Regulation 2008/1276 - Monitoring by physical checks of exports of agricultural products receiving refunds or other amounts - Main contents

EN

Official Journal of the European Union

L 339/53

Pursuant to Article 9(1)(a) of Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (2), Member States, within the framework of the common agricultural policy, are to adopt all legislative, regulatory and administrative provisions and take any other measures necessary to ensure effective protection of the financial interests of the Community, and particularly in order to check the genuineness and compliance of operations financed by the European Agricultural Guarantee Fund and the European Agricultural Fund for Rural Development, to prevent and pursue irregularities, and to recover sums lost as a result of irregularities or negligence.

Article 201(1)(f) of Regulation (EC) No 1234/2007 repeals Council Regulation (EEC) No 386/90 of 12 February 1990 on the monitoring carried out at the time of export of agricultural products receiving refunds or other amounts (3) while Article 194(a) of that Regulation requires the Commission to determine the rules concerning administrative and physical controls to be conducted by the Member States with regard to the respect of obligations resulting from the application of that Regulation. Commission Regulation (EC) No 2090/2002 of 26 November 2002 laying down detailed rules for applying Council Regulation (EEC) No 386/90 of 12 February 1990 as regards physical checks carried out when agricultural products qualifying for refunds are exported (4) has been substantially amended. In the interests of clarity and administrative efficiency, therefore, Regulation (EC) No 2090/2002 and Commission Regulation (EC) No 3122/94 of 20 December 1994 laying down criteria for risk analysis as regards agricultural products receiving refunds (5) should be repealed and replaced by a new coherent set of rules.

Commission Regulations (EC) No 793/2006 of 12 April 2006 laying down certain detailed rules for applying Council Regulation (EC) No 247/2006 laying down specific measures for agriculture in the outermost regions of the Union (6), (EC) No 967/2006 of 29 June 2006 laying down detailed rules for the application of Council Regulation (EC) No 318/2006 as regards sugar production in excess of the quota (7), and (EC) No 1914/2006 of 20 December 2006 laying down detailed rules for applying Council Regulation (EC) No 1405/2006 laying down specific measures for agriculture in favour of the smaller Aegean islands (8) refer to the application of physical checks in accordance with Council Regulation (EEC) No 386/90 whilst export refunds are not involved. It is therefore appropriate to specify that physical checks on operations involving other amounts and related to financial measures under the European Agricultural Guarantee Fund and the European Agricultural Fund for Rural Development may be carried out in accordance with this new coherent set of rules.

Account should be taken of existing inspection measures, in particular those introduced by Commission Regulations (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 (9) and (EC) No 2298/2001 of 26 November 2001 laying down detailed rules for the export of products supplied as food aid (10).

In order to improve and harmonise the measures taken by the Member States, a Community monitoring system should stay in place, based in particular on physical spot checks of products at the time of export, including products exported under a simplified procedure, and on the scrutiny of the payment application files by the paying agencies.

To tackle the risk of substitution in the case of export declarations accepted by an internal customs office within a Member State, a minimum number of ‘substitution checks’ should be carried out by the customs office of exit from the Community. Having regard to the place where such substitution checks are carried out, they should take the form of simplified checks.

In order to decide whether substitution checks or specific substitution checks are required the customs office of exit should actively check that the seals are in place and not broken.

To ensure that customs offices of exit or the customs offices to which the T5 control copy is sent follow a uniform practice, and to avoid doubts as to the identity of the products, which is a precondition for the granting of refunds, there should be provision for a specific substitution check in cases where these customs offices have found that the seals affixed on departure have been removed other than under customs supervision or have been broken or that no dispensation from sealing has been granted. Since in those cases there is clear suspicion of substitution, the specific substitution checks require increased attention which may include, where appropriate, a physical check on the products.

The number of physical checks should be proportionate to the number of customs export declarations per year. Experience has shown that physical checks on a minimum of 5 % of export declarations is an effective, proportionate and dissuasive level, whilst allowing Member States to choose on the basis of risk management whether to attribute the minimum norm of 5 % per product sector or to all sectors with a minimum of 2 % per product sector. In order to ensure full coverage of the regime, customs offices of export with very low numbers of export declarations per product sector should nevertheless ensure that each product sector is subject to at least one check. The share of export refunds allocated to goods not covered by Annex I to the Treaty does not represent a high level of risk, while the number of export declarations in this sector is high. In order to make better use of the means of control the minimum control rate for goods not covered by Annex I to the Treaty should therefore be reduced. For the same reason, Member States should also have the possibility to disregard export declarations relating to small quantities or an amount of refund limited to EUR 1 000.

Experience suggests that a minimum level of 10 % of checks on seals is effective, proportionate and dissuasive.

The number of substitution checks and specific substitution checks by customs offices of exit should be proportionate to the number of customs guidance documents per year. Experience suggests that a minimum of 8 % of all customs guidance documents is effective, proportionate and dissuasive.

According to Article 4f of 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 (11), customs authorities are to undertake risk management to differentiate between the levels of risk associated with products subject to customs control or supervision and to determine whether or not, and if so where, the products will be subject to specific customs controls. Risk management includes analysis of risks as defined in Article 4(26) of Council Regulation (EEC) No 2913/92. According to Article 592e of Regulation (EEC) No 2454/93 the competent customs office is, upon receipt of the customs declaration, to carry out appropriate risk analysis and customs controls, prior to release of the products for export. Risk management is to obligatorily apply from 1 July 2009, by electronic means, according to Article 3(3) of Commission Regulation (EC) No 1875/2006 of 18 December 2006 amending Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (12). Consequently customs control on export declarations as referred to in Article 5 of Regulation (EC) No 800/1999 should from that date be subject to risk analysis.

Risk analysis as an optional control instrument for physical checks on export declarations was introduced in 1994 by Article 3(2) of Regulation (EEC) No 386/90, and for substitution checks in 1995 by Article 9 of Commission Regulation (EC) No 2221/95 of 20 September 1995 laying down detailed rules for the application of Council Regulation (EEC) No 386/90 as regards physical checks carried out at the time of export of agricultural products qualifying for refunds (13). A choice of criteria to be taken into account was laid down in Regulation (EC) No 3122/94. The application of risk analysis is subject to data protection referred to in Article 6 of Regulation (EEC) No 2913/92.

The specific experience built up by applying risk analysis in the framework of checks on export refunds should be maintained following the generalised introduction of risk management.

The organisation which, in principle, would afford the best safeguards without giving rise to economic constraints and administrative costs outweighing the prospective gains for Community finances would be one which combined physical checks on export and the auditing of accounts. For this reason Member States should coordinate the physical checks with the audit to be conducted ex post facto in the undertakings concerned by the competent bodies governed by Council Regulation (EC) No 485/2008 of 26 May 2008 on scrutiny by Member States of transactions forming part of the system of financing by the European Agricultural Guarantee Fund (14).

Commission Regulation (EC) No 159/2008 of 21 February 2008 amending Regulations (EC) No 800/1999 and (EC) No 2090/2002 as regards physical checks carried out when agricultural products qualifying for refunds are exported (15) replaced certain checking and reporting thresholds of EUR 200 by EUR 1 000. It is appropriate to make EUR 1 000 the threshold for relevant existing checking and reporting requirements.

For the purpose of evaluating the effectiveness of risk analysis and the application of this Regulation, the Member States are required to draft reports of the checks and to submit annual evaluations on the implementation and effectiveness of the checks carried out pursuant to this Regulation and of the procedures applied to selecting the products subject to physical checks. Given the progress in information technology, the requirement to submit the annual report on an ISO 9660 compatible CD-ROM or equivalent data medium should be reformulated as an electronic medium which precludes rewriting of the data.

The application of risk management will be obligatory under the Customs Code from 1 July 2009 but some Member States may apply it earlier. Where appropriate risk management is in place, it is justified to permit the application of flexible control norms. Member States should, therefore, be permitted to apply flexible control norms as soon as they apply appropriate risk management and notify the Commission accordingly.

The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for the Common Organisation of Agricultural markets,

‘other amounts’ means operations related to financial measures under the European Agricultural Guarantee Fund and the European Agricultural Fund for Rural Development pursuant to Regulations (EC) No 793/2006, (EC) No 967/2006 and (EC) No 1914/2006;

‘products’ means products as defined in first indent of Article 2(1)(a) of Regulation (EC) No 800/1999;

‘customs office of export’ means the customs office referred to in Article 5(7)(a) of Regulation (EC) No 800/1999;

‘customs office of exit’ means the customs office referred to in Article 793(2) of Regulation (EEC) No 2454/93;

‘customs office to which the T5 control copy is sent’ means the customs office of destination referred to in Article 912c of Regulation (EEC) No 2454/93 including a customs office to which an equivalent document is sent;

‘physical check’ means verification that the export declaration, or for other amounts documents as set out in Regulations (EC) No 793/2006, (EC) No 967/2006 and (EC) No 1914/2006, including documents submitted in support thereof, corresponds with the products as regards quantity, nature and characteristics under the conditions set out in Article 5;

‘substitution check’ means a check carried out by means of a visual check, that the products correspond to the document which accompanied them from the customs office of export to the customs office of exit or the office to which the T5 control copy is sent under the conditions set out in Article 8;

‘specific substitution check’ means a substitution check which may vary from a visual check to a physical check, to be carried out if there are doubts as to the integrity of the sealing of the export products under the conditions set out in Article 9;

‘visual check’ means a check by sensory perception including such checks using technical equipment;

‘document’ means a paper, or an electronic medium approved under Regulation (EEC) No 2913/92, Commission Regulation (EC) No 885/2006 (16) or Regulation (EC) No 450/2008 of the European Parliament and of the Council (17), bearing information relevant in the framework of this Regulation;

‘equivalent document’, in relation to a T5 control copy, means the national document referred to in Articles 8, 8a and 9 of Regulation (EC) No 800/1999, used where a national procedure is applied pursuant to Article 912a(5) of Regulation (EEC) No 2454/93;

‘product sectors’ are the sectors as set out in Article 1 of Regulation (EC) No 1234/2007, with the exception of cereals and rice covered by Parts I and II of Annex I to that Regulation which shall be treated as a single product sector, and goods not covered by Annex I to the Treaty, which shall be treated as a single product sector.

physical checks on products in accordance with Article 4, at the time the customs export formalities are completed and before authorisation is given for the products in question to be exported, on the basis of documents submitted in support of the export declaration;

checks on the integrity of seals in accordance with Article 7;

substitution checks in accordance with Article 8;

specific substitution checks in accordance with Article 9; and

scrutiny of the documents in the payment application file in accordance with Article 12.

per customs office of export;

per calendar year; and

per product sector.

replace the rate of 5 % per product sector by a rate of 5 % covering all product sectors, in which case, a minimum rate of 2 % shall be compulsory per product sector;

replace the rate of 5 % per customs office by a rate of 5 % for its entire territory and of 5 % per product sector by a rate of 5 % covering all product sectors with a minimum rate of 2 % per product sector.

a minimum rate of 0,5 % per customs office or of 0,5 % for the entire territory of the Member State shall apply for goods not covered by Annex I to the Treaty. The percentage of physical checks carried out on those products shall not be taken into account when calculating the rate of 5 % per product sector or the overall rate of 5 % covering all products sectors;

for customs offices of export where a range of products from no more than two product sectors is presented for export by no more than five exporters, physical checks may be reduced to a minimum rate of 2 % per product sector. Product sectors with fewer than 20 export declarations per year per customs office shall not be taken into account when determining the number of product sectors. Customs offices of export may apply these rules for a full calendar year, based on the statistics for the previous calendar year, even where export declarations are made by additional exporters or for additional product sectors during the course of the year.

either quantities not exceeding:

or refund amounts of less than EUR 1 000.

the seals affixed on departure have been removed other than under customs supervision;

the seals affixed on departure have been broken;

the dispensation from sealing under Article 357(4) of Regulation (EEC) No 2454/93 has not been granted.

either quantities not exceeding:

or refund amounts of less than EUR 1 000.

the measures taken, including instructions to national departments, to apply the selection system on the basis of risk analysis, in the light of the criteria referred to in point 1 of Annex II;

the checking rates to be applied as set out in Article 6;

individual cases which could be of interest to the other Member States.

the number of export declarations taken into account for the physical checks;

the number of physical checks carried out.

the place, date, time of arrival, time of completion of the physical check, means of transport for the products, whether the means of transport were empty, partially or completely loaded at the beginning of the control procedure, the number of samples taken for a laboratory analysis, and the name and signature of the competent officer; and

date and time of receipt of information as referred to in Article 5(7)(b) of Regulation (EC) No 800/1999, the indicated time for starting loading and completion of the loading of the products in the means of transport.

one of the entries listed in Annex III if it has carried out a physical check;

one of the entries listed in Annex IV in the case of food aid exports.

T5 control copies and equivalent documents taken into account for the purposes of the checks on the integrity of seals referred to in Article 7, for the purposes of substitution checks referred to in Article 8, and specific substitution checks referred to in Article 9;

checks on integrity of seals referred to in Article 7 carried out;

substitution checks referred to in Article 8 carried out;

specific substitution checks referred to in Article 9 carried out.

either one of the entries listed in Annex VI;

or the results of the tests if there is a discrepancy between the results and the product declared.

for those Member States having sent their notification to the Commission under Article 3(2) of Regulation (EC) No 3122/94 from 1 January 2009;

for other Member States from the date which each Member State shall determine and notify to the Commission or from 1 July 2009, whichever is earlier.

Where an exporter uses sealed facilities for automatic loading and calibrated automatic weighing of bulk products, the customs office of export shall check that the products tally with the export declaration by measuring the quantity by using the calibrated automatic weighing information, and it shall check the nature and characteristics of the products by representative sampling.

The customs office of export shall also check by sampling that:

In the rare cases where the quantity of bulk products is not recorded by a calibrated automatic weighing system, the customs office shall use any other means of checking which is satisfactory from the commercial point of view.

Where an export declaration only covers part of the cargo of a ship, the customs office of export shall ensure supervision of the physical departure of the whole cargo. To this end, when the loading process is completed, the customs office shall verify the total weight of the cargo loaded by use of the information under point 1.1 or 1.2, with, where appropriate the information in commercial documents.

Where an exporter has declared products packaged using automatic systems for bagging, canning, bottling, etc., and calibrated automatic weighing/measuring equipment, or put up in packaging or bottles within the meaning of Council Directives 75/106/EEC (1), 75/107/EEC (2) and 76/211/EEC (3), the total number of bags, cans, bottles, etc., shall in principle be counted and the nature and characteristics of the products shall be checked on the basis of a representative selection made by the customs office of export. The weight or volume shall be determined by calibrated automatic weighing/measuring or by the packaging or bottles, within the meaning of the above Directives. The customs office of export may weigh or measure one bag, can or bottle.

If the equipment has a calibrated automatic counter, the records of the automatic counter may be taken into account for the physical check on quantity. Point 1.1 shall apply mutatis mutandis.

Where an exporter uses pallets loaded with cartons, cans, etc., the customs office of export shall select representative pallets and check whether the number of cartons, cans, etc. declared is present. It shall select from these pallets a number of representative cartons, cans etc., and check whether the number of bottles, units, etc., is present.

Where the exporter does not use facilities as referred to in points 2.1 and 2.2, the customs office of export shall count the number of bags, cans, etc. The nature, characteristics and weight/volume shall be checked on the basis of a representative selection. Point 2.3 shall apply mutatis mutandis.

Where in the case of points 2.1 and 2.2 the contents and exact weight are indicated on the immediate packaging of the products, that information shall be verified only in 50 % of physical checks if the products are packed in containers or packs intended for wholesale, and the products are exported regularly by the same exporter and no non-conformities having financial consequences greater than EUR 1 000 have been found during the previous six months.

In the case of goods not covered by Annex I to the Treaty which are packaged for retail sale or subject to appropriate marking with details of content and weight on the immediate packaging and which either meet the requirements of the third subparagraph of Article 10 of Commission Regulation (EC) No 1043/2005 (4) or for which the quantities of product used are those set out in Annex III to that Regulation, the customs office of export shall begin by checking the weight and content of goods not covered by Annex I to the Treaty put up in immediate packaging against the details on the immediate packaging. It may weigh a unit without packaging. It shall then count and/or weigh – in principle – the total quantity of goods not covered by Annex I to the Treaty in immediate packaging.

Points 2.1 to 2.5 shall apply mutatis mutandis.

The customs office may take a sample to verify that no substitution has taken place.

The quantity of products used in the production of goods not covered by Annex I to the Treaty may be assumed by the customs office of export to be correct if the description and the content indicated on the immediate packaging are consistent with the details given in the export declaration or the registered manufacturing formula.

If the manufacturing formula has not yet been checked by the competent authorities, the customs office of export shall have the auditor of the competent authorities verify the formula and the identity of the goods afterwards.

For the purposes of this method for verifying the composition of goods not covered by Annex I to the Treaty, Member States shall introduce in advance a procedure whereby:

In cases where the procedure provided for in points 3.1 to 3.3 is not applied, the customs office of export shall take representative samples, without prejudice to Article 49 of Regulation (EC) No 1043/2005.

Criteria relating to the products:

Criteria relating to trade:

Criteria relating to the refund nomenclature:

Criteria relating to the exporters:

Criteria relating to irregularities: detected or suspected in certain product sectors.

Criteria relating to the customs arrangements used:

Criteria relating to the arrangements for granting export refunds:

Criteria in particular relating to substitution checks:

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In Bulgarian

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Физическа проверка Регламент (ЕО) № 1276/2008

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In Bulgarian

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Регламент (ЕО) № 2298/2001

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In Bulgarian

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Взета проба

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In Bulgarian

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Съответствие на резултатите от тестовете

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In Bulgarian

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Искане за прилагане на член 15, параграф 5 от Регламент (ЕО) № 1276/2008. Идентификация на изходното митническо учреждение или митническото учреждение на получаване на контролното копие Т5:

The number of export declarations per product sector per customs office not excluded under Article 6(6) when calculating the minimum rate of checks. If the Member State applies Article 6(2)(b), the report shall mention the total number of export declarations per product sector in its territory not excluded under Article 6(6) when calculating the minimum rate of checks.

The number and percentage of physical checks carried out per product sector per customs office. If the Member State applies Article 6(2)(b), the report shall mention the total number and percentage of physical checks carried out per product sector in its territory.

If applicable, a list of customs offices applying reduced rates of checks pursuant to Article 6(4)(b). If the Member State applies Article 6(2)(b), and if it applies Article 6(4), the report shall mention the number and percentage of physical checks carried out per product sector per customs office defined in that Article.

The number of checks by product sector which led to the detection of irregularities, the financial incidence of irregularities detected exceeding a refund value of EUR 1 000 including, where applicable, the reference number used for the communication referred to in Article 3 of Commission Regulation (EC) No 1848/2006 (1).

If applicable, the updating of the number of irregularities under Article 3 of Regulation (EC) No 1848/2006 which were communicated to the Commission in the preceding annual reports.

The requested value of refunds per product sector of declarations subjected to physical checks.

The number of T5 control copies and equivalent documents per customs office of exit or the customs office to which the T5 control copy is sent where the products for which a refund is claimed leave the Community’s customs territory, noted as:

The number and percentage of checks on the integrity of seals referred to in Article 7, carried out per customs office of exit or the customs office to which the T5 control copy is sent where the products for which a refund is claimed leave the Community’s customs territory.

The number and percentage of checks, broken down in substitution checks and specific substitution checks referred to in Articles 8 and 9, carried out per customs office of exit or the customs office to which the T5 control copy is sent where the products for which a refund is claimed leave the Community’s customs territory.

The number of T5 control copies and equivalent documents for which the seals affixed on departure have been removed other than under customs supervision, or the seals have been broken or the dispensation from sealing under Article 357(4) of Regulation (EEC) No 2454/93 has not been granted.

The number of substitution checks referred to in Article 8 of this Regulation which led to the detection of irregularities, the financial incidence of irregularities detected exceeding a refund value of EUR 1 000, including, where applicable, the reference number which is used for communication referred to in Article 3 of Regulation (EC) No 1848/2006.

The number of specific substitution checks referred to in Article 9 of this Regulation which led to the detection of irregularities, the financial incidence of irregularities detected exceeding a refund value of EUR 1 000, including, where applicable, the reference number which is used for communication referred to in Article 3 of Regulation (EC) No 1848/2006.

If applicable, the updating of the number of irregularities which were communicated to the Commission under Article 3 of Regulation (EC) No 1848/2006 in the preceding annual report.

To what extent the customs offices of exit or the customs office to which the T5 control copy is sent applied Article 15(5) and which information was given from the paying agencies concerned.

A description of the procedures for the selection of consignments for physical checks, for substitution checks and for specific substitution checks and their effectiveness.

A description of all modifications of the measures notified to the Commission under Article 11(3).

Description of the uniform system, if existent, of recording the weighting rate of risks associated with each consignment.

Description of the intervals of the periodical evaluation and revision of the assessed risks.

Description of the monitoring and feedback system in order to ensure that targeted checks are carried out or that satisfactory reasons are recorded for not doing so.

If there has not been any revision of risk evaluation (see point 5.2) for the latest reporting periods, explain why the existing evaluation still remains the appropriate means to ensure the effectiveness of physical checks.

If a risk analysis pursuant to Article 11 is not applied, explain why the existing system of checks still remains the appropriate means to ensure the effectiveness of physical checks.

Description of the measures pursuant to Article 13(1) of this Regulation which have been taken in order to improve the coordination with Regulation (EC) No 485/2008.

Description of any difficulties encountered in the application of this Regulation and the measures taken to overcome them or proposals to that end.

Evaluation whether the checks have been carried out satisfactorily.

Report whether the certifying body referred to in Article 5 of Commission Regulation (EC) No 885/2006 made any statements regarding the carrying out of physical and substitution checks in its latest report pursuant to Article 5(4) of that Regulation and indicate the respective place in the report (chapter, page etc.). If the report contains recommendations on the improvement of the system of physical and substitution checks, indicate which measures have been implemented in order to improve the system.

The Member States not yet having implemented the measures as meant under point 8.2 when drawing up the annual report shall deliver this information by 31 July of the year the annual report is submitted.

Where appropriate, suggestions for improvement, either in the application of this Regulation, or in the Regulation itself.