Commission Regulation (EC) No 2020/2006 of 22 December 2006 amending Regulation (EC) No 2535/2001 as regards the management of the WTO tariff quota for New Zealand butter

of 22 December 2006

amending Regulation (EC) No 2535/2001 as regards the management of the WTO tariff quota for New Zealand butter

Preamble

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to Council Regulation (EC) No 1255/1999 of 17 May 1999 on the common organisation of the market in milk and milk products ¹ , and in particular Article 29(1) thereof,

Whereas:

(1) Commission Regulation (EC) No 2535/2001 of 14 December 2001 laying down detailed rules for applying Council Regulation (EC) No 1255/1999 as regards the import arrangements for milk and milk products and opening tariff quotas ² sets out in particular rules for ‘New-Zealand butter’ as referred to in second subparagraph of Article 25(1) of that Regulation.

(2) The Court of Justice of the European Communities in its judgment of 11 July 2006 in Case C-313/04 Franz Egenberger GmbH Molkerei und Trockenwerk v. Bundesanstalt für Landwirtschaft und Ernährung stated that: ‘Article 35(2) of Commission Regulation (EC) No 2535/2001 of 14 December 2001 laying down detailed rules for applying Council Regulation (EC) No 1255/1999 as regards the import arrangements for milk and milk products and opening tariff quotas is invalid inasmuch as it provides that applications for import licences for New Zealand butter at reduced duty may be lodged solely with the competent authorities of the United Kingdom’; and ‘Articles 25 and 32 of Regulation (EC) No 2535/2001, read in conjunction with Annexes III, IV and XII to that Regulation, are invalid since they permit discrimination in the issue of import licences for New Zealand butter at reduced duty.’

(3) A new arrangement for managing the tariff quota as from 1 January 2007 needs to be put in place, ensuring non-discriminatory access of importers to the quota in conformity with the Court's judgment in Case C-313/04.

(4) With a view of providing at the same time stability in the trade while gradually opening of the entire quota to all interested operators, it seems appropriate to manage the quota through the method referred to in the third indent of Article 29(2) of Regulation (EC) No 1255/1999. Therefore, a division of the quota amongst traditional importers and newcomers should be set up. Provision should be made for the traditional part to be managed taking into account the past trade under the same quota and the newcomers' part to be managed by a simultaneous examination of the licences.

(5) In order to ensure that applications for import licences are genuine, to prevent speculation and to ensure maximum utilisation of the quota, each applicant under the newcomers part of the quota should apply for a minimum quantity and applications shall be limited to 10 % of the quantity available. For the same reasons, criteria should be laid down to allow participation in the quota; in particular, the quota should be opened to those operators who prove a certain level of trade activity in the milk sector. In order to provide for more equal access to the newcomers' quota each applicant may apply for a maximum quantity.

(6) The security level should be set at a level which ensures that only genuine traders are applying under the quota. It is appropriate to adopt therefore the security level which is applicable for the management of the quotas referred to under Chapter 1 of Title II of Regulation (EC) No 2535/2001.

(7) In order to avoid licences issued for quantities which are economically not viable, a drawing lots procedure shall be provided for in case licences would be issued for quantities less than 20 tonnes.

(8) Imports of New Zealand butter must comply with certain quality and compositional requirements laid down in Regulation (EC) No 2535/2001. In order to show compliance with those requirements and to prove the origin of the products provision should be made for the operator to present the IMA 1 certificate at the time of import.

(9) The Management Committee for Milk and Milk Products has not delivered an opinion within the time limit set by its Chairman,

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EC) No 2535/2001 is amended as follows:

1. Article 9 is replaced by the following: ‘Article 9 Before 1 June, the competent authority shall inform applicants of the outcome of the approval procedure and their approval number where applicable. Approval shall be valid for one year.’

2. Article 24 and 25 are replaced by the following: ‘Article 24 1. This section shall apply to imports under the quotas for specified countries of origin listed in the CXL schedule referred to in Annex III.B. 2. Annex III.B to this Regulation sets out the duties to be applied and the maximum quantities to be imported by import tariff quota period. Article 25 1. Import licences for the products listed in Annex III.B at the rate of duty indicated shall be issued only on presentation of a corresponding IMA 1 certificate, for the total net quantity indicated therein. IMA 1 certificates must meet the requirements laid down in Articles 29 to 33. Import licences must show the number and date of issue of the corresponding IMA 1 certificate. 2. Import licences may be issued only after the competent authority has verified that Article 33(1)(e) has been complied with. The licence issuing bodies shall transmit to the Commission a copy of the IMA 1 certificate lodged with each import licence application no later than 18.00 (Brussels time) on the day it is lodged. Licence issuing bodies shall issue import licences on the fourth working day following, provided the Commission has not taken any special measures before that date. The competent import licence issuing body shall retain the original of each IMA 1 presented’

3. In Article 26(2) the second subparagraph is deleted.

4.	Articles 34 to 39 are replaced by the following: ‘Article 34 1. This section shall apply to imports of butter from New Zealand under the quota numbers 09.4195 and 09.4182 as referred to in Annex III.A to this Regulation. 2. The provisions of Articles 27, 30, 31(1), 32(2) and (3) and Article 33(1) points (a) to (d) shall apply. 3. The words “at least six weeks old” in the description of the quota for New Zealand butter shall mean at least six weeks old on the date on which a declaration of release for free circulation is presented to the customs authorities. 4. Annex III.A sets out the tariff quotas, the duty to be applied and the maximum quantities to be imported during each import tariff quota period or subperiod. Article 34a 1. The quotas shall be divided into two parts as referred to in Annex III.A: (a) quota No 09.4195 (hereafter called part A) shall be distributed among Community importers who are approved according to the provisions of Article 7 and who can prove: (i) for the quota year 2007, that they have imported under the quota 09.4589 during 2006, (ii) for the quota year 2008, that they have imported under one of the quotas 09.4589, 09.4195 or 09.4182 in the period from 1 January 2006 until 31 December 2007, (iii) for the following quota years, that they have imported under one of the quotas 09.4589, 09.4195 or 09.4182 in the course of the 24 months prior to the month of November preceding the quota year; (b) quota No 09.4182 (hereafter called part B) shall be reserved for applicants: (i) who are approved according to the provisions of Article 7, or (ii) for the period January to June 2007 for applicants established in Bulgaria and Romania, who comply with the provisions of Article 1(2) of Commission Regulation (EC) No 2018/2006 ³ , and (iii) who can prove that during the 12 month period prior the month of November preceding the quota year that they imported into and/or exported from the Community at least 100 tonnes of milk or milk products covered by Chapter 04 of the Combined Nomenclature in at least 4 separate operations. However, for the quota years 2007 and 2008, the 12 month period referred to shall be respectively the calendar year 2006 and 2007. 2. The trade performance proofs referred to under points (a) and under points (b)(ii) and (iii) of paragraph 1 shall be valid for both half yearly periods of the quota year. 3. Licence applications may be lodged only during the first 10 days of the following months: (a) in January 2007 and 2008 for the quota subperiod January-June; however for January 2007 licence applications may be lodged during the first 15 days; (b) in the month of November for the following January-June quota subperiods; (c) in the month of June for the quota subperiod July-December. 4. To be admissible, applications for import licences may cover, per applicant: (a) For part A, no more than 125 %: (i) for the quota year 2007, of the quantity of products that they have imported under the quota 09.4589 in 2006, (ii) for the quota year 2008, of the total quantity of products that they have imported under the quotas 09.4589, 09.4195 and 09.4182, in 2006 and 2007, (iii) for the following quota years, of the quantities that they have imported under the quotas 09.4589, 09.4195 or 09.4182, in the course of the 24 month period prior to the month of November preceding the quota year; (b) For part B, not less than 20 tonnes and no more than 10 % of the available quantity for the subperiod and provided they are able to prove to the satisfaction of the competent authority of the Member State concerned that they fulfil the conditions laid down in paragraph 1 point b. The proofs referred to above shall be submitted at the time the applications for licences are lodged. Subject to complying with the eligibility conditions, applicants may apply simultaneously under both parts of the quota. The licence applications must be separate for part A and for part B. Proof of imports or exports shall be furnished in accordance with the second subparagraph of Article 5 of Regulation (EC) No 1301/2006. 5. Licence applications may be lodged only in the Member State of approval, and must bear the importer's approval number. Article 35 The security referred to in Article 15(2) of Regulation (EC) No 1291/2000 shall be EUR 35 per 100 kilograms net of product. Article 35a 1. At the latest on the third working day following the end of the period for lodging applications, Member States shall notify the Commission of the applications lodged for each of the products concerned. 2. Notifications shall include the quantities applied for under each quota number, broken down by CN code. 3. The Commission shall decide within five working days after the notification period referred to in paragraph 1 to what extent applications may be accepted. Where the applied quantities do not exceed the available quota quantities, no decision is taken by the Commission and licences are issued for the quantities applied for. Where applications for licences for a subquota exceed the available quantity for the quota period in question, the Commission shall apply a uniform allocation coefficient to the quantities for which application is made. The part of the security corresponding to the quantities not allocated shall be released. Where, for one of the subquotas, the result of applying the allocation coefficient would be to allocate licences for less than 20 tonnes per application, the corresponding quantities available shall be awarded by the Member State concerned by drawing lots for licences of 20 tonnes each amongst the applicants who would have been allocated less than 20 tonnes as a result of applying the allocation coefficient. Where the result of establishing lots of 20 tonnes leads to a residual quantity of less than 20 tonnes, that quantity shall be considered a single lot. The security for applications which are not successful in the allocation by drawing lots shall be released immediately. 4. The issue of licences shall be made no more than five working days after the decision referred to in paragraph 3. 5. Import licences issued under this Regulation shall be valid until the last day of the half yearly period referred to in Annex III.A. 6. Import licences issued under this section may be transferred only to natural or legal persons approved in accordance with Article 7. Together with the request for transfer, the transferor shall notify the issuing body of the approval number of the transferee. Article 35b Licence applications and licences shall contain the references provided for in Article 28, except the references to the IMA 1 certificate. Box 16 of licence applications may show one or more of the CN codes listed in Annex III.A. Box 20 of the licences shall show the subquota period for which the licences are issued. If a licence application indicates more than one CN code, it must specify the quantity requested for each code and a separate licence shall be issued for each code. Article 36 Where the New Zealand butter does not meet the compositional requirements, the quota benefit shall not be granted for the whole quantity subject to the relevant customs declaration. Once non-conformity has been established, where the declaration of release for free circulation has been accepted the customs authorities shall collect the import duty set in Annex I to Council Regulation (EEC) No 2658/87. For that purpose an import licence at full duty shall be issued for the non-conform quantity. The quantity shall not be attributed to the licence. Article 37 1. The duty rate provided for in Annex III.A shall be applied to New Zealand butter imported under the present section only on presentation of the declaration of release for free circulation accompanied by an import licence, issued in accordance with the provisions of Article 35a, and an IMA 1 certificate as referred to in Annex X issued by an issuing body listed in Annex XII, proving the eligibility requirements and the origin of the product covered by that declaration. Customs authorities shall indicate the serial number of the IMA 1 certificate on the import licence. 2. The quantity shown on the IMA 1 certificate shall be equal to the quantity shown on the customs import declaration. 3. IMA 1 certificates shall be valid from the date of issue up to the last day of the yearly import quota period. 4. The import licence can be used for one or more import declarations. Article 38 In addition to the requirements set out in Article 33(1)(a) to (d), issuing bodies may be listed in Annex XII only if they undertake to notify the Commission of the typical-process standard deviation of the fat content, as referred to in Annex IV(1)(e), of the New Zealand butter manufactured by each producer referred to in Annex IV(1)(a) according to each product purchasing specification. Article 39 Member States shall notify the Commission, by 31 January following the end of a given quota year, of the definitive monthly quantities and the total quantity for that quota year of products for which declarations of release for free circulation have been accepted under the tariff quota referred to in paragraph 1 during the previous quota year. The monthly notifications shall be made by the 10th of the month following that during which the declarations of release for free circulation are accepted.’	(a)	(i): for the quota year 2007, that they have imported under the quota 09.4589 during 2006,	(i)	for the quota year 2007, that they have imported under the quota 09.4589 during 2006,	(ii)	for the quota year 2008, that they have imported under one of the quotas 09.4589, 09.4195 or 09.4182 in the period from 1 January 2006 until 31 December 2007,
(a)	(i): for the quota year 2007, that they have imported under the quota 09.4589 during 2006,	(i)	for the quota year 2007, that they have imported under the quota 09.4589 during 2006,	(ii)	for the quota year 2008, that they have imported under one of the quotas 09.4589, 09.4195 or 09.4182 in the period from 1 January 2006 until 31 December 2007,	(iii)	for the following quota years, that they have imported under one of the quotas 09.4589, 09.4195 or 09.4182 in the course of the 24 months prior to the month of November preceding the quota year;
(i)	for the quota year 2007, that they have imported under the quota 09.4589 during 2006,
(ii)	for the quota year 2008, that they have imported under one of the quotas 09.4589, 09.4195 or 09.4182 in the period from 1 January 2006 until 31 December 2007,
(iii)	for the following quota years, that they have imported under one of the quotas 09.4589, 09.4195 or 09.4182 in the course of the 24 months prior to the month of November preceding the quota year;
(b)	(i): who are approved according to the provisions of Article 7, or	(i)	who are approved according to the provisions of Article 7, or	(ii)	for the period January to June 2007 for applicants established in Bulgaria and Romania, who comply with the provisions of Article 1(2) of Commission Regulation (EC) No 2018/2006 ³ , and	(iii)	who can prove that during the 12 month period prior the month of November preceding the quota year that they imported into and/or exported from the Community at least 100 tonnes of milk or milk products covered by Chapter 04 of the Combined Nomenclature in at least 4 separate operations.
(i)	who are approved according to the provisions of Article 7, or
(ii)	for the period January to June 2007 for applicants established in Bulgaria and Romania, who comply with the provisions of Article 1(2) of Commission Regulation (EC) No 2018/2006 ³ , and
(iii)	who can prove that during the 12 month period prior the month of November preceding the quota year that they imported into and/or exported from the Community at least 100 tonnes of milk or milk products covered by Chapter 04 of the Combined Nomenclature in at least 4 separate operations.
(a)	in January 2007 and 2008 for the quota subperiod January-June; however for January 2007 licence applications may be lodged during the first 15 days;
(b)	in the month of November for the following January-June quota subperiods;
(c)	in the month of June for the quota subperiod July-December.
(a)	(i): for the quota year 2007, of the quantity of products that they have imported under the quota 09.4589 in 2006,	(i)	for the quota year 2007, of the quantity of products that they have imported under the quota 09.4589 in 2006,	(ii)	for the quota year 2008, of the total quantity of products that they have imported under the quotas 09.4589, 09.4195 and 09.4182, in 2006 and 2007,	(iii)	for the following quota years, of the quantities that they have imported under the quotas 09.4589, 09.4195 or 09.4182, in the course of the 24 month period prior to the month of November preceding the quota year;
(i)	for the quota year 2007, of the quantity of products that they have imported under the quota 09.4589 in 2006,
(ii)	for the quota year 2008, of the total quantity of products that they have imported under the quotas 09.4589, 09.4195 and 09.4182, in 2006 and 2007,
(iii)	for the following quota years, of the quantities that they have imported under the quotas 09.4589, 09.4195 or 09.4182, in the course of the 24 month period prior to the month of November preceding the quota year;
(b)	For part B, not less than 20 tonnes and no more than 10 % of the available quantity for the subperiod and provided they are able to prove to the satisfaction of the competent authority of the Member State concerned that they fulfil the conditions laid down in paragraph 1 point b.

5. Annex III.A is replaced by Annex I to this Regulation.

6. Annex II to this Regulation is inserted as Annex III.B.

7.	(a): point (a) is replaced by the following: ‘(a) “producer”: a single production plant or factory in which butter is produced for export to the Community under the tariff quotas referred to in Annex III.A’ — ‘(a) — “producer”: a single production plant or factory in which butter is produced for export to the Community under the tariff quotas referred to in Annex III.A’ ‘(a): “producer”: a single production plant or factory in which butter is produced for export to the Community under the tariff quotas referred to in Annex III.A’	(a)	‘(a): “producer”: a single production plant or factory in which butter is produced for export to the Community under the tariff quotas referred to in Annex III.A’
(a)	‘(a): “producer”: a single production plant or factory in which butter is produced for export to the Community under the tariff quotas referred to in Annex III.A’	‘(a)	“producer”: a single production plant or factory in which butter is produced for export to the Community under the tariff quotas referred to in Annex III.A’
‘(a)	“producer”: a single production plant or factory in which butter is produced for export to the Community under the tariff quotas referred to in Annex III.A’
(b)	‘(c): “lot”: a quantity of butter covered by an IMA 1 certificate presented to the competent customs authority for entry for free circulation under the tariff quotas referred to in Annex III.A;’	‘(c)	“lot”: a quantity of butter covered by an IMA 1 certificate presented to the competent customs authority for entry for free circulation under the tariff quotas referred to in Annex III.A;’
‘(c)	“lot”: a quantity of butter covered by an IMA 1 certificate presented to the competent customs authority for entry for free circulation under the tariff quotas referred to in Annex III.A;’

8. In Annex X, the wording in the box related to ‘CERTIFICATE’ is replaced by the following: ‘CERTIFICATE For the entry of certain New Zealand butter subject to the tariff quota referred to in Annex III.A’

Article 2

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

It shall apply from 1 January 2007.

Final provisions

This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 22 December 2006. For the Commission Mariann FISCHER BOEL Member of the Commission

¹ OJ L 160, 26.6.1999, p. 48 . Regulation as last amended by Regulation (EC) No 1913/2005 ( OJ L 307, 25.11.2005, p. 2 ).

² OJ L 341, 22.12.2001, p. 29 . Regulation as last amended by Regulation (EC) No 926/2006 ( OJ L 170, 23.6.2006, p. 8 ).

³ See page 46 of this Official Journal.

‘ANNEX ΙII.A TARIFF QUOTA UNDER THE GATT/WTO AGREEMENTS SPECIFIED BY COUNTRY OF ORIGIN: NEW ZEALAND BUTTER CN code Description Country of origin Annual quota from 1 January to 31 December (in tonnes) Maximum halfyearly quota (quantities in tonnes) Quota Part A Quota number 09.4195 Quota Part B Quota number 09.4182 Import duty (EUR/100 kg net weight) Rules for completing IMA 1 certificates ex 0405 10 11 ex 0405 10 19 Butter, at least six weeks old, of a fat content by weight of not less than 80 % but less than 82 % manufactured directly from milk or cream without the use of stored materials, in a single, self-contained and uninterrupted process New Zealand 77 402 tonnes January-June 2007 42 572 tonnes 23 415 tonnes 19 157 tonnes 86,88 See Annex IV ex 0405 10 30 Butter, at least six weeks old, of a fat content by weight of not less than 80 % but less than 82 %, manufactured directly from milk or cream without the use of stored materials, in a single, self-contained and uninterrupted process which may involve the cream passing through a stage where the butterfat is concentrated and/or fractionated (the processes referred to as “Ammix” and “Spreadable”) July-December 2007 34 830 tonnes 19 156 tonnes 15 674 tonnes Halfyearly quota as from January 2008 onwards 38 701 tonnes 21 286 tonnes 17 415 tonnes’

‘ANNEX ΙII.B TARIFF QUOTA UNDER THE GATT/WTO AGREEMENTS SPECIFIED BY COUNTRY OF ORIGIN: OTHERS Quota number CN code Description Country of origin Annual quota from 1 January to 31 December (in tonnes) Import duty (EUR/100 kg net weight) Rules for completing IMA 1 certificates 09.4522 0406 90 01 Cheese for processing ¹ Australia 500 17,06 See Annex XI(C) and (D) 09.4521 ex 0406 90 21 Whole Cheddar cheeses (of the conventional flat cylindrical shape of a net weight of not less than 33 kg but not more than 44 kg and cheeses in cubic blocks or in parallelepiped shape, of a net weight of 10 kg or more) of a fat content of 50 % or more by weight in the dry matter, matured for at least three months Australia 3 711 17,06 See Annex XI(B) 09.4513 ex 0406 90 21 Cheddar made from unpasteurised milk, of a fat content of 50 % or more, by weight, in the dry matter, matured for at least nine months, with a free-at-frontier value ² per 100 kg net, of not less than: EUR 334,20 for whole cheeses EUR 354,83 for cheeses of a net weight of not less than 500 g EUR 368,58 for cheeses of a net weight of less than 500 g Canada 4 000 13,75 See Annex XI(A) The expression “whole cheeses” means: cheeses of the conventional flat cylindrical shape of a net weight of not less than 33 kg but not more than 44 kg. cubic blocks or parallelepipeds of cheese of a net weight of not less than 10 kg. 09.4515 0406 90 01 Cheese for processing ³ New Zealand 4 000 17,06 See Annex XI(C) and (D) 09.4514 ex 0406 90 21 Whole Cheddar cheeses (of the conventional flat cylindrical shape of a net weight of not less than 33 kg but not more than 44 kg and cheeses in cubic blocks or in parallelepiped shape, of a net weight of 10 kg or more) of a fat content of 50 % or more by weight in the dry matter, matured for at least three months New Zealand 7 000 17,06 See Annex XI(B)

¹ Utilisation for this particular purpose will be monitored by applying the Community provisions laid down on the subject. The cheeses concerned are considered as processed when they have been processed into products falling within subheading 0406 30 of the combined nomenclature. Articles 291 to 300 of Regulation (EEC) No 2454/93 apply.

² “Free-at-frontier value” means the free-at-frontier price or fob price in the country of export, plus an amount for delivery and insurance costs as far as the customs territory of the Community.

³ Utilisation for this particular purpose will be monitored by applying the Community provisions laid down on the subject. The cheeses concerned are considered as processed when they have been processed into products falling within subheading 0406 30 of the combined nomenclature. Articles 291 to 300 of Regulation (EEC) No 2454/93 apply.’

Utilisation for this particular purpose will be monitored by applying the Community provisions laid down on the subject. The cheeses concerned are considered as processed when they have been processed into products falling within subheading 0406 30 of the combined nomenclature. Articles 291 to 300 of Regulation (EEC) No 2454/93 apply. ↩ ↩² ↩³ ↩⁴
“Free-at-frontier value” means the free-at-frontier price or fob price in the country of export, plus an amount for delivery and insurance costs as far as the customs territory of the Community. ↩ ↩² ↩³ ↩⁴
Utilisation for this particular purpose will be monitored by applying the Community provisions laid down on the subject. The cheeses concerned are considered as processed when they have been processed into products falling within subheading 0406 30 of the combined nomenclature. Articles 291 to 300 of Regulation (EEC) No 2454/93 apply.’ ↩ ↩² ↩³ ↩⁴ ↩⁵ ↩⁶ ↩⁷