CHAPTER IIIINDUSTRIAL USE
Article 5Approvals
1
The competent authorities of the Member States shall grant approval on request to undertakings which have the capacity to use the industrial raw material for the purposes of manufacturing one of the products referred to in the Annex and which undertake, in particular, to:
a
keep records in accordance with Article 11;
b
provide on request by these authorities any information or supporting documents needed for checking the origin and use made of the raw materials concerned;
c
allow these authorities to carry out appropriate administrative and physical checks.
2
Applications for approval shall indicate production capacity and the technical processing coefficients for the raw materials, and shall give a precise description of the product to be manufactured. The data shall be broken down by industrial site.
The competent authorities of the Member States shall take the necessary steps to verify the plausibility of the technical processing coefficients for the raw materials.
The coefficients shall be established on the basis of tests carried out in the processor’s undertaking. If there are no coefficients specific to that undertaking, the check shall rely on the coefficients laid down in Community legislation or, if there are no such coefficients, on those generally accepted by the processing industry concerned.
3
Approval shall be granted for the production of one or more specific products. It shall be withdrawn if it is found that one of the conditions listed in paragraph 1 is no longer met. Approval may be withdrawn in the course of a marketing year. It shall not have retroactive effect.
Article 6Delivery contracts
1
The industrial raw materials shall be the subject of the delivery contract referred in Article 13(1) of Regulation (EC) No 318/2006 between a manufacturer and a processor who guarantee their use in the Community for the purposes of manufacturing the products listed in the Annex to this Regulation.
2
The delivery contract for industrial raw materials shall include at least the following:
a
the names, addresses and approval numbers of the contracting parties;
b
the duration of the contract and the quantities of each of the raw materials to be delivered per delivery period;
c
the prices, qualities and all conditions applicable to the delivery of raw materials;
d
the manufacturer’s undertaking to deliver a raw material from its production in excess of the quota and the undertaking by the processor to use the quantities delivered exclusively to produce one or more of the products covered by its approval.
3
If the manufacturer and the processor form part of the same undertaking, that undertaking shall draw up a pro forma delivery contract containing all the entries specified in paragraph 2 except for the prices.
4
The manufacturer shall send the competent authorities of the Member State which approved the processor in question a copy of each contract, before the first delivery under that contract. The copy need not show the prices referred to in paragraph 2(c).
Article 7Equivalence
1
From the start of each marketing year until their production reaches their quota manufacturers may, under the delivery contracts referred to in Article 6, replace the industrial raw material with raw material produced under quota.
2
At the request of the manufacturer concerned, the raw material produced under quota delivered in accordance with paragraph 1 shall be entered in the accounts as industrial raw material delivered to a processor as provided for in point (a) of the second subparagraph of Article 4(1) for the same marketing year.
3
At the request of those concerned, the competent authorities of the Member States may permit a quantity of sugar produced in the Community by another manufacturer to be delivered in place of industrial sugar. In this case, the sugar delivered shall be entered in the accounts as industrial sugar delivered to a processor as provided for in point (a) of the second subparagraph of Article 4(1) for the same marketing year.
The competent authorities of the Member States concerned shall coordinate checks and monitoring of these operations.
Article 8Delivery of raw materials
Based on the delivery notes referred to in Article 9(1), manufacturers shall communicate each month to the competent authority of the Member State which approved them the quantities of raw materials delivered the previous month under each of the delivery contracts indicating, where appropriate, the quantities delivered in accordance with Article 7(1) or (3).
The quantities referred to in the first subparagraph shall be considered to have been delivered in accordance with point (a) of the second subparagraph of Article 4(1).
Article 9Obligations on processors
1
For each delivery, the processor shall submit to the manufacturer concerned a delivery note for industrial raw materials under the delivery contract referred to in Article 6, certifying the quantities delivered.
2
Before the end of the fifth month following each delivery, processors shall supply proof, to the satisfaction of the competent authorities of the Member State, of the use of the industrial raw materials for the purposes of manufacturing the products in accordance with the approval referred to in Article 5 and the delivery contract referred to in Article 6. This proof shall consist of the computerised recording in the records during or at the end of the manufacturing process of the quantities of the products concerned.
3
If processors have not supplied proof in accordance with paragraph 2, they shall pay a sum of EUR 5 per tonne of the delivery concerned and for each day of delay from the end of the fifth month following the delivery.
4
If processors have not supplied the proof referred to in paragraph 2 before the end of the seventh month following each delivery, the quantity concerned shall be considered to be overdeclared for the purposes of applying Article 13. The processor’s approval shall be withdrawn for a period of between three and six months depending on the seriousness of the situation.
Article 10Communications from the Member States
The Member States shall communicate to the Commission:
- (a)
not later than the end of the month following the month concerned, the quantity of the industrial raw material delivered;
- (b)
not later than the end of November for the previous marketing year:
the quantity of industrial raw material delivered, broken down into white sugar, raw sugar, sugar syrup and isoglucose,
the quantity of industrial raw material delivered used, broken down into white sugar, raw sugar, sugar syrup and isoglucose, on the one hand, and into the products referred to in the Annex on the other,
the quantities delivered pursuant to Article 7(3).
Article 11Processor’s records
The competent authority of the Member State shall specify the records to be kept by processors and the frequency of such record-keeping, which shall be at least monthly.
These records, which shall be kept by the processor for at least the three years following the current year, shall comprise at least the following information:
- (a)
the quantities of the different raw materials purchased for processing;
- (b)
the quantities of raw materials processed and the quantities and types of end products, co-products and by-products obtained therefrom;
- (c)
the wastage during processing;
- (d)
the quantities destroyed and the reasons for such destruction;
- (e)
the quantities and types of products sold or transferred by the processor.
Article 12Checks on processors
1
Each marketing year, the competent authorities of the Member States shall carry out checks on at least 50 % of approved processors, selected on the basis of a risk analysis.
2
The checks shall comprise analysis of the processing chain, examination of the commercial documents, and physical checks on stocks to ensure that the raw materials delivered correspond to the end products, co-products and by-products obtained.
The checks shall verify the accuracy of the measuring instruments and laboratory analyses used to determine deliveries of raw materials and their entry into production, the products obtained and stock movements.
Where the competent authorities of the Member States provide that particular elements of the check may be carried out on the basis of a sample, that sample shall guarantee a reliable and representative level of control.
3
Every on-the-spot check shall be the subject of an inspection report signed by the inspector giving the details of the checks carried out. Reports shall indicate in particular:
a
the date of the check, and the persons present;
b
the period checked and the quantities involved;
c
the checking techniques used including, where applicable, reference to sampling methods;
d
the results of the check and the recommendations made;
e
an assessment of the seriousness, extent, permanence and duration of any faults and discrepancies found and all other elements to be taken into consideration for the purposes of applying penalties.
Each inspection report shall be archived and kept for at least three years following the year in which the check is carried out, in a way that ensures that it is readily useable by the Commission departments responsible for checks and inspections.
Article 13Penalties
1
If the competent authority of the Member State detects a discrepancy between the physical stock, the stock registered in the records and deliveries of raw materials, or the absence of supporting documents to ensure consistency between these elements, the processor’s approval shall be withdrawn for a period to be determined by the Member States, which may not be less than three months from the date of the finding. During the period of withdrawal of approval, the processor may not take delivery of industrial raw material, but may use any industrial raw material delivered previously.
In the event of overdeclaration of the quantities of raw materials used, the processor shall be required to pay a sum of EUR 500 per tonne overdeclared.
2
Approval shall not be withdrawn in accordance with paragraph 1 where the discrepancy between the physical stock and the stock registered in the stock records is due to force majeure or if it is less than 5 % in weight of the quantity of raw materials checked or due to omissions or simple administrative errors, provided that corrective measures are taken to ensure that similar errors do not recur.