APPENDIX 5 (continued)
CONSIDERATION OF DRAFT CONVENTION ON MUTUAL ASSISTANCE
AND CO-OPERATION BETWEEN CUSTOMS AUTHORITIES (NAPLES II)
TITLE III
CHAPTER 2
MUTUAL ASSISTANCE IN CRIMINAL MATTERS
Article 48
1. The provisions of this Chapter are intended to supplement
the European Convention of 20 April 1959 on Mutual Assistance
in Criminal Matters as well as, in relations between the Contracting
Parties which are members of the Benelux Economic Union, Chapter
2 of the Benelux Treaty on Extradition and Mutual Assistance in
Criminal Matters of 27 June 1962, as amended by the Protocol of
11 May 1974, and to facilitate the implementation of these agreements.
2. Paragraph 1 shall not affect the application of the broader
provisions of the bilateral agreements in force between the Contracting
Parties.
Article 49
Mutual assistance shall also be granted:
(a) in proceedings brought by the administrative authorities
for offences which are punishable in one of the two Contracting
Parties or in both Contracting Parties by virtue of being an infringement
of the law and where the decision may give rise to proceedings
before a criminal court;
(b) in damage proceedings for wrongful prosecution or
conviction;
(c) in clemency proceedings;
(d) in civil proceedings that are combined with criminal
proceedings, as long as the criminal court has not yet given a
final ruling on the criminal proceedings;
(e) to communicate legal statements relating to the enforcement
of a sentence or measure, the imposition of a fine or the payment
of costs for proceedings;
(f) in respect of measures relating to the deferral of
delivery or suspension of enforcement of a sentence or a detention
order, conditional release or a stay of execution or interruption
of enforcement of a sentence or a detention order.
Article 50
1. The Contracting Parties undertake to grant each other,
in accordance with the Convention and the Treaty referred to in
Article 48, mutual assistance as regards infringements of their
laws on excise duties, value added tax and customs duties. Customs
provision shall mean the rules laid down in Article 2 of the Convention
of 7 September 1967 between Belgium, the Federal Republic of Germany,
France, Italy, Luxembourg and the Netherlands on mutual assistance
between customs administrations, as well as Article 2 of Council
Regulation (EEC) No. 1468/81 of 19 May 1981.
2. Requests regarding evasion of excise duties may not be
rejected on the grounds that the requested country does not levy
excise duties on the goods referred to in the request.
3. The requesting Contracting Party shall not forward or
use information or evidence obtained from the requested Contracting
Party for enquiries, proceedings or procedures other than those
referred to in its request, without the prior consent of the requested
Contracting Party.
4. The mutual assistance provided for in this Article may
be refused where the alleged amount of duty underpaid or evaded
does not exceed ECU 25,000 or where the presumed value of the
goods exported or imported without authorisation does not exceed
ECU 100,000, unless, given the circumstances of the identity of
the accused, the case is deemed to be extremely serious by the
requesting Contracting Party.
5. The provisions of this Article shall also apply when the
mutual assistance requested concerns infringements punishable
only by a fine as infringements of the law in proceedings brought
by the administrative authorities, where the request for assistance
was made by a judicial authority.
4. To ensure compliance with this Article, the Contracting
Parties shall specifically carry out surveillance on places known
to be used for drug trafficking.
5. The Contracting Parties shall do their utmost to prevent
and combat the negative effects arising from the illicit demand
for narcotic drugs and psychotropic substances of whatever kind,
including cannabis. Each Contracting Party shall be responsible
for the measures adopted to this end.
Article 72
The Contracting Parties shall, in accordance with their constitutions
and their national legal systems, ensure that legislation is enacted
to enable the seizure and confiscation of assets deriving from
the illicit trafficking of narcotic drugs and psychotropic substances.
Article 73
1. The Contracting Parties undertake, in accordance with
their constitutions and their national legal systems, to adopt
measures to allow controlled deliveries to be made as part of
the illicit trafficking of narcotic drugs and psychotropic substances.
2. In each individual case, a decision to allow controlled
deliveries will be taken on the basis of prior authorisation from
each of the Contracting Parties concerned.
3. Each Contracting Party shall retain responsibility for
and control over any operation within its own territory and shall
be entitled to intervene.
Article 74
As regards legal trade in narcotic drugs and psychotropic
substances, the Contracting Parties agree to transfer, wherever
possible, checks conducted at the border and arising from obligations
under the United Nations Conventions listed in Article 71 to within
the country.
Article 75
As regards the movement of travellers to the territory of
the Contracting Parties or their movements within these territories,
individuals may carry narcotic drugs and psychotropic substances
that are intended for medical treatment, provided that they produce
at any check a certificate issued or authenticated by a competent
authority of their State of residence.
Letter from Dawn Primarolo MP, Financial Secretary
to the Treasury to Lord Tordoff, Chairman of the European Communities
Select Committee
I wrote to you on 11 December enclosing a memorandum prepared
by HM Customs and Excise officials in response to your questions
about Naples II. One issue on which the sub-committee had some
concerns was the data protection provisions in the draft Convention,
in particular the amendment made to Article 25.2(e) of the draft
Convention, and the suggestion that individuals' access rights
under Naples II would not be fully provided for in UK legislation.
I am writing now to inform the sub-committee of an important
development in the area of data protection. The Government's White
Paper on the proposed Freedom of Information Act - "Your
Right to Know" - was published on 11 December. I can now
confirm that on the basis of the White Paper when this Act comes
into force, the rights of individuals in relation to personal
manual data of the type described in Naples II will be fully covered
in UK legislation. The Freedom of Information Act will go further
than the Data Protection Bill in that it will apply to all
manual data records, rather than just those manual data records
stored in structured files, as well as automated data records
(there are certain limited exclusions from the Act for "public
interest" reasons). Although my officials made a brief reference
to the Freedom of Information Act in their memorandum, it would
not, of course, have been appropriate to make its content public
before the government's intentions in this area had been announced.
15 December 1997
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