The Dairy Produce Quotas (Scotland) Regulations 2005

Made: 28th February 2005

Laid before the Scottish Parliament: 1st March 2005

Coming into force: 31st March 2005

The Scottish Ministers in exercise of the powers conferred by section 2(2) of the European Communities Act 1972[^f00001], section 56(1)[^f00002] of the Finance Act 1973 and of all other powers enabling them on that behalf, hereby make the following Regulations:

PART 1 — PRELIMINARY

Citation, commencement and extent

1

• (1) These Regulations may be cited as the Dairy Produce Quotas (Scotland) Regulations 2005.

• (2) These Regulations shall come into force on 31st March 2005.

• (3) Subject to paragraph (4), these Regulations extend to Scotland only.

• (4) In so far as these Regulations extend beyond Scotland, in accordance with regulation 3, they do so only as a matter of Scots law.

Interpretation

2

• (1) In these Regulations, unless the context otherwise requires–

• “the Commission Regulation” means Commission Regulation (EC) No. 595/2004 laying down detailed rules for applying Council Regulation (EC) No. 1788/2003 establishing a levy in the milk and milk products sector[^f00003];

• “Commission Regulation 1756/93” means Commission Regulation (EEC) No. 1756/93 fixing the operative events for the agricultural conversion rate applicable to milk and milk products, as amended[^f00004];

• “the Community legislation” means the Council Regulation, the Commission Regulation, and Commission Regulation 1756/93;

• “competent authority” has the meaning given by regulation 2 of the General Provisions Regulations;

• “consent or sole interest notice” means a notice, in relation to a holding, which states that– the person providing the notice is the occupier of that holding and that no other person has an interest in that holding or part of that holding; or every person having an interest in that holding or any part of it, the value of which interest might be reduced by the apportionment or prospective apportionment to which the notice relates, agrees to that apportionment or prospective apportionment;

• “converted quota” means quota converted by the Scottish Ministers following an application made under regulation 21;

• “the Council Regulation” means Council Regulation (EC) No. 1788/2003 establishing a levy in the milk and milk products sector[^f00005] as amended by Council Regulation (EC) No. 2217/2004[^f00006];

• “cow” includes a heifer that has calved;

• “dairy enterprise” means an area stated by the occupier of that area to be run as a self contained dairy produce business;

• “dairy produce” means produce, expressed in kilograms or litres (one kilogram being 0.971 litres), in respect of which levy is payable;

• “delivery” has the same meaning as in Article 5(f) of the Council Regulation, and “deliver” shall be construed accordingly;

• “direct sale” has the same meaning as in Article 5(g) of the Council Regulation;

• “direct sales quota” means the quantity of dairy produce which may be sold or transferred free of charge by direct sale by a producer in a quota year without that producer being liable to pay levy;

• “direct sales quota holder” means a person in whose name direct sales quota is registered pursuant to regulation 4;

• “direct seller” means a producer who produces milk and treats that milk or processes it into milk products on the holding of that person and subsequently sells or transfers free of charge that milk or those milk products without their having been further treated or processed by a different undertaking which treats or processes milk or milk products;

• “electronic communication” has the same meaning as in section 15 of the Electronic Communications Act 2000[^f00007];

• “the General Provisions Regulations” means the Dairy Produce Quotas (General Provisions) Regulations 2002[^f00008];

• “holding” has the same meaning as in Article 5(d) of the Council Regulation;

• “interest” includes a licence to occupy land and the interest of a mortgagee and a trustee, but does not include the interest of a beneficiary under a trust or settlement;

• “levy” means the levy payable under the Community legislation and these Regulations to the Scottish Ministers;

• “milk” has the same meaning as in Article 5(a) of the Council Regulation;

• “national reserve” has the meaning given it by regulation 2 of the General Provisions Regulations;

• “occupier” includes, in relation to land in respect of which there is no occupier, the person entitled to grant occupation of that land to another, and, during the currency of an interest mentioned in regulation 16(1), the person entitled to grant occupation when that interest terminates, and “occupation” shall be construed accordingly;

• “producer” has the same meaning as in Article 5(c) of the Council Regulation;

• “prospective apportionment”, in relation to quota in respect of a holding, means an apportionment of quota between the persons with an interest in the holding for the purposes of ascertaining the quota referable to a part of that holding in the event of a transfer of that part;

• “purchaser” means a purchaser within the meaning of Article 5(e) of the Council Regulation and, other than in regulations 5(1) to (4) and 31(7), approved by the Scottish Ministers pursuant to regulation 5 and Article 23 of the Commission Regulation;

• “purchaser quota” means the quantity of milk which may be delivered to a purchaser during a quota year without any liability for levy arising;

• “quota” means direct sales quota or wholesale quota, as the case may be;

• “quota holder”, in relation to quota, means the person in whose name the quota is registered;

• “quota year” means any of the periods of twelve months referred to in Article 1(1) of the Council Regulation (which concerns the introduction of the levy);

• “registered wholesale quota” means wholesale quota registered pursuant to regulation 4;

• “relevant competent authority” has the meaning given by regulation 3 of the General Provisions Regulations;

• “relevant person” means a producer, a purchaser, any employee or agent of a producer or of a purchaser, any milk haulier, any person undertaking butterfat testing for purchasers in a laboratory, a processor of milk or milk products, or any other person involved in the buying, selling or supply of milk or milk products obtained directly from a producer or purchaser, but does not include a consumer of milk or milk products;

• “Scottish Islands area” means either– the islands of Orkney, except for the island of Stronsay, or the islands of Jura, Gigha, Arran, Bute, Great Cumbrae and Little Cumbrae, the Kintyre peninsula south of Tarbert and the areas of land within the Argyll and Bute District comprising those parts of the parishes of Dunoon and Kilmun and Inverchaolain shown bounded by a red line on a map marked “Map referred to in sub paragraph (b) of the definition of Scottish Islands area in regulation 2(1) of the Dairy Produce Quotas (Scotland) Regulations 2005”, dated 10th February 2005, signed on behalf of the Scottish Ministers and deposited at the offices of the Scottish Executive Environment and Rural Affairs Department at Pentland House, 47 Robb’s Loan, Edinburgh, EH14 1TY;

• “transferee” means– where quota is transferred with a holding or part of a holding, a person who replaces another as occupier of that holding or part of a holding, and in any other case, the person to whom quota is transferred;

• “transferor” means– where quota is transferred with a holding or part of a holding, a person who is replaced by another occupier of that holding or part of a holding, and in any other case, the person from whom quota is transferred;

• “unused quota” means quota remaining unused after any direct sales or deliveries have been taken into account, following such adjustment (if any) as is required by Article 10(1) of the Commission Regulation (which concerns the fat content of milk), and “used quota” shall be construed accordingly;

• “wholesale producer” means a producer who delivers milk to a purchaser;

• “wholesale quota” means the quantity of milk which may be delivered to a purchaser by a wholesale producer in a quota year without that wholesale producer being liable to pay levy;

• “wholesale quota holder” means a person in whose name wholesale quota is registered pursuant to regulation 4; and

• “working day” means any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971[^f00009].

• (2) In these Regulations any reference to anything done in writing or produced in written form includes a reference to an electronic communication which has been recorded and is capable of being subsequently reproduced.

• (3) Other expressions which are used in these Regulations shall, in so far as the context requires, have the same meaning as in the Community legislation and cognate expressions shall be construed accordingly.

Application

3

These Regulations apply to relevant persons in respect of whom the Scottish Ministers are the relevant competent authority.

PART 2 — REGISTRATION OF QUOTA

Registers and notices to be maintained and prepared by the Scottish Ministers

4

• (1) The Scottish Ministers shall–

• (a) maintain a direct sales register; and

• (b) send to each direct seller a copy of the entry in the direct sales register relating to that direct seller.

• (2) The direct sales register shall contain an entry in respect of each direct seller setting out in particular–

• (a) the name of each direct seller;

• (b) the trading address of each direct seller or, where there is more than one such address, each such address, and the principal trading address of each direct seller;

• (c) a reference number which serves to identify the direct seller;

• (d) the direct sales quota available to that direct seller for the quota year; and

• (e) the details of the direct sales of that direct seller.

• (3) The Scottish Ministers shall–

• (a) maintain a wholesale register;

• (b) send to each wholesale producer a copy of the entry in the wholesale register relating to that wholesale producer; and

• (c) send to each purchaser named in the list referred to in paragraph (4)(e) a copy of that part of the entry relating to the purchaser quota of that purchaser.

• (4) The wholesale register shall contain an entry in respect of each wholesale producer setting out in particular–

• (a) the name of each wholesale producer;

• (b) the trading address of each wholesale producer or, where there is more than one such address, each such address and the principal trading address of each wholesale producer;

• (c) a reference number which serves to identify the wholesale producer;

• (d) the wholesale quota available to the wholesale producer for the quota year; and

• (e) a list of the name and address of each purchaser whose purchaser quota will be calculated to take into account all or part of the total wholesale quota of that wholesale producer, and of the wholesale quota registered with each purchaser, showing the representative fat content base of that quota calculated in accordance with Article 7 of the Commission Regulation.

• (5) The Scottish Ministers shall–

• (a) maintain a register of purchasers; and

• (b) send to each purchaser a copy of the purchaser entry relating to that purchaser.

• (6) The register of purchasers shall contain an entry in respect of each purchaser setting out in particular–

• (a) the name of each purchaser; and

• (b) the purchaser quota of that purchaser.

• (7) For the purposes of paragraphs (1) to (4), where the holding of a quota holder comprises more than one dairy enterprise, that quota holder may, after submitting to the Scottish Ministers a consent or sole interest notice in respect of that holding, agree with the Scottish Ministers the partition of the quota available to that quota holder relating to that holding between separate direct sales register entries or separate wholesale register entries, as the case may be.

• (8) The Scottish Ministers–

• (a) may make such enquiries as they reasonably consider necessary for the purposes of ensuring the accuracy of the registers which they are required to maintain under this regulation;

• (b) shall amend the registers–

• (i) to record any allocation or adjustments made under or by virtue of these Regulations; or

• (ii) to make any correction or amendment which they reasonably consider to be necessary; and

• (c) shall notify any person affected by any correction or amendment made by them.

• (9) Notwithstanding that a person is no longer a producer, that person shall–

• (a) remain registered pursuant to this regulation; and

• (b) for the purposes of this regulation and regulations 6, 7(a) and 33(1), continue to be regarded as a producer,

until the start of the quota year following the year in which the quota available to that person has been transferred or until the quota has been withdrawn under Article 15 of the Council Regulation.

• (10) The obligation under paragraphs (1)(b), (3)(b) and (c) and (5)(b) is an obligation to send a copy of–

• (a) an entry; or

• (b) part of an entry,

as the case may be, as it has effect on 1st April in each year.

Approval of purchasers

5

• (1) For the purposes of Article 23 of the Commission Regulation (which concerns the approval of purchasers), a purchaser shall make an application to the Scottish Ministers for approval in such form as the Scottish Ministers may reasonably require.

• (2) An application under paragraph (1) shall state the trading address of the purchaser, or, if there is more than one such address, each such address and the principal trading address of the purchaser.

• (3) For the purposes of Article 23(2) of the Commission Regulation (which permits member States to lay down stricter rules on the approval of purchasers), the Scottish Ministers may only approve a purchaser if the purchaser has complied with the requirements of paragraph (4).

• (4) The requirements referred to in paragraph (3) are that the purchaser–

• (a) has given an undertaking to the Scottish Ministers to comply with the provisions of these Regulations and the Community legislation;

• (b) has not materially contravened the provisions of any scheme for support in the agricultural sector derived from legislation; and

• (c) either–

• (i) by submitting to the Scottish Ministers such information as they may reasonably require, has demonstrated to the reasonable satisfaction of the Scottish Ministers that that purchaser has a sound financial basis upon which to operate; or

• (ii) if the Scottish Ministers consider that the purchaser has not been trading long enough for that to be so demonstrated, has provided such security as the Scottish Ministers may reasonably require.

• (5) Each purchaser shall inform the Scottish Ministers of–

• (a) any change of trading address, or, where there is more than one such address, any change in any such trading address, any additional trading address and any change of principal trading address; and

• (b) any factor or change in circumstances which the Scottish Ministers might reasonably consider to affect materially any matter that was relevant to their consideration of the application for approval, or which affects the ability of the applicant to comply with the undertaking referred to in paragraph (4)(a).

• (6) Each purchaser shall–

• (a) confirm to each wholesale producer supplying that purchaser that the purchaser is approved pursuant to Article 23 of the Commission Regulation and this regulation and provide details of the approval if requested; and

• (b) notify each wholesale producer supplying that purchaser if the approval is withdrawn.

Obligations of producers and purchasers with respect to registration and deliveries

6

• (1) Every–

• (a) direct seller; and

• (b) wholesale producer,

shall register their quota with the Scottish Ministers.

• (2) Each purchaser shall maintain, in respect of all wholesale producers whose register entries include the name of that purchaser on the list referred to in regulation 4(4)(e)–

• (a) a register corresponding to that maintained by the Scottish Ministers under regulation 4(3) in respect of that part of the purchaser quota attributable to each of those wholesale producers;

• (b) a register of particulars of deliveries from each of those wholesale producers to that purchaser; and

• (c) the information required by paragraphs 2 to 4 of Article 24 of the Commission Regulation (which concern the records required in connection with levy assessment).

• (3) Each person who holds registered wholesale quota, including any wholesale producer who has temporarily ceased or who intends temporarily to cease making deliveries, shall register that quota with a purchaser.

• (4) A wholesale producer may supply milk only to a purchaser.

• (5) Each purchaser shall maintain a system approved by the Scottish Ministers for–

• (a) sampling the milk of each wholesale producer whose register entries include the name of that purchaser on the list referred to in regulation 4(4)(e); and