Commission Regulation (EU) No 578/2010 of 29 June 2010 on the implementation of Council Regulation (EC) No 1216/2009 as regards the system of granting export refunds for certain agricultural products exported in the form of goods not covered by Annex I to the Treaty, and the criteria for fixing the amount of such refunds

• CELEX: Regulation (EU) No 578/2010
• Articles: 64

Article 1

1.   This Regulation lays down rules for the implementation of Regulation (EC) No 1216/2009 as regards the system of granting export refunds established pursuant to Regulation (EC) No 1234/2007.

It shall apply to exports of basic products, of products derived from the processing thereof, or of products assimilated to one of those two categories in accordance with Article 3 of this Regulation, where those products are exported in the form of goods not covered by Annex I to the Treaty but listed in Parts I to V of Annex XX to Regulation (EC) No 1234/2007 and in Annex II to this Regulation.

2.   The export refund referred to in paragraph 1 shall not be granted in respect of goods put into free circulation in accordance with Article 29 of the Treaty and re-exported.

No refund shall be granted for such goods where they are exported after processing or when they are incorporated in other goods.

3.   Except in the case of cereals, no refund shall be granted for products used in the manufacture of alcohol contained in the spirituous beverages referred to in Annex II and falling within CN code 2208 .

Article 2

1.   For the purposes of this Regulation, the following definitions shall apply:

(a)

‘budget period’ means the period from 1 October of one year to 30 September of the following year;

(b)

‘budget year’ means the period from 16 October of one year to 15 October of the following year;

(c)

‘basic products’ means products listed in Annex I to this Regulation;

(d)

‘ingredients’ means basic products, products derived from the processing thereof, or products assimilated to those two categories that are used in the manufacturing of the goods and are listed in points (i), (ii), (iii), (v) and (vii) of Article 162(1)(a) and point (b) of Article 162(1) of Regulation (EC) No 1234/2007;

(e)

‘goods’ means products not covered by Annex I to the Treaty but listed in Parts I to V of Annex XX to Regulation (EC) No 1234/2007 and in Annex II to this Regulation;

(f)

‘the Agreement’ means the Agreement on Agriculture concluded during the Uruguay Round of multilateral trade negotiations;

(g)

‘food aid’ means food aid operations meeting the conditions laid down in Article 10(4) of the Agreement;

(h)

‘residues’ means the products of the manufacturing process, of compositions distinctly different from the goods actually exported and which cannot be marketed;

(i)

‘by-products’ means the products or goods obtained in the course of the manufacturing process, of compositions or characteristics distinct from the goods actually exported and which are capable of being marketed;

(j)

‘losses’ means the quantities of products or goods resulting from the manufacturing process, from the stage at which agricultural products are used unprocessed in the manufacture, other than the quantities of goods which are actually exported, other than residues and by-products and which cannot be marketed.

2.   For the purposes of points (h), (i) and (j) of paragraph 1, the products obtained in the course of the manufacturing process, of composition distinct from the goods actually exported, sold against a payment representing exclusively the costs incurred for their disposal, shall not be considered as being marketed.

For the purposes of point (j) of paragraph 1, the products or goods resulting from the manufacturing process, and which can be disposed of, whether or not against payment, only as animal feed, shall be assimilated to losses.

Article 3

1.   Potato starch falling within CN code 1108 13 00 directly produced from potatoes, excluding sub-products, shall be assimilated to a product derived from the processing of maize.

2.   Whey falling within CN codes 0404 10 48 to 0404 10 62 not concentrated, whether or not frozen, shall be assimilated to whey in powder as listed in Annex I, hereinafter ‘Product Group 1’.

3.   The following products shall be assimilated to milk in powder of a fat content not exceeding 1,5 % as listed in Annex I, hereinafter ‘Product Group 2’:

(a)

milk and milk products falling within CN codes 0403 10 11 , 0403 90 51 and 0404 90 21 , not concentrated nor containing added sugar or other sweetening matter, whether or not frozen, of a milk fat content, by weight, not exceeding 0,1 %;

(b)

milk and milk products falling within CN codes 0403 10 11 , 0403 90 11 and 0404 90 21 , in powder, granules or other solid forms, not containing added sugar or other sweetening matter, of a milk fat content, by weight, not exceeding 1,5 %.

4.   The following products shall be assimilated to milk in powder of a fat content of 26 % as listed in Annex I, hereinafter ‘Product Group 3’:

(a)

milk, cream and milk products falling within CN codes 0403 10 11 , 0403 10 13 , 0403 90 51 , 0403 90 53 , 0404 90 21 and 0404 90 23 , not concentrated nor containing added sugar or other sweetening matter, whether or not frozen, of a milk fat content, by weight, exceeding 0,1 % but not exceeding 6 %;

(b)

milk, cream and milk products falling within CN codes 0403 10 11 , 0403 10 13 , 0403 10 19 , 0403 90 13 , 0403 90 19 , 0404 90 23 and 0404 90 29 in powder, granules or other solid forms, not containing added sugar or other sweetening matter, of a milk fat content, by weight, exceeding 1,5 % but less than 45 %.

5.   The following products shall be assimilated to Product Group 6:

(a)

milk, cream and milk products falling within CN codes 0403 10 19 , 0403 90 59 , 0404 90 23 and 0404 90 29 , not concentrated nor containing added sugar or other sweetening matter, of a milk fat content, by weight, exceeding 6 %;

(b)

milk, cream and milk products falling within CN codes 0403 10 19 , 0403 90 19 and 0404 90 29 , in powder, granules or other solid forms, not containing added sugar or other sweetening matter, of a milk fat content, by weight, of not less than 45 %;

(c)

butter and other milk fats with a milk fat content, by weight, other than 82 % but not less than 62 %, falling within CN codes 0405 10 , 0405 20 90 , 0405 90 10 , 0405 90 90 .

6.   Milk, cream and milk products falling within CN codes 0403 10 11 to 0403 10 19 , 0403 90 51 to 0403 90 59 and 0404 90 21 to 0404 90 29 , concentrated, other than in powder, granules or other solid forms, not containing added sugar or other sweetening matter, shall, so far as the non-fat part of the dry matter content of such a product is concerned, be assimilated to Product Group 2. So far as the milk fat part of such a product is concerned, it shall be assimilated to Product Group 6.

The first subparagraph shall also apply to cheese and curd.

7.   Husked rice falling within CN code 1006 20 and semi-milled rice falling within CN codes 1006 30 21 to 1006 30 48 shall be assimilated to wholly-milled rice falling within CN codes 1006 30 61 to 1006 30 98 .

8.   Where the following products meet the conditions of eligibility for a refund laid down in Regulation (EC) No 1234/2007 and in Commission Regulation (EC) No 951/2006  ( 10 ) when exported unprocessed, they shall be assimilated to white sugar falling within CN code 1701 99 10 :

(a)

raw beet or cane sugar falling within CN code 1701 11 90 or CN code 1701 12 90 and containing, in the dry state, at least 92 % by weight of sucrose determined by the polarimetric method;

(b)

sugar falling within CN codes 1701 91 00 or 1701 99 90 ;

(c)

the products referred to in Part III (c) of Annex I to Regulation (EC) No 1234/2007, excluding mixtures obtained partly using products covered by Part I of Annex I to Regulation (EC) No 1234/2007;

(d)

the products referred to in Part III (d) and (g) of Annex I to Regulation (EC) No 1234/2007, excluding mixtures obtained partly using products covered by Annex I to Regulation (EC) No 1234/2007.

Article 4

Regulation (EC) No 612/2009 and Regulation (EEC) No 2220/85 shall apply in addition to the provisions of this Regulation except where Article 39(4) and Article 50 of this Regulation provide otherwise.

Article 5

1.   The amount of the refund granted for the quantity, determined in accordance with Section 2, of each of the basic products exported in the form of the same type of goods shall be obtained by multiplying that quantity by the rate of the refund for the basic product calculated per unit of weight in accordance with Section 3.

2.   Where, pursuant to Article 15(2), different refund rates are fixed for a particular basic product, a separate amount shall be calculated for each of the quantities of the basic product for which there is a different refund rate.

3.   Where goods are used in the manufacture of the goods exported, the refund rate to be used in calculating the amount applying to each of the basic products, to products derived from the processing thereof, or to products assimilated to one of those two categories in accordance with Article 3 which were used in the manufacture of the goods exported, shall be the rate applicable when the former goods are exported unprocessed.

Article 6

In respect of goods, the quantity of each of the basic products to serve as a basis for calculating the amount of the refund, hereinafter ‘the reference quantity’, shall be determined in accordance with Articles 7, 8 and 9, except where reference is made to Annex III or where Article 47(2) applies.

Article 7

In the case of use of a basic product, unprocessed, or of an assimilated product, the reference quantity shall be the quantity which is actually used in the manufacture of the exported goods, account being taken of the conversion rates set out in Annex VII.

Article 8

1.   In cases of use of a product covered by point (a) of Article 1(1) and Part I of Annex I to Regulation (EC) No 1234/2007 or by point (b) of Article 1(1) and Part II of Annex I to Regulation (EC) No 1234/2007, the reference quantity shall be the quantity which is actually used in the manufacture of the exported goods, adjusted to correspond to a quantity of the basic product by applying the coefficients set out in Annex V to this Regulation where one of the following applies to the product concerned:

(a)

the product results from the processing of a basic product or of a product assimilated to that basic product;

(b)

the product is assimilated to a product resulting from the processing of a basic product;

(c)

the product results from the processing of a product assimilated to a product resulting from the processing of a basic product.

2.   By way of derogation from paragraph 1, the reference quantity for grain spirit contained in spirituous beverages falling within CN code 2208 , shall be 3,4 kg of barley per % vol. of alcohol derived from cereals per hectolitre of the spirituous beverage exported.

Article 9

1.   Subject to Article 11, in the case of use of either of the following products, the reference quantity for each of the basic products shall be equal to the quantity established by the competent authorities in accordance with Article 45:

(a)

a product, not covered by Annex I to the Treaty, which is derived from the processing of a product referred to in Articles 7 or 8 of this Regulation;

(b)

a product derived from the mixture or processing of several products referred to in Articles 7 or 8, or of products referred to in point (a) of this subparagraph.

The reference quantity shall be determined on the basis of the quantity of the product actually used in the manufacture of the goods exported.

For the purpose of calculating that quantity, the conversion rates referred to in Annex VII or, as the case may be, the special rules for calculation, equivalence ratios and coefficients referred to in Article 8 shall apply.

2.   By way of derogation from paragraph 1 the cereal-based spirituous beverages contained in spirituous beverages falling within CN code 2208 , the reference quantity shall be 3,4 kg of barley per % vol. of alcohol derived from cereals per hectolitre of the spirituous beverage exported.

Article 10

1.   For the purposes of Articles 6 to 9, the products used unprocessed in the manufacture of exported goods shall be considered as actually used.

2.   Where, during one of the stages of manufacture of such goods, a basic product is itself processed into another more elaborate basic product and used at a later stage, only the latter basic product shall be considered as actually used.

3.   The quantities of products actually used, within the meaning of paragraph 1, shall be determined for each of the goods exported.

4.   By way of derogation from paragraphs 1, 2 and 3, in the case of regular exports of goods manufactured by a particular undertaking under clearly defined technical conditions and having constant characteristics and quality, those quantities may, upon agreement with the competent authorities, be determined either from the manufacturing formula for the goods or from the average quantities of product used over a specified period in the manufacture of a given quantity of these goods. The quantities of products thus determined shall remain the basis of calculation so long as there is no change in the conditions under which the goods are manufactured.

Except in the case of a formal authorisation given by the competent authority, the quantities of products thus determined shall be confirmed at least once a year.

Article 11

1.   In respect of the goods listed in Annex III, the reference quantity in kilograms of basic product per 100 kg of goods shall be that shown in that Annex against each of those goods.

However, in the case of fresh pasta, the quantities of basic products set out in Annex III shall be reduced to an equivalent quantity of dry pasta by multiplying those quantities by the percentage of the dry extract of the pasta and dividing them by 88.

2.   Where the goods listed in Annex III have been manufactured partly from products for which the payment of export refund is covered by Regulation (EC) No 1234/2007 and partly from other products, the reference quantity in respect of those former products shall be determined in accordance with Articles 6 to 10.

Article 12

1.   For the purposes of determining the quantities of agricultural products actually used, paragraphs 2 and 3 shall apply.

2.   All agricultural products, used within the meaning of Article 10 and conferring a right to a refund, which disappear during the normal course of the manufacturing process in such forms as steam or smoke or by conversion into non-recoverable powder or ash, shall be eligible for that refund in respect of all of the quantities used.

3.   Any quantity of goods which is not actually exported shall not be eligible for refunds in respect of the quantities of agricultural products actually used.

If such goods have the same composition as those actually exported, a pro rata reduction in the quantities of agricultural products actually used in the manufacture of the latter may be applied.

Article 13

1.   By way of derogation from Article 12(3), losses of 2 % or less by weight inherent in the manufacture of the goods shall be eligible for refunds.

The threshold of 2 % shall be calculated as the proportion of the weight of the dry matter of all raw materials used, after deduction of the quantities referred to in Article 12(2), in relation to the weight of the dry matter of the goods actually exported, or using any other method of calculation appropriate to the conditions of manufacture of the goods.

2.   Where the losses inherent in manufacture of the goods exceed 2 %, the excess loss shall not be eligible for refunds in respect of the quantities of agricultural products actually used. The competent authorities of Member States may, however, accept properly justified higher losses. Member States shall communicate to the Commission the cases in which the competent authorities have accepted higher losses, as well as their reasons for such acceptance.

3.   The quantities of agricultural products actually used incorporated in residues shall be eligible for refunds.

4.   In cases where by-products are obtained, the quantities of agricultural products actually used shall be attributed respectively to the goods exported and to the by-products.

Article 14

1.   The rate of refund on the basic products listed in Annex I to this Regulation exported in the form of goods not covered by Annex I to the Treaty, as provided for in Article 164 of Regulation (EC) No 1234/2007, shall be fixed by the Commission per 100 kg of basic product for the same period as that for the refunds on those products exported in the unprocessed state.

2.   By way of derogation from paragraph 1, the refund may be fixed according to another timetable determined in accordance with the procedure referred to in Article 16(2) of Regulation (EC) No 1216/2009.

Article 15

1.   The rate of the refund shall be determined by the Commission with particular reference to the following:

(a)

the average cost incurred by the processing industries in obtaining supplies of basic products on the Union market and the prices prevailing on the world market;

(b)

the level of the refund for exports of processed agricultural products covered by Annex I to the Treaty which are manufactured under similar conditions;

(c)

the need to ensure equal conditions of competition between industries which use Union products and those which use third country products under inward processing arrangements;

(d)

on the one hand, the trend in budgetary expenditure and, on the other hand, the trend in market prices for basic products in the Union and on the world market;

(e)

compliance with the limits resulting from agreements concluded in accordance with Article 218 of the Treaty.

2.   In fixing the rates of the refund account shall be taken, where appropriate, of aids or other measures, having equivalent effect, applicable in all Member States to basic products or to assimilated products in accordance with Regulation (EC) No 1234/2007.

3.   The refunds granted for exports of agricultural products incorporated in goods not covered by Annex I to the Treaty may not exceed the refunds that are payable on those products when exported in the unprocessed state.

Article 16

1.   In the case of potato starch falling within CN code 1108 13 00 , the rate of the refund shall be fixed separately, in maize equivalent, in accordance with the procedure referred to in Article 195(2) of Regulation (EC) No 1234/2007 by applying the criteria set out in Article 15(1) of this Regulation. The quantities of potato starch used shall be converted into equivalent quantities of maize in accordance with Article 8 of this Regulation.

2.   In the case of D-glucitol (sorbitol) mixtures falling within CN codes 2905 44 and 3824 60 , where the party concerned does not draw up the declaration referred to in Article 45 giving the information required under point (d) of Article 48(1) or where the party concerned does not provide satisfactory documentation in support of his declaration, the rate of refund for those mixtures shall be that for the basic product to which the lowest rate of refund applies.

Article 17

1.   Refunds for starches falling within CN code 1108 11 00 to 1108 19 90 or products listed in point (d) of Part I of Annex I to Regulation (EC) No 1234/2007 resulting from the processing of such starches shall be granted only on production of a declaration from the supplier of those products attesting that they have been directly produced from cereals, potatoes or rice, excluding all use of sub-products obtained in the production of other agricultural products or goods.

2.   The declaration referred to in paragraph 1 shall apply, until revocation, to all supplies from the same producer. It shall be verified in accordance with Article 45.

Article 18

1.   Where the dry-extract content of potato starch assimilated to maize starch pursuant to Article 3(1) is 80 % or higher, the rate of the export refund shall be that laid down in accordance with Article 14. Where the dry-extract content is less than 80 %, the rate of the refund shall be that laid down in accordance with Article 14 multiplied by 1/80 of the actual dry-extract percentage.

For all other starches with a dry-extract content of 87 % or more, the rate of the export refund shall be that laid down in accordance with Article 14. Where the dry-extract content is less than 87 %, the rate of the refund shall be that laid down in accordance with Article 14 multiplied by 1/87 of the actual dry-extract percentage.

2.   Where the dry-extract content of glucose or maltodextrin syrups falling within CN codes 1702 30 90 , 1702 40 90 , 1702 90 50 or 2106 90 55 is 78 % or more, the rate of the export refund shall be that laid down in accordance with Article 14. Where the dry-extract content of such syrups is less than 78 %, the rate of the refund shall be that laid down in accordance with Article 14, multiplied by 1/78th of the actual dry-extract percentage.

3.   For the purposes of paragraph 1, the dry-extract content of starches shall be determined using the method referred to in Annex IV to Commission Regulation (EC) No 687/2008  ( 11 ) and the dry matter content of glucose or maltodextrin syrups shall be determined using method 2 referred to in Annex II to Commission Directive 79/796/EEC  ( 12 ) or any other suitable method of analysis offering at least the same guarantees.

4.   When the declaration referred to in Article 45 is made, the applicant shall declare the dry-extract content of the starches or glucose or maltodextrin syrups used.

Article 19

1.   The refunds for casein falling within CN code 3501 10 , on caseinates falling within CN code 3501 90 90 or, on ovalbumin falling within CN codes 3502 11 90 and 3502 19 90 exported in the unaltered state, may be differentiated according to destination where that is required by any of the following:

(a)

the world trade situation with regard to those goods;

(b)

specific requirements of certain markets;

(c)

international trade agreements.

2.   The rate of refunds for goods falling within CN codes 1902 11 00 , 1902 19 and 1902 40 10 may be differentiated according to destination.

3.   The refund may vary according to whether or not it is fixed in advance in accordance with Article 26.

Article 20

1.   The rate of the refund shall be that which applies on the day on which the goods are exported, except in the following cases:

(a)

an application has been made in accordance with Article 26 for the refund rate to be fixed in advance;

(b)

an application has been made in accordance with Article 37(2) and the refund rate has been fixed in advance on the day the application for the refund certificate was submitted.

2.   Where the system of advance fixing of the rate of the refund is applied, the rate in force on the day on which the application for advance fixing is submitted shall apply to goods exported at a later date during the period of validity of the refund certificate as provided for in Article 35(2).

In the case of processed cereal and rice products, the rate of the refund shall be adjusted using the same rules as those that apply to the advance fixing of refunds for basic products exported unprocessed, but using the conversion coefficients laid down in Annex V.

3.   Extracts of refund certificates, within the meaning of Regulation (EC) No 376/2008, shall not be the subject of advance fixing independently of the certificates from which they are taken.

Article 21

1.   Member States shall issue to any applicant, regardless of his place of establishment in the Union, refund certificates which are valid throughout the Union.

The refund certificates shall guarantee payment of the refund, provided that the conditions set out in Chapter V are met. Those conditions may include advance fixing of the refund rates. Certificates shall be valid in a single budget period only.

2.   The granting of refunds for exports of basic products in the form of goods listed in Annex II to this Regulation or for cereals placed under customs control for the production of spirit drinks referred to in Article 2 of Regulation (EC) No 1670/2006 shall be conditional on production of a refund certificate issued in accordance with Article 24 of this Regulation.

The cereals referred to in the first subparagraph shall be deemed to be exported.

The first subparagraph shall not apply to the supplies referred to in the third indent of the second subparagraph of Article 4(1), Articles 33(1), 37(1), 41(1) and 43(1) of Regulation (EC) No 612/2009, or to the exports referred to in Chapter IV of this Regulation.

3.   The granting of the refund under the advance fixing system provided for in Article 20(2) shall be conditional on production of a refund certificate showing advance fixing of the refund rates.

Article 22

1.   Regulation (EC) No 376/2008 shall apply to the refund certificates referred to in this Regulation.

2.   The provisions laid down in Regulation (EC) No 376/2008 on the rights and obligations stemming from refund certificates denominated in quantities shall apply mutatis mutandis to the rights and obligations stemming from the refund certificates referred to in this Regulation for amounts denominated in euros, taking into account Annex VI to this Regulation.

3.   By way of derogation from paragraphs 1 and 2 of this Article, Article 7(2) and (4), Articles 8, 11 and 13, Article 17(1), Articles 20, 23, 31, 32 and 34, Article 35(6) and Articles 41, 45, 46 and 48 of Regulation (EC) No 376/2008 shall not apply to the refund certificates referred to in this Regulation.

4.   For the purposes of Articles 39 and 40 of Regulation (EC) No 376/2008, certificates valid until 30 September may not be extended.

In such cases, the certificate shall be cancelled for any amounts not applied for due to force majeure and the relevant security shall be released.

Article 23

1.   Applications for refund certificates, except those in respect of food aid operations referred to in Article 36, shall be valid only if a security equal to 10 % of the amount applied for has been lodged in accordance with the conditions set out in Article 14 of Regulation (EC) No 376/2008.

2.   The security shall be released in accordance with the conditions set out in Article 40 of this Regulation.

Article 24

1.   The application for a refund certificate and the refund certificate itself shall be based on the form ‘Export Licence or Advance Fixing Certificate’ set out in Annex I to Regulation (EC) No 376/2008 and shall indicate the amount in euros.

Those documents shall be completed in accordance with the instructions set out in Annex VI to this Regulation.

2.   Where the applicant does not have the intention to export from a Member State other than that in which he is applying for the refund certificate, the competent authority may keep the ensuing refund certificate, notably in electronic format. In such cases, the competent authority shall inform the applicant that his refund certificate has been registered and provide him with the information set out on the holder’s copy of the refund certificate, hereinafter ‘Copy No 1’. The issuing authorities’ copy of the refund certificate, hereinafter ‘Copy No 2’, shall not be issued.

The competent authority shall record all the information from the refund certificates referred to in Sections III and IV of Annex VI and the amounts claimed under the certificate.

Article 25

1.   Obligations deriving from certificates shall not be transferable. Rights deriving from certificates may be transferred by their titular holder during the period of their validity, provided that the rights deriving from each certificate or extract thereof are transferred to a single transferee only. Such transfer shall relate to the amounts not yet attributed to the certificate or extract.

2.   Transferees may not further transfer their rights but may transfer them back to the titular holder. Transfers back to the titular holder shall relate to amounts not yet attributed to the certificate or extract. In such cases, one of the entries set out in Annex VIII shall be made by the issuing authority in box 6 of the certificate.

3.   In the event of a request for transfer by the titular holder or in the event of a transfer back to the titular holder by the transferee, the issuing authority or the agency or agencies designated by each Member State shall enter the following on the certificate or, where appropriate, on the extract thereof:

(a)

the name and address of the transferee as indicated in accordance with paragraph 1 or the entry referred to in paragraph 2.

(b)

the date of transfer or transfer back to the titular holder certified by the stamp of the authority or agency.

4.   The transfer or transfer back to the titular holder shall take effect from the date of the entry referred to in point (b) of paragraph 3.

Article 26

1.   Applications for advance fixing of the refund rates shall concern all the applicable refund rates.

2.   The application for advance fixing may be submitted either at the time of the application for the refund certificate or at any time from the day on which the refund certificate is granted.

3.   Applications for advance fixing shall be made in accordance with Section II of Annex VI using the form set out in Annex I to Regulation (EC) No 376/2008. The advance fixing shall not apply to exports taking place before the date on which the application was submitted.

4.   Applications for advance fixing submitted on a Thursday shall be deemed to have been submitted on the following working day.

Article 27

1.   The holder of a refund certificate may apply for an extract of the certificate, drawn up in the form set out in Annex I to Regulation (EC) No 376/2008. The application shall contain the information referred to in point 3 of Section II of Annex VI to this Regulation.

The amount for which the extract is requested shall be recorded on the original certificate.

2.   Without prejudice to Article 9 of Regulation (EC) No 376/2008, extracts valid throughout the Union may be taken from certificates registered as valid in a single Member State.

Article 28

1.   Each exporter shall complete a specific application for payment within the meaning of Article 46 of Regulation (EC) No 612/2009. It shall be presented to the authority responsible for payment, accompanied by the corresponding certificates, except in the case of registration of the certificates as provided for in Article 24(2) of this Regulation or in the case of exports not covered by refund certificates.

The competent authority may consider that the specific application is not the payment documents referred to in Article 46(2) of Regulation (EC) No 612/2009.

The competent authority may consider the specific application to be the export declaration within the meaning of Article 5(1) of Regulation (EC) No 612/2009. In that case, the date of receipt of the specific application by the authority responsible for payment referred to in paragraph 2 of this Article shall be the date on which that authority received the export declaration. In all other cases, the specific application must contain particulars of the export declaration including the reference number of the export declaration.

2.   The authority responsible for payment shall determine the amount requested on the basis of the information contained in the specific application, taking as sole basis the quantity and nature of the basic product(s) exported and the applicable refund rate(s). That data shall be indicated or referred to clearly in the export declaration.

The authority responsible for payment shall record that amount on the refund certificate within six months of the date of receipt of the specific application.

The certificates shall be attributed on the reverse of Copy No 1. Boxes 28, 29 and 30 shall contain the amount in euros instead of the quantity.

The third subparagraph shall apply mutatis mutandis to certificates kept in electronic format.

3.   After attribution, if the refund certificate is not registered as provided for in Article 24(2), Copy No 1 of the certificate shall be returned to the holder or kept by the paying authority at the request of the exporter.

4.   The security retained in respect of the amount for which the refund certificate has been attributed for goods exported may be released or may be transferred to guarantee advance payment of the refund in accordance with Chapter 2 of Title II of Regulation (EC) No 612/2009.

Article 29

1.   Refund certificates issued for a single budget period may be applied for separately in six tranches. Applications for certificates may be submitted at the latest on:

(a)

7 September for certificates for use from 1 October;

(b)

7 November for certificates for use from 1 December;

(c)

7 January for certificates for use from 1 February;

(d)

7 March for certificates for use from 1 April;

(e)

7 May for certificates for use from 1 June;

(f)

7 July for certificates for use from 1 August.

2.   Operators may submit an application for a refund certificate only in respect of the tranche corresponding to the first closing date, as set out in paragraph 1, following the date of submission.

Article 30

The deadline for the notification by the Member States to the Commission of applications for certificates shall be the following:

(a)

14 September for certificates referred to in point (a) of Article 29(1);

(b)

14 November for certificates referred to in point (b) of Article 29(1);

(c)

14 January for certificates referred to in point (c) of Article 29(1);

(d)

14 March for certificates referred to in point (d) of Article 29(1);

(e)

14 May for certificates referred to in point (e) of Article 29(1);

(f)

14 July for certificates referred to in point (f) of Article 29(1).

Article 31

1.   The total amount in respect of which refund certificates may be issued for each budget period shall be determined in accordance with paragraph 2.

2.   From the figure representing the maximum amount of refunds, as determined in accordance with Article 9(2) of the Agreement, the following elements shall be deducted:

(a)

the amount exceeding the maximum amount and unduly granted during the previous budget year;

(b)

the amount reserved to cover the exports referred to in Chapter IV of this Regulation;

(c)

the amounts in respect of which refund certificates valid during the budget period concerned have been issued.

3.   The amount in respect of which certificates issued, as referred to in Article 41, have been returned shall be added to the figure obtained in accordance with paragraph 2.

4.   Any amount reserved to cover the exports referred to in Chapter IV which remains unused shall be added to the figure obtained in accordance with paragraph 2.

5.   Where there is uncertainty regarding any of the amounts referred to in paragraph 2, that shall be taken into account when determining the final amount.

Article 32

The total amount in respect of which certificates may be issued for each of the tranches referred to in Article 29 shall be:

(a)

30 % of the amount calculated in accordance with Article 31, as determined on 14 September, in the case of the tranche referred to in point (a) of Article 29(1);

(b)

27 % of the amount calculated in accordance with Article 31, as determined on 14 November, in the case of the tranche referred to in point (b) of Article 29(1);

(c)

32 % of the amount calculated in accordance with Article 31, as determined on 14 January, in the case of the tranche referred to in point (c) of Article 29(1);

(d)

44 % of the amount calculated in accordance with Article 31, as determined on 14 March, in the case of the tranche referred to in point (d) of Article 29(1);

(e)

67 % of the amount calculated in accordance with Article 31, as determined on 14 May, in the case of the tranche referred to in point (e) of Article 29(1);

(f)

100 % of the amount calculated in accordance with Article 31, as determined on 14 July, in the case of the tranche referred to in point (f) of Article 29(1).

Article 33

1.   Where the total amount requested in the applications received in respect of each of the periods concerned exceeds the maximum amount referred to in Article 31(2), the Commission shall set a reduction coefficient applicable to all applications submitted before the corresponding date referred to in Article 29 so as to comply with the maximum amount referred to in Article 31.

The Commission will publish the coefficient in the Official Journal of the European Union within five working days of the dates referred to in Article 30.

2.   Where a reduction coefficient is set by the Commission, certificates shall be issued for the amount requested, multiplied by 1 minus the reduction coefficient set as provided for in paragraph 1 of this Article or in point (a) of Article 34(3).

However, in respect of the tranche referred to in point (f) of Article 29(1), applicants may withdraw their applications within five working days from publication of the coefficient in the Official Journal of the European Union .

3.   Member States shall notify the Commission by 1 August of the amounts represented by the applications for refund certificates withdrawn pursuant to the second subparagraph of paragraph 2.

Article 34

1.   Where, after the closing date for the submission of applications for refund certificates in respect of a particular tranche referred to in Article 29(1), no reduction coefficient has been published pursuant to Article 33(1), operators may submit an application for the issue of a refund certificate for any remaining amount available for that tranche not yet applied for.

The application shall be submitted in the period up to the next closing date set out in Article 29(1).

2.   Applications submitted in the course of each week shall be notified by Member States to the Commission on the following Monday. The corresponding certificates may be issued from the Wednesday following the notification, unless the Commission issues instructions to the contrary.

3.   Where the total amount for which the applications are received in a particular application week exceeds the remaining amount available referred to in paragraph 1 the Commission shall take one or more of the following measures:

(a)

set a reduction coefficient applicable to applications for refund certificates submitted in that particular application week, which have been notified to the Commission and for which refund certificates have not yet been issued;

(b)

direct Member States to reject applications, submitted in that particular application week, which have yet to be notified to the Commission;

(c)

suspend the submission of applications for refund certificates.

4.   Any Regulation adopted pursuant to paragraph 3 shall be published in the Official Journal of the European Union within three days of notification of the applications referred to in paragraph 2.

Article 35

1.   Refund certificates shall be valid from the date of issue as defined in Article 22(1) of Regulation (EC) No 376/2008.

2.   Subject to the second subparagraph, refund certificates shall be valid until the last day of the fifth month following the month in which the application for the certificate was made, or, until the last day of the budget period, whichever is earlier.

The refund certificates referred to in Article 36 shall be valid until the last day of the fifth month following the month in which the application for the certificate was made.

3.   If refund rates are fixed in advance in accordance with Article 26, those rates shall remain valid until the last day of the period of validity of the certificate.

Article 36

Commission Regulation (EC) No 2298/2001  ( 13 ) shall apply to applications for refund certificates and refund certificates issued for export of goods, which are part of an international food aid operation within the meaning of Article 10(4) of the Agreement.

Article 37

1.   For the purposes of Article 47 of Regulation (EC) No 376/2008, paragraphs 2 to 11 of this Article shall apply.

2.   From 1 October of each budget period, applications for certificates in connection with an invitation to tender issued in an importing third country, fixing the export refund in advance on the day the application is submitted, may be made in accordance with this Article outside the periods laid down in Articles 29 and 34, where the sum of the amounts corresponding to a single invitation to tender for which one or more applications for refund certificates have been made by one or more exporters and for which no certificate has yet been issued does not exceed EUR 2 million.

However, that limit may be increased to EUR 4 million where none of the reduction coefficients published since the beginning of the budget period and referred to in Article 33(1) or in Article 34(3) exceeds 50 %.

3.   The amount in respect of which the certificate or certificates are applied for may not exceed the quantity specified in the invitation to tender multiplied by the corresponding refund rate(s), fixed in advance on the day the application is submitted. No account shall be taken of tolerances or options provided for in the invitation to tender.

4.   In addition to the particulars referred to in the first subparagraph of Article 47(3), of Regulation (EC) No 376/2008, Member States shall immediately inform the Commission of the amounts in respect of which each certificate is applied for, and the date and time of submission of each application.

5.   Where the amounts notified under paragraph 4, when added to the amounts in respect of which one or more certificates have already been applied for as part of the same invitation to tender, exceed the applicable limit referred to in paragraph 2, the Commission shall inform the Member States within two working days of the receipt of the additional information referred to in paragraph 4 that the refund certificate shall not be issued to the operator.

6.   The Commission may suspend the application of paragraph 2 where the cumulative sum of the amounts of refund certificates which may be issued in accordance with Article 47 of Regulation (EC) No 376/2008 exceeds EUR 4 million in a single budget period. Decisions to suspend shall be published in the Official Journal of the European Union .

7.   By way of derogation from Article 35(1) and (2) of this Regulation refund certificates issued in accordance with Article 47 of Regulation (EC) No 376/2008 shall be valid from the day on which they are issued within the meaning of Article 22(2) of Regulation (EC) No 376/2008. Refund certificates shall be valid until the end of the eighth month following the month of issue, or until 30 September, whichever is earlier. Rates fixed in advance are valid until the last day of the certificate’s validity.

8.   Where, in accordance with point (a) of Article 47(9) of Regulation (EC) No 376/2008, the competent authority is satisfied that the agency that issued the invitation to tender has cancelled the contract for reasons which are not attributable to the successful tenderer and are not considered to constitute force majeure, it shall release the security in cases where the rate of the refund fixed in advance in respect of the basic product corresponding to the largest refund compared with the other basic products used is higher than or equal to the rate of the refund valid on the last day of the certificate’s validity.

9.   Where, in accordance with point (b) of Article 47(9) of Regulation (EC) No 376/2008, the competent authority is satisfied that the agency that issued the invitation to tender has obliged the successful tenderer to accept changes to the contract for reasons that are not attributable to him and are not considered to constitute force majeure, it may extend the validity of the certificate and the period during which the rate of the refund fixed in advance are to apply until 30 September.

10.   Where, in accordance with point (c) of Article 47(9) of Regulation (EC) No 376/2008, the successful tenderer furnishes proof that the invitation to tender or the contract concluded following the award provided for a downward tolerance or option of more than 5 % and that the agency that issued the invitation to tender is invoking the relevant clause, the obligation to export shall be deemed to have been fulfilled where the quantity exported is not more than 10 % less than the quantity corresponding to the amount for which the certificate was issued.

The first subparagraph shall apply on condition that the rate of the refund fixed in advance in respect of the basic product corresponding to the largest refund compared with the other basic products used is higher than or equal to the rate of the refund valid on the last day of validity of the certificate. In such cases the rate of 95 % referred to in Article 40(3) and (5) of this Regulation shall be replaced by 90 %.

11.   For the purposes of paragraphs 1 to 10 of this Article the time-limit of 21 days specified in Article 47(5) of Regulation (EC) No 376/2008 shall be 44 days.

Article 38

1.   The issue of a refund certificate shall oblige the holder to apply for refunds equal to the amount for which the certificate has been issued for goods exported during the period of validity of the refund certificate.

The security referred to in Article 23 shall be lodged to guarantee compliance with the obligation referred to in the first subparagraph.

2.   The obligation referred to in the first subparagraph of paragraph 1 of this Article shall be considered a primary requirement within the meaning of Article 20(2) of Regulation (EEC) No 2220/85.

Article 39

1.   The primary requirement shall be considered to have been fulfilled if the exporter has transmitted the specific application relating to goods exported during the period of validity of the refund certificate in accordance with the conditions laid down in Article 28 and in section V of Annex VI.

2.   Where the specific application is not the export declaration, it must be submitted within three months of the date of expiry of the refund certificate the number of which has been entered on the specific application, except in cases of force majeure.

If the time-limit of three months set out in the first subparagraph is not complied with, the primary requirement cannot be deemed to have been met.

3.   Evidence that the primary requirement has been fulfilled shall be provided by means of the presentation to the competent authority of Copy No 1 of the refund certificate, duly recorded in accordance with Article 28(2). That evidence shall be presented by the end of the twelfth month following the end of the period of validity of the refund certificate.

The first subparagraph shall apply mutatis mutandis to certificates registered as provided for in Article 24(2).

4.   By way of derogation from Article 22(3) of Regulation (EEC) No 2220/85, the security provided for in Article 23 of this Regulation shall be forfeited in proportion to the amount for which the required evidence was not provided within the time-limits set out in paragraphs 2 and 3 of this Article.

Article 40

1.   If a reduction coefficient is applied pursuant to Article 33(2) or point (a) of Article 34(3), part of the security, equal to the amount lodged multiplied by the reduction coefficient, shall be released immediately.

2.   If the applicant withdraws his application for a certificate, in accordance with the second subparagraph of Article 33(2), 80 % of the original security shall be released.

3.   The security shall be released in full once the holder of the certificate has applied for refunds totalling 95 % of the amount in respect of which the certificate was issued.

4.   On application by the titular holder, Member States may release the security by instalments in proportion to the amounts in respect of which the conditions referred to in Article 39(1) and (3) have been fulfilled, provided that evidence has been produced that an amount equal to at least 5 % of that indicated on the certificate has been applied for.

5.   Where applications have been made for refunds in respect of less than 95 % of the amount for which the certificate was issued, part of the security, equal to 10 % of the difference between 95 % of the amount for which the certificate was issued and the amount of refunds actually used, shall be forfeited.

6.   Where the amount in respect of which the conditions referred to in Article 39(1) and (3) have been fulfilled is less than 5 % of the amount indicated on the certificate, the whole of the security shall be forfeited.

7.   If the total amount of the security which would be forfeited comes to EUR 100 or less for a given certificate, the Member State concerned shall release the whole of the security.

Article 41

1.   Where the certificate or an extract of the certificate is returned to the issuing authority within a period corresponding to the initial two thirds of its term of validity, the corresponding amount of security to be forfeited shall be reduced by 40 %, for which purpose, any part of a day shall count as a whole day.

2.   Where the certificate or extract of the certificate is returned to the issuing authority within a period corresponding to the last third of its term of validity or during the month following the expiry date, the corresponding amount of security to be forfeited shall be reduced by 25 %.

3.   Paragraphs 1 and 2 shall apply only to certificates and extracts from certificates returned to the issuing authority during the budget period in respect of which the certificates have been issued, provided that they are returned no later than 31 August of that period.

Article 42

1.   Certificates shall not be required for exports for which applications submitted by the operator during the budget year do not give rise to payment of more than EUR 100 000.

2.   Certificates shall not be required for the supplies referred to in the third indent of the second subparagraph of Article 4(1), Articles 33(1), 37(1), 41(1) and 43(1) of Regulation (EC) No 612/2009.

3.   Paragraphs 1 and 2 shall also apply to exports by operators who have held a refund certificate during the budget period in question or who hold such a certificate on the date of export.

4.   Paragraphs 1, 2 and 3 shall apply only in the Member State in which the operator is established.

Article 43

1.   For each budget period, exports referred to in Article 42(1) shall be eligible for payment of a refund within the limit of a total reserve of EUR 40 million for each budget year.

2.   Refunds on exports which are part of an international food aid operation within the meaning of Article 10(4) of the Agreement, and refunds on the supplies referred to in the third indent of the second subparagraph of Article 4(1), Articles 33(1), 37(1), 41(1) and 43(1) of Regulation (EC) No 612/2009 shall not be taken into account in establishing the level of expenditure under the reserve referred to in paragraph 1.

Article 44

1.   Where the sum of the amounts notified by the Member States in accordance with Article 53 reaches EUR 30 million, the Commission may, taking account of the Union’s international commitments, suspend the application of Article 43(1) to exports not covered by a refund certificate for a maximum of 20 working days.

2.   Under the circumstances set out in paragraph 1, the Commission may, in accordance with Article 16(2) of Regulation (EC) No 1216/2009, suspend the application of Article 43(1) of this Regulation to exports not covered by a refund certificate for a period exceeding 20 working days.

Article 45

1.   When goods are to be exported, the party concerned shall declare the quantities of basic products, of products derived from the processing thereof, or of products assimilated to one of those two categories in accordance with Article 3, which have actually been used, within the meaning of Article 10, in the manufacture of those goods, on which a refund will be requested, or shall otherwise refer to that composition if it has been determined in accordance with Article 10(4).

2.   When goods have been used in the manufacture of goods to be exported, the declaration by the party concerned shall include the quantity of the goods actually used and the nature and quantity of each of the basic products, of products derived from the processing thereof and/or of products assimilated to one of those two categories in accordance with Article 3, from which the goods are derived.

The party concerned shall, in support of his declaration, supply the competent authorities with all documents and information which the latter consider relevant. The documents and information concerned may be held and submitted in electronic form.

The competent authorities shall verify the accuracy of the declaration by any appropriate means.

3.   At the request of the competent authorities of the Member State on whose territory the customs export formalities are carried out, the competent authorities of the other Member States shall directly communicate to them all information they are able to obtain to enable the declaration made by the party concerned to be verified.

Article 46

By way of derogation from Article 45, and in consultation with the competent authorities, the declaration of the products or goods used may be replaced by an aggregated declaration of the quantities of products used or by a reference to a declaration of those quantities, where the latter have already been determined pursuant to Article 10(4) and on condition that the manufacturer places all the information necessary to verify the declaration at the disposal of the authorities.

Article 47

1.   Where the exporter does not draw up the declaration referred to in Article 46 or does not provide satisfactory information in support of his declaration, he shall not be entitled to a refund.

2.   By way of derogation from paragraph 1, where the goods concerned are listed in columns 1 and 2 of Annex IV, the party concerned may be granted a refund, at his express request. The nature and quantity of the basic products taken into consideration for the calculation of such refund shall be determined from an analysis of the goods to be exported and in accordance with the table in Annex IV. The competent authority shall decide on the conditions under which the analysis is to be carried out and the information to be supplied in support of the request.

3.   The cost of such analysis shall be borne by the exporter.

Article 48

1.   Article 45 shall not apply to the quantities of agricultural products determined in accordance with Annex III, with the exception of the following:

(a)

quantities of products as referred to in Article 45(1) exported in the form of goods obtained partly from products for which the payment of export refund is covered by Regulation (EC) No 1234/2007 and partly from other products, in accordance with the conditions laid down in Article 11(2);

(b)

quantities of eggs or egg products exported in the form of pasta falling within CN code 1902 11 00 ;

(c)

the quantity of dry-matter contained in fresh pasta, as referred to in the second subparagraph of Article 11(1);

(d)

the nature of the basic products actually used in the manufacture of D-glucitol (sorbitol) falling within CN codes 2905 44 and 3824 60 , and, where necessary, the proportions of D-glucitol (sorbitol) obtained from amylaceous products and sucrose;

(e)

quantities of casein exported in the form of goods falling within CN code 3501 90 90 ;

(f)

the degree plato of beer made from malt falling within CN code 2202 90 10 ;

(g)

the quantities of unmalted barley accepted by the competent authorities.

The description of the goods given on the export declaration and the application for a refund on goods listed in Annex III shall take account of the nomenclature in that Annex.

2.   When goods are analysed for the purposes of Articles 45, 46, 47 or of paragraphs 1 or 3 of this Article, the methods of analysis shall be those referred to in Commission Regulation (EC) No 904/2008  ( 14 ) or, in their absence, those referred to in Commission Regulation (EC) No 900/2008  ( 15 ) or, in their absence, those applicable to the Common Customs Tariff classification of similar goods which are imported into the Union.

3.   The quantities of goods exported and the quantities of the products referred to in Article 45(1) or a reference to the composition determined in accordance with Article 10(4) shall be entered on the document certifying exportation. However, where Article 47(2) applies, the latter quantities shall be replaced by the quantities of basic products listed in column 4 of Annex IV, corresponding to the results of the analysis of the goods exported.

4.   For a refund to be granted for goods falling within CN codes 0403 10 51 to 0403 10 99 , 0403 90 71 to 0403 90 99 , 0405 20 10 , 0405 20 30 , 2105 00 99 , 3502 11 90 and 3502 19 90 the goods shall meet the requirements of Regulation (EC) No 852/2004 and Regulation (EC) No 853/2004, including the requirement of having been prepared in an approved establishment and of complying with the health marking requirements listed in Section I of Annex II to Regulation (EC) No 853/2004.

5.   For the purposes of Articles 45 and 46, each Member State shall inform the Commission of the checks carried out in its territory on the various kinds of goods exported. The Commission shall inform the other Member States accordingly.

Article 49

1.   Pursuant to Articles 45 and 46 of this Regulation and in application of Article 12 of Regulation (EC) No 612/2009, for goods containing cereals, rice, milk and milk products or eggs referred to in points (i), (ii), (v) and (vii) of Article 162(1)(a) and point (b) of Article 162(1) of Regulation (EC) No 1234/2007, the party concerned shall provide a declaration that none of the ingredients have been imported from third countries or a specification of the quantities of those products imported from third countries.

2.   Where a request is made for the quantities to be determined in accordance with Article 10(4), the competent authority may accept a declaration by the party concerned that the cereal, rice, milk and egg products referred to in paragraph 1 which have been imported from third countries will not be used.

3.   Where a request is made for the quantities to be determined in accordance with Article 11(1) or in accordance with Article 47(2) the competent authority may accept a declaration by the party concerned that the cereal, rice, milk and egg products referred to in paragraph 1 which have been imported from third countries will not be used.

4.   The declarations referred to in paragraphs 1, 2 and 3 shall be subject to verification by the competent authorities by any appropriate means.

Article 50

1.   In the case of goods exported between 1 October and 15 October of each year, refunds shall not be paid before 16 October.

As regards goods exported with presentation of a refund certificate issued in respect of a budget period, and where the Commission considers that there is a danger that the Union may not meet its international commitments, refund payments scheduled after the end of that period shall not be made before 16 October. In that case, the time limit referred to in Article 46(8) of Regulation (EC) No 612/2009 may be temporarily extended to three months and 15 days by way of a regulation to be published before 20 September in the Official Journal of the European Union .

2.   For the goods listed in Annex II to this Regulation and by way of derogation from Article 24 of Regulation (EC) No 612/2009, the amount set out in Article 24(1)(a)(ii) of Regulation (EC) No 612/2009 shall apply regardless of the country or territory of destination to which the goods are exported:

(a)

in the case of goods which are packaged for consumer retail sale in immediate packing of a net content not exceeding 2.5 kg or in containers not holding more than 2 litres, with labelling within the meaning of point (a) of Article 1(3) of Directive 2000/13/EC of the European Parliament and of the Council  ( 16 ) which mentions either the importer in the country of destination or whose text is in an official language of the country of destination or in a language easily understood in that country;

(b)

in cases where a particular exporter, at least 12 times in the two years preceding the date of request for an authorisation as referred to in paragraph 3, exports goods containing not more than 90 % by weight of any single basic product on which a refund is payable, which are of the same eight-digit CN code to the same consignee(s).

3.   In the cases provided for in paragraph 2, Member States may, on request, grant formal authorisation exempting the exporter concerned from producing the documents required under Article 17 of Regulation (EC) No 612/2009 other than the transport document.

The authorisation referred to in the first subparagraph shall be valid, unless revoked, for a maximum period of two years and shall be renewable. Member States may revoke the authorisation at their sole discretion and, in particular, shall immediately withdraw the authorisation where they have reasonable grounds to suspect that the exporter did not follow the conditions specified therein.

Exemptions granted according to the first subparagraph shall be considered as risk factors to be taken into account for the purposes of Article 2(1) of Council Regulation (EC) No 485/2008  ( 17 ) .

Exporters using the exemption shall mention the authorisation number on the single administrative document and on the specific application for payment as referred to in Article 28 of this Regulation.

4.   By derogation from paragraph 3, in the cases provided for in point (b) of paragraph 2, Member States may exempt the exporter concerned from producing the transport documents for all exports covered by an authorisation, provided that the exporter concerned is required to produce the transport documents in respect of a minimum of 10 % of such export declarations or one per year, whichever is greater, to be selected by Member States applying the criteria laid down in Commission Regulation (EC) No 1276/2008  ( 18 ) .

5.   In the case of the goods listed in Annex II to this Regulation where the export declaration was accepted not later than 30 September 2007 and for which the exporter is unable to provide the proof referred to in Article 17(1) of Regulation (EC) No 612/2009, the goods shall be deemed to have been imported into a third country on presentation of a copy of the transport document and either one of the documents listed in Article 17(2) of Regulation (EC) No 612/2009 or a bank document issued by approved intermediaries established in the Union, certifying that payment for the export has been credited to the account of the exporter opened with them, or the proof of payment.

6.   For the purposes of applying Article 27 of Regulation (EC) No 612/2009, Member States shall take into account paragraph 5.