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:
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:
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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