraph 3.

3. The refund certificate shall include the information referred to in Article 5 (2), as well as the rate of the refund payable and the final day of validity of the certificate, which shall be the last day of the fifth month following the month of issue.

However, during July and August of the 1993/94, 1994/95 and 1995/96 marketing years, certificates shall be valid only until the last day of the month during which the certificate was issued.

4. The rate of refund stated on the certificate shall be that applicable on the date of receipt of the application.

However, where any of the quantity of starch quoted on the certificate is processed during the cereals marketing year following that in which the application was received, the refund payable for that starch which is processed in the new marketing year shall be adjusted according to the difference between the intervention price used for the calculation of the refund payable, as defined in Article 3 (2), and that applicable in the month of procession, multiplied by a coefficient of 1,60.

The conversion rate to be used to express the amount of the refund in national currency shall be that valid on the day on which the starch was processed.

Article 7

1. Manufacturers in possession of a refund certificate delivered in accordance with Article 6 shall be entitled, provided all the requirements of this Regulation have been met, to request payment of the refund indicated on the certificate, after the starch has been used in the manufacture of the approved products concerned.

2. Rights under the certificate shall not be transferable.

Article 8

1. The issue of a certificate shall be subject to the lodging of a security by the manufacturer with the competent authority, equal to ECU 15 per tonne of basic starch, where appropriate multiplied by the coefficient corresponding to the type of starch to be used as shown in Annex II.

2. The security shall be released in accordance with Regulation (EEC) No 2220/85. The primary requirement within the meaning of Article 20 of that Regulation shall be the processing of the quantity of starch stated on the application into approved products (as defined) within the period of validity of the certificate. However, if a manufacturer has processed at least 90 % of the quantity of starch stated on the application, he shall be deemed to have fulfilled the aforesaid primary requirement.

Article 9

1. The definitive payment of the refund may be made only after the manufacturer has notified the competent authority of the following information:

(a) the date or dates of purchase and delivery of the starch;

(b) the name and address of the suppliers of the starch;

(c) the name and address of the producers of the starch;

(d) the date or dates on which the starch was processed;

(e) the quantity and type of starch, including the CN codes, which has been used;

(f) the quantity of the approved product shown on the certificate and manufactured using the starch.

2. Where the product mentioned on the certificate falls within CN code 3505 10 50, the notification referred to in paragraph 1 shall be accompanied by the lodging of a security equal to the production refund payable on the manufacture of the product in question.

3. Before payment, the competent authority shall establish that the starch has been used for the manufacture of the approved products in accordance with the information stated on the certificate. This will normally be achieved using administrative checks, but these should be supported by physical checks where necessary.

4. All checks provided for in this Regulation shall be completed within five months of the date on which the competent authority received the information required in paragraph 1.

5. Where the quantity of starch processed is greater than the quantity shown on the certificate, then the extra quantity, up to a limit of 5 %, shall be deemed to have been processed under that document, conferring a right to the refund indicated thereon.

Article 10

1. The security provided for in Article 9 (2) shall be released only once the competent authority has received proof that the product falling within CN code 3505 10 50 has been:

(a) used within the customs territory of the Community to manufacture products other than those listed at Annex II;

or

(b) exported to third countries. In the case of direct export to third countries, the security shall be released only once the competent authority has received proof that the product in question has left the customs territory of the Community.

2. The proof referred to in paragraphe 1 (a) shall consist of a declaration submitted by the manufacturer to the competent authority, indicating:

- whether the product in question is to be processed,

- that the product will be used to manufacture only products other than those listed in Annex II,

- that the product in question will be sold only to a party who will make the undertaking mentioned in the second indent, on the basis of either a contractual clause established for that purpose or a specific condition mentioned in the sales invoice; the manufacturer shall retain a copy of the sales contract or of the sales invoice, to be kept at the disposal of the competent authority,

- that he is aware of the provisions of paragraph 7,

- the name and address of the party who receives the product and the quantity involved if the product is transferred,

- the number of the T 5 control copy if the buyer is located in another Member State.

3. At the end of each quarter, the manufacturer shall forward copies of the declaration referred to in paragraph 2 to his competent authority within 20 working days. On receipt, the competent authority concerned shall forward the same documents to the competent authority of the buyer within 20 working days.

4. Both manufacturers and buyers of the product falling within CN code 3505 10 50 must have stock records of a type approved by the Member States so that compliance with the undertakings and information contained in the manufacturer's declaration referred to in paragraph 2 can be verified.

5. (a) The verification provided for in paragraph 4 shall be made by the competent authorities of the manufacturer and of the buyer at the end of each quarter. Such checks shall focus on overall data relating to that period for the manufacturers and buyers concerned, and on at least 10 % of all the transactions and utilizations which have taken place. Checks on such verification shall be determined by the competent authorities on the basis of a risk analysis.

Each verification operation must be completed not later than five months after the end of each quarter.

The competent authority of the manufacturer must have the results of each verification at its disposal not later than 20 working days after the end of each check.

Where such verifications take place in two or more Member States, the competent authorities concerned shall communicate the results of the verifications made as part of the procedures referred to in Council Regulation (EEC) No 1468/81 of 19 May 1981 concerning mutual assistance (9).

(b) If irregularities are found in 3 % or more of the checks referred to at (a), the competent authorities shall intensify checks.

(c) Where the results of verifications so warrant, the authority which released the security shall apply the penalty provided for in paragraph 7 to the manufacturer concerned.

6. When the product in question is the subject of intra-Community trade or is exported to third countries via the territory of another Member State, a T 5 control copy shall be issued in accordance with Commission Regulation (EEC) No 3566/92 (10).

Box 104 of the control copy shall include, under the heading 'Other', one of the following:

Se utilizará para la transformación o la entrega, de conformidad con el artículo 10 del Reglamento (CEE) no 1722/93 o para la exportación a partir del territorio aduanero de la Comunidad.

Til forarbejdning eller levering i overensstemmelse med artikel 10 i forordning (EOEF) nr. 1722/93 eller til udfoersel fra Faellesskabets toldomraade.

Zur Verarbeitung oder Lieferung gemaess Artikel 10 der Verordnung (EWG) Nr. 1722/93 oder zur Ausfuhr aus dem Zollgebiet der Gemeinschaft bestimmt.

Pros chrisi gia metapoiisi i paradosi symfona me to arthro 10 toy kanonismoy (EOK) arith. 1722/93 i gia exagogi apo to teloneiako edafos tis Koinotitas.

To be used for processing or delivery in accordance with Article 10 of Commission Regulation (EEC) No 1722/93 or for export from the customs territory of the Community.

À utiliser pour la transformation ou la livraison, conformément à l'article 10 du règlement (CEE) no 1722/93 ou pour l'exportation à partir du territoire douanier de la Communauté.

Da utilizzare per la trasformazione o la consegna, conformemente all'articolo 10 del regolamento (CEE) n. 1722/93 o per l'esportazione dal territorio doganale della Comunità.

Bestemd voor verwerking of levering overeenkomstig artikel 10 van Verordening (EEG) nr. 1722/93 of voor uitvoer uit het douanegebied van de Gemeenschap.

A utilizar para transformaçao ou entrega, em conformidade com o disposto no artigo 10o do Regulamento (CEE) no 1722/93, ou para exportaçao a partir do território aduaneiro da Comunidade.

7. If the conditions laid down in paragraphs 1 to 6 are not met, the competent authority of the Member State concerned shall, without prejudice to national sanctions, require payment of an amount equivalent to 150 % of the highest refund applicable to the product in question during the 12 preceding months.

Article 11

1. The refund quoted on the certificate shall be paid only for the quantity of starch actually processed. At the same time, the security referred to in Article 8 (1) shall be released in accordance with Title V of Regulation (EEC) No 2220/85.

2. The refund shall be paid not later than five months after the date on which the check provided for in Article 9 (3) is completed. However, at the request of the manufacturer, the competent authority may advance a sum equivalent to the refund 30 days after receipt of the said information. Apart from cases where the product falls within CN code 3505 10 50, this advance shall be subject to the lodging of a security by the manufacturer equal to 115 % of the sum advanced. The security shall be released in accordance with Article 19 (1) of Regulation (EEC) No 2220/85.

Article 12

Within three months of the end of each period as defined in Article 3 (1), Member States shall notify the Commission of the type, quantities and origin of starch (maize, wheat, potatoes or rice) for which refunds have been paid and the type and quantities of products for which the starch has been used.

Article 13

Regulation (EEC) No 2169/86 is hereby repealed.

Article 14

This Regulation shall enter into force on 1 July 1993.

For the purpose of releasing the security pursuant to Article 7 of Regulation (EEC) No 2169/86, Article 10 shall also apply in the case of files which are still open at the time of the entry into force of this Regulation.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 30 June 1993.

For the Commission

René STEICHEN

Member of the Commission

(1) OJ No L 181, 1. 7. 1992, p. 21.

(2) OJ No L 166, 25. 6. 1976, p. 1.

(3) OJ No L 154, 25. 6. 1993, p. 5.

(4) OJ No L 108, 1. 5. 1993, p. 106.

(5) OJ No L 205, 3. 8. 1985, p. 5.

(6) OJ No L 364, 14. 12. 1989, p. 54.

(7) OJ No L 189, 11. 7. 1986, p. 12.

(8) OJ No L 134, 29. 5. 1991, p. 19.

(9) OJ No L 144, 2. 6. 1981, p. 1.

(10) OJ No L 362, 11. 12. 1992, p. 11.

ANNEX I

Products for which starch and/or its derivatives are used falling within the following codes and chapters of the combined nomenclature

/* Tables: see OJ */

ANNEX II

/* Tables: see OJ */

(1) The coefficient shown applies to starch with a dry matter content at a least 87 % in the case of maize, rice and wheat starches, and at least 80 % in the case of potato starch.

The production refund payable for basic starch of a lower dry matter content than that shown is to be adjusted using the following formula:

1. Maize, rice of wheat starch:

Actual % dry matter

87 × Production refund

2. Potato starch: 3

Actual % dry matter

80 Production refund

The dry matter content of starch is determined by the method laid down in Annex II to Commission Regulation (EEC) No 1908/84 (OJ No L 178, 5. 7. 1984, p. 22). Where the production refund is paid for starch falling with CN code 1108, the purity of starch in the dry matter must be at least 97 %.

When determining the degree of purity of starch, the method to be used in that set out in Annex III to this Regulation.

(2) The production refund is payable for products falling within CN codes with a dry matter content of at least 78 %. The production refund payable for products falling within these CN codes with a dry matter content lower than 78 % is to be adjusted using the following formula:

Actual % dry matter

78 × Production refund

(3) he production refund is payable for D-glucitol (sorbitol) in aqueous solution with a dry matter content of at least 70 %. Where the dry matter content is lower than 70 %, the production refund is to be adjusted using the following formula:

Actual % dry matter

70 × Production refund

(4) Directly produced from maize, wheat, rice or potatoes, with the exclusion of all use of by-products obtained at the time of the manufacture of other agricultural products or merchandise.

(5) The production refund is payable for the actual starch or dextrin dry matter content.

ANNEX III

The degree of purity of the starch in dry matter is determined with the aid of the modified polarimetric Ewers method, published in Annex I to the third Commission Directive 72/199/EEC (1) setting out the Community methods of analysis for the official control of animal feed.

(1) OJ No L 123, 29. 5. 1972, p. 6.