TITLE IIEXPORTS TO THIRD COUNTRIES
CHAPTER 1Entitlement to refunds
Section 2Differentiated refunds
Article 15
Where the rate of refund varies according to destination, refunds shall be paid subject to the additional conditions laid down under Articles 16 and 17.
Article 16
1
Within 12 months of the date of acceptance of the export declaration, the products shall:
a
be imported in their unaltered state into the third country or one of the third countries for which the refund applies; or
b
be unloaded in their unaltered state in a remote refund zone for which the refund applies pursuant to the conditions set out in Article 24(1)(b) and (2).
However, an extension to the time limit may be granted in accordance with Article 46.
2
Products shall be considered to have been imported in their unaltered state if there is no evidence whatsoever of processing.
However the following operations conducted with a view to the safe keeping of the products may be carried out prior to import and shall be without prejudice to compliance with paragraph 1:
a
stocktaking;
b
the affixing of marks, seals, labels or other similar distinguishing signs to the products or goods or to their packaging, provided that this entails no risk of implying that the products originate elsewhere;
c
altering the marks and numbers on packages or changing of labels, provided that this entails no risk of implying that the products originate elsewhere;
d
packaging, unpacking, changing packaging or repairing packaging, provided that this entails no risk of implying that the products originate elsewhere;
e
airing;
f
chilling; and
g
freezing.
In addition, products processed prior to import shall be considered to have been imported in their unaltered state provided that processing takes place in the third country into which all the products resulting from such processing are imported.
3
A product shall be considered to have been imported when the customs import formalities, in particular those concerning the collection of import duties in the third country have been completed.
4
The differentiated part of the refund shall be paid on the mass of the products which underwent the customs formalities for import in the third country; however, no account shall be taken of any variations in mass that might occur in the course of transport as a result of natural causes and which are recognised by the competent authorities or due to samples taken in accordance with the provisions of the second subparagraph of Article 7(1).
Article 17
1
Proof that customs formalities for importation have been completed shall, as the exporter chooses, be furnished by one of the following documents:
a
the customs document, a copy or photocopy thereof, or a printout of equivalent information recorded electronically by the competent customs authority; such copy, photocopy or printout shall be certified as being a true copy or printout by one of the following:
- (i)
the body which endorsed the original document or electronically recorded the equivalent information;
- (ii)
an official agency of the third country concerned;
- (iii)
an official agency of a Member State in the third country concerned;
- (iv)
an agency responsible for paying the refund;
b
a certificate of unloading and importation drawn up by an approved international control and supervisory agency (hereinafter referred to as ‘SA’) in accordance with the rules set out in Annex VIII, Chapter III, using the model set out in Annex IX; the date and number of the customs document of import must appear on the certificate concerned.
At the request of the exporter, a paying agency may waive the certification requirement referred to in point (a) of the first subparagraph where it is able to verify that customs formalities for importation have been completed by accessing electronically recorded information held by or on behalf of the competent authorities of the third country.
2
Where the exporter cannot obtain the document chosen in accordance with points (a) or (b) of paragraph 1 even after taking the appropriate steps, or where there are doubts as to the authenticity of the document furnished, or its accuracy in all respects, proof of completion of customs formalities for importation may be furnished by one or more of the following documents:
a
a copy of the unloading document issued or endorsed in the third country for which a refund is payable;
b
a certificate of unloading issued by an official agency of a Member State established in, or competent for, the country of destination, in accordance with the requirements and in conformity with the model set out in Annex X, certifying in addition that the product has left the place of unloading or at least that, to its knowledge, the product has not subsequently been loaded for re-exportation;
c
a certificate of unloading drawn up by an approved SA in accordance with the rules set out in Annex VIII, Chapter III, using the model set out in Annex XI, certifying in addition that the product has left the place of unloading or at least that, to its knowledge, the product has not subsequently been loaded for re-exportation;
d
a bank document issued by approved intermediaries established in the Community, certifying, in the case of the third countries listed in Annex XII, that payment for the exports in question has been credited to the exporter’s account with them;
e
a certificate of acceptance of delivery issued by an official agency of the third country concerned, where the goods are purchased by that country or by an official agency of that country or where the goods constitute food aid;
f
a statement of acceptance of delivery issued either by an international organisation or a humanitarian organisation approved by the Member State of exportation, where the goods constitute food aid;
g
a statement of acceptance of delivery issued by a body in a third country whose invitations to tender are acceptable under Article 47 of Regulation (EC) No 376/2008 where the goods are purchased by that body.
3
Exporters shall in all cases produce a copy or photocopy of the transport documents, which shall relate to the transport of the products for which the export declaration was made.
At the exporter’s request, in the case of container transport by sea, a Member State may accept information equivalent to that contained in transport documents if they are generated by an information system managed by a third party responsible for the transport of the containers to the place of destination provided that the third party specialises in such operations and the information system security is approved by the Member State as meeting the criteria laid down in the version applicable to the period concerned of one of the internationally accepted standards set out in point 3(B) of Annex I to Commission Regulation (EC) No 885/200619.
4
The Commission may, in accordance with the procedure referred to in Article 195 of Regulation (EC) No 1234/2007 provide, in certain specific cases to be determined, for proof of import as referred to in paragraphs 1 and 2 of this Article to be furnished by a specific document or in any other way.
Article 18
1
An SA wishing to issue certificates as referred to in Article 17(1)(b) and (2)(c) has to be approved by the competent authority of the Member State where it has its registered office.
2
The SA shall be approved at its request for a renewable period of three years, if it fulfils the conditions set out in Annex VIII, Chapter I. The approval shall be valid for all Member States.
3
The approval shall specify whether the authorisation to issue certificates as referred to in Article 17(1)(b) and (2)(c) shall be on a worldwide basis or limited to a certain number of third countries.
Article 19
1
The SA shall act in accordance with the rules set out in Annex VIII, Chapter II, point 1.
If one or more of the conditions set out in those rules are not respected, the Member State which has approved the SA shall suspend the approval for such a period as is required to remedy the situation.
2
The Member State which has approved the SA shall control the performance and behaviour of the SA in accordance with the requirements set out in Annex VIII, Chapter II, point 2.
Article 20
Member States which have approved SAs shall provide for an effective system of sanctions for cases where an approved SA has issued a false certificate.
Article 21
1
The Member State which has approved the SA shall immediately withdraw the approval:
if the SA does no longer comply with the conditions for approval set out in Annex VIII, Chapter I, or
if the SA has repeatedly and systematically issued false certificates. In this case the sanction provided for in Article 20 shall not apply.
2
The withdrawal shall be total or limited to certain parts or activities of the SA according to the nature of the shortcomings detected.
3
Whenever an approval is withdrawn by a Member State from an SA belonging to a group of companies, Member States which have approved SAs belonging to the same group, shall suspend the approvals of these SAs for a period not exceeding three months in order to carry out the necessary investigations to verify whether the SAs also feature the shortcomings detected in relation to the SA whose approval has been withdrawn.
For the application of the first subparagraph, a group of companies shall comprise all companies whose capital is owned, directly or indirectly, for more than 50 % by one single parent company, as well as the parent company itself.
Article 22
1
Member States shall notify the approval of SAs to the Commission.
2
A Member State that withdraws or suspends the approval shall immediately notify the other Member States and the Commission, indicating the shortcomings that led to the withdrawal or suspension.
The notification to Member States shall be sent to the Member States central bodies listed in Annex XIII.
3
The Commission shall periodically publish for information an updated list of the SAs approved by Member States.
Article 23
1
Certificates as referred to in Article 17(1)(b) and (2)(c) issued after the date of withdrawal or suspension of the approval shall not be valid.
2
Member States shall refuse to accept certificates as referred to in Article 17(1)(b) and (2)(c) if they detect irregularities or deficiencies in the certificates. When such certificates have been issued by an SA approved by another Member State, the Member State which detects the irregularities shall notify these circumstances to the Member State which gave the approval.
Article 24
1
Member States may exempt exporters from furnishing the proof required pursuant to Article 17 other than the transport document or its electronic equivalent as referred to in Article 17(3), in case of an export declaration giving entitlement to a refund where:
a
the differentiated part of the refund is no more than:
- (i)
EUR 2 400 where the third country or territory of destination is listed in Annex XIV;
- (ii)
EUR 12 000 where the third country or territory of destination is not listed in Annex XIV; or
b
the port of destination is located in the remote refund zone for the product concerned.
2
The exemption referred to in paragraph 1(b) shall apply only where the following conditions are met:
a
the products are transported in containers and transport of the containers to the port of unloading is done by sea;
b
the transport document mentions as destination the country mentioned in the export declaration or a port normally used for unloading products destined for a hinterland country which is the country of destination mentioned in the export declaration;
c
the proof of unloading is provided pursuant to point (a), (b) or (c) of Article 17(2).
At the request of the exporter, in the case of container transport by sea, a Member State may accept that the proof of unloading referred to in point (c) of the first subparagraph is provided instead by information equivalent to that of the unloading document if it is generated by an information system managed by a third party responsible for the transport of the containers to and unloading of the containers at the place of destination, provided that the third party specialises in such operations and the information system security is approved by the Member State as meeting the criteria laid down in the version applicable to the period concerned of one of the internationally accepted standards set out in point 3(B) of Annex I to Regulation (EC) No 885/2006.
The proof of unloading may be provided pursuant to point (c) of the first subparagraph or pursuant to the second subparagraph without the exporter having to prove that he has taken the appropriate steps to obtain the document referred to in points (a) or (b) of Article 17(1).
3
Eligibility for the exemptions referred to in paragraph 1(a) shall be automatic except in case of application of paragraph 4.
Eligibility for the exemption referred to in paragraph 1(b) shall be granted for three years, by means of a written authorisation, in advance of export, upon application by the exporter. Exporters using these authorisations shall refer to the number of the authorisation in the payment application.
4
If the Member State considers that products for which the exporter claims an exemption under this Article have been exported to a country other than that mentioned in the export declaration or, as the case may be, to a country outside the relevant remote refund zone for which the refund is fixed, or the exporter has artificially divided an export operation with the aim of benefiting from an exemption, the Member State shall immediately withdraw eligibility for any exemption under this Article from the exporter concerned.
The exporter concerned shall not be eligible for any further exemption under this Article for two years from the date of withdrawal.
In case of withdrawal of eligibility the entitlement to the export refund for the products concerned shall no longer exist and the refund shall be reimbursed, unless the exporter can provide the proof required under Article 17 for the products concerned.
In addition, the entitlement to export refunds shall no longer exist for products covered by any export declaration made after the date of the act which led to the withdrawal of eligibility and the refunds shall be reimbursed, unless the exporter can provide the proof required under Article 17 for the products concerned.
Article 25
1
By way of derogation from Article 15 and without prejudice to Article 27, part of the refund shall be paid on application by the exporter once proof is furnished that the product has left the customs territory of the Community.
2
The part of the refund referred to in paragraph 1 shall be calculated using the lowest rate for the refund, less 20 % of the difference between the rate fixed in advance and the lowest rate, the non-fixing of a rate being regarded as the lowest rate.
Where the amount to be paid does not exceed EUR 2 000, Member States may defer payment of that amount until the full refund concerned is paid, except in cases where the exporter declares that he will not apply for payment of any further amount in respect of the exports concerned.
3
Where the destination marked in box 7 of licences issued with advance fixing of the refund is not observed:
a
if the rate of refund corresponding to the actual destination is equal to or higher than the rate for the destination marked in box 7, the refund for the destination marked in box 7 shall apply;
b
if the rate of refund corresponding to the actual destination is lower than the rate for the destination marked in box 7, the refund to be paid shall be:
that obtained by the application of the rate corresponding to the actual destination,
less, except in cases of force majeure, 20 % of the difference between the refund for the destination marked in box 7 and the refund for the actual destination.
For the purposes of this Article, the rates of refund to be taken into consideration shall be those applying on the day the licence application is submitted. Such rates shall be adjusted, where applicable, on the date of acceptance of the export declaration or the payment declaration.
Where the first and second subparagraphs of this paragraph and Article 48 apply to the same export operation, the amount obtained by the application of the first subparagraph shall be reduced by the penalty provided for in Article 48.
4
Where a rate of refund is determined by invitation to tender and the relevant contract stipulates a compulsory destination, any periodic refund fixed or the fact that no such refund is fixed for that destination on the date of submission of the licence application or the date of acceptance of the export declaration shall not be taken into account for the purposes of determining the lowest rate of refund.
Article 26
1
Paragraphs 2 to 5 shall apply where a product is exported under an export licence or advance-fixing certificate stipulating a compulsory destination.
2
Where the product does not arrive at the compulsory destination, only that part of the refund resulting from the application of Article 25(2) shall be paid.
3
Where, for reasons of force majeure, the product is delivered to a destination other than that for which the licence was issued, a refund shall be paid on application by the exporter if he furnishes proof of force majeure and proof of arrival of the product at destination; proof of arrival at destination shall be furnished in accordance with Articles 16 and 17.
4
Where paragraph 3 applies, the refund applicable shall be equal to that fixed for the actual destination, but may not be higher than that applicable for the destination marked in box 7 of licences issued with advance fixing of the refund.
The rates of refund shall be adjusted, where applicable, on the date of acceptance of the export declaration or the payment declaration.
5
To qualify for a refund fixed in advance, where a product is exported under a licence issued pursuant to Article 47 of Regulation (EC) No 376/2008 and the refund varies according to destination, the exporter shall provide proof, in addition to that required under Article 17 of this Regulation, that the product has been delivered in the third country of import to the body specified in the invitation to tender to which the licence refers.