To: the Trader Named in the Address

17 November 2004

To: The Trader Named in the Address

TRADER NOTICE 11/2004 (up-dating Trader Notice 5/92)

Subject: Application for Force Majeure: Export Refunds

The Department has decided to re-issue Trader Notice 5/92 to take account of Regualtion 800/99. Any trader seeking to make a force majeure application should follow the guidelines set out below:

1.1.Commission Notice

Enclosed for your information is a copy of Commission notice C(88) 1696 concerning “force majeure in European agricultural law”. The notice defines the concept of force majeure and gives details of its application and requisite proofs. The notice is self explanatory.

1.2Format of Application by Trader

The application must

(i) be in writing

(ii)indicate the regulatory obligation which could not be met, i.e. the

regulation and article under which force majeure is sought.

(iii)clearly identify the subject of the application e.g. by product, (COM),

SAD or SAD (Ex) document number, name of ship, quantity etc.

(iv)give full and complete details of the circumstances which give rise to

failure to meet the regulatory obligation and which relied on to justify

the granting of force majeure

(v)detail the action and measures taken to avoid the consequences of

those circumstances and to meet the regulatory obligations. Where

applicable, the reasons for not taking measures/action should be

stated

(vi)indicate the date on which your company received information that

circumstances indicating a possible case of force majeure had arisen

(vii)be accompanied by complete and documentary evidence

supporting the information given at indents (iv), (v) and (vi). The

nature of the supporting documentation will, of course, be determined

by the nature of the circumstances invoked. Examples include supply

contract, shipper's certificates, quality certificates, proof of payment

by consignee, correspondence with consignee or authorities in

importing country etc. This list is not comprehensive.

It is in the trader’s interest to lodge a complete and reasoned

application with a complete and comprehensive dossier of supporting

documentation as a decision may be taken on the application on the

basis of the dossier submitted without reference back to the trader.

1.3.Time limit for Lodgement of Application

Where application for force majeure is made for dispensation from the

obligation to repay the advance payment premium the application, with full

supporting documentation, must be received in the Department (FEOGA Division) not later than 30 days after the day on which the applicant company received information that circumstances indicating a possible case of force majeure have arisen. (Examples Arts 25(1) and 35(3)of Reg. 800/99).

Where the regulations do not expressly provide a time limit it is in the trader’s

interest to lodge the application at the earliest possible date after receiving

information of possible force majeure circumstances giving rise to non-

observance of regulatory obligations.

Subject 2: Applications under Article Art. 49(4) of Reg. 800/99, for Extension of

Time for Lodgement of Import Proofs, Transport Document etc. required by

Article 16 of the same regulation.

2.1 General

Applications under Art. 49(4) are subject to rigorous scrutiny and extensions will

only be granted where the Department is satisfied that the trader has acted

with all due diligence to obtain the documents and to submit them within the

12 months time limit. The burden of proof is on the trader. It is in the trader’s

interest to monitor the process of procurement of such documents over the

period concerned and to document all efforts made to obtain them together

with all problems arising and the measures taken to resolve those problems.

2.2Time Limit for Lodgement of Application

Applications must be lodged with the Department (FEOGA Division) before

the end of the original 12 months time limit.

2.3 Format of Application

Each application must be complete and comprehensive and be supported by documentary evidence of the reasons for the application together with all the efforts made to obtain the documents within the time limit. It must also clearly identify the consignment concerned e.g. by ship (feeder and ocean vessel), SAD (ex) documents, quantity etc.

Traders should not assume that the application will be accepted.

Ray Dollard

Principal

Export Refunds