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

TITLE VII

IMPLEMENTATION AND FINAL PROVISIONS

Article 27

CONFIDENTIALITY

  The customs administrations shall take account, in each specific case of exchange of information, of the requirements of investigation secrecy. To that end, a Member State may impose conditions covering the use of information by another Member State to which that information may be passed.

Article 28

EXEMPTIONS FROM THE OBLIGATION TO PROVIDE ASSISTANCE

  1. This Convention shall not oblige the authorities of Member States to provide mutual assistance where such assistance would be likely to harm the public policy or other essential interests of the State concerned, particularly in the field of data protection, or where the scope of the action requested, in particular in the context of the special forms of cooperation provided for in Title IV, is obviously disproportionate to the seriousness of the presumed infringement. In such cases, assistance may be refused in whole or in part or made subject to compliance with certain conditions.

  2. Reasons must be given for any refusal to provide assistance.

Article 29

EXPENSES

  1. Member States shall normally waive all claims for reimbursements of costs incurred in the implementation of this Convention, with the exception of expenses for fees paid to experts.

  2. If expenses of a substantial and extraordinary nature are, or will be, required to execute the request, the customs administrations involved shall consult to determine the terms and conditions under which a request shall be executed as well as the manner in which the costs shall be borne.

Article 30

RESERVATIONS

  1. Save as provided in Article 20(8), Article 21(5) and Article 23(5), this Convention shall not be the subject of any reservations.

  2. Member States which have already established agreements between them covering matters regulated in Title IV of this Convention may make reservations pursuant to paragraph 1 only insofar as such reservations do not affect their obligations under such agreements.

  3. Accordingly, the obligations arising out of the provisions of the Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 on the Gradual Abolition of Checks at their Common Borders which provide for closer co-operation shall not be affected by this Convention in the context of relations between the Member States which are bound by those provisions.

Article 31

TERRITORIAL APPLICATION

  1. This Convention shall apply to the territories of the Member States as referred to in Article 3(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code,[29] as revised by the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded[30] and in Regulation (EC No 82/97 of the European Parliament and of the Council of 19 December 1996,[31] including, for the Federal Republic of Germany, the Island of Heligoland and the territory of BuÏsingen (within the framework of and pursuant to the Treaty of 23 November 1964 between the Federal Republic of Germany and the Swiss Confederation on the inclusion of the commune of BuÏsingen am Hochrhein in the customs territory of the Swiss Confederation, or the current version thereof) and, for the Italian Republic, the municipalities of Livigno and Campione d'Italia, and to the territorial waters, the inland maritime waters and the airspace of the territories of the Member States.

  2. The Council, acting unanimously by the procedure provided for in Title VI of the Treaty on European Union, may adapt paragraph 1 to any amendment of the provisions of Community law referred to therein.

Article 32

ENTRY INTO FORCE

  1. This Convention shall be subject to adoption by the Member States in accordance with their respective constitutional requirements.

  2. Member States shall notify the depositary of the completion of the constitutional procedures for the adoption of this Convention.

  3. This Convention shall enter into force 90 days after the notification referred in paragraph 2 by the State, Member of the European Union at the time of adoption by the Council of the Act drawing up this Convention, which is last to complete that formality.

  4. Until this Convention enters into force, any Member State may, when giving the notification referred to in paragraph 2, or at any other later time, declare that as far as it is concerned this Convention, with the exception of Article 26 thereof, shall apply its relations with Member States that have made the same declaration. Such declarations shall take effect 90 days after the date of deposit thereof.

  5. This Convention shall apply to requests submitted after the date on which it enters into force or is applied as between the requested Member State and the applicant Member State.

  6. On the date of entry into force of this Convention, the Convention on the provision of mutual assistance between customs administrations of 7 September 1967 shall be repealed.

Article 33

ACCESSION

  1. This Convention shall be open to accession by any State that becomes a Member State of the European Union.

  2. The text of the Convention in the language of the acceding Member State, as drawn up by the Council of the European Union, shall be authentic.

  3. The instruments of accession shall be deposited with the depositary.

  4. This Convention shall come into force with respect to any State that accedes to it 90 days after the deposit of its instrument of accession or on the date of entry into force of the Convention if it has not already entered into force upon expiry of the said period of 90 days.

  5. Where this Convention has not yet entered into force at the time of the deposit of their instrument of accession, Article 32(4) shall apply to acceding Member States.

Article 34

AMENDMENTS

  1. Amendments to this Convention may be proposed by any Member State that is a High Contracting Party. Any proposed amendment shall be sent to the depositary, who shall communicate it to the Council and the Commission.

  2. Without prejudice to Article 31(2), the amendments to the Convention shall be adopted by the Council, which shall recommend them to the Member State for adoption in accordance with their respective constitutional requirements.

  3. Amendments adopted in accordance with paragraph 2 shall come into force in accordance with Article 32(3).

Article 35

DEPOSITARY

  1. The Secretary-General of the Council of the European Union shall act as depositary of this Convention.

  2. The depositary shall publish in the Official Journal of the European Communities information on the progress of adoptions and accessions, implementation, declarations and reservations, and also any other notification concerning this Convention.

  DONE at …………………. , in a single original, in the Danish, Dutch, English, Finnish, French, German, Greek, Irish, Italian, Portuguese, Spanish and Swedish languages, each text being equally authentic, such original remaining deposited in the archives of the General Secretariat of the Council of the European Union.

ANNEX

DECLARATIONS TO BE ANNEXED TO THE CONVENTION AND PUBLISHED IN THE OFFICIAL JOURNAL

1. Re Articles 1(1) and 28

  With reference to the exceptions to the obligation to provide assistance under Article 28 of the Convention, Italy declares that the execution of mutual assistance requests, on the basis of the Convention, concerning infringements which under Italian law are not infringements of national or community customs provisions, may - for reasons relating to the subdivision of competence among domestic authorities in prevention and prosecution of crimes - harm the public policy or other national essential interests.

2. Re Article 1(2) and 3(2)

  Denmark and Finland declare that they interpret the term "judicial authorities" or "judicial authority" in Articles 1(2) and 3(2) of the Convention in the sense of their declarations made pursuant to Article 24 of the European Convention on Mutual Assistance in Criminal Matters, signed in Strasbourg on 20 April 1959.

3. Re Article 4(3), second indent

  Denmark declares, as far as it is concerned, that Article 4(3), second indent, covers only actions by which a person participates in the commission by a group of people, acting toward a common goal, of one or more of the infringements concerned, including situations where the person concerned does not take part in the actual commission of the offence or offences in question; such participation must be based on knowledge of the purpose and general criminal activities of the group, or on knowledge of the group's intention to commit the offence(s) in question.

4. Re Article 4(3), third indent

  Denmark declares, as far as it is concerned, that Article 4(3), third indent, applies only to the predicate offences in respect of which at any time receiving stolen goods is punishable under Danish law, including section 191a of the Danish Criminal Code on receiving stolen drugs and section 284 of the Criminal Code on receiving goods in connection with smuggling of a particularly aggravated nature.

5. Re Article 6(4)

  Denmark, Finland and Sweden declare that the liaison officers referred to in Article 6(4) may also represent the interest of Norway and Iceland or vice versa. The five Nordic Countries have since 1982 had an arrangement whereby the stationed liaison officers from one of the countries involved also represent the other Nordic Countries. This arrangement was made in order to strengthen the fight against drug trafficking and to limit the economic burden imposed on individual countries by the stationing of the liaison officers. Denmark, Finland and Sweden attach great importance to the continuation of this arrangement, which operates well.

6. Re Article 20(8)

  Denmark declares that it accepts the provisions of Article 20, subject to the following conditions:

  In case of a hot pursuit exercised by the customs authorities of another Member State at sea or through the air, such pursuit may be extended to Danish territory, including Danish territorial waters and the airspace above Danish territory and territorial waters, only if the competent Danish authorities have received prior notice thereof.

7. Re Article 21(5)

  Denmark declares that it accepts the provisions of Article 21, subject to the following conditions:

  Cross-border surveillance without prior authorisation may be carried out only in accordance with Article 21(2) and (3) if there are serious grounds for believing that the persons under observation are involved in one of the infringements referred to in Article 19(2) which could give rise to extradition.

8. Re Article 25(2)(i)

  Member States undertake to keep each other informed in the Council on measures taken to ensure that the commitments referred to in point (i) are observed.

9. Declaration made pursuant to Article 26(4)

  At the time of the signing of this Convention, the following declared that they accepted the jurisdiction of the Court of Justice in accordance with the procedures laid down in Article 26(5).

  The Kingdom . . . in accordance with the procedures laid down in Article 26(5)(a)

  The Republic . . . , . . . in accordance with the procedures laid down in Article 26(5)(b)

DECLARATION

  The Kingdom . . . , the Republic . . . , . . . , reserve the right to make provision in their national law to the effect that, where a question relating to the interpretation of the Convention on mutual assistance and cooperation between customs administrations is raised in a case pending before a national court or tribunal against whose decision there is no judicial remedy under national law, that court or tribunal will be required to refer the matter to the Court of Justice.


29   OJ L 302, 19 October 1992, p. 2. Back

30   OJ L 1, 1 January 1995, p. 181. Back

31   OJ L 17, 21 January 1997, p. 2. Back


 
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