Select Committee on European Communities Fourteenth Report


APPENDIX 5 (continued)

Convention Drawn up on the Basis of Article K.3 of the Treaty on European Union, on Mutual Assistance and Co-operation between Customs Administrations

  THE HIGH CONTRACTING PARTIES to this Convention, Member States of the European Union.

  REFERRING to the Act of the Council of the European Union of ;

  RECALLING the need to strengthen the commitments contained in the Convention on Mutual Assistance between Customs Administrations, signed in Rome on 7 September 1967;

  CONSIDERING that customs administrations are responsible on the customs territory of the Community and, in particular at its points of entry and exit, for the prevention, investigation and suppression of offences not only against Community rules, but also against national laws, in particular the cases covered by Articles 36 and 223 of the Treaty establishing the European Community;

  CONSIDERING that a serious threat to public health, morality and security is constituted by the developing trend towards illicit trafficking of all kinds;

  CONSIDERING that particular forms of co-operation involving cross-border actions for the prevention, investigation and prosecution of certain infringements of both the national legislation of the Member States and Community customs regulations should be regulated, and that such cross-border actions must always be carried out in compliance with the principles of legality (conforming with the relevant law applicable in the requested Member State and with the directives of the competent authorities of that Member State), subsidiarity (such actions to be launched only if it is clear that other less significant actions are not appropriate) and proportionality (the scale and duration of the action to be determined in the light of the seriousness of the presumed infringement);

  CONVINCED that it is necessary to reinforce co-operation between customs administrations, by laying down procedures under which customs administrations may act jointly and exchange data concerned with illicit trafficking activities;

  BEARING IN MIND that the customs administrations in their day-to-day work have to implement both Community and national provisions, and that there is consequently an obvious need to ensure that the provisions of mutual assistance and co-operation in both sectors evolve as far as possible in parallel,

HAVE AGREED ON THE FOLLOWING PROVISIONS

TITLE I

GENERAL PROVISIONS

Article 1

SCOPE

  1. Without prejudice to the competencies of the Community, the Member States of the European Union shall provide each other with mutual assistance and shall co-operate with one another through their customs administrations, with a view to:

       -    preventing and detecting infringements of national customs provisions, and

       -    prosecuting and punishing infringements of Community and national customs

provisions.

  2. Without prejudice to Article 3, this Convention shall not affect the provisions applicable regarding mutual assistance in criminal matters between judicial authorities, more favourable provisions in bilateral or multilateral agreements between Member States governing co-operation as provided for in paragraph 1 between the customs authorities or other competent authorities of the Member States, or arrangements in the same field agreed on the basis of uniform legislation or of a special system providing for the reciprocal application of measures of mutual assistance.

Article 2

POWERS

  The customs administrations shall apply this Convention within the limits of the powers conferred upon them under national provisions. Nothing in this Convention may be construed as affecting the powers conferred under national provisions upon the customs administrations within the meaning of this Convention.

Article 3

RELATIONSHIP TO MUTUAL ASSISTANCE PROVIDED BY THE JUDICIAL AUTHORITIES

  1. This Convention covers mutual assistance and co-operation in the framework of criminal investigations concerning infringements of national and Community customs provisions, concerning which the applicant authority has jurisdiction on the basis of the national provisions of the relevant Member State.

  2. Where a criminal investigation is carried out by or under the direction of a judicial authority, that authority shall determine whether requests for mutual assistance or co-operation in that connection shall be submitted on the basis of the provisions applicable concerning mutual assistance in criminal matters or on the basis of this Convention.

Article 4

DEFINITIONS

  For the purposes of this Convention, the following definitions shall apply:

  1. "National customs provisions": all laws, regulations and administrative provisions of a Member State the application of which comes wholly or partly within the jurisdiction of the customs administration of that Member State concerning:

       -    cross-border traffic in goods subject to bans, restrictions or controls, in particular under Articles 36 and 223 of the Treaty establishing the European Community;

       -    non-harmonised excise duties.

  2. "Community customs provisions":

       -    the body of Community provisions and associated implementing provisions governing the import, export, transit and presence of goods traded between Member States and third countries, and between Member States in the case of goods that do not have Community status within the meaning of Article 9(2) of the Treaty establishing the European Community or goods subject to additional controls or investigations for the purposes of establishing their Community status;

       -    the body of provisions adopted at Community level under the common agricultural policy and the specific provisions adopted with regard to goods resulting from the processing of agricultural products;

       -    the body of provisions adopted at Community level for harmonised excise duties and for value-added tax on importation together with the national provisions implementing them.

  3. "Infringements": acts in conflict with national or Community customs provisions, including, inter alia:

       -    participation in, or attempts to commit, such infringements;

       -    participation in a criminal organisation committing such infringements;

       -    the laundering of money deriving from the infringements referred to in this paragraph.

  4. "mutual assistance": the granting of assistance between customs administrations as provided for in this Convention;

  5. "applicant authority": the competent authority of the Member State which makes a request for assistance;

  6. "requested authority": the competent authority of the Member State to which a request for assistance is made;

  7. "customs administrations": Member States' customs authorities as well as other authorities with jurisdiction for implementing the provisions of this Convention;

  8. "personal data": all information relating to an identified or identifiable natural person; a person is considered to be identifiable if he or she can be directly or indirectly identified, inter alia by means of an identification number or of one or more specific elements which are characteristic of his or her physical, physiological, psychological, economic, cultural or social identity;

  9. "cross-border co-operation": co-operation between customs administrations across the borders of each Member State.

Article 5

CENTRAL CO-ORDINATING UNITS

  1. Member States shall appoint in their customs authorities a central unit (co-ordinating unit). It shall be responsible for receiving all applications for mutual assistance under this Convention and for co-ordinating mutual assistance, without prejudice to paragraph 2. The unit shall also be responsible for co-operation with other authorities involved in an assistance measure under this Convention. The co-ordinating units of the Member States shall maintain the necessary direct contact with each other, particularly in the cases covered by Title IV.

  2. The activity of the central co-ordinating units shall not exclude, particularly in an emergency, direct co-operation between other services of the customs authorities of the Member States. For reasons of efficiency and consistency, the central co-ordinating units shall be informed of any action involving such direct co-operation.

  3. If the customs authority is not, or not completely, competent to process a request, the central co-ordinating unit shall forward the request to the competent national authority and inform the applicant authority that it has done so.

  4. If it is not possible to accede to the request for legal or substantive reasons, the co-ordinating unit shall return the request to the applicant authority with an explanation as to why the request could not be processed.

Article 6

LIAISON OFFICERS

  1. Member States may make agreements between themselves on the exchange of liaison officers for limited or unlimited periods, and on mutually-agreed conditions.

  2. Liaison officers shall have no powers of intervention in the host country.

  3. In order to promote co-operation between Member States' customs administrations, liaison officers may, with the agreement or at the request of the competent authorities of the Member States, have the following duties:

    (a)   promoting and speeding up the exchange of information between the Member States;

    (b)   providing assistance in investigations which relate to their own Member State or the Member State they represent;

    (c)   providing support in dealing with requests for assistance;

    (d)   advising and assisting the host country in preparing and carrying out cross-border operations;

    (e)   any other duties which Member States may agree between themselves.

  4. Member States may agree bilaterally or multilaterally on the terms of reference and the location of the liaison officers. Liaison officers may also represent the interests of one or more Member States.

Article 7

OBLIGATION TO PROVE IDENTITY

  Unless otherwise specified in this Convention, officers of the applicant authority present in another Member State in order to exercise the rights laid down in this Convention shall at all times be able to produce written authority stating their identity and their official functions.


 
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