CHAPTER IIIGENERAL PROVISIONS

SECTION 4Release of securities

Article 30

As regards the period of validity of licences and certificates:

  1. (a)

    the obligation to import shall be considered to have been fulfilled and the right to import under the licence or certificate shall be considered to have been exercised on the day the declaration referred to in Article 23(1)(a) is accepted, subject always to the product concerned being actually put into free circulation;

  2. (b)

    the obligation to export shall be considered to have been fulfilled and the right to export under the licence or certificate shall be considered to have been exercised on the day when the declaration referred to in Article 23(1)(b) is accepted.

Article 31

Fulfilment of a primary requirement shall be demonstrated by production of proof:

  1. (a)

    for imports, of acceptance of the declaration referred to in Article 23(1)(a) relating to the product concerned;

  2. (b)

    for exports, of acceptance of the declaration referred to in Article 23(1)(b) relating to the product concerned; in addition:

    1. (i)

      in the case of either export or supplies treated as exports within the meaning of Article 36 of Regulation (EC) No 800/1999, proof shall be required that the product has, within 60 days from the day of acceptance of the export, declaration, unless prevented by force majeure, either, in the case of supplies treated as exports, reached its destination or, in other cases, left the Community's customs territory. For the purposes of this Regulation, deliveries of any products intended solely for consumption on board drilling or extraction platforms, including workpoints providing support services for such operations, situated within the area of the European continental shelf, or within the area of the continental shelf of the non-European part of the Community, but beyond a three-mile zone starting form the baseline used to determine the width of a Member State's territorial sea, shall be deemed to have left the customs territory of the Community;

    2. (ii)

      in cases where products have been placed under the victualling warehouse procedure provided for in Article 40 of Regulation (EC) No 800/1999, evidence shall be required that the product has, within 30 days of acceptance of the declaration of its placement under that procedure and unless prevented force majeure, been placed in a victualling warehouse.

However, when the 60-day deadline referred to in point (b)(i) of the first paragraph or the 30-day deadline referred to in point (b)(ii) of the first paragraph is passed, the security shall be released in accordance with Article 23(2) of Regulation (EEC) No 2220/85.

The security shall not be forfeited under the second paragraph in the case of quantities for which the refund is reduced in accordance with Article 50(1) of Regulation (EC) No 800/1999 for failure to meet the deadlines referred to in Article 7(1) and Article 40(1) of that Regulation.

Article 32

1

The proof required under Article 31 shall be furnished as follows:

a

in the cases referred to in Article 31(a), by production of copy No 1 of the licence or certificate and, where applicable, of copy No 1 of the extract or extracts from the licence or certificate, endorsed as provided for in Article 23 or Article 24;

b

in the cases referred to in Article 31(b), and subject to paragraph 2 of this Article, by production of copy No 1 of the licence or certificate and, where applicable, of copy No 1 of the extract or extracts of the licence or certificate, endorsed as provided for in Article 23 or Article 24.

2

In addition, in the case of export from the Community or of supplies to a destination within the meaning of Article 36 of Regulation (EC) No 800/1999 or the placing of products under the arrangements provided for in Article 40 of that Regulation, additional proof shall be required.

Such additional proof shall be furnished as follows:

a

where the following operations take place within the Member State in question, such additional proof shall be left to the choice of the Member State in which:

  1. (i)

    the licence or certificate is issued;

  2. (ii)

    the declaration referred to in Article 23(1)(b) of this Regulation is accepted; and

  3. (iii)

    the product:

    • left the Community's customs territory. For the purposes of this Regulation deliveries of any products intended solely for consumption on board drilling or extraction platforms, including workpoints providing support services for such operations, situated within the area of the European continental shelf, or within the area of the continental shelf of the non-European part of the Community, but beyond a three-mile zone starting from the baseline used to determine the width of a Member State's territorial sea, shall be deemed to have left the Community's customs territory,

    • is delivered to one of the destinations listed in Article 36 of Regulation (EC) No 800/1999, or

    • is placed in a victualling warehouse under Article 40 of Regulation (EC) No 800/1999;

b

in all other cases, the additional proof shall be furnished by:

  1. (i)

    production of the control copy T5 or copies referred to in Article 912a of Regulation (EEC) No 2454/93 or a certified copy or photocopy of such control copy T5 or copies; or

  2. (ii)

    an attestation given by the agency responsible for paying the refund that the conditions of Article 31(b) of this Regulation have been fulfilled; or

  3. (iii)

    equivalent proof as provided for in paragraph 4 of this Article.

Where the sole purpose of the T5 control copy is the release of the security, the T5 control copy shall contain in Section 106 one of the entries listed in Annex III, Part C, to this Regulation.

However, if an extract of a licence or certificate, a replacement licence or certificate or a replacement extract is used, that entry shall also state the number of the original licence or certificate and the name and address of the issuing body.

The documents referred to in points (b)(i) and (ii) shall be sent to the issuing body through official channels.

3

Where, after acceptance of the export declaration as referred to in Article 23(1)(b), a product is placed under one of the simplified arrangements provided for in Articles 412 to 442a of Regulation (EEC) No 2454/93 or in Title X, Chapter I, of Appendix I to the Convention of 20 May 1987 on a common transit procedure for carriage to a station-of-destination or delivery to a consignee outside the Community's customs territory, the T5 control copy required under paragraph 2(b) of this Article shall be sent through official channels to the issuing body. One of the entries listed in Annex III, Part D, to this Regulation shall be entered in section ‘J’ of the T5 control copy under the heading ‘Remarks’.

In the case referred to in the first subparagraph, the office of departure may permit the contract of carriage to be amended so that carriage ends within the Community only if it is established:

a

that, where the security has already been released, such security has been renewed; or

b

that the necessary steps have been taken by the authorities concerned to ensure that the security is not released.

Where the security has been released without the product having been exported, Member States shall take appropriate action.

4

Where the T5 control copy referred to in paragraph 2(b) cannot be produced within three months following its issue owing to circumstances beyond the control of the party concerned, the latter may apply to the competent body for other documents to be accepted as equivalent, stating the grounds for such application and furnishing supporting documents.

The supporting documents to be submitted with the application shall be those specified in the second subparagraph of Article 49(3) of Regulation (EC) No 800/1999.

Article 33

For the purposes of Article 37 of Regulation (EC) No 800/1999, the last day of the month shall be taken to be the day of acceptance of the declaration referred to in Article 23(1)(b) of this Regulation.

Article 34

1

On application by the titular holder, Member States may release the security by instalments in proportion to the quantities of products for which proof as referred to in Article 31 has been produced, provided that proof has been produced that a quantity equal to at least 5 % of that indicated in the licence or certificate has been imported or exported.

2

Subject to the application of Articles 39, 40 or 47, where the obligation to import or export has not been met the security shall be forfeit in an amount equal to the difference between:

a

95 % of the quantity indicated in the licence or certificate, and

b

the quantity actually imported or exported.

If the licence is issued on a headage basis, the result of the 95 % calculation referred to above shall, where applicable, be rounded off to the next lesser whole number of head.

However, if the quantity imported or exported amounts to less than 5 % of the quantity indicated in the licence or certificate, the whole of the security shall be forfeit.

In addition, if the total amount of the security which would be forfeit comes to EUR 100 or less for a given licence or certificate, the Member State concerned shall release the whole of the security.

Where all or part of the security has been incorrectly released, it shall be lodged anew in proportion to the quantities concerned with the body that issued the licence or certificate.

However, an instruction for the released security to be lodged anew may only be given within four years following its release, provided the operator acted in good faith.

3

With regard to export licences with advance fixing of the refund:

a

where the licence or an extract from the licence is returned to the issuing body within the initial two thirds of its term of validity, the corresponding amount of security to be forfeited shall be reduced by 40 %. For this purpose, any part of a day counts as a whole day;

b

where the licence or an extract from the licence is returned to the issuing body 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 %.

The first subparagraph shall apply only to licences and extracts thereof returned to the issuing body during the GATT year for which the licences have been issued and provided that they are returned more than 30 days before the end of that year.

The first subparagraph shall apply unless it is temporarily suspended. Where the refund for one or more products is increased, the Commission, acting in accordance with the procedure referred to in Article 195(2) of Regulation (EC) No 1234/2007 or the corresponding Articles of the other Regulations on the common organisation of the markets, may suspend the application of the first subparagraph for licences applied for before the refund is increased and not returned to the issuing body until the day before the increase.

Licences lodged under Article 24 of this Regulation shall be deemed to have been returned to the issuing body on the date on which the latter receives an application from the licence holder for the security to be released.

4

The proof referred to in Article 32(1) must be produced within two months of the expiry of the licence or certificate, unless this is impossible for reasons of force majeure.

5

Proof of departure from the customs territory or of delivery to a destination within the meaning of Article 36 of Regulation (EC) No 800/1999 or of the placing of products under the arrangements provided for in Article 40 of that Regulation, as referred to in Article 32(2) of this Regulation, must be produced within 12 months of the expiry of the licence or certificate, unless this is impossible for reasons of force majeure.

6

The amount to be forfeited in respect of quantities for which proof concerning the export licence with advance fixing of the refund has not been provided within the time limit set under paragraph 4 shall be reduced:

a

by 90 % if the proof is provided in the third month following the date of expiry of the licence or certificate;

b

by 50 % if the proof is provided in the fourth month following the date of expiry of the licence or certificate;

c

by 30 % if the proof is provided in the fifth month following the date of expiry of the licence or certificate;

d

by 20 % if the proof is provided in the sixth month following the date of expiry of the licence or certificate.

7

In cases other than those referred to in paragraph 6, the amount to be forfeited in respect of quantities for which proof is not provided within the time limit set in paragraphs 4 and 5, but is provided at the latest in the 24th month following the date of expiry of the licence or certificate, shall be 15 % of the amount which would have been forfeited completely if the products had not been imported or exported. Where, for a given product, there are licences or certificates with different levels of security, the lowest rate applicable to imports or exports shall be used to calculate the amount to be forfeited.

8

The competent authorities may waive the obligation to provide the proof referred to in paragraphs 4 and 5 if they are already in possession of the necessary information.

9

Where a Community provision specifies, by reference to this paragraph, that an obligation is fulfilled by producing proof that the product has reached a specified destination, that proof must be produced in accordance with Article 16 of Regulation (EC) No 800/1999, failing which the security lodged for the licence or certificate shall be forfeited in proportion to the quantity concerned.

That proof shall also be produced within 12 months of the expiry of the licence or certificate. However, where the documents required under Article 16 of Regulation (EC) No 800/1999 cannot be submitted within the prescribed period although the exporter has acted with all due diligence to obtain them within that period, he may be granted an extension of time for the submission of those documents.

10

In the case of import licences for which a Community provision makes this paragraph applicable, paragraphs 4 to 8 notwithstanding, the proof of utilisation of the licence as referred to in Article 32(1)(a) must be produced within 45 days of expiry of the licence, unless this is impossible for reasons of force majeure.

Where the proof of utilisation of licences as specified in Article 32(1)(a) is provided after the prescribed time limit:

a

where the licence has been used, taking account of the lower tolerance, within the term of validity, 15 % of the total amount of the security as indicated in the licence shall be forfeit by way of a flat-rate deduction;

b

where the licence has been partly used within the term of validity, the security shall be forfeit in an amount equal to:

  1. (i)

    the difference between 95 % of the quantity indicated in the licence and the quantity actually imported, plus

  2. (ii)

    15 % of the security remaining after the flat-rate deduction made under point (i), plus

  3. (iii)

    3 % of the amount of the security remaining after the deduction made under points (i) and (ii), for each day by which the time limit for provision of proof is exceeded.