31991R0963

20 . 4. 91 Official Journal of the European Communities No L 100/9

COMMISSION REGULATION (EEC) No 963/91 of 18 April 1991 on a standing invitation to tender to determine levies and/or refunds on exports of white sugar and amending Regulation (EEC) No 983/90

THE COMMISSION OF THE EUROPEAN COMMUNITIES, amended by Regulation (EEC) No 1714/88 (7), should not apply ; whereas, for the same reasons, appropriate provi­ sions should be laid down with regard to export licences issued in connection with the standing invitation to Having regard to the Treaty establishing the European tender and there should be a derogation from Commis­ Economic Community, sion Regulation (EEC) No 2630/81 of 10 September 1981 on special detailed rules for the application of the system of import and export licences for sugar (8), as last amended by Regulation (EEC) No 1714/88 ; whereas, however, the provisions of Commission Regulation (EEC) No 3719/88 Having regard to Council Regulation (EEC) No 1785/81 of 16 November 1988 laying down common detailed of 30 June 1981 on the common organization of the rules for the application of the system of import and markets in the sugar sector ('), as last amended by Regula­ export licences and advance fixing certificates for agricul­ tion (EEC) No 464/91 (2), and in particular Articles 13 (2), tural products (9), as last amended by Regulation (EEC) No 18 (5), 19 (4) and (7) and the second subparagraph of 1 599/90 (10), and those of Commission Regulation (EEC) Article 39 thereof, No 120/89 of 19 January 1989 laying down common detailed rules for the application of the export levies and charges on agricultural products (' '), 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 monetary compensatory amounts (12), as last amended by Whereas, in view of the situation on the Community and Regulation (EEC) No 3247/89 (u), provides that, where world sugar markets, a standing invitation to tender the levy or refund is fixed in advance by means of should be issued as soon as possible for the export of tenders, applications to fix the monetary compensatory white sugar in respect of the 1991 /92 marketing year amount in advance shall be accepted only if the party which, having regard to possible fluctuations in world concerned has declared in writing at the time of submis­ sion of the tender that he will also apply to fix the mone­ prices for sugar, must provide for the determination of export levies and/or export refunds ; 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 in advance following acceptance of the tender involves an obligation to request at the same time advance fixing of Whereas the general rules governing invitations to tender the monetary compensatory amount ; whereas, for reasons for the purpose of determining export refunds for sugar peculiar to the market in sugar, when an operator intends were laid down in Council Regulation (EEC) No 766/68 to make use of the facility of fixing a monetary compen­ of 18 June 1968 laying down general rules for granting satory amount in advance in connection with an export export refunds on sugar (4), as last amended by Regulation levy or refund fixed in advance under a tendering proce­ (EEC) No 1489/76 0 ; dure he only makes up his mind to do so at the moment when the application for the export licence is made ; whereas it is only after he has been declared successful in respect of a levy or refund for the quantity of sugar indi­ Whereas, in view of the specific nature of the transactions cated in his tender that the said monetary compensatory involved, special detailed rules should be laid down in amount can be fixed in advance ; whereas, in conse­ this Regulation, and those provided for in Commission quence, a derogation should be made from the said provi­ Regulation (EEC) No 394/70 of 2 March 1970 on detailed sion in the case of this tendering procedure, so that rules for granting export refunds on sugar (6), as last

0 OJ No L 152, 18 . 6. 1988 , p. 23 . (') OJ No L 177, 1 . 7. 1981 , p. 4. (8) OJ No L 258 , 11 . 9. 1981 , p. 16. (2) OJ No L 54, 28 . 2. 1991 , p. 22. 0 OJ No L 331 , 2. 12. 1988 , p. 1 . (3) OJ No L 75, 28 . 3 . 1972, p. 5. (I0) OJ No L 151 , 15. 6. 1990, p. 29. (4) OJ No L 143, 25. 6. 1968 , p. 6. (") OJ No L 16, 20 . 1 . 1989, p. 19. 0 OJ No L 167, 26. 6. 1976, p. 13 . (12) OJ No L 310, 21 . 11 . 1985, p. 22. (6) OJ No L 50, 4. 3. 1970, p. 1 . H OJ No L 314, 28 . 10 . 1989, p. 51 .

No L 100/ 10 Official Journal of the European Communities 20 . 4. 91

application for advance fixing of the monetary compensa­ — Wednesday 8 May 1991 shall end on Tuesday 7 May tory amount at the time when the application for the 1991 at 10.30 a.fn., export licence is made should be possible ; —- Wednesday 15 May 1991 shall end on Tuesday 14 May 1991 at 10.30 a.m., Whereas the measures provided for in this Regulation are — Wednesday 20 November 1991 shall end on Tuesday in accordance with the opinion of the Management 19 November 1991 at 10.30 ' a.m . Committee for Sugar, 4. Notwithstanding paragraph 2, no partial invitations to tender will be issued on Wednesday 25 December HAS ADOPTED THIS REGULATION : 1991 and Wednesday 1 January 1992

5. The time limits laid down in this Regulation are Article 1 expressed in Belgian time.

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 20 May 1992. 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. (c) the quantity of white sugar to be exported ; Regulation (EEC) No 394/70 shall not apply. (d) the amount of the export levy or, where applicable, of the export refund, per 100 kilograms of white sugar, Article 3 expressed in the currency of the Member State in which the tender is submitted ; 1 . The notice of the invitation to tender shall be published in the Official Journal of the European (e) the minimum amount of the security to be lodged Communities. Member States may also publish the notice, covering the quantity of sugar indicated in (c), or have it published elsewhere. expressed in the currency of the Member State in which the tender is submitted . 2. The notice shall indicate in particular the terms of the invitation to tender. 3 . An offer shall be valid only if :

3. The notice may be amended during the period of (a) the quantity to be exported is not less than 250 tonnes validity of the standing invitation to tender. It shall be so of white sugar ; amended if the terms of the invitation to tender are modi­ (b) proof is furnished before expiry of the time limit for fied during that period. the submission of tenders that the tenderer has lodged the security indicated in the tender ; Article 4 (c) it includes a declaration by the tenderer that if his tender is successful he will, within the period laid 1 . The period during which tenders may be submitted down in Article 12 (b), apply for an export licence or in response to the first partial invitation to tender : licences in respect of the quantities of white sugar to be exported ; (a) shall begin on 20 April 1991 ; (d) it includes a declaration by the tenderer that if his (b) shall end on 2 May 1991 at 10.30 a.m. tender is successful he will : 2. The periods during which tenders may be submitted — where the obligation to export resulting from the in response to the second and subsequent partial invita­ export licence referred to in Article 12 (b) is not tions : fulfilled, supplement the security by payment of the amount referred to in Article 13 (4), and (a) shall begin on the first working day following the end of the preceding period ; — within 30 days following the expiry of the export licence in question, notify the agency which issued (b) shall end at 10.30 a.m . on the Wednesday of the the licence of the quantity or quantities in respect following week. of which the licence was not used ;

3. Notwithstanding paragraph 2 (b), the period for the (e) it contains all the information required under submission of tenders which was to end on : paragraph 2.

20 . 4. 91 Official Journal of the European Communities No L 100/ 11

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 maximum export refund is fixed on the day of the The part of the security or the security which is not expiry of the period for the submission of the tenders released shall be forfeit in respect of the quantity of in question ; sugar for which the corresponding obligations have not been fulfilled . (b) the tender, if successful, relates to all or a specified part of the tendered quantity. 4. In case of force majeure, the competent authority of 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 the provisions of this Regulation, or which contains terms invoked by the party concerned. 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 com­ petent 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 ECU 9 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 be lodged by each tenderer. Without prejudice to Article anonymous . 13 (4), this security shall in the case of successful ten­ derers 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 invitation 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 export licence within the period referred to in Article 12 (b), to the extent of ECU 8 per 100 kilo­ — a minimum export levy, 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 levy existing, as applicable : is fixed, a contract shall be awarded to every tenderer whose tender quotes a rate of refund equal to or greater — between the maximum amount of the export 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) (i) of awarded to the tenderer whose tender quotes the Regulation (EEC) No 3719/88, the export obligation highest levy ; if the maximum quantity is not fully

No L 100/ 12 20 . 4. 91 Official Journal of the European Communities

covered by that award, awards shall be made to other quantity, the application not being revocable and tenderers in descending order of levies quoted until Article 12 of Regulation (EEC) No 120/89 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 3719/88, 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 2. However, where an award to a particular tenderer in that week, the last working day of the following 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, or — 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 1992 will be valid only until result of their participation in the invitation to tender. In 30 September 1992. addition, that authority shall send successful tenderers a statement of award. 3 . The export licences issued in respect of the partial invitations held between 2 May and 11 September 1991 2. The statement of award shall indicate : will be usable only from 12 September 1991 .

(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 of 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 referred 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 3719/88, an the licence reduced by the refund indicated on the application for an export licence in respect of that said licence,

20 . 4 . 91 Official Journal of the European Communities No L 100/ 13

then, for the quantity in respect of which the said obliga­ the intervention price for that sugar applicable with tion was not fulfilled, the licence holder shall be charged effect from 1 July 1991 . an amount equal to the difference between the result of 3 . For the calculation of the differences referred to in the calculation made under (a), (b) or (c), as the case may paragraph 2, the intervention prices in question shall be be, and the security referred to in Article 6 (1 ). increased by the corresponding storage levy referred to in the second subparagraph of Article 8 (2) of Regulation Article 14 (EEC) No 1785/81 .

4. For the purpose of applying this Article, the If the tenderer intends to apply for advance fixing of the Member State issuing the relevant export licence shall at monetary compensatory amount under this standing invi­ the time of issue complete section 'special particulars' by tation to tender, the provisions of the second paragraph of Article 3 (1 ) of Regulation (EEC) No 3155/85 shall not adding the following : apply. 'to be adjusted in accordance with adjudication Regu­ lation (EEC) No 963/91 for exports which take place Article 15 after 30 June ...' ( 1991 or 1992 as applicable).

5. Upon presentation by the holder of the export 1 . If the terms of Article 12 of Regulation (EEC) No licence concerned, or by the assignee when the licence 766/68 apply, the export refunds and export levies fixed has been transferred, to the Member State that issued it in advance under the terms of the present invitation to and before the customs formalities for the quantities tender : concerned have been carried out, that Member State shall enter the adjustment to be made in section 'special parti­ (a) before 1 July 1991 for the sugar exported as from that culars' and shall duly certify and stamp that section. date ; 6. For the adjustment referred to in paragraph 1 (b) the (b) before 1 July 1992 for the sugar exported as from that provisions of paragraphs 2 to 5 shall be applicable date, mutatis mutandis. shall be adjusted. 7. The Member States shall inform the Commission as quickly as possible of the quantities of sugar for which an 2. For the adjustment referred to in paragraph 1 (a) : adjustment under this Article has been made . (a) in the event of the fixing of an intervention price for white sugar applicable with effect from 1 July 1991 Article 16 which is greater than that in force on 30 June 1991 , the export refund and the export levy shall be adjusted The following indents shall be added to Article 4 (3) of by an amount equal to the difference expressed in Regulation (EEC) No 983/90 of 19 April 1990 on a ecus per 1 00 kilograms existing between the interven­ standing invitation to tender to determine levies and/or tion price for white sugar applicable with effect from refunds on exports of white sugar (') : 1 July 1991 and the intervention price for that sugar '— Wednesday 1 May 1991 shall end on Thursday 2 May in force on 30 June 1991 ; 1991 at 10.30 a.m., (b) in the event of the fixing of an intervention price for — Wednesday 8 and Wednesday 15 May 1991 shall end white sugar applicable with effect from 1 July 1991 on Tuesday 7 and Tuesday 14 May 1991 respectively which is lower than that in force on 30 June 1991 , the at 10.30 a.m .' export refund and the export levy shall be adjusted by an amount equal to the difference expressed in ecus Article 17 per 100 kilograms existing between the intervention price for white sugar in force on 30 June 1991 and This Regulation shall enter into force on 20 April 1991 .

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

Done at Brussels, 18 April 1991 .

For the Commission Ray MAC SHARRY Member of the Commission

(') OJ No L 100, 20. 4. 1990, p. 9 .