COMMISSION REGULATION (EU) No 807/2010
of 14 September 2010
laying down detailed rules for the supply of food from intervention stocks for the benefit of the most deprived persons in the Union
(codification)
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (‘Single CMO’ Regulation) (1), and in particular Articles 43 (g) and (h), in conjunction with Article 4 thereof,
Whereas:
(1)
Commission Regulation (EEC) No 3149/92 of 29 October 1992 on laying down detailed rules for the supply of food from intervention stocks for the benefit of the most deprived persons in the Community (2) has been substantially amended several times (3). In the interests of clarity and rationality the said Regulation should be codified.
(2)
The procedure and rules for establishing the annual distribution plan for products from intervention stocks drawn up by the Commission on the basis of information provided by the Member States should be simple and the timetable should be adapted taking into account the requirements of distribution to the recipients and the need for financial management of public intervention stocks.
(3)
In order to ensure more standardised implementation in the Member States participating in this scheme, the concepts of ‘beneficiaries’ and ‘final recipients’ of the measure need to be clarified. In order to facilitate the management and control of the implementation of the annual plan, the charitable organisations designated by the competent national authorities can be deemed final recipients if they are actually engaged in the local distribution of the foodstuffs (in various forms) where the most deprived persons live.
(4)
The supply of agricultural products and foodstuffs to the most deprived persons in the Union normally involves products processed or packaged from products withdrawn from Union intervention stores. However, the objective may also be achieved by the supply of agricultural products and foodstuffs belonging to the same category of products placed on the Union market. In such cases supply is reimbursed in the form of a withdrawal and transfer of products from the intervention stores.
(5)
In order to deal with situations in which certain basic products are temporarily unavailable in intervention stocks at the time of adoption of an annual plan or during its implementation, Article 27 of Regulation (EC) No 1234/2007 provides that the products concerned may be mobilized on the Union market, although only under conditions which do not conflict with the principle of supply from intervention stocks. The rules for such mobilization must be fixed.
(6)
In order to comply with the principle that priority should be given to intervention stocks when mobilizing products to supply to the most deprived persons in the Union, optimum distribution of existing public stocks among the Member States participating in the scheme should be ensured when the plan is adopted and intra-Union transfer operations made necessary by the non-availability of the products requested in one or more Member States should be coordinated. For the purposes of applying Article 27 of Regulation (EC) No 1234/2007, a minimum quantity threshold should also be set beneath which, for reasons of good economic management, intra-Union transfers should not be implemented.
(7)
In order to allow judicious management of the scheme and to organize the implementation of the annual Union plan, it is appropriate, firstly, to determine, when that plan is being adopted, for which products temporary non-availability justifies mobilization on the market of the same product or a product in the same category, and secondly to set the financial allocation to be made available to the Member State for this purpose. To meet the abovementioned objectives, that allocation should be made on the basis of the applications submitted by the Member State for the annual plan, the quantities of the products unavailable in the intervention stocks and the allocations made during previous financial years and their effective use.
(8)
With the same objective of giving priority to the use of intervention stocks, it should be laid down that supplies using products to be withdrawn from those stocks must be allocated before operations to mobilize products of the same category on the Union market are undertaken.
(9)
The best conditions should be obtained for carrying out the different types of supply and it should be specified that invitations to tender must be published to ensure that all operators established in the Union have equal access.
(10)
It should be explicitly stated that these invitations must include all the necessary provisions on the delivery of the supplies and provision should be made to adjust payment for them based on compliance or otherwise with the requirements laid down.
(11)
The products to be withdrawn from intervention stocks under the annual plan may be supplied unprocessed or processed for the manufacture of food, or withdrawn in payment for the supply or manufacture of food mobilised on the Union market. In the latter case, the products in intervention stocks which may be withdrawn in payment for the manufacture of cereal, rice and milk products should be specified.
(12)
To respond more effectively to the needs of charitable organisations and expand the range of food products supplied, it should be laid down that products from intervention stocks may, under certain conditions, be incorporated into other products for the purposes of manufacturing food.
(13)
The terms for reimbursing charitable organisations for costs incurred by the transport of products and also, if appropriate, administrative costs should be determined, within the limits of available funds. The rules for entering in the accounts the value of products withdrawn from intervention stores for the purposes of the European Agricultural Guarantee Fund EAGF expenditure should also be laid down, along with the rules to be applied in the event that stocks are transferred from one Member State to another.
(14)
The transport costs must be reimbursed on the basis of the duly justified real costs established on the basis of an invitation to tender procedure. It should be specified, however, that reimbursement of the transport costs between the storage depots of the charitable organisation and the place of final distribution is effected on the basis of supporting evidence.
(15)
In order to ensure improved utilization of the available resources, it should be specified that in no circumstance may product carriage costs give rise to payments in the form of products.
(16)
The most appropriate types of check of the implementation of the annual plan should be specified and in particular the rate of checks to be made by the competent authorities. The annual reports of plan implementation should include information allowing both the outcome of the checks and the plan’s implementation to be assessed.
(17)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for the Common Organisation of Agricultural Markets,
HAS ADOPTED THIS REGULATION:
Article 1
1. Member States wishing to apply the measures laid down in Article 27 of Regulation (EC) No 1234/2007 on behalf of the most deprived persons in the Union shall inform the Commission each year no later than 1 February preceding the period of implementation of the annual plan referred to in Article 2 of this Regulation.
2. By 31 May at the latest, the Member States concerned shall notify the Commission of:
(a)
the quantities of each type of product (expressed in tonnes) required to implement the plan on their territory for the year in question;
(b)
the form in which the products are to be distributed to the recipients;
(c)
the eligibility criteria to be met by recipients;
(d)
the rate of charges, if any, which may be imposed on the recipients pursuant to Article 27(1)(b) of Regulation (EC) No 1234/2007.
3. For the purposes of this Regulation, ‘the most deprived persons’ means physical persons, whether individuals, families or groups composed of such persons, whose social and financial dependence is recorded or recognised on the basis of eligibility criteria adopted by the competent authorities, or is judged to be so on the basis of the criteria used by charitable organisations and which are approved by the competent authorities.
Article 2
1. Before 1 October each year the Commission shall adopt an annual plan for the distribution of food for the benefit of the most deprived persons, broken down by Member State concerned, hereinafter the ‘plan’. For the purposes of allocating the resources among Member States, the Commission shall take account of the best estimates of the number of most deprived persons in the Member States concerned. It shall also take account of how operations were carried out and the uses to which resources were put in previous financial years, on the basis in particular of the reports provided for in Article 11.
2. Before drawing up the plan, the Commission shall consult the major organisations familiar with the problems of the most deprived persons in the Union.
3. The plan shall include in particular:
(a)
For each of the Member States applying the measure, the following:
(i)
the maximum financial resources available to carry out its part of the plan;
(ii)
the quantity of each type of product to be withdrawn from the stocks held by the paying agencies or intervention agencies, hereinafter collectively referred to as ‘intervention agencies’;
(iii)
the grant made available for each product for purchase on the Union market where the product concerned is found to be temporarily unavailable among the stocks held by the intervention agencies when the plan is adopted.
This grant shall be determined for each product taking account firstly of the quantity indicated in the Member State notification referred to in Article 1(2), secondly of the quantities not available in intervention stocks and thirdly of the products applied for and allocated during previous financial years and the actual use made of them.
This grant shall be expressed in euro using the accounting value of the products not available among intervention stocks determined in accordance with Article 5(1);
(iv)
where appropriate, a grant for purchase on the Union market of one or more products, not available from the Member State where they are required, where the intra- Union transfer necessary to carry out the plan in that Member State would be in respect of a quantity of 60 tonnes or less of each product not available.
This grant shall be expressed in euro using the accounting value of the products concerned determined in accordance with Article 5(1).
(b)
The appropriations needed to cover the intra-Union transfer costs of the intervention products held by an intervention agency in a Member State other than that where the product is required.
4. The Commission shall publish the plan as quickly as possible.
Article 3
1. The plan implementation period shall begin on 1 October and finish on 31 December of the following year.
2. Withdrawal of the products from intervention stocks shall take place from 1 October to 31 August of the following year on a regular basis and in accordance with the requirements for implementing the plan.
70 % of the quantities referred to in Article 2(3)(a)(ii) must be withdrawn from stock before 1 July in the year of plan implementation. However, this requirement shall not apply to allocations of 500 tonnes or less. Any quantities that have not been withdrawn from intervention stocks by 30 September in the year of plan implementation shall no longer be allocated to the Member State to which they were assigned under the plan in question.
However, in the case of butter and skimmed-milk powder, 70 % of the products must be withdrawn from intervention storage before 1 February in the year of implementation. This requirement shall not, however, apply to allocations of 500 tonnes or less.
If the time limits provided for in the first, second and third subparagraphs are exceeded, the costs of storing the intervention products shall no longer be covered by the Union. This provision shall not apply to products which have not been withdrawn from intervention stocks on 30 September of the year of implementation of the plan.
The products to be withdrawn must be removed from intervention stocks within sixty days of the date on which the successful tenderer to whom the supply is assigned signs the contract or, in the case of transfers, within sixty days from the notification by the Member State of destination to the competent authority of the supplier Member State.
3. Payment operations for products to be supplied by the operator must, in the case of products to be mobilised on the market under Article 2(3)(a)(iii) and (iv), be closed before 1 September of the year of implementation of the plan.
4. During the implementation period the Member States shall notify to the Commission any changes that they make to the implementation of the plan on their territory within the strict limits of the financing available to them. The notification shall be accompanied by all appropriate information. Where substantiated changes concern 5 % or more of the quantities or values entered per product in the Union plan, the plan shall be revised.
5. The Member States shall inform the Commission immediately of foreseeable reductions in expenditure on applying the plan. The Commission may allocate the available resources to other Member States on the basis of their applications and their actual use of products made available and allocations made during previous financial years.
Article 4
1. Implementation of the plan shall comprise:
(a)
the supply of products withdrawn from intervention stocks;
(b)
the supply of products mobilised on the Union market under Article 2(3)(a)(iii) and (iv);
(c)
the supply of processed agricultural products or foodstuffs available or obtainable on the market by supplying for payment products from intervention stocks.
2. Those products referred to in paragraph 1(b) which are mobilised on the market must belong to the same product group as the product temporarily unavailable in the intervention stocks.
However, where no rice is available in the intervention stocks, the Commission may authorise the removal of cereals from intervention stocks as payment for the supply of rice or rice products mobilised on the market.
Similarly, where no cereals are available in the intervention stocks, the Commission may authorise the removal of rice from intervention stocks as payment for the supply of cereals or cereal products mobilised on the market.
A given product may be mobilised on the market only if all the quantities of product in the same group to be withdrawn from intervention stocks for supply purposes in application of Article 2(3)(a)(ii), including quantities to be transferred in application of Article 8, have already been allocated. The competent national authority shall inform the Commission of the opening of mobilisation procedures on the market.
3. Where the supply concerns products withdrawn from intervention stocks, the competent national authority shall issue or arrange to have issued an invitation to tender to determine the most advantageous conditions of supply. The invitation to tender shall specify precisely the nature and characteristics of the product to be supplied. The product to be supplied shall be either the product withdrawn from intervention stocks in unprocessed form or after packaging and/or processing, or a product mobilised on the market by withdrawing a product from intervention stocks in payment for the supply.
The invitation to tender shall concern:
(a)
the charges for processing and/or packaging of the products coming from intervention stocks;
(b)
or the quantity of processed or, where appropriate, packaged agricultural products or of foodstuffs which may be obtained by the use of products from intervention stocks supplied in payment for such products;
(c)
or the quantity of processed agricultural products or foodstuffs available or obtainable on the market by supplying for payment products from intervention stocks; these foodstuffs must contain an ingredient belonging to the same group of products as the intervention product supplied as payment.
In the case referred to in point (c) of the second subparagraph, where supply involves cereals or cereal products, the invitation to tender shall specify that the product to be withdrawn is a specific cereal held by an intervention agency. Where the supply involves milk products, the invitation to tender shall specify which product, butter or milk powder, must be withdrawn from the stocks held by an intervention agency depending on the stocks held by that agency.
In the case referred to in point (c) of the second subparagraph, where supply involves rice or rice products in exchange for cereals withdrawn from intervention stocks, the invitation to tender shall specify that the product to be withdrawn is a specific cereal held by an intervention agency. Similarly, where supply involves cereals or cereal products in exchange for rice withdrawn from intervention stocks, the invitation to tender shall specify that the product to be withdrawn is a specific rice held by an intervention agency.
Where the supply involves the processing and/or packaging of the product, the invitation to tender shall refer to the obligation of the successful bidder to lodge a security, before taking over the products, for the intervention agency in accordance with Title III of Commission Regulation (EEC) No 2220/85 (4), for an amount equal to the intervention price applicable on the day fixed for taking over the product plus 10 % of that price. For the purposes of Title V of that Regulation, the primary requirement shall be to supply the product at the stipulated destination. In the event of delivery after the end of the implementation period of the plan specified in Article 3(1) of this Regulation, the security forfeited shall be 15 % of the secured amount. The remainder of the security shall also be forfeited at an additional 2 % per day of delay. This subparagraph shall not apply where the product withdrawn from the intervention stocks is made available to the supply contractor as payment for supply already carried out.
4. Where the supply concerns agricultural products or foodstuffs to be mobilized on the Union market, the competent national authority shall issue an invitation to tender to determine the most advantageous conditions of supply. The invitation to tender shall specify precisely the nature and characteristics of the product or foodstuff to be mobilized, specifications concerning packaging and marking and other obligations associated with the supply. The supply contract is awarded to the selected tenderer subject to the latter depositing a security equivalent to 110 % of the amount of his tender and established in the name of the intervention agency, in accordance with Title III of Regulation (EEC) No 2220/85.
The invitation to tender shall concern all the supply charges and shall call for the submission of tenders concerning, according to case:
(a)
the maximum quantity of the agricultural product or foodstuff to be mobilized on the market for a monetary amount fixed in the notice;
(b)
or the monetary amount needed to mobilize on the market a quantity fixed in the notice.
5. Products from intervention or mobilised on the market under Article 2(3)(a)(iii) and (iv) or point c of the first subparagraph of paragraph 1 of this Article may be incorporated into or added to other products mobilised on the market for the manufacture of food to be supplied for the purposes of implementing the plan.
6. The transport costs shall by determined by an invitation to tender.
Member States may specify that supply must also include the transport of products to the depots of the charitable organisation. In such cases transport shall be the subject of a specific provision in the invitation to tender and shall constitute a particular item in the tender submitted.
Tenders concerning transport shall be submitted in monetary values.
The payment of transport costs may in no case be made in products.
7. Invitations to tender shall guarantee equal access to all operators established in the Union. To this end they shall be the subject of notices published in official administrative publications as well as being made available in complete form on request from interested operators.
8. The invitations to tender shall include the necessary provisions on the supply operation, especially as regards the products’ quality, packaging and marking. They shall also include a provision to the effect that if the quality, packaging or marking of the products noted at the time fixed for their supply does not correspond exactly to what was stipulated, but does not prevent the goods from being accepted for their intended use, the competent authorities can apply reductions when calculating the amount payable.
Article 5
1. For the European Agricultural Guarantee Fund (EAGF) accounting purposes, and notwithstanding Annex VIII to Commission Regulation (EC) No 884/2006 (5), the accounting value of the products made available from intervention under this Regulation shall be the intervention price applicable on 1 October of each year.
For the Member States which have not adopted the euro, the accounting value of intervention products shall be converted into national currency at the exchange rate applicable on 1 October.
2. Where intervention products are transferred from one Member State to another, the supplier Member State shall record the product delivered as a zero entry in the accounts and the Member State of destination shall record it as a receipt in the month of dispatch, using the price calculated in accordance with paragraph 1.
Article 6
With a view to distributing foodstuffs to the most deprived persons and to performing checks, the charitable organisations directly looking after the beneficiaries shall be deemed to be the final recipients of this distribution if they are the ones actually distributing the foodstuffs. Foodstuffs which, without any other intervention, are locally delivered direct to the beneficiaries as food packages or appropriate meals, depending on the circumstances, either daily or weekly, shall be deemed to have been distributed.
Article 7
1. On duly substantiated application to the competent authority in each Member State, the charitable organisations designated to distribute the products shall be reimbursed for transport costs on the territory of the Member State between the storage depots of the charitable organisations and the points of distribution to the beneficiaries.
2. Administrative costs generated by the supplies provided for in this Regulation shall, on duly substantiated application to the competent authority in each Member State, be reimbursed to the charitable organisations subject to a limit of 1 % of the value of the products made available to them, calculated in accordance with Article 5(1).
3. The costs referred to in paragraphs 1 and 2 shall be reimbursed to the Member States within the limits of the financial resources available to implement the plan in each Member State.
The costs referred to in paragraphs 1 and 2 may not be the subject of a payment in the form of products.
Article 8
1. When products included in the plan are not available from intervention in the Member State where such products are required, the Commission shall authorise, in accordance with the procedure referred to in Article 195(2) of Regulation (EC) No 1234/2007, the transfer of the product in question from a Member State in which it is present in intervention stocks to the Member State where it will be used to implement the plan.
The Member State receiving the products shall publish or have published an invitation to tender to establish the most favourable conditions of supply. The costs of intra- Union transport shall be the subject of a tender submitted in monetary value and may not be paid for in products. Article 4(7) of this Regulation shall apply in the context of this invitation to tender.
2. The intra-Union transport costs shall be borne by the Union and repaid to the Member State. The application for reimbursement shall include all necessary supporting documents, particularly those concerning the transport. The expenditure shall be set off against the appropriations referred to in Article 2(3)(b). Where the appropriations have been fully allocated, any additional Union financing to cover intra-Union transport costs shall be provided in accordance with Article 7(3).
3. The call for tenders shall mention the option whereby an operator may submit a bid for placement on the Union market of the agricultural products or foodstuffs to be supplied and for takeover of the products from the supplying intervention agency, without transfer to the applicant Member State. In these circumstances, no intra- Union transport costs shall be paid to the person awarded the supply contract.
The applicant Member State shall provide the supplier Member State with the name of the person contracted to supply the products.
4. Before the goods are removed, the contractor undertaking the supply operation shall lodge a security equal to the intervention buying-in price applicable on the day fixed for taking over the products, plus 10 %.
The security shall be lodged in accordance with Title III of Regulation (EEC) No 2220/85.
For the purposes of Title V of that Regulation, the primary requirement shall be completion of the supply operation in the Member State of destination.
Presentation of a takeover document issued by the intervention agency of destination shall constitute proof of supply of the products.
5. In the case of transfer, the Member State of destination shall provide the supplier Member State with the name of the person contracted to carry out the operation.
The intervention agency of the Member State supplying the products shall make them available to the person contracted to carry out the supply or his/her duly authorised agent, on presentation of a removal order issued by the intervention agency of the Member State of destination.
The competent authority shall ensure that the goods have been insured appropriately.
Dispatch declarations issued by the intervention agency of the supplier Member State shall include one of the entries given in Annex I.
The intervention agency of the supplier Member State shall, as soon as possible, notify the competent authority of the Member State of destination of the date on which the withdrawal operation is to end.
Intra- Union transport costs shall be paid by the Member State of destination of the products concerned for the quantities actually taken over.
6. The calculation of any losses shall be entered in the accounts in accordance with Annex X (c) of Regulation (EC) No 884/2006.
Article 9
Requests for payment shall be submitted to the competent authorities of each Member State within a period of four months following the completion of the operation in question. A 20 % reduction shall be made in the case of requests submitted beyond the time limit, except in the case of force majeure. Requests made more than ten months after the completion of the operation shall not be accepted.
The competent authorities shall make the payment within a period of two months following receipt of the payment request.
However, in the event of serious flaws in the supporting documents, the time limit provided for in the second paragraph may be suspended by notification in writing to the operator or the organisation designated to distribute products. The time limit shall continue to run from the date of receipt of the documents requested, which must be forwarded within 30 calendar days. If these documents are not sent within this period, the reduction specified in the first paragraph shall apply.
Except in cases of force majeure and taking account of the option of suspension provided for in the third paragraph, failure to comply with the time limit of two months stipulated in the second paragraph shall result in a reduction in the amount to be reimbursed to the Member State in accordance with Article 9 of Commission Regulation (EC) No 883/2006 (6).
Article 10
1. The Member States shall take all necessary measures to ensure that:
(a)
the intervention products and, where appropriate, grants for mobilising foodstuffs on the market, are put to the use and serve the purposes laid down in Article 27(1) and (2) of Regulation (EC) No 1234/2007;
(b)
the words ‘EU aid’, accompanied by the European Union flag following the instructions given in Annex II, shall be clearly visible on the packaging of goods which are not delivered in bulk to the beneficiaries;
(c)
the designated charitable organisations for implementing the measures maintain appropriate accounts and supporting documents and allow the competent authorities access to them to carry out whatever checks they deem necessary;
(d)
the invitations to tender are in accordance with Articles 3 and 4 and the supplies are implemented in accordance with this Regulation; in particular, the Member States shall establish the applicable penalties if the products have not been withdrawn in the period laid down in Article 3(2).
2. Checks by the competent authorities shall be carried out when the products are taken over on their release from intervention storage or, where appropriate, as from the mobilisation of the products on the market under Article 2(3)(a)(iii) and (iv) or Article 4(1)(c) at all stages of implementation of the plan and at all levels of the distribution chain. The checks shall be performed throughout the plan implementation period, at all stages including the local level.
The checks shall cover at least 5 % of the quantity of each type of product referred to in Article 2(3)(a)(ii). This checking rate shall apply to each implementation stage, except for the stage of actual distribution to the most deprived, with account being taken of the risk criteria.
The purpose of the check is to verify the entry and exit of the products and their transfer to successive actors. Checks shall include a comparison of the stocks as shown in the accounts and the actual stocks of products chosen for inspection.
3. The Member States shall take all the measures needed to ensure that the plan is properly implemented and to anticipate and penalise irregularities. To this end they may, in particular, suspend the participation of operators in the competitive tendering procedure or organisations designated for distribution in the plans, depending on the nature and seriousness of the shortcomings or irregularities found.
Article 11
No later than 30 June each year, the Member States shall send the Commission a report on the implementation of the plan on their territory during the previous year. The progress report shall include:
(a)
the amounts of the various products withdrawn from intervention stocks;
(b)
the type, quantity and value of goods distributed to the recipients, specifying separately unprocessed goods, processed goods and goods obtained by substitution together with the processing coefficients;
(c)
the transport and transfer costs;
(d)
administrative costs;
(e)
the number of recipients over the course of the year.
The report shall specify the verification measures that have been applied to ensure that the goods have achieved their intended objective and have reached the final recipients. This report shall mention in particular the type and the number of checks carried out, the results obtained and any cases where the penalties referred to in Article 10(3) are imposed. The report shall be taken into account as a decisive factor when drawing up subsequent plans.
Article 12
This Regulation shall apply without prejudice to Commission Regulation (EC) No 1130/2009 (7).
Article 13
Regulation (EEC) No 3149/92 is repealed.
References to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex IV.
Article 14
This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 14 September 2010.