31988R1035

21 . 4. 88 No L 102/ 14 Official Journal of the European Communities

COMMISSION REGULATION (EEC) No 1035/88

of 18 April 1988

on a standing invitation to tender to determine levies and/or refunds on exports of white sugar

THE COMMISSION OF THE EUROPEAN COMMUNITIES, issued in connection with the standing invitation to tender and there should be a derogation from Commis­ sion Regulation (EEC) No 2630/81 of 10 September 1981 on special detailed rules for the application of the system Having regard to the Treaty establishing the European of import and export licences for sugar (8), as last amended Economic Community, by Regulation (EEC) No 3819/85 (9) ; whereas, however, the provisions of Commission Regulation (EEC) No 3183/80 of 3 December 1980 laying down common detailed rules for the application of the system of import Having regard to Council Regulation (EEC) No 1785/81 and export licences and advance fixing certificates for of 30 June 1981 on the common organization of the agricultural products (10), as last amended by Regulation markets in the sugar sector ('), as last amended by Regula­ (EEC) No 2082/87 (n), and those of Commission Regula­ tion (EEC) No 3993/87 (2), and in particular Articles 13 tion (EEC) No 645/75 of 13 March 1975 laying down (2), 18 (5), 19 (4) and (7) and the second subparagraph of common detailed rules for the application of the export Article 39 thereof, levies and charges on agricultural products (12), as last amended by Regulation (EEC) No 1607/80 (13) should remain applicable ; Having regard to Council Regulation (EEC) No 608/72 of 23 March 1972 laying down rules to be applied in the case of considerable price rises on the world sugar markets (3), and in particular Article 1 (1 ) thereof, Whereas the second subparagraph of Article 3 (1 ) of Commission Regulation (EEC) No 3155/85 of 11 November 1985 providing for the advance fixing of Whereas, in view of the situation on the Community and monetary compensatory amounts (H), as amended by world sugar markets, a standing invitation to tender Regulation (EEC) No 1002/86 (15), provides that, where should be issued as soon as possible for the export of the levy or refund is fixed in advance by means of white sugar in respect of the 1988/89 marketing year tenders, applications to fix the monetary compensatory which, having regard to possible fluctuations in world amount in advance shall be accepted only if the party prices for sugar, must provide for the determination of concerned has declared in writing at the time of submis­ export levies and/or export refunds ; sion of the tender that he will also apply to fix the mone­ tary compensatory amount in advance if the tender is accepted in whole or in part ; whereas, in such cases, the obligation to lodge an application to fix the levy or refund Whereas the general rules governing invitations to tender in advance following acceptance of the tender involves an for the purpose of determining export refunds for sugar obligation to request at the same time advance fixing of were laid down in Council Regulation (EEC) No 766/68 the monetary compensatory amount ; whereas, for reasons of 18 June 1968 laying down general rules for granting peculiar to the market in sugar, when an operator intends export refunds on sugar (4), as last amended by Regulation to make use of the facility of fixing a monetary compen­ (EEC) No 1489/76 0 ; satory amount in advance in connection with an export levy or refund fixed in advance under a tendering proce­ dure he only makes up his mind to do so at the moment Whereas, in view of the specific nature of the transactions when the application for the export licence is made ; involved, special detailed rules should be laid down in whereas it is only after he has been declared successful in this Regulation, and those provided for in Commission respect of a levy or refund for the quantity of sugar indi­ Regulation (EEC) No 394/70 of 2 March 1970 on detailed cated in his tender that the said monetary compensatory rules for granting export refunds on sugar (*), as last amount can be fixed in advance ; whereas, in conse­ amended by Regulation (EEC) No 1467/77 0, should not quence, a derogation should be made from the said provi­ apply ; whereas, for the same reasons, appropriate provi­ sion in the case of this tendering procedure, so that appli sions should be laid down with regard to export licences

(•) OJ No L 258 , 11 . 9 . 1981 , p. 16. (') OJ No L 177, 1 . 7. 1981 , p. 4. 0 OJ No L 368, 31 . 12. 1985, p. 25. 0 OJ No L 377, 31 . 12. 1987, p. 24. (,0) OJ No L 338 , 13 . 12. 1980, p. 1 . 3) OJ No L 75, 28 . 3 . 1972, p. 5. (") OJ No L 195, 16. 7. 1987, p. 11 . 0 OJ No L 143, 25. 6. 1968 , p. 6. (12) OJ No L 67, 14. 3. 1975, p. 16. 0 OJ No L 167, 26. 6. 1976, p. 13 . H OJ No L 160, 26. 6. 1980, p. 42. (s) OJ No L 50, 4. 3 . 1970, p. 1 . H OJ No L 310, 21 . 11 . 1985, p. 22. P) OJ No L 162, 1 . 7. 1977, p. 6. M OJ No L 93, 8. 4. 1986, p. 8.

No L 102/ 15 21 . 4. 88 Official Journal of the European Communities

— Wednesday, 2 November 1988 shall end on Thursday, cation for advance fixing of the monetary compensatory 3 November 1988 at 10.30 a,m., amount at the time when the application for the export licence is made should be possible ; — Wednesday, 9 and 16 November 1988 shall end on Tuesday, 8 and 15 November 1988 respectively at Whereas the measures provided for in this Regulation are 10.30 a.m. in accordance with the opinion of the Management Committee for Sugar, 4. Notwithstanding paragraph 2, no partial invitations to tender will be issued on Wednesday, 28 December 1988 . HAS ADOPTED THIS REGULATION : 5. The time limits laid down in this Regulation are expressed in Belgian time. Article 1

1 . A standing invitation to tender shall be issued in Article 5 order to determine export levies and/or export refunds on white sugar. During the period of validity of this standing 1 . Offers in connection with this tender must be in invitation, partial invitations to tender shall be issued. writing, and must be either delivered by hand, against a receipt, to the competent authority in a Member State, or 2. The standing invitation to tender shall remain open addressed to that authority by registered letter, telex, tele­ until a date to be determined subsequently. gram or fax message.

2. An offer must indicate : Article 2 (a) the reference number of the invitation to tender to The standing invitation to tender and the partial invita­ which the offer relates ; tions shall be conducted in accordance with Regulation (b) the name and address of the tenderer ; (EEC) No 766/68 and with the following provisions. Regulation (EEC) No 394/70 shall not apply. (c) the quantity of white sugar to be exported ;

(d) the amount of the export levy or, where applicable, of Article 3 the export refund, per 100 kilograms of white sugar, expressed in the currency of the Member State in 1 . The notice of the invitation to tender shall be which the tender is submitted ; published in the Official Journal of the European Communities. Member States may also publish the notice, (e) the minimum amount of the security to be lodged or have it published, elsewhere. covering the quantity of sugar indicated in (c), expressed in the currency of the Member State in 2. The notice shall indicate in particular the terms of which the tender is submitted. the invitation of tender. 3. An offer shall be valid only if : 3. The notice may be amended during the period of validity of the standing invitation to tender. It shall be so (a) the quantity to T>e exported is not less than 250 tonnes amended if the terms of the invitation to tender are modi­ of white sugar ; fied during that period. (b) proof is furnished before expiry of the time limit for the submission of tenders that the tenderer has lodged Article 4 the security indicated in the tender ;

1 . The period during which tenders may be submitted (c) it includes a declaration by the tenderer that if his in response to the first partial invitation to tender : tender is successful he will, within the period laid down in Article 12 (b), apply for an export licence or (a) shall begin on 22 April 1988 ; licences in respect of the quantities of white sugar to (b) shall end on 4 May 1988 at 10.30 a.m. be exported ;

2. The periods during which tenders may be submitted (d) it includes a declaration by the tenderer that if his tender is successful he will : in response to the second and subsequent partial invita­ tions : — where the obligation to export resulting from the export licence referred to in Article 12 (b) is not (a) shall begin on the first working day following the end of the preceding period ; fulfilled, supplement the security by payment of the amount referred to in Article 13 (4), and (b) shall end at 10.30 a.m. on the Wednesday of the — within 30 days following the expiry of the export following week. licence in question, notify the agency which issued 3. Notwithstanding paragraph 2 (b), the period for the the licence of the quantity or quantities in respect submission of tenders which was to end on of which the licence was not used ;

— Wednesday, 12 October 1988 shall end on Tuesday, (e) it contains all the information required under para­ 11 October 19881 at 10.30 a.m., graph 2.

No L 102/ 16 Official Journal of the European Communities 21 . 4 . 88

4. A tender may stipulate that it is to be regarded as resulting from the licence referred to under Article 12 having been submitted only if : (b) in accordance with the terms of Article 33 of that Regulation. (a) the minimum export levy or, where applicable, the The part of the security or the security which is not maximum export refund is fixed on the day of the released shall be forfeit in respect of the quantity of expiry of the period for the submission of the tenders sugar for which the corresponding obligations have in question ; not been fulfilled. (b) the tender, if successful, relates to all or a specified 4. In case of force majeure, the competent authority of part of the tendered quantity. the Member State concerned shall take such action as it 5. A tender which is not submitted in accordance with considers necessary having regard to the circumstances invoked by the party concerned. the provisions of this Regulation, or which contains terms other than those indicated in the present invitation to tender, shall not be considered. Article 7

6. Once submitted, a tender may not be withdrawn. 1 . Tenders shall be examined in private by the compe­ tent authority concerned. The persons present at the examination shall be under an obligation not to disclose Article 6 any particulars relating thereto.

2. Tenders shall be communicated to the Commission 1 . A security of 9 ECU per 100 kilograms of white forthwith and in such a manner that the tenderers remain sugar to be exported under this invitation to tender must anonymous . be lodged by each tenderer. Without prejudice to Article 13 (3), this security shall in the case of successful tende­ rers and at the time of the application referred to in Article 8 Article 12 (b) become the security for the export licence.

1 . After the tenders received have been examined, a 2. The security may be lodged at the tenderer's choice, maximum quantity may be fixed for the partial infitation either in cash or in the form of a guarantee given by an concerned. establishment complying with criteria laid down by the Member State in which the tender is submitted. 2. A decision may be taken to make no award under a specific partial invitation to tender. 3. Except in cases of force majeure the security referred to in paragraph 1 will be released : Article 9 (a) to unsuccessful tenderers in respect of the quantity for which no award has been made ; 1 . In the light of the current state and foreseeable development of the Community and world sugar markets, (b) to successful tenderers who have not applied for the there shall be fixed either : relevant exort licence within the period referred to in a minimum export levy, Article 12 (b), to the extent of 8 ECU per 100 kilo­ grams of white sugar. or — a maximum export refund. However, this part of the releasable security shall be reduced by the amount representing the difference 2. Subject to Article 10, where a minimum export existing, as applicable : refund is fixed, a contract shall be awarded to every tenderer whose tender quotes a rate of refund equal to or — between the maximum amount of the export, greater than such minimum levy. refund fixed for the partial invitation concerned and the maximum amount of the export refund 3. Subject to Article 10, where a maximum export fixed for the following partial invitation when the refund is fixed, a contract shall be awarded to every latter amount is higher than the former, tenderer whose tender quotes a rate of refund equal to or or less than such maximum refund and to every tenderer who has tendered for an export levy. — between the minimum amount of the export levy fixed for the partial invitation concerned and the minimum amount of the export levy fixed for the Article 10 following partial invitation when the latter amount is lower than the former ; 1 . Where a maximum quantity has been fixed for a partial invitation to tender : (c) to successful tenderers for the quantity for which they have fulfilled, within the meaning of Article 29 (b) < — if a minimum levy is fixed, a contract shall be and the first subparagraph of Article 30 (1 ) (b) of awarded to the tenderer whose tender quotes the Regulation (EEC) No 3183/80, the export obligation highest levy ; if the maximum quantity is not fully

21 . 4. 88 No L 102/ 17 Official Journal of the European Communities

quantity, the application not being revocable and covered by that award, awards shall be made to other tenderers in descending order of levies quoted until Article 10 of Regulation (EEC) No 645/75 not the entire maximum quantity has been accounted for, applying in such a case. The application shall be lodged in accordance with the relevant provisions of — if a maximum refund is fixed, contracts shall be Regulation (EEC) No 3183/80, not later than : awarded in accordance with the first indent ; if after such awards a quantity is still outstanding, or if there — the last working day preceding the date of the are no tenders quoting an export levy, contracts shall partial invitation to tender to be held the following be awarded in ascending order of refunds quoted until week, the entire maximum quantity has been accounted for, or to tenderers quoting a refund. — if no partial invitation to tender is due to be held that week, the last working day of the following 2. However, where an award to a particular tenderer in week ; accordance with the provisions of paragraph 1 would result in the maximum quantity being exceeded, that award shall be limited to such quantity as is still available. (c) the obligation to export the tendered quantity and, if Where two or more tenderers quote the same levy or the this obligation is not fulfilled, to pay, where necessary, same refund and awards to all of them would result in the the amount referred to in Article 13 (4). maximum quantity being exceeded, then the quantity available shall be awarded as follows : This right and these obligations are not transferable.

— by being divided among the tenderers concerned in proportion to the total quantities in each of their Article 13 tenders, of

— by being apportioned among the tenderers concerned 1 . The first paragraph of Article 9 of Regulation (EEC) by reference to a maximum tonnage to be fixed for No 2630/81 shall not apply to the white 'sugar to be each of them, or exported in accordance with this Regulation. — by the drawing of lots. 2. Export licences issued in connection with a partial invitation to tender shall be valid from the day of issue until the end of the fifth calendar month following that Article 11 in which the partial invitation was issued.

1 . The competent authority of the Member State However, export licences issued in respect of the partial concerned shall immediately notify applicants of the invitations held after 1 May 1989 will be valid only until result of their participation in the invitation to tender. In 30 September 1989 . addition, that authority shall send successful tenderers a statement of award. 3. The export licences issued in respect of the partial invitations held between 4 May 1988 and 31 August 1988 2. The statement of award shall indicate : will be usable only from 1 September 1988 .

(a) the reference number of the invitation to which the 4. Except in cases of force majeure, if the obligation to tender relates ; export resulting from the export licence referred to under (b) the quantity white sugar to be exported ; Article 12 (b) has not been fulfilled and if the security referred to in Article 6 is less than : (c) the export levy to be charged, or where applicable the (a) the export levy indicated on the licence reduced by export refund to be granted, per 100 kilograms of the levy referred to in the second subparagraph of white sugar of the quantity deferred to in (b). Article 18 ( 1 ) of Regulation (EEC) No 1785/81 in force on the last day of validity of the said licence,

Article 12 or

(b) the sum of the export levy indicated on the licence Every successful tenderer shall have : and the refund referred to in Article 2 of Regulation (EEC) No 766/68 in force on the last day of validity of (a) the right to receive in the circumstances referred to the said licence, under (b), in respect of the quantity awarded, an export licence indicating, as appropriate, the export or levy or the export refund quoted in his tender ; (c) the export refund referred to in Article 2 of Regulation (b) the obligation to lodge, in accordance with the rele­ (EEC) No 766/68 in force on the last day of validity of vant provisions of Regulation (EEC) No 3183/80, an the licence reduced by the refund indicated on the application for an export licence in respect of that said licence,

21 . 4. 88 No L 102/ 18 Official Journal of the European Communities

(b) in the event of the fixing of an intervention price for then, for the quantity in respect of which the said obliga­ tion was not fulfilled, the licence holder shall be charged white sugar applicable with effect from 1 July 1988 which . is lower than that in force on 30 June 1988, the an amount equal to the difference between the result of the calculation made under (a), (b) or (c), as the case may export refund shall be reduced and the export levy shall be increased by the difference expressed in ECU be, and the security referred to in Article 6 (1 ). per 100 kilograms existing between the intervention price for white sugar in force on 30 June 1988 and Article 14 the intervention price for that sugar applicable with effect from 1 July 1988 . If the tenderer intends to apply for advance fixing of the 3 . For the calculation of the differences referred to in monetary compensatory amount under this standing invi- * paragraph 2, the intervention prices in question shall be tation to tender, the provisions of the second paragraph of increased by the corresponding storage levy referred to in Article 3 ( 1 ) of Regulation (EEC) No 3155/85 shall not the second subparagraph of Article 8 (2) of Regulation apply. (EEC) No 1785/81 .

Article 15 4. For the purpose of applying this Article, the Member State issuing the relevant export licence shall at the time of issue complete section 18a by adding the 1 . If the terms of Article 12 of Regulation (EEC) No following : 'to be adjusted in accordance with adjudication 766/68 apply, the export refunds and export levies fixed Regulation (EEC) No 1035/88 for exports which take in advance under the terms of the present invitation to tender : place after 30 June . . .' (1988 or 1989 as applicable).

5. Upon presentation by the holder of the export (a) before 1 July 1988, for the sugar exported as from that licence concerned, or by the assignee when the licence date ; has been transferred, to the Member State that issued it and before the customs formalities for the quantities (b) before 1 July 1989, for the sugar exported as from that concerned have been carried out, that Member State shall date *, enter the adjustment to be made in section 18a and shall shall be adjusted. duly certify and stamp that section.

2. For the adjustment referred to in paragraph 1 (a) : 6. For the adjustment referred to in paragraph 1 (b) the provisions of paragraphs 2 to 5 shall be applicable (a) in the event of the fixing of an intervention price for mutatis mutandis. white sugar applicable with effect from ! July 1988 7. The Member States shall inform the Commission as which is greater than that in force on 30 June 1988, the export refund shall be increased and the export quickly as possible of the quantities of sugar for which an levy shall be reduced by the difference expressed in adjustment under this Article has been made. ECU per 100 kilograms existing between the interven­ tion price for white sugar applicable with effect from Article 16 1 July 1988 and the intervention price for that sugar in force on 30 June 1988 ; This Regulation shall enter into force on 22 April 1988 .

This Regulation shall be binding in its entirety and directly applicable in all Member States .

Done at Brussels, 18 April 1988 .

For the Commission

\ Frans ANDRIESSEN

Vice-President