Commission Regulation (EC) No 595/2004 of 30 March 2004 laying down detailed rules for applying Council Regulation (EC) No 1788/2003 establishing a levy in the milk and milk products sector

CHAPTER I

GENERAL PROVISIONS

Article 1

Scope

This Regulation lays down detailed rules for applying Regulation (EC) No 1788/2003 as regards the division of national reference quantities between deliveries and direct sales, the calculation and payment of the levy, control measures and communications from the Member States.

Article 2

Division of national reference quantities between deliveries and direct sales

Each year, after the receipt of the communications referred to in  Article 25, the Commission shall divide the national reference quantity laid down for each Member State in Annex I of Regulation (EC) No 1788/2003 between deliveries and direct sales in accordance with Article 1(2) of that Regulation.

The division shall be published in the Official Journal of the European Union.

Article 3

Conversions

Conversions referred to in Article 6(2) of Regulation (EC) No 1788/2003 may be temporary or definitive.

Temporary conversions of individual reference quantities are conversions where, for a specific 12-month period, the producer requests to convert a quantity of milk from one reference quantity to the other.

Definitive conversions are conversions where, for a 12-month period and for the subsequent 12-month periods, the producer requests to convert a quantity of milk from one reference quantity to the other.

Article 4

Information about new definitions of deliveries and direct sales

Article 5

Communication of individual reference quantities

Member States shall notify to the producers each new allocation or modification of their individual reference quantity by the means they consider the most appropriate, provided that it ensures that the producers have an effective knowledge of the reference quantity allocated.

CHAPTER II

CALCULATION OF THE LEVY

SECTION 1

General Rules

Article 6

Method for the calculation of the levy

Milk or milk products marketed within the meaning of Article 5(h) of Regulation (EC) No 1788/2003 shall be taken into account for calculating the levy at the moment they leave any holding on the territory of the Member State or are used at the holding for commercial purposes.

Where milk or milk products leave the holding for the purpose of destruction in application of sanitary measures pursuant to a decision of the competent authority of the Member State, the quantities concerned shall not be taken into account as deliveries or direct sales.

Milk which leaves the holding for treatment or processing under contract shall be deemed deliveries.

Article 7

Amendments to the individual reference fat content

However, the reference fat content of the reference quantity for deliveries shall remain unchanged if the producer provides justification therefore to the satisfaction of the competent authority.

SECTION 2

Deliveries

Article 8

Statement of deliveries

In the case of leap years, the quantity of milk shall be reduced by 1/60 of the quantities delivered in February and March.

Where applicable, purchasers shall declare that they have received no deliveries during the period concerned.

Paragraph 3 shall continue to apply during the period of notice.

Article 9

Adjustment of individual reference fat content

Article 10

Comparisons of the reference and real fat content

If a positive difference is found, the quantity of milk delivered shall be increased by 0,09 % per 0,1 gram of additional fat per kilogram of milk.

If a negative difference is found, the quantity of milk delivered shall be decreased by 0,18 % per 0,1 gram of fat less per kilogram of milk.

Where in application of the third subparagraph the adjusted quantity of milk delivered by the producer is less than 75 % of the quantity of the actual milk delivered and where the producer's reference fat content is above 4,5 %, the individual statement shall be drawn up on the basis of 75 % of the actual quantity delivered.

Where the quantity of milk delivered is expressed in litres, the adjustment shall be multiplied by the coefficient 0,971.

SECTION 3

Direct Sales

Article 11

Declarations of direct sales

In the case of leap years, the quantity of milk or milk equivalent shall be reduced by 1/60 of the quantities sold in February and March or by 1/366 of the quantities sold in the 12-month period concerned.

The Member State may require producers with reference quantities for direct sales to declare that they have not sold or transferred any milk or other milk products during the period concerned, where such is the case.

Where the national reference quantity for direct sales has also been overrun, producers who have overrun their reference quantity shall also be required to pay a contribution to the levy calculated on the full overrun of their reference quantity and may not benefit from any reallocation of unused reference quantities as provided for in Article 12(1) of Regulation (EC) No 1788/2003.

Where producers submit incorrect declarations, the Member State shall require them to pay an amount in proportion to the quantity of milk concerned and the seriousness of the irregularity, up to a maximum amount equal to the theoretical levy applicable to the quantity of milk resulting once the correction is applied, multiplied by 1,5.

Article 12

Equivalences

For products marketed other than milk, the Member States shall establish the quantities of milk used for processing. To that end, the equivalence formulae to be used shall be:

(a) 1 kg cream = 0,263 kg milk × % fat content of cream, expressed as mass;

(b) 1 kg butter = 22,5 kg milk.

In the case of cheese and all other milk products, Member States shall determine equivalences using, in particular, the dry-matter content and the fat content of the types of cheese or products concerned.

If the producer can provide proof to the satisfaction of the competent authority of the quantities actually used for processing of the products concerned, the Member State can use such proof in place of the equivalences referred to in the first and second subparagraphs.

CHAPTER III

PAYMENT OF THE LEVY

Article 13

Notification of the levy

Article 14

The operative event for the exchange rate applicable to the payment of the levy referred to in Article 1 of Regulation (EC) No 595/2004 shall be that referred to in Article 5(6) of Commission Regulation (EC) No 1913/2006 (⁴).

Article 15

Time limit for payment

Without prejudice to the application of Articles 107 to 109 of the Treaty on the Functioning of the European Union, Member States may decide that the payment of the amount due related to the 12-month period beginning on 1 April 2014 takes place in three yearly instalments without interest.

The first yearly payment, representing at least 1/3 of the total amount due, shall be made by 30 September 2015. By 30 September 2016 at least 2/3 of the total amount due shall be paid. The total amount shall be settled by 30 September 2017.

Member States shall ensure that the producers are the beneficiaries of such an instalment scheme.

The interest shall be paid to the Member State.

Where pursuant to Article 26(3) of this Regulation, the Member States communicate an update of the questionnaire provided for in paragraph 1 of that Article, the resulting adjusted amounts shall be declared to the EAGF at the latest together with the expenditure declared in respect of the month before which the questionnaire shall be communicated.

Article 16

Criteria for redistributing the excess levy

Where appropriate, Member States shall determine the priority categories of producers referred to in Article 13(1)(b) of Regulation (EC) No 1788/2003, on the basis of one or more of the following objective criteria:

(a) formal acknowledgement by the competent authority of Member State that all or part of the levy has been wrongly charged;

(b) the geographical location of the holding and primarily mountain areas within the meaning of Article 18 of Council Regulation (EC) No 1257/1999 (⁶);

(c) the maximum stocking density on the holding for the purpose of extensive livestock production;

(d) the individual reference quantity is exceeded by less than 5 % or less than 15 000 kg, whichever is the lowest;

(e) the level of individual reference quantity is less than 50 % of the national average individual reference quantity;

(f) other objective criteria adopted by the Member State after consulting the Commission.

Article 16a

Use of the 1 % levy non-payable to the EAGF

Where pursuant to Article 3(1) of Regulation (EC) No 1788/2003, the 1 % levy not payable into the EAGF exceeds the amount necessary to cover cases of bankruptcy or definitive inability of certain producers to pay the levy, Member States may use the excess in accordance with Article 13(1) of that Regulation.

Article 17

Charge of the levy

Member States shall take all the measures necessary to ensure that the levy is correctly charged and that it falls on the producers who contributed to the overrun.

CHAPTER IV

CONTROLS BY THE MEMBER STATES AND OBLIGATIONS OF PURCHASERS AND PRODUCERS

SECTION 1

Controls

Article 18

National control measures

Member States shall take all the control measures in order to ensure that this Regulation is complied with and in particular the measures referred to in Articles 19 to 22.

Article 19

Control plan

Member States shall draw up a general control plan for each 12-month period on the basis of risk analysis. This control plan shall include at least:

(a) the criteria adopted for drawing up the plan;

(b) the purchasers and producers selected;

(c) on-the-spot checks to be executed regarding the 12-month period;

(d) the controls of transport between producers and purchasers;

(e) the controls of the yearly declarations of producers or purchasers.

Member States may decide to update the general control plan by more detailed periodic plans.

The representativeness of the operators active in the milk sector shall be taken into consideration as regards the risk analysis as well as seasonality of production for the timing of the controls.

All inspection reports shall be completed no later than 18 months after the end of the 12-month period concerned.

By way of derogation from the second subparagraph, Member States that apply the instalment scheme provided for in Article 15(1) shall complete the inspection report no later than 42 months after the end of the 12-month period concerned.

However, where the controls provided for in Article 20 are combined with other controls, the time limits laid down for other controls and the establishment of the respective inspection reports shall be respected.

Article 20

On-the spot-checks

On-the-spot checks shall be unannounced. However, provided that the purpose of the control is not jeopardised, advance notice limited to the strict minimum necessary may be given.

Where appropriate, on-the-spot checks provided for in this Regulation, as well as any other checks provided for in Community rules, shall be carried out at the same time.

Article 21

Controls on deliveries and direct sales

As regards deliveries, controls shall be executed at farm level, during transport of the milk and at purchaser level. At all stages Member States shall physically check by means of on-the-spot checks the accuracy of registration and accounting of the milk marketed and in particular:

(a) at farm level, the status of producer within the meaning of Article 5(c) of Regulation (EC) No 1788/2003 as well as the compatibility between deliveries and production capacity;

(b) at transport level, the document referred to in Article 24(4) of this Regulation, the accuracy of the instruments for measuring milk volume and quality, the accuracy of the collection method, including possible intermediate collection points, the accuracy of quantity of collected milk at unloading;

(c) at purchaser level, the accuracy of declarations referred to in Article 8 of this Regulation, in particular by cross-checks to documents referred to in Article 24(2) to (5) of this Regulation as well as the credibility of the records of stocks and deliveries referred to in Article 24(2) and (3) of this Regulation in the light of the commercial documents and other documents showing how the milk collected has been used.

As regards direct sales, controls shall cover in particular:

(a) at farm level, the status of producer within the meaning of Article 5(c) of Regulation (EC) No 1788/2003 as well as the compatibility between direct sales and production capacity;

(b) the accuracy of the declaration referred to in Article 11(1) of this Regulation, in particular by means of documents referred to in Article 24(6) of this Regulation.

Article 22

Intensity of controls

The controls referred to in Article 21(1) shall cover at least:

(a) 1 % of the producers for each 12-month period;

(b) 20 % of the quantity of milk declared after adjustment for the period concerned; and

(c) a representative sample of transport of milk between selected producers and purchasers.

The transport controls referred to in point (c) shall be carried out in particular at unloading at the dairies.

Controls referred to in Article 21(2) shall cover at least:

(a) 5 % of producers; or

(b) the following two groups: (i) 1 % of producers whose individual reference quantity for direct sales is less than 5 000 kg and whose declared direct sales for the 12-month period concerned is less than 5 000 kg of milk or milk equivalent; (ii) 5 % of producers who do not satisfy the conditions set out in point (i).

SECTION 2

Obligations

Article 23

Approval of purchasers

Without prejudice to stricter rules laid down by the Member State concerned, purchasers shall be approved only where they:

(a) provide proof of their status as dealers under national provisions;

(b) have premises in the Member State concerned where the stock records, registers and other documents referred to in Article 24(2) may be consulted by the competent authority;

(c) undertake to keep up to date the stock records, registers and other documents referred to in Article 24(2);

(d) undertake to forward the statements and declarations provided for in Article 8(2) to the competent authority of the Member State concerned at least once a year.

Where it is found that a purchaser has forwarded an incorrect statement or declaration, or has failed to comply with the undertaking referred to in paragraph 2(c) or has repeatedly failed to comply with any other obligation imposed under Regulation (EC) No 1788/2003, this Regulation or the relevant national rules, the Member State shall either withdraw approval or require payment of an amount in proportion to the volume of milk involved and the seriousness of the irregularity.

The penalties referred to in paragraph 3 shall not be imposed where the Member State recognises a case of force majeure or establishes that the irregularity was not committed deliberately or as a result of serious negligence, or where the irregularity is negligible in terms of the functioning of the scheme or the effectiveness of the checks.

Article 24

Obligations of purchasers and producers

Producers making direct sales shall keep available for the competent authority of the Member State, for at least three years from the end of the year in which the documents are drawn up, stock records drawn up by 12-month period giving details, per month and per product, of any sale or transfer of milk or milk products.

Producers whose individual reference quantity of direct sales is 5 000 kg or more shall also keep records of milk and milk products which have been produced but not sold or transferred.

Member States may lay down more detailed rules.

They shall also keep available for the competent authority the registers of livestock held on holdings and used for milk production, in accordance with Article 7 of Regulation (EC) No 1760/2000, and supporting documents enabling such stock records to be verified.

CHAPTER V

COMMUNICATIONS

Article 25

Communications for the division between deliveries and direct sales

In accordance with Article 69(2)(a) of Regulation (EC) No 1234/2007, the Member States shall notify to the Commission, before 1 February each year:

(a) the quantities which have been definitively converted between individual quotas for deliveries and direct sales at the request of individual producers;

(b) the division between deliveries and direct sales of the quota placed in the national reserve in accordance with Article 71(2) of Regulation (EC) No 1234/2007 with effect from 1 April of the 12-month period in question.

Article 26

Questionnaire

Portugal shall complete the questionnaire providing additional information in order to distinguish calculation of the levy between mainland and Azores pursuant to Council Regulation (EC) No 1453/2001 (⁹).

Where the requirements of paragraph 1 are not met, the Commission shall withhold a flat-rate amount, in accordance with Article 14 of Council Regulation (EC) No 2040/2000 (¹⁰), from advances on the entry in the accounts of the agricultural expenditure of the Member States. That amount shall be equal to the levy payable for a theoretical overrun of the overall reference quantity concerned calculated as follows:

(a) where the questionnaire is not forwarded by 1 September or if data essential for calculating the levy are missing, the percentage of the theoretical overrun shall be 0,005 % for each week of delay;

(b) if a discrepancy of more than 10 % is found between the sum of the quantities delivered or sold directly, as notified in the updates provided for in paragraph 3 of this Article, and those given in the initial response to the questionnaire, the percentage of the theoretical overrun shall be 0,05 %.

Article 27

Other communications

The report shall comprise a description of the current situation, in particular as regards the measures adopted in case of temporary transfers, transfers with land, other specific transfer measures, the use of the re-allocation of unused quantities and the recourse to the national reserve.

CHAPTER VI

FINAL PROVISIONS

Article 28

Repeal

Regulation (EC) No 1392/2001 is repealed.

However, it shall continue to apply in respect of the period 2003/04, and, where necessary, previous periods unless otherwise provided by Council Regulation (EC) No 1788/2003.

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 III.

Article 29

Entry into force

This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Union.

It shall apply from 1 April 2004.