22.2.2008 Official Journal of the European Union L 48/19 COMMISSION REGULATION (EC) No 159/2008 of 21 February 2008 amending Regulations (EC) No 800/1999 and (EC) No 2090/2002 as regards physical checks carried out when agricultural products qualifying for refunds are exported THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, Having regard to Council Regulation (EEC) No 386/90 of 12 February 1990 on the monitoring carried out at the time of export of agricultural products receiving refunds or other amounts (), and in particular Article 6 thereof, Having regard to Council Regulation (EC) No 1784/2003 of 29 September 2003 on the common organisation of the market in cereals (), and in particular Article 18 thereof, and the corresponding provisions of the other regulations on the common organisation of the markets in agricultural products, Whereas: (1)  Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the appli- cation of the system of export refunds on agricultural products ) and Commission Regulation (EC) No 2090/2002 of 26 November 2002 laying down detailed rules for applying Council Regulation (EEC) No 386/90 as regards physical checks carried out when agri- cultural products qualifying for refunds are exported (¥) provide for the rules concerning physical controls and substitution checks by customs on export products for which an export refund is claimed. In the light of experience gained, problems mentioned by Member States in their annual reports on physical checks and recommendations of the European Court of Auditors, appropriate amendments are required. (2)  Before affixing seals the customs office of export should visually check the conformity between the refund products and the documents. Visual conformity checks (') OJ L 42, 16.2.1990, p. 6. Regulation as last amended by Regulation (EC) No 142008 (O] L 8, 11.1.2008, p. 1). (®» OJ L 270, 21.10.2003, p. 78. Regulation as last amended by Regu- lation (EC) No 735/2007 (O] L 169, 29.6.2007, p. 6). Regulation (ECQ) No 17842003 will be replaced by Regulation (EC) No 1234/2007 as from 1.7.2008. () OJ L 102, 17.4.1999, p. 11. Regulation as last amended by Regu- lation (EC) No 1001/2007 (O] L 226, 30.8.2007, p. 9). () OJ L 322, 27.11.2002, p. 4. Regulation as last amended by Regu- lation (EC) No 1001/2007. aim at improving the general control measures in the framework of the customs procedure and they are of a different nature than substitution checks as described in Article 10(4) of Regulation (EC) No 2090/2002 or physical checks as described in Article 5 of the same Regulation. The visual conformity check shall confirm to customs that the products loaded are of the kind as mentioned in the documents. In principle products or goods are not unloaded and packaging is not opened or removed. In case a visual conformity check reveals that the conformity could be a problem, customs can decide to execute a physical check in accordance with Regulation (EEC) No 386/90. A minimum level of 10 % of visual conformity checks is deemed to be effective, proportionate and dissuasive. For information reasons, the customs office of export should note its conformity check on the control copy T5 or its equivalent. Customs should be informed on the rate of export refunds at stake when selecting export declarations for physical or substitution checks. This information should therefore be mentioned in the export declaration and in the control copy T5 or equivalent document. However, in some Member States the authorities concerned already dispose of the same information. Consequently exporters may be exempted from the obligation to mention this information either in the export declaration, or in the T5 control copy or equivalent document, or in both. In order to ensure effective application of the obligation to mention the export refund rate, provisions need to be laid down to deter inaccurate information. A suitable penalty system should therefore be established. In case of substantial differences between the refund calculated according to the export refund rate mentioned and the export refund actually applicable customs would be par- ticularly misled not to execute the necessary controls. In particular if the exporter indicates a rate representing an export refund less than EUR 1000 and the refund applicable is more than EUR 10000, the penalty should be effective, proportionate and dissuasive. In order to concentrate controls more on export products covering a relatively high amount of refunds, the selection thresholds, under which controls are generally disregarded for calculating the minimum control rates, expressed in quantities or in amounts of refunds are raised.