SECTION 1 — General provisions
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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).
SECTION 2 — Applications for and issue of refund certificates
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.
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.
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.
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.
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.
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.
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.
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.
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.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
