EUROPEAN COMMISSION Brussels, XXX [ ](2016) XXX draft COMMISSION DELEGATED REGULATION (EU) /... of XXX supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council with regard to the rules for applying the management system of tariff rate quotas and supplementing Regulation (EU) No 1306/2013 of the European Parliament and of the Council with regard to the rules on the application of administrative penalties in the management system of tariff rate quotas (Text with EEA relevance) Meeting of the of the CMO Expert Group Horizontal Matters 15 November 2016 Version 5 Track changes = difference with version 4 Exchange of views on TRQs WORKING DOCUMENT ON TRADE MECHANISMS This document is provided by DG AGRI for the purposes of providing a framework for a structured discussion on suggestions that have been put forward by Member States and stakeholders in the course of the review of the TRQ legislation. It represents a possible structure in which generic rules are set out in the body, while sectoral specificities are to be set out in extra chapters and Annexes. The document is an orientation, and the content is not complete. It does not reflect the official position of the Commission, and the points mentioned will not necessarily be included in the Commission's eventual proposal. EN EN
EXPLANATORY MEMORANDUM 1. CONTEXT OF THE DELEGATED ACT The 2013 reform of the Common Agricultural Policy (CAP) confirmed that the management system of Tariff Rate Quotas by agricultural import and export licences as a tool for monitoring these trade flows should continue to apply. The quotas as such derive from international agreements which are not touched by this draft legislation. The internal Union management requires rules which are specific and complementary to existing legislation, in particular Delegated Regulations (EU) 2016/1237 (Licences); (EU) No 2014/907 (securities and penalties); and (EU) 2015/2447 (Customs Code). This draft Delegated Regulation complements the rules for which the basis is given in Articles 184-188 of Regulation (EU) No 1308/2013 (CMO) and comprises the issues laid down in more than 30 present Commission Regulations. The management of certain over-demanded TRQs in particular in the poultry sector and garlic needed an overhaul due to increased problems in enforcing the policy that TRQs should in particular benefit EU operators contributing to a proper functioning of the internal market. These rules in the headings of the articles qualified as "specific"- have at first glance an appearance as increasing administrative burden for operators and administrations, but in a longer term they create reduction of such burden and contribute to better market stability. On the other hand simplifications are introduced by transferring the management of under-used TRQs to customs' first come/first served management (XX of the present 147 TRQs managed by agricultural licence), and by exempting the proof of trade for getting access to low-used TRQs (XX of the present 147 TRQs); both simplifications are not visible in this legal act. Many of the general Tariff Rate Quota rules laid down before the 2013 reform have not been updated. Therefore, those provisions need to be repealed and replaced by simplified rules that are aligned with the Treaty of Lisbon and the empowerments contained in the relevant basic acts (mainly Regulation (EU) No 1308/2013). 2. CONSULTATIONS PRIOR TO THE ADOPTION OF THE ACT In the period July 2014 to September 2016, the provisions on tariff rate quotas laid down in existing Commission Regulations and the issues arising from them were discussed extensively with the experts of the Member States using the open working method developed by the Task Force CMO to coordinate the alignment of existing CMO Regulations. The Commission discussed the draft Delegated Act with experts nominated by the Member States in the framework of the CMO Expert Group and took account of the views and positions expressed. In parallel multifold hearings of stakeholders took place and the feedback mechanism under the "better regulation" policy has been applied. The experts of the European Parliament were informed about all those discussions and invited to all the meetings. 3. LEGAL ELEMENTS OF THE DELEGATED ACT The delegated act supplements Regulation (EU) No 1308/2013 as regards the tariff rate quotas management. The issues are predominantly based on present Commission Regulation (EC) No 1301/2006 for import quotas, and Regulation (EC) No 1187/2009 for export quotas based on international agreements in the milk sector. Stakeholders and experts called to respect EN 2 EN
sectoral and traditional differences. The draft Delegated Regulation gives the principles applying to such sectoral specificities, while the specificities themselves are set out in the sectoral Chapters and Annexes to the Implementing Regulation. Novelties compared with existing Commission regulations are introduced in the specific proof of trade for overdemanded TRQs concerning a self-declaration of the operator being independent of other operators (Article 5(3)), [ and the publication of licence holders' name and address on national web-sites (Article 5(4)]. The general rule that rights of licences are transferable in general is limited for TRQs to transfer only to transferees meeting the same obligations as the licence titular holder (Article 8(1)). Finally, the delegated act repeals the existing horizontal Commission Regulations on TRQs. EN 3 EN
WORKING DOCUMENT Draft Track changes = difference with version 2 Formatted: Font: 12 pt, Font color: Auto COMMISSION DELEGATED REGULATION (EU) /... Formatted: Titre objet of XXX supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council with regard to the rules for applying the management system of tariff rate quotas [with licences] and supplementing Regulation (EU) No 1306/2013 of the European Parliament and of the Council with regard to the rules on the application of administrative penalties in the management system of tariff rate quotas (Text with EEA relevance) THE EUROPEAN COMMISSION, Having regard to the Treaty on the Functioning of the European Union, Having regard to Regulation (EU) no 1308/2013 of the European Parliament and of the Council establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 1, and in particular Article 186 thereof, Having regard to Regulation (EU) No 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) No 352/78, (EC) No 165/94, (EC) No 2799/98, (EC) No 814/2000, (EC) No 1290/2005 and (EC) No 485/2008, and in particular Article 64[(4)(d)] and 66 thereof, Whereas: (1) Regulation (EU) No 1308/2013 repealed and replaced Council Regulation (EC) No 1234/2007 and lays down rules regarding tariff quota management and special treatment of imports by third countries. It also empowers the Commission to adopt delegated and implementing acts in that respect. In order to ensure the smooth functioning of the management of tariff quotas in the new legal framework, certain rules have to be adopted by means of such acts. (2) In order to guarantee a sound management of tariff quotas, eligibility criteria for application for a licence for tariff quotas should be laid down. 1 OJ L 347, 20.12.2013, p. 671. EN 4 EN
(3) As a general rule, in order to facilitate management and control, applying for a licence for a tariff quota should be allowed only to operators established and registered for VAT purposes in a Member State. (4) It is necessary to provide that the licences under tariff quotas are to be issued subject to the lodging of a security, so as to guarantee that the products will be imported or exported under that tariff quota during the period of validity of the licence. It is also necessary to lay down when the obligation to import or export under the tariff quota is fulfilled. (5) As one of the criteria for applying for a licence under tariff quotas can be proof of trade proving the past performance and involvement in the specific trade, it is necessary to lay down rules for such proof of trade. (6) In order to guarantee a sound management of tariff quotas, quantities to be applied for under tariff quotas may be set out. It is necessary to lay down specific rules for that. (7) Given the economic reality of tariff quotas, it is appropriate to lay down specific rules as regards the transferability of a licence under tariff quotas allowing a possible transfer only to transferees satisfying the same eligibility criteria as the applicant for a licence under a tariff quota. (8) Provisions should be laid down on the release and forfeiture of the security lodged for licences under tariff rate quotas. (9) Experience shows that provisions need to be laid down to deter inaccurate documents from being presented. A suitable penalty system should therefore be established and the cases where no penalties are to be applied should be determined. (10) For the sake of clarity it is appropriate to lay down the rules concerning the licences issued for products under tariff quotas for which the conditions are affected by this Regulation and which are still valid on the date of application of this Regulation. (11) As the aim of this Regulation and Commission Implementing Regulation (EU) / [TRQs] is to simplify and adapt the provisions applicable to the tariff quota management and special treatment of imports by third countries to the new legal framework established by Regulation (EU) No 1308/2013, the currently applicable provisions should be replaced. For the sake of clarity, certain provisions of Commission Regulations [ ] should be deleted and Commission Regulations [ ] should be repealed. (12) The transition from the arrangements provided for in the deleted provisions and repealed Regulations to those provided for in this Regulation might have some practical consequences. Therefore, and taking account of the obligation to notify the new rules to World Trade Organisation in advance, it is appropriate to defer the application of this Regulation, HAS ADOPTED THIS REGULATION: Article 1 Art. 1(2) Reg. 1301/2006 Scope of the Regulation 1. This Regulation supplements the rules for applying the system of Tariff Rate Quotas (TRQ) for agricultural products managed by import or export licence, provided for EN 5 EN
in Articles 184 to 188 of Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007. 2. This Regulation supplements the rules, under the system of import or export licences for a tariff rate quota, the modalities of penalties provided for in Article 64(4)(d), and for the release of securities, provided for in Article 66 of Regulation (EU) No 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) No 352/78, (EC) No 165/94, (EC) No 2799/98, (EC) No 814/00, (EC) No 1290/05 and (EC) No 485/2008. 3. Regulation (EU) No 952/2013 2 and Delegated Regulations (EU) 2016/1237, 3 (EU) No 907/2014 4, and (EU) 2015/2446 5 shall apply, save as otherwise provided for in this Regulation. 4. Commission Regulations governing a given import tariff quota managed by a system of import licences and the management of which does not fall within the scope of the common organisation of the markets may provide that this Regulation shall apply to that import tariff quota. Article 2 Art. 186(1)(a) Reg. 1308/2013. Art. 22(4) Reg.1187/2009 Eligibility for application 1. Operators applying for an import or export licence for an import or export TRQ, or for an import right where applicable, shall be established and registered for VAT in the Union and shall submit their application to the licence issuing authority of the Member State of their registration. At the first application of each TRQ period, the applicant shall submit: (a) (b) (c) proof of his historic trade record in accordance with Articles 4 or 5. In accordance with the procedure of Article 229(2) of Regulation (EU) No 1308/2013 the Commission may decide that the requirement under this subparagraph shall be suspended for certain TRQs, or that the suspension shall be lifted. The suspension shall be indicated in the Annexes concerned to Implementing Regulation (EU) 2016/ [TRQ]; proof of their independency of other applicants, where required, in accordance with Article 12 of Implementing Regulation (EU) 2016/..(TRQ). For export quota where set out in the Annexes to Implementing Regulation (EU) 2016/.. [TRQ], evidence that the designated importer in the third country concerned is a subsidiary of the applicant. Deleted: their 2 OJ L 269, 10.10.2013, p.1 3 OJ L 206, 30.7.2016, p.1 4 OJ L 255, 28.8.2014, p.18 5 OJ L 343, 29.12.2015, p.1 EN 6 EN
Article 3 Art. 186(1)(c) Reg. 1308/2014 Security at application 1. The issue of an import or export licence for an import or export TRQ, or an import right where applicable, shall be subject to a security being available at the licence issuing authority before the end of the application period specific for the product concerned and for an amount referred to in Article 8 of Implementing Regulation (EU) 2016/.. [TRQ]. 2. The security shall be released in respect of quantities covered by applications for which no import right or import or export licence could be issued further to the application of the allocation coefficient referred to in Article 13 of Implementing Regulation (EU) 2016/. [TRQ]. Deleted: rate Deleted: 9 Formatted: Highlight Deleted: 14 Article 4 Art. 186(1)(a) Reg. 1308/2014. Ex-Art. 5 Reg. 1301/20006 General proof of trade 1. Operators shall submit, where applicable, at the time of their first application for a given tariff quota period to the licence issuing authority of the Member State in which they are established and in which they are registered for VAT purposes, proof that at the time their application for an import or export licence for a TRQ is submitted, for import quotas that they have been subject to release for free circulation or export of products covered by the relevant market sector, whether or not under a TRQ; for export quotas that they have been subject to exports of products covered by the relevant market sector, whether or not under a TRQ. The release for free circulation or export shall have taken place during the 12 month period immediately prior to the month in which the application is received in accordance with Article 2(1) of Implementing Regulation (EU) 2016/1239 6 (n-1), and during the [12 month] period immediately prior to the [12 month] period referred to in the first indent (n-2) for a minimum quantity [in the period n-1 and n-2] as set out in the Annexes to Implementing Regulation (EU) 2016/.. [TRQ]. 2. The proof of the period n-1 shall be valid as proof of the period n-2 in the next TRQ period, if applicable, and it shall not be submitted again in the application for the next TRQ period, unless the applicant requests replacement of that proof by new information. 3. Where eligibility for a TRQ is subject to past trade performance for a certain quantity, if an operator according to national legislation merged with another Deleted: proof that Deleted: engaged in Deleted:, Deleted: engaged in Deleted: legally 6 OJ L 206, 30.7.2016, p.44 EN 7 EN
operator, the quantities of products released into free circulation or exported according to paragraph 1, of the merged operators, may be accumulated for establishing the quantity of the merged enterprise. 4. The proof of trade in products covered by the relevant sector shall be limited to products released for free circulation or export, for a selection of products of the sector concerned if indicated so in the Annexes of Implementing Regulation (EU) 2016/.. [TRQ]. 5. Unless paragraph 4 applies, the proof of trade submitted for one import or export TRQ shall be valid for all import or export TRQs applicable in the sector concerned and subject to the general proof of trade as set out in this article. Article 5 Art. 186(1)(a) Reg. 1308/2014. Ex-Art. 5 Reg. 1301/2006 Specific proof of trade, declaration of independence, and publication of applicants for certain over-demanded TRQs 1. This article applies for certain TRQs, as set out in the Annexes of Implementing Regulation (EU) 2016/.. (TRQ). Article 4(1) of this Regulation shall not apply. 2. Operators applying for an import right referred to in Article 12 of Implementing Regulation (EU) 2016/. [TRQ] shall submit, at the time of their first application for a given import TRQ order number and import tariff quota period, to the licence issuing authority of the Member State in which they are established and in which they are registered for VAT purpose, proof that at the time their application for an import right is submitted, they have been subject to releasing into free circulation [ or export] a selection of products of designated CN codes within the sector (a) (b) during the 12 month period immediately prior to the month the application is received in accordance with Article 2(1) of Implementing Regulation (EU) 2016/1239 (n-1), and during the [12 month] period immediately prior to the [12 month] period referred to in the first indent (n-2); 3. The maximum quantity to apply for an import right shall be limited by the reference quantity. The reference quantity shall be derived from the proof of trade referred to in paragraph 2 by a more specific selection of products as set out in the Annexes to Implementing Regulation (EU) 2016/. [TRQ]. If the sector specific sections in Implementing Regulation (EU) 2016/. [TRQ] indicate so, the reference quantity to apply for shall be limited by a percentage. If the sector specific sections in Implementing Regulation (EU) 2016/. [TRQ] indicate so, the reference quantity shall not be higher than a percentage of the available quantity in the sub-period concerned. Deleted: 13 Deleted: engaged in Deleted: chapters Deleted: chapters 4. Operators applying for an import right referred to in paragraph 2, or for an import licence if indicated so in specific sectoral provisions, shall submit a declaration that they are independent of other applicants for that TRQ, or that they are the sole EN 8 EN
applicant of linked entities for that TRQ, or that their being linked with other applicants is justified according to Union legal provisions applicable. 5. The licence issuing authority shall notify, by TRQ order number, the name and address of operators having received import rights according to Article 13 of Implementing Regulation (EU) 2016/. (TRQ) to the Commission in accordance with Article 19 of Implementing Regulation (EU) 2016/.. The Commission shall publish the information on its official website when the TRQ period concerned is ended, and for not longer than [12] months. 6. Paragraph 2 to 5 shall apply for applications for an import licence where indicated so in the Annexes to Implementing Regulation (EU) 2016/.. [TRQ]. Article 6 Art. 186 (1) (a) Reg.1308/2013. Ex-Art. 6(5) Reg. 1301/2006 Quantity to apply for 1. An import or export licence or import right application may not exceed, by import or export tariff quota period or sub-period, the quantity available for the import or export tariff quota period or sub-period concerned, or, as the case may be, the quantitative limit set out in the Annexes of Implementing Regulation (EU) 2016/.. [TRQ], where applicable increased by the additional quantities published according to Article 18(1)(c) of Implementing Regulation (EU) 2016/ [TRQ]. 2. By licence application period for a TRQ, the quantity to apply for shall not be lower than the quantity set out in the Annexes to Implementing Regulation (EU) 2016/.. [TRQ]. 3. By licence application period for a TRQ, the quantity to apply for shall be limited to a maximum if indicated so in the Annexes to Implementing Regulation (EU) 2016/.. [TRQ]. 4. If the system of reference quantities referred to in Article 5(3) applies, the quantity to apply for shall be the reference quantity, where applicable corrected with the conversion factor and limited to a maximum as set out in the Annexes to Implementing Regulation (EU) 2016/.. [TRQ]. Deleted: coefficient EN 9 EN
Article 7 Art. 186(2) Reg.1308/2013. Articles 16(1), 21, 27(1)Reg. 1187/2009 Special treatment on export to a third country The competent authorities of the Member States shall issue an export licence, at request and after appropriate checks, certifying that the conditions are met for products that may benefit from a special treatment on importation into a third country. Article 8 Art. 177(2)(c) Reg. 1308/2013 Specific rules on transfer This article shall not apply to licences issued for TRQs managed by a document issued by a third country as referred to in Article 6 of Implementing Regulation (EU) 2016/. [TRQ]. 1. In addition to Article 6 of Delegated Regulation (EU) 2016/1237, rights deriving from an import or export licence for a TRQ are only transferable to a transferee satisfying the same eligibility criteria referred to in Article 2. 2. If an import or export licence for a TRQ is transferred, the quantity released for free circulation or for export under that transferred licence shall be attributed to the proof of trade as set out in Article 4, of the transferee. 3. Derogating from Article 6 of Delegated Regulation (EU) 2016/1237, rights deriving from an import or export licence issued for a TRQ subject to Article 5 shall not be transferable. Article 9 Art. 66(3)(c) Reg. 1306/2013. Release and forfeiture of securities 1. Article 7 (1), (3) and (4) of Delegated Regulation (EU) 2016/1237 shall apply to the release and forfeiture of securities for a licence for a TRQ. 2. In derogation from the first subparagraph of Article 23(4) of Delegated Regulation (EU) No 907/2014, where the release for free circulation or export took place within the period of validity of the licence, but the term for proving such release is exceeded, the security shall be forfeited by 3% for each calendar day by which the time limit is exceeded. Article 10 Art. 64(4)(d) Reg. 1306/2013. Ex-Art. 3 Reg. 1301/2006 Penalties EN 10 EN
1. Where it is found that a document presented by an operator applying for an import right or import or export licence for a given import or export quota is incorrect and where the document concerned is decisive for the attribution of that import right or import or export licence, the licence issuing authority shall: (a) (b) bar the operator from bringing into free circulation or exporting any goods under the import tariff quota or export tariff quota concerned for the entire import or export tariff quota period in which the finding was made and; exclude the operator from the licence application system for the import or export tariff quota concerned in the following import or export tariff quota period in which the finding was made. If the incorrect document concerns the declaration as set out in Article 11 of Implementing Regulation (EU) No 2016/. TRQ, the penalties shall apply to the operator having signed that declaration and the entities for which he bears the competence to sign the declaration. In applying this paragraph the competent authority shall take account of Article 64(2) of Regulation (EU) No 1306/2013. Deleted: 12 Deleted: all operators concerned by 2. If an operator referred to in paragraph 1 deliberately presents an incorrect document, that operator shall: (a) (b) be barred from bringing into free circulation any goods under the import tariff quota concerned for the entire import tariff quota period, or export any products under the export tariff quota concerned for the entire export tariff quota period during which the finding was made and; be excluded from the licence application system for the import or export tariff quota concerned during the following two tariff quota periods in which the finding was made. In addition, if it concerns an incorrect declaration as set out in Article 12 of Implementing Regulation (EU) 2016/ [TRQ], the measures referred to in this paragraph shall apply for all linked entities in the TRQ concerned. 3. Where release for free circulation has already been carried out prior to the finding referred to in paragraphs 1 or 2, any undue financial advantages resulting therefrom shall be recovered. 4. Subject to Article 6 of Council Regulation (EC, Euratom) No 2988/95, the penalties referred to in paragraphs 1 and 2 of this Article shall be without prejudice to any additional penalties pursuant to other provisions of Union or national law. Deleted: 11 Article 11 Specific tariff quotas For the specific tariff quotas for Spain and Portugal referred to in Article 185 of Regulation (EU) No 1308/2013 the following applies. [to be completed by C.4] EN 11 EN
Article 12 Formatted: English (U.K.) Article 223 Reg. 1308/2013. Ex-Art. 11 Reg. 1301/2006 Notifications to the commission In accordance with the detailed conditions laid down in the Implementing Act adopted pursuant to Article 223(3) of Regulation (EU) No 1308/2013, Member States shall notify the Commission of the following: (a) (b) (c) (d) (e) The quantities covered by import or export licence applications and applications for import rights; The quantities covered by import or export licences or import rights issued; The non-used quantities covered by unused or partly used import or export licences. [At the request of the Commission, the quantities released for free circulation or exported under the import or export licences issued.] The names and addresses of operators having received import rights or, where applicable, import licences. Article 13 Repeal Regulation (EC) No 1301/2006 and Regulation (EC) No 1187/2009 are repealed. However, the repealed Regulations shall continue to apply for import and export licences for a TRQ issued under that Regulation. Article 14 Entry into force and application 1. This Regulation shall enter into force from the seventh day following that of its publication in the Official Journal of the European Union. 2. It shall apply from the fifth month after its entry into force. 3. For each TRQ it shall apply on the day the application period for an import or export licence for a new TRQ period is opened after the day of application referred to in paragraph 2. 4. However, Article 5 shall apply for each TRQ concerned one year after the day indicated in paragraph 3. This Regulation shall be binding in its entirety and directly applicable in all Member States. EN 12 EN
Done at Brussels, [ ] For the Commission The President EN 13 EN