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Scope
This Regulation lays down detailed rules for applying Regulation (EC) No 1788/2003 as regards the division of national reference quantities between deliveries and direct sales, the calculation and payment of the levy, control measures and communications from the Member States.
Division of national reference quantities between deliveries and direct sales
Each year, after the receipt of the communications referred to in Article 21, the Commission shall divide the national reference quantity laid down for each Member State in Annex I of Regulation (EC) No 1788/2003 between deliveries and direct sales in accordance with Article 1(2) of that Regulation.
The division shall be published in the Official Journal of the European Union.
Conversions
Conversions referred to in Article 6(2) of Regulation (EC) No 1788/2003 may be temporary or definitive.
Temporary conversions of individual reference quantities are conversions where, for a specific 12-month period, the producer requests to convert a quantity of milk from one reference quantity to the other.
Definitive conversions are conversions where, for a 12-month period and for the subsequent 12-month periods, the producer requests to convert a quantity of milk from one reference quantity to the other.
Information about new definitions of deliveries and direct sales
1. Member States shall inform the producers concerned of the new definitions of the terms "deliveries" and "direct sales" as introduced by Article 5(f) and (g) of Regulation (EC) No 1788/2003.
2. A definitive conversion from one reference quantity to the other by reason of the definitions referred to in paragraph 1 shall be done on the request of the producer in accordance with Article 6(2) of Regulation No 1788/2003.
Communication of individual reference quantities
Member States shall notify to the producers each new allocation or modification of their individual reference quantity by the means they consider the most appropriate, provided that it ensures that the producers have an effective knowledge of the reference quantity allocated.
CHAPTER II CALCULATION OF THE LEVY
SECTION 1 GENERAL RULES
Method for the calculation of the levy
Milk or milk products marketed within the meaning of Article 5(h) of Regulation (EC) No 1788/2003 shall be taken into account for calculating the levy at the moment they leave any holding on the territory of the Member State or are used at the holding for commercial purposes.
Where milk or milk products leave the holding for the purpose of destruction in application of sanitary measures pursuant to a decision of the competent authority of the Member State, the quantities concerned shall not be taken into account as deliveries or direct sales.
Milk which leaves the holding for treatment or processing under contract shall be deemed deliveries.
Amendments to the individual reference fat content
1. Where additional reference quantities are allocated from the national reserve, the reference fat content referred to in Article 9 of Regulation (EC) No 1788/2003 shall remain unchanged.
2. Where the reference quantity for deliveries is increased or established on the basis of conversions under Article 6(2) of Regulation No 1788/2003, the reference fat content associated with the reference quantity converted into deliveries shall be 3,8 %.
However, the reference fat content of the reference quantity for deliveries shall remain unchanged if the producer provides justification therefore to the satisfaction of the competent authority.
3. In cases referred to in Articles 16, 17 and 18(1)(d), (e) and (f) of Regulation (EC) No 1788/2003, the reference fat content shall be transferred together with the reference quantity with which it is associated.
4. In cases referred to in Article 18(1)(b) and (c) of Regulation (EC) No 1788/2003, the overall reference fat content of the reference quantities allocated or transferred shall not be increased in relation to that of the quantities released. Without prejudice to Article 6(5) of Regulation No 1788/2003, the quantity of milk available for reallocation or transfer may be recalculated at a given reference fat content or, conversely, the reference fat content may be recalculated at a given available quantity of milk.
5. In the cases referred to in the first subparagraph of paragraph 2 and in paragraphs 3 and 4, the resulting reference fat content shall be equal to the average of the initial and transferred or converted reference rates, weighted by the initial and transferred or converted reference quantities.
6. In the case of producers whose entire reference quantity comes from the national reserve and who commenced production after 1 April 2004, the reference fat content shall be equal to the national reference fat content laid down in Annex II to Regulation (EC) No 1788/2003.
SECTION 2 DELIVERIES
Statement of deliveries
1. At the end of each 12-month period, purchasers shall draw up a statement for each producer showing at least the quantity and fat content of the milk delivered by the latter during that period.
In the case of leap years, the quantity of milk shall be reduced by 1/60 of the quantities delivered in February and March.
2. Before 15 May each year, purchasers shall forward to the competent authority of the Member State a declaration summarising the statements referred to in paragraph 1, showing at least the total quantity and the average fat content of the milk delivered to them and, where so required by decision of the Member State, for each producer, the reference quantity and the representative fat content, the quantity corrected in accordance with Article 10(1), the sum of the individual reference quantities and the corrected quantities and the average fat content of those producers' production.
Where applicable, purchasers shall declare that they have received no deliveries during the period concerned.
3. The Member State shall require purchasers who fail to comply with the time limit referred to in paragraph 2 to pay an amount equal to the levy due for a 0,01 % overrun of the quantities of milk delivered to them by producers for each calendar day of delay. Where those quantities are not known because no declaration has been made, they shall be estimated by the competent authority. That amount may not be less than EUR 100 nor more than EUR 100000.
4. Where no declaration is submitted before 1 July, Member States shall either withdraw approval or require payment of an amount in proportion to the volume of milk involved and the seriousness of the irregularity.
The first subparagraph shall apply 30 days after the Member State has served notice.
Paragraph 3 shall continue to apply during the period of notice.
5. The penalties referred to in paragraphs 3 and 4 shall not be imposed where the Member State recognises a case of force majeure or establishes that the irregularity was not committed deliberately or as a result of serious negligence, or where the irregularity is negligible in terms of the functioning of the scheme or the effectiveness of the checks.
Adjustment of individual reference fat content
1. For the application of Article 9(5) of Regulation (EC) No 1788/2003, Member States shall record before 1 July each year of any overrun of the national reference fat content for the 12-month period ending 31 March of that year.
2. The individual reference fat content shall be adjusted by the same coefficient for all producers so that for each Member State the weighted average of the individual representative fat contents does not exceed by more than 0,1 gram per kg the reference fat content set in Annex II to Regulation (EC) No 1788/2003. The adjustment shall be notified to producers before 1 August and shall apply from the 12-month period starting 1 April of that year.
Comparisons of the reference and real fat content
1. In order to enable each producer to draw up the statement referred to in Article 8(1) of this Regulation and pursuant to Article 10(1) of Regulation (EC) No 1788/2003, the average fat content of the milk delivered by the producer shall be compared with the producer's reference fat content referred to in Article 9(1) of that Regulation.
If a positive difference is found, the quantity of milk delivered shall be increased by 0,18 % per 0,1 gram of additional fat per kilogram of milk.
If a negative difference is found, the quantity of milk delivered shall be decreased by 0,18 % per 0,1 gram of fat less per kilogram of milk.
Where the quantity of milk delivered is expressed in litres, the 0,18 % adjustment per 0,1 gram of fat content shall be multiplied by the coefficient 0,971.
2. The Member States shall establish the adjustment of deliveries at national level in accordance with Article 10(2) of Regulation (EC) No 1788/2003.
SECTION 3 DIRECT SALES
Declarations of direct sales
1. At the end of each 12-month period, each producer shall make a declaration summarising by product any of his direct sales.
In the case of leap years, the quantity of milk or milk equivalent shall be reduced by 1/60 of the quantities sold in February and March or by 1/366 of the quantities sold in the 12-month period concerned.
2. Before 15 May each year, producers shall forward the declaration provided for in paragraph 1 to the competent authority of the Member State.
The Member State may require producers with reference quantities for direct sales to declare that they have not sold or transferred any milk or other milk products during the period concerned, where such is the case.
3. Member States shall require producers who fail to comply with the time limit referred to in paragraph 2 to pay an amount equal to the levy due for a 0,01 % overrun of their reference quantity for direct sales for each calendar day of delay. However, that amount may not be less than EUR 100 nor more than EUR 1000.
Where the national reference quantity for direct sales has also been overrun, producers who have overrun their reference quantity shall also be required to pay a contribution to the levy calculated on the full overrun of their reference quantity and may not benefit from any reallocation of unused reference quantities as provided for in Article 12(1) of Regulation (EC) No 1788/2003.
Where producers submit incorrect declarations, the Member State shall require them to pay an amount in proportion to the quantity of milk concerned and the seriousness of the irregularity, up to a maximum amount equal to the theoretical levy applicable to the quantity of milk resulting once the correction is applied, multiplied by 1,5.
4. Where no declaration is submitted before 1 July, the reference quantity for direct sales of the producer concerned shall revert to the national reserve 30 days after the Member State has served notice. The first subparagraph of paragraph 3 of this Article shall continue to apply during the period of notice.
5. Penalties referred to in paragraphs 3 and 4 shall not be imposed where the Member State recognises a case of force majeure or establishes that the irregularity was not committed deliberately or as a result of serious negligence, or where the irregularity is negligible in terms of the functioning of the scheme or the effectiveness of the checks.
Equivalences
1. For products marketed other than milk, the Member States shall establish the quantities of milk used for processing. To that end, the equivalence formulae to be used shall be:
(a) 1 kg cream = 0,263 kg milk × % fat content of cream, expressed as mass;
(b) 1 kg butter = 22,5 kg milk.
In the case of cheese and all other milk products, Member States shall determine equivalences using, in particular, the dry-matter content and the fat content of the types of cheese or products concerned.
If the producer can provide proof to the satisfaction of the competent authority of the quantities actually used for processing of the products concerned, the Member State can use such proof in place of the equivalences referred to in the first and second subparagraphs.
2. If it proves difficult to determine the quantities of milk used for processing on the basis of the products marketed, the Member States may fix the quantities of milk equivalent on a flat-rate basis by reference to the number of dairy cows held by the producer and an average milk yield per cow representative of the herd.
CHAPTER III PAYMENT OF THE LEVY
Notification of the levy
1. In the case of deliveries, the competent authority shall notify or confirm to purchasers the contributions to the levy payable by them after reallocating, or not, by decision of the Member State, all or part of the unused reference quantities either directly to the producers concerned or, as the case may be, to purchasers with a view to their subsequent allocation among the producers concerned.
2. In the case of direct sales, the competent authority shall notify to producers the contributions to the levy payable by them after reallocating, or not, by decision of the Member State, all or part of the unused reference quantities directly to the producers concerned.
3. No reallocation shall be made at national level of unused quantities between delivery and direct sales reference quantities.
Exchange rates
The operative event for the conversion rate for the payment of the levy for a given period shall be 31 March of the period concerned.
Time limit for payment
1. Before 1 September each year, purchasers and, in the case of direct sales, producers liable for the levy shall pay the competent authority the amount due in accordance with rules laid down by the Member State.
2. Where the time limit for payment referred to in paragraph 1 is not complied with, the sums due shall bear interest annually at the three-month reference rates applicable on 1 September each year, as referred to in Annex II, plus one percentage point.
The interest shall be paid to the Member State.
3. The Member States shall declare to the European Agricultural Guidance and Guarantee Fund (EAGGF) the amounts resulting from the application of Article 3 of Regulation (EC) No 1788/2003 together with the expenditure declared in respect of September each year at the latest.
4. Where the set of documents referred to in Article 3(5) of Commission Regulation (EC) No 296/96(3) shows that the time limit referred to in paragraph 3 of this Article has not been met, the Commission shall reduce advances on entry in the accounts of agricultural expenditure in proportion to the amount due or an estimate thereof, in accordance with Article 3(2) of Regulation No 1788/2003.
Criteria for redistributing the excess levy
1. Where appropriate, Member States shall determine the priority categories of producers referred to in Article 13(1)(b) of Regulation (EC) No 1788/2003, on the basis of one or more of the following objective criteria, in order of priority:
(a) formal acknowledgement by the competent authority of the Member State that all or part of the levy has been wrongly charged;
(b) the geographical location of the holding, and primarily mountain areas within the meaning of Article 18 of Council Regulation (EC) No 1257/1999(4);
(c) the maximum stocking density on the holding for the purposes of extensive livestock production;
(d) the percentage by which the individual reference quantity is exceeded;
(e) the producer's reference quantity.
2. Where the excess levy, referred to in Article 13(1) of Regulation (EC) No 1788/2003, available for a given period, is not used up after redistribution in accordance with the criteria set out in paragraph 1 of this Article, the Member State shall adopt other objective criteria after consulting the Commission.
The redistribution of the excess levy shall be completed 15 months after the end of the 12-month period in question at the latest.
Charge of the levy
Member States shall take all the measures necessary to ensure that the levy is correctly charged and that it falls on the producers who contributed to the overrun.
CHAPTER IV CONTROLS BY THE MEMBER STATES AND OBLIGATIONS OF PURCHASERS AND PRODUCERS
SECTION 1 CONTROLS
National control measures
Member States shall take all the control measures in order to ensure that this Regulation is complied with and in particular the measures referred to in Articles 19 to 22.
Control plan
1. Member States shall draw up a general control plan for each 12-month period on the basis of risk analysis. This control plan shall include at least:
(a) the criteria adopted for drawing up the plan;
(b) the purchasers and producers selected;
(c) on-the-spot checks to be executed regarding the 12-month period;
(d) the controls of transport between producers and purchasers;
(e) the controls of the yearly declarations of producers or purchasers.
Member States may decide to update the general control plan by more detailed periodic plans.
The representativeness of the operators active in the milk sector shall be taken into consideration as regards the risk analysis as well as seasonality of production for the timing of the controls.
2. Controls shall be carried out partly during the 12-month period in question, partly after the 12-month period on the basis of the yearly declarations.
3. Controls shall be deemed to be completed once an inspection report of the controls is available.
All inspection reports shall be completed no later than 18 months after the end of the 12-month period concerned.
However where the controls as foreseen in Article 20 are combined with other controls, the time limits laid down for other controls and the establishment of the respective inspection reports have to be respected.
On-the spot-checks
On-the-spot checks shall be unannounced. However, provided that the purpose of the control is not jeopardised, advance notice limited to the strict minimum necessary may be given.
Where appropriate, on-the-spot checks provided for in this Regulation, as well as any other checks provided for in Community rules, shall be carried out at the same time.
Controls on deliveries and direct sales
1. As regards deliveries, controls shall be executed at farm level, during transport of the milk and at purchaser level. At all stages Member States shall physically check by means of on-the-spot checks the accuracy of registration and accounting of the milk marketed and in particular:
(a) at farm level, the status of producer within the meaning of Article 5(c) of Regulation (EC) No 1788/2003 as well as the compatibility between deliveries and production capacity;
(b) at transport level, the document referred to in Article 24(4) of this Regulation, the accuracy of the instruments for measuring milk volume and quality, the accuracy of the collection method, including possible intermediate collection points, the accuracy of quantity of collected milk at unloading;
(c) at purchaser level, the accuracy of declarations referred to in Article 8 of this Regulation, in particular by cross-checks to documents referred to in Article 24(2) to (5) of this Regulation as well as the credibility of the records of stocks and deliveries referred to in Article 24(2) and (3) of this Regulation in the light of the commercial documents and other documents showing how the milk collected has been used.
2. As regards direct sales, controls shall cover in particular:
(a) at farm level, the status of producer within the meaning of Article 5(c) of Regulation (EC) No 1788/2003 as well as the compatibility between direct sales and production capacity;
(b) the accuracy of the declaration referred to in Article 11(1) of this Regulation, in particular by means of documents referred to in Article 24(6) of this Regulation.
Intensity of controls
1. The controls referred to in Article 21(1) shall cover at least:
(a) 1 % of producers for the 12-month period 2004/05, 2 % of producers for the following 12-month periods;
(b) 40 % of the quantity of milk declared before correction for the period concerned;
(c) a representative sample of transport of milk between selected producers and purchasers.
The transport controls referred to in point (c) shall be carried out in particular at unloading at the dairies.
2. Controls referred to in Article 21(2) shall cover at least 5 % of producers.
3. Each purchaser shall be controlled at least once in five years.
SECTION 2 OBLIGATIONS
Approval of purchasers
1. To be able to buy milk from producers and to operate in the territory of a Member State, purchasers must be approved by that Member State.
2. Without prejudice to stricter rules laid down by the Member State concerned, purchasers shall be approved only where they:
(a) provide proof of their status as dealers under national provisions;
(b) have premises in the Member State concerned where the stock records, registers and other documents referred to in Article 24(2) may be consulted by the competent authority;
(c) undertake to keep up to date the stock records, registers and other documents referred to in Article 24(2);
(d) undertake to forward the statements and declarations provided for in Article 8(2) to the competent authority of the Member State concerned at least once a year.
3. Without prejudice to the penalties laid down by the Member State concerned, approval shall be withdrawn where the conditions laid down in paragraph 2(a) and (b) are no longer met.
Where it is found that a purchaser has forwarded an incorrect statement or declaration, or has failed to comply with the undertaking referred to in paragraph 2(c) or has repeatedly failed to comply with any other obligation imposed under Regulation (EC) No 1788/2003, this Regulation or the relevant national rules, the Member State shall either withdraw approval or require payment of an amount in proportion to the volume of milk involved and the seriousness of the irregularity.
4. Approval may be reinstated at the request of the purchaser after a period of at least six months, provided that a further thorough inspection gives satisfactory results.
The penalties referred to in paragraph 3 shall not be imposed where the Member State recognises a case of force majeure or establishes that the irregularity was not committed deliberately or as a result of serious negligence, or where the irregularity is negligible in terms of the functioning of the scheme or the effectiveness of the checks.
Obligations of purchasers and producers
1. Producers shall ensure that purchasers to whom they deliver are approved. The Member States shall lay down penalties where deliveries are made to non-approved purchasers.
2. Purchasers shall keep available for the competent authority of the Member State, for at least three years from the end of the year in which the documents are drawn up, stock records per 12-month period with details of the name and address of each producer, the information referred to in Article 8(2), entered every month or four-week period in the case of quantities delivered and annually in the case of the other data, together with the commercial documents, correspondence and other information referred to in Council Regulation (EEC) No 4045/89(5), permitting such stock records to be verified.
3. Purchasers shall be responsible for recording all quantities of milk delivered to them. To that end, they shall keep available for the competent authority, for at least three years from the end of the year in which the documents are drawn up, the list of purchasers and undertakings treating or processing milk supplying them with milk and, for each month, the quantities delivered by each supplier.
4. On collection at holdings, milk shall be accompanied by a document identifying the delivery. In addition, purchasers shall keep a record of each individual delivery for at least three years from the end of the year in which the record is drawn up.
5. Producers making deliveries shall keep available for the competent authority of the Member State, for at least three years from the end of the year in which the documents are drawn up, the documents regarding the quantities of milk delivered to the purchasers. The producer in question shall also keep available for the competent authority the registers of livestock held on holdings and used for milk production, in accordance with Article 7 of Regulation (EC) No 1760/2000 of the European Parliament and of the Council(6).
6. Producers making direct sales shall keep available for the competent authority of the Member State, for at least three years from the end of the year in which the documents are drawn up, stock records drawn up by 12-month period and giving details, per month and per product, of any sale or transfer of milk or milk products as well as of products which have been produced but not sold or transferred.
They shall also keep available for the competent authority the registers of livestock held on holdings and used for milk production, in accordance with Article 7 of Regulation (EC) No 1760/2000, and supporting documents enabling such stock records to be verified.
CHAPTER V COMMUNICATIONS
Communications for the division between deliveries and direct sales
1. Before 1 July 2004, the Member States shall notify to the Commission the division between deliveries and direct sales of individual reference quantities resulting from the application of Article 6(1) of Regulation (EC) No 1788/2003, converted if necessary in accordance with Article 4(2) of this Regulation.
2. Before 1 February each year, in accordance with Article 8(2)(a) of Regulation (EC) No 1788/2003, the Member States shall notify the quantities which have been definitively converted at the request of the producers between individual reference quantities for deliveries and for direct sales.
Questionnaire
1. Before 1 September each year the Member States shall communicate to the Commission the questionnaire set out in Annex I, duly completed pursuant to Article 8(2)(b) of Regulation (EC) No 1788/2003.
Portugal shall complete the questionnaire providing additional information in order to distinguish calculation of the levy between mainland and Azores pursuant to Council Regulation (EC) No 1453/2001(7).
2. Where the requirements of paragraph 1 are not met, the Commission shall withhold a flat-rate amount, in accordance with Article 14 of Council Regulation (EC) No 2040/2000(8), from advances on the entry in the accounts of the agricultural expenditure of the Member States. That amount shall be equal to the levy payable for a theoretical overrun of the overall reference quantity concerned calculated as follows:
(a) where the questionnaire is not forwarded by 1 September or if data essential for calculating the levy are missing, the percentage of the theoretical overrun shall be 0,005 % for each week of delay;
(b) if a discrepancy of more than 10 % is found between the sum of the quantities delivered or sold directly, as notified in the updates provided for in paragraph 3 of this Article, and those given in the initial response to the questionnaire, the percentage of the theoretical overrun shall be 0,05 %.
3. Where the information required by the questionnaire changes, in particular as a result of the checks provided for in Articles 18 to 21, the Member State concerned shall communicate an update of the questionnaire to the Commission before 1 December, 1 March, 1 June and 1 September each year.
Other communications
1. Member States shall notify to the Commission measures adopted to apply Regulation (EC) No 1788/2003 and this Regulation, and any amendments thereto, within one month following their adoption. In case of measures adopted pursuant to Articles 16, 17 and 18 of Regulation (EC) No 1788/2003 or pursuant to Article 7 of this Regulation, an explanation of the measures adopted and of their aim shall be joint to the notification.
2. Member States shall notify to the Commission the method(s) used for the purposes of this Regulation to measure mass or, where applicable, to convert volume into mass, the reasoning behind the coefficients selected, and the exact circumstances in which they apply, together with any subsequent amendments thereto.
3. Before 1 September 2004, Member States shall notify to the Commission a short report on the system for administering their national references quantities, and before 1 September of each following year, in case of changes to that system, an update of that report.
The report shall comprise a description of the current situation, in particular as regards the measures adopted in case of temporary transfers, transfers with land, other specific transfer measures, the use of the re-allocation of unused quantities and the recourse to the national reserve.
CHAPTER VI FINAL PROVISIONS
Repeal
Regulation (EC) No 1392/2001 is repealed.
However, it shall continue to apply in respect of the period 2003/04, and, where necessary, previous periods unless otherwise provided by Council Regulation (EC) No 1788/2003.
References to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex III.
Entry into force
This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Union.
It shall apply from 1 April 2004.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 30 March 2004.
For the Commission
Franz Fischler
Member of the Commission
(1) OJ L 270, 21.10.2003, p. 123.
(2) OJ L 187, 10.7.2001, p. 19.
(3) OJ L 39, 17.2.1996, p. 5.
(4) OJ L 160, 26.6.1999, p. 80.
(5) OJ L 388, 30.12.1989, p. 18.
(6) OJ L 204, 11.8.2000, p. 1.
(7) OJ L 198, 21.7.2001, p. 26.
(8) OJ L 244, 29.9.2000, p. 27.
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ANNEX II
Reference interest rates referred to in Article 15(2)
- For Member States in the euro zone
Euro interbank borrowing offered rate (EURIBOR)
- For Denmark
Copenhagen interbank borrowing offered rate (CIBOR)
- For Sweden
Stockholm interbank borrowing offered rate (STIBOR)
- For the United Kingdom
London interbank borrowing offered rate (LIBOR)
- For Cyprus
Nicosia interbank borrowing offered rate (NIBOR)
- For Czech Republic
Prague interbank borrowing offered rate (PRIBOR)
- For Estonia
Tallinn interbank borrowing offered rate (TALIBOR)
- For Hungary
Budapest interbank borrowing offered rate (BUBOR)
- For Lithuania
Vilnius interbank borrowing offered rate (VILIBOR)
- For Latvia
Riga interbank borrowing offered rate (RIGIBOR)
- For Malta
Malta interbank borrowing offered rate (MIBOR)
- For Poland
Warsaw interbank borrowing offered rate (WIBOR)
- For Slovenia
Slovenian interbank borrowing offered rate (SITIBOR)
- For Slovakia
Bratislava interbank borrowing offered rate (BRIBOR)
ANNEX III
Correlation table
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Commission Regulation (EC) No 595/2004 of 30 March 2004 laying down detailed rules for applying Council Regulation (EC) No 1788/2003 establishing a levy in the milk and milk products sector (EUR-Lex). Retrieved via LawPlayer, https://lawplayer.com/eu/act/32004R0595
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