Commission Regulation (EC) No 376/2008 (repealed)Show full title

Article 47 U.K.

1. This Article shall apply to licences fixing the export refund in advance applied for in connection with an invitation to tender issued in an importing third country.

The expression ‘invitation to tender’ shall be understood to mean open invitations issued by public agencies in third countries, or by international bodies governed by public law, to submit by a given date tenders on which a decision will be taken by those agencies or bodies.

For the purposes of this Article, the armed forces referred to in Article 36(1)(c) of Regulation (EC) No 800/1999 shall be regarded as an importing country.

2. Exporters who have submitted or wish to submit a tender in response to an invitation to tender as referred to in paragraph 1 may, provided the conditions specified in paragraph 3 are fulfilled, apply for one or more licences, which will be issued subject to their being awarded a contract.

3. This Article shall apply only if the following particulars at least are specified in the invitation to tender:

(a) the importing third country and the agency issuing the invitation to tender;

(b) the closing date for the submission of tenders;

(c) the specific quantity of products covered by the invitation to tender.

The party concerned shall communicate those particulars to the issuing body when applying for the licence.

An application for a licence may not be lodged more than 15 days before the closing date for the submission of tenders but must be lodged at the latest by 1 p.m. on that closing date.

The quantity in respect of which the licence or licences are applied for may not exceed the quantity specified in the invitation to tender. No account shall be taken of tolerances or options provided for in the invitation to tender.

Member States shall immediately inform the Commission of the particulars referred to in the first subparagraph.

4. Notwithstanding Article 14(2), the security need not be lodged when the licence is applied for.

5. Within 21 days of the closing date for submitting tenders, except in the case of force majeure, the applicant shall inform the issuing body by letter or by written telecommunication, to reach the issuing body no later than the date of expiry of the 21-day time limit, either:

(a) that he has himself been awarded a contract;

(b) that he has not been awarded a contract;

(c) that he has not submitted a tender;

(d) that he is not in a position to know the outcome of the invitation to tender within the time limit specified for reasons which may not be ascribed to him.

6. Applications for licences shall not be accepted where, during the period of issue to which applications for licences for certain products are subject, a special measure has been taken which prevents the issue of licences.

No special measure taken subsequent to the expiry of the said period may prevent the issue of one or more licences issued in respect of the invitation to tender in question where the applicant has fulfilled the following conditions:

(a) the information referred to in the first subparagraph of paragraph 3 are evidenced by the appropriate documents;

(b) proof is furnished of the applicant's having been awarded a contract;

(c) the security required for the issue of the licence is lodged; and

(d) the contract is presented; or

(e) where the absence of the contract is justified, documentation is submitted attesting the obligations entered into with the other contracting party or parties, including confirmation from his or their bank of the opening of an irrevocable letter of credit by the purchaser's financial institution to the agreed delivery.

The licence or licences shall be issued only for the country referred to in point (a) of the first subparagraph of paragraph 3. The invitation to tender shall be mentioned thereon.

The total quantity for which the licence or licences are issued shall be the total quantity for which the applicant was awarded the contract and has presented the contract or documentation referred to in point (e) of the second subparagraph of this paragraph; such quantity may not exceed the quantity applied for.

Moreover, where several licences are applied for, the quantity for which the licence or licences are issued may not exceed the quantity initially requested for each licence.

For the purposes of determining the period of validity of the licence, Article 22(1) shall apply.

No licence may be issued for a quantity for which the applicant has not been awarded a contract or has failed to comply with any of the conditions specified in points (a), (b), (c), (d) or (a), (b), (c), (e) of the second subparagraph of this paragraph.

The holder of the licence or licences shall be held primarily liable for the repayment of any refund incorrectly paid where it is established that the licence or licences was or were issued on the basis of a contract or obligation, specified in point (e) of the second subparagraph of this paragraph, not corresponding to the invitation to tender opened by the third country.

7. In the cases referred to in paragraph 5(b), (c) and (d), no licence shall be issued in connection with the application referred to in paragraph 3.

8. Where the applicant for a licence fails to comply with paragraph 5, no licence shall be issued.

However, where the applicant furnishes proof to the issuing body that the closing date for the submission of tenders has been deferred:

(a) by no more than 10 days, the application shall remain valid and the period of 21 days for notifying the particulars specified in paragraph 5 shall run with effect from the new closing date for the submission of tenders;

(b) by more than 10 days, the application shall no longer be valid.

9. The following conditions shall apply to the release of the security:

(a) If the successful tenderer demonstrates to the satisfaction of the competent authority that the agency that issued the invitation to tender has cancelled the contract for reasons which are not attributable to the tenderer and are not considered to constitute force majeure, the competent authority shall release the security in cases where the rate of the refund fixed in advance is higher than or equal to the rate of the refund valid on the last day of the validity of the licence.

(b) If the successful tenderer demonstrates to the satisfaction of the competent authority that the agency that issued the invitation to tender has obliged him to accept changes to the contract for reasons that are not attributable to him and are not considered to constitute force majeure, the competent authority may:

• (b) where the rate of the refund fixed in advance is higher than or equal to the rate of the refund valid on the last day of the validity of the licence, release the security for the balance of the quantity not yet exported,

• where the rate of the refund fixed in advance is lower than or equal to the rate of the refund valid on the last day of the validity of the licence, extend the validity of the licence by the period required.

However, where special rules governing certain products provide that the period of validity of a licence issued under this Article may exceed the normal period of validity of such a licence and the successful tenderer finds himself in the situation referred to in the first indent of the first subparagraph, the issuing body may extend the period of validity of the licence provided it does not exceed the maximum period of validity permitted under those rules.

(c) If 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 for which the licence was issued, on condition that the rate of the refund fixed in advance is higher than or equal to the rate of the refund valid on the last day of validity of the licence. In such cases the rate of 95 % referred to in Article 34(2) shall be replaced by 90 %.

(d) In comparing the rate of the refund fixed in advance with that of the refund valid on the last day of validity of the licence, account shall be taken, where applicable, of other amounts provided for under Community rules.

10. In special cases, exceptions to the rules provided for in paragraphs 1 to 9 may be laid down following the procedure referred to in Article 195(2) of Regulation (EC) No 1234/2007 or, as appropriate, in the corresponding Articles of the other Regulations on the common organisation of markets.