Aid to Producers of Tomatoes for Processing Regulations, 2004

L.N. 405 of 2004

AGRICULTURE AND FISHERIES INDUSTRIES

(FINANCIAL ASSISTANCE) ACT

(CAP. 146)

Aid to Producers of Tomatoes for Processing Regulations, 2004

IN exercise of the powers conferred by article 7 of the Agriculture

and Fishing Industries (Financial Assistance) Act, the Minister for Rural

Affairs and the Environment has made the following regulations>-

PART I

Preliminary

(1) The title of these regulations is the Aid to Producers of Title and scope.

Tomatoes for Processing Regulations, 2004.

(2) The scope of these regulations is to establish the

conditions concerning applications for financial aid and relevant controls

in the tomato processing sector.

Unless the context otherwise requires, words and phrases used Interpretation.

in these regulations shall have the same meaning as is assigned to them

in regulation 2 of the 2003 Regulations, and “the 2003 Regulations” L.N. 390 of 2003.

means the Approval of processors in the Propduct Processing Sector

Regulations, 2003.

PART II

Aid Applications

Individual producers or producer organisations intending to Submission

applications.

benefit from financial assistance for the processing of tomatoes shall

submit an aid application to the Director on the appropriate form as

reproduced in the Schedule to these regulations.

(1) During each marketing year as established in regulation Mode of

6 of the 2003 Regulations, hereinafter in these regulations referred to application.

as “the marketing year”, only one aid application may be submitted by

each individual producer or producer organisation.

(2) Aid applications must reach the Director by not later

than the 30th November of the marketing year concerned< however the

Director may, at his discretion, postpone the date for receipt of aid

applications to the 15th December of the same year.

(3) An application for advance payment of the aid may be

submitted by each individual producer or producer organisation under

the conditions laid down in regulation 7 of these regulations.

If an aid application is received by the Director after the

applicable dates referred to in sub-regulation (2) of regulation 4 of these

regulations, the aid payable to such individual producer or producer

organisation shall be reduced by 1 % for each day of delay after the

applicable date, and no aid shall be granted if the application is received

by the Director more than 15 days after the applicable dates referred to

in sub-regulation (2) of regulation 4 of these regulations>

Provided that in exceptional and duly justified cases, the Director

may, at his discretion, accept aid applications after the applicable dates

referred to in sub-regulation (2) of regulation 4 of these regulations, but

only if this does not hinder effective checks on the production aid

scheme. In the case provided for in this proviso, the reductions referred

to in this regulation shall not apply.

Aid applications must be signed by the individual producers

or by the legal representatives of producer organisations applying for

aid, and shall contain at least the following information>

(a) the name and address of the individual producer or

producer organisation<

(b) the IACS identification number assigned to the contract

for supply between the individual producer or producer organisation

and the processor, as provided for by sub-regulation (3) of

regulation 7 of the 2003 Regulations<

(c) a photocopy of the identity card of the producer in the

case of an application submitted by an individual producer<

(d) the quantity of tomatoes under contract to be covered

by the aid application, provided that such quantity, broken down

by contract, may not exceed the quantity accepted for processing,

after deduction of any reduction rates applied<

(e) the average selling price for the quantity of tomatoes

delivered under contract<

(f) the quantity of tomatoes delivered during the same period

other than under contract, and the average selling price thereof>

Provided that the Director may, at his discretion, request additional

information to be submitted together with aid applications.

PART III

Payment of Aid

(1) The Director may decide that applications for advance Advance payment

payment of aid may be submitted by the individual producer or producer of aid.

organisation to reach the Director by not later than the 30th September

of the marketing year concerned, covering the total quantity of tomatoes

delivered for processing up to the 15th September of the same year.

(2) Applications for advance payment of aid as referred to

in sub-regulation (1) of this regulation shall include the information

referred to in paragraphs (a) and (b), and where applicable paragraph

(c) of regulation 6 of these regulations.

(3) The Director shall pay the amount due in advance

payment of aid as provided for in this regulation to the individual

producer or the producer organisation between the 16th and 31st October

of the same year in which the application for advance payment of aid

was submitted, after checking the application and, in particular, taking

into consideration the delivery certificates referred to in regulation 15

of the 2003 Regulations.

(4) The aid due under this regulation shall be paid in

advance provided a security in the form of a bank guarantee equal

to 110 % of the aid is lodged with the Director. The bank guarantee

must be valid for a period of six months and the Director may, at his

discretion, request the extension or termination of the bank

guarantee.

(5) Where it is found that the amount of advance payment

of aid applied for exceeds the amount due, an amount equal to double

the excess amount shall be forfeited from the security provided for in

sub-regulation (4) of this regulation.

(6) Without prejudice to sub-regulation (5) of this regulation,

the security provided for in sub-regulation (4) of this regulation shall

be released when the Director pays the aid, based on the application

referred to in sub-regulation (1) of regulation 4 of these regulations.

(7) When an application for advance payment of the aid is

submitted, the quantities referred to in paragraphs (d) and (f) of

regulation 6 of these regulations shall be broken down into two periods,

namely up to the 15th September and from the 16th September of the

same year.

(1) The aid shall be paid by the Director to the individual

producer or producer organisation signing the contract as soon as the

aid application has been checked and it is established that the tomatoes

covered by such application have been delivered and accepted for

processing, on the basis, in particular, of the checks provided for in

paragraph (a) of sub-regulation (1) of regulation 12 and in regulation

13 of these regulations.

(2) Where aid is paid to a producer organisation, such

producer organisation shall pay in full the amounts received, by cheque

or bank transfer, to its members within 15 working days following receipt

of such aid.

(3) Where a producer organisation is wholly or partly made

up of members which are themselves organisations with legal personality

made up of individual members, payments as provided for in sub-

regulation (2) of this regulation shall be paid by such member

organisations to the individual members within 15 working days.

(4) No aid shall be granted on quantities in respect of which

the necessary checks on entitlement to the aid have not been conducted.

(5) Where applicable, the aid shall be paid to individual

producers or producer organisations by not later than 60 days after the

date on which the application, including all the information required

under regulations 6, is received and approved by the Director.

PART IV

Control Measures

(1) The Director shall take the necessary steps to>

(a)

ensure that these regulations are complied with<

(b) prevent and prosecute irregularities and apply the

penalties provided for in sub-regulation (2) of regulation 18 of the

2003 Regulations.

(c) recover sums lost as a result of irregularities or

negligence<

(d) verify the records provided for in regulations 10 and 11

of these regulations<

(e) carry out unannounced checks as referred to in

regulations 12 and 13 of these regulations<

(f) after sowing, carry out checks on areas sown to tomatoes

as referred to in sub-regulation (1) of regulation 12 and in regulation

13 of these regulations<

(g) refer to the relevant authorities cases where fraud is

reasonably suspected.

(1) Individual producers and producer organisations shall Records and

information to be

keep records for tomatoes delivered for processing, containing at least kept by producers

and producer

the following information>

organisations.

(a) in the case of quantities of tomatoes delivered under

contract>

(i) the number of consignments delivered each day,

and the identification number of the contract to which the

consignments relate<

(ii) the quantity of each consignment delivered, the

quantity accepted for processing, after deduction of any

reduction, and the identification number of the relevant

delivery certificate<

(b) in the case of quantities of tomatoes delivered other than

under contract>

(i) the number of consignments delivered each day,

and the identity of the processor concerned<

(ii) the quantity of each consignment delivered and

accepted for processing.

(c) the quantities sold on the fresh market, those withdrawn

from the market and stocks of the products concerned.

(2) Individual producers and producer organisations shall

keep available for the national inspection authorities all the information

needed for ensuring that this regulation is complied with. This

information must make it possible to identify for each producer, the

link between the areas, the quantities delivered, the delivery certificates,

and payment of the aid and prices.

(3) The financial records, books of accounts or any related

documents required under national law may be used for the purposes of

this regulation, provided they contain all the information referred to in

sub-regulation (1) of this regulation.

(4) Individual producers and producer organisations shall

submit to all inspections and checks deemed necessary by the Director

and shall keep all additional records required by the Director for the

purposes of the said necessary checks.

(1) The Director may decide that the records referred to in

sub-regulation (1) and (2) of regulation 17 of the 2003 Regulations are

kept by processors.

to be certified in the same way as records or accounting documents

required under national law.

(2) The records or accounting documents required under

national law may be used for the purposes of this regulation, provided

they contain all the information referred to in sub-regulations (1) and

(2) of regulation 17 of the 2003 Regulations.

(1) For each producer organisation delivering tomatoes for

processing, the following checks shall be conducted by the competent

authority for each marketing year>

(a)

physical checks on>

(i) at least 5 % of areas planted with tomatoes intended

for processing,

(ii) at least 7 % of quantities of tomatoes delivered for

processing, in order to check that they tally with the certificates

referred to in regulation 15 of the 2003 Regulations and

comply with the minimum quality requirements as indicated

in Article 19 of Regulation (EC) 1535#2003<

(b) administrative and accounting checks on at least 5% of

producer members covered by contracts, in order to check that the

details for each producer, in particular the areas, the total harvest,

the quantity marketed by the producer organisation, the quantity

delivered for processing and the quantity indicated in the delivery

certificates, are consistent with the prices paid and the aid paid as

provided for in regulation 8 of these regulations<

(c) administrative and accounting checks to verify that the

total quantities of products delivered to the producer organisation

by producer members as referred to in regulation 12 of the 2003

Regulations, the total quantities delivered for processing, all the

delivery certificates referred to in regulation 15 of the 2003

Regulations and the total quantities stated in the aid application,

tally with the prices paid and the aid paid as provided for in

regulation 8 of these regulations<

(d) checks on all aid applications and supporting documents

and crosschecks on all declared parcels.

(2) In the case of processors, the following checks shall be

conducted by the competent authority for each factory and marketing

year>

(a) checks on at least 5 % of finished products to verify that

the applicable minimum quality standards have been complied

with<

(b) physical and accounting checks on at least 5 % of

finished products to verify the yield of raw materials processed

into the finished product obtained under contract and otherwise

than under contract<

(c) administrative and accounting checks to verify, on the

basis of the invoices issued and received and on the basis of the

accounting data, that the quantity of finished product obtained from

the raw materials received and the quantities of finished products

purchased tally with the quantities of finished products sold<

(d) physical and accounting checks on all stocks of finished

products at least once each year, to ensure that they tally with the

finished products manufactured, purchased and sold>

Provided that in the case of newly approved undertakings, such

checks shall be conducted at least twice in the first year< and

(e) administrative and accounting checks on at least 10 %

of payments of the prices paid.

For individual producers delivering tomatoes for processing,

the following physical checks shall be conducted by the competent

authority for each marketing year>

(a) at least 5 % of areas planted with tomatoes intended for

processing,

(b) at least 7% of quantities delivered for processing, in order

to check that they tally with the certificates referred to in regulation

15 of the 2003 Regulations, and comply with the minimum quality

requirements as indicated in Article 19 of Regulation (EC)

1535#2003.

PART V

Penalties and Aid Reductions

(1) Where it is ascertained that the aid applied for in respect

of any marketing year exceeds the amount due, then that amount shall

applied for and the

be reduced, unless the difference is, to the satisfaction of the Director,

clearly due to error. This reduction in aid shall be equal to the difference

between the aid applied for and the amount due. If the aid has already

been paid, the beneficiary shall pay back to the Director twice the

difference between the aid applied for and the amount due, plus interest

calculated in accordance with regulation 18 of these regulations.

(2) If the difference referred to in sub-regulation (1) of this

regulation is more than 20 % of the amount of aid applied for, the

beneficiary shall lose entitlement to the aid and, if the aid has already

been paid to such beneficiary, shall reimburse the total aid plus interest

calculated in accordance with terms provided for in sub-regulation (1)

of this regulation. If the difference referred to in sub-regulation (1) of

this regulation is more than 30 % of the amount of aid applied for, the

beneficiary shall also forfeit any entitlement to aid for the product

concerned for the following three marketing years.

Where one of the parties to the contracts referred to in articles

3 and 6A of Regulation (EC) 2201#96 is not in a position to comply

with its contractual obligations due to the fault of the other party, the

party concerned may be authorized by the Director to cancel such

contracts or to transfer them, unchanged, to another approved processor

in the case of an individual producer or a producer organisation, or to

another producer organisation in the case of processors.

(1) If the area checks referred to in paragraph (a) of sub-

regulation (1) of regulation 12 and in regulation 13 of these regulations

reveal that the area declared is larger than that actually determined, at

the level of the total area checked, the aid payable shall be reduced as

follows, unless the difference is, to the satisfaction of the Director, clearly

due to error>

(a) by the percentage of the discrepancy established, if it is

more than 5 % but no more than 20 % of the area determined,

(b) by 30 % if the discrepancy is more than 20 % of the

area determined>

Provided that where the area declared is less than the area actually

determined, and the discrepancy is more than 10 % of the area

determined, the aid payable shall be reduced by half the percentage of

the discrepancy established.

(2) The reductions provided for in sub-regulation (1) of this

regulation shall not apply where the individual producer or producer

organisation has submitted factually correct information or can prove,

to the satisfaction of the Director, that it is not at fault>

Provided that the reductions provided for in sub-regulation (1) of

this regulation shall not apply to data which the individual producer,

producer organisation or its members inform the competent authority

in writing are incorrect or have become incorrect since the information

referred to in sub-regulation (1) of regulation 12 of the 2003 Regulations

was sent, provided that the individual producer, producer organisation

or its members were not informed of the Director’s intention to carry

out an on-the-spot check and that they were not informed by the Director

of any irregularity found.

(3) Where a producer organisation commits a repeated

infringement, the Director shall withdraw that organisation’s recognition,

or preliminary recognition in the case of a producer group granted

preliminary recognition.

(1) Except in cases of force majeure, where it is found that Penalties for

discrepancies

the full quantity of tomatoes accepted for processing under contract has between quantities

not been processed into one of the products listed in the First Schedule accepted

processing and

to the 2003 Regulations, the processor shall pay the Director an amount quantities actually

equal to twice the unit amount of the aid multiplied by the quantity of processed.

the raw material concerned which has not been processed, plus interest

calculated in accordance with regulation 18 of these regulations. In

addition, except in cases duly justified to the satisfaction of the Director,

the processor’s approval as provided for in sub-regulation (6) of

regulation 3 of the 2003 Regulations shall be suspended>

(a) for the marketing year following the finding, if the

difference found between the quantity accepted for processing and

the quantity actually processed is more than 10 % but no more

than 20 % of the quantity accepted for processing<

(b) for two marketing years following the finding, if the

difference is more than 20 % of the quantity accepted for

processing.

For the purposes of applying paragraphs (a) and (b) above, any

quantities of tomatoes used in the manufacture of finished products not

complying with the minimum quality requirements, in excess of an 8 %

tolerance, shall be treated as quantities not processed.

(2) Where the conditions for applying sub-regulation (1) of

this regulation are met, the Director shall provide that such approval as

referred to in sub-regulation (6) of regulation 3 of the 2003 Regulations

is to be withdrawn from processors in the following cases>

(a) where the individual producer or producer organisation

makes false declarations with the collaboration of the processor<

(b) where the processor fails to pay the price referred to in

paragraph (e) of sub-regulation (6) of regulation 7 of the 2003

Regulations<

(c) where the processor fails to pay the penalties provided for

in sub-regulation (1) of this regulation<

(d) where the processor repeatedly fails to pay the penalties

as provided for in sub-regulation (1) of this regulation<

(e) where the processor fails to comply with the obligations

referred to in regulation 17 of the 2003 Regulations.

The duration of the exclusion of the processor from the aid scheme

shall not be for less than one marketing year and such duration shall be

determined by the Director having regard to the seriousness of the failure.

(1) Amounts recovered and interest due pursuant to these

regulations shall be paid to the Director and deducted from expenditure

financed by the European Agricultural Guidance and Guarantee Fund.

(2) The interest rate to be applied shall be calculated in

accordance with Maltese law, and shall not be lower than the interest

rate generally applicable to recovery under Maltese law.

(1) The Director shall take appropriate measures to ensure Penalties.

the correctness of both prices paid to producers and aid paid in

accordance with regulation 8.

(2) The Director shall also provide in particular for penalties

to be imposed on the officers of a producer organisation commensurate

with the seriousness of any irregularity.

B

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