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 IV
SPECIAL FORMS OF CO-OPERATION
Article 19
PRINCIPLES
1. Customs administrations shall engage in cross-border co-operation
in accordance with this Title. They shall provide each other with
the necessary assistance in terms of staff and organisational
support. Requests for co-operation shall, as a rule, take the
form of requests for assistance in accordance with Article 9.
In specific cases referred to in this Title, officers of the applicant
authority may engage in activities in the territory of the requested
State, with the approval of the requested authority.
Co-ordination and planning of cross-border operations shall
be the responsibility of the central co-ordinating units in accordance
with Article 5.
2. Cross-border co-operation within the meaning of paragraph
1 shall be permitted for the prevention, investigation and prosecution
of infringements in cases of:
(a) illicit traffic in drugs and psychotropic substances,
weapons, munitions, explosive materials, cultural goods, dangerous
and toxic waste, nuclear material or materials or equipment intended
for the manufacture of atomic, biological and/or chemical weapons
(prohibited goods);
(b) trade in substances listed in tables I and II of
the United Nations Convention against illicit Traffic in Narcotic
Drugs and Psychotropic Substances and intended for the illegal
manufacture of drugs (precursor substances);
(c) illegal cross-border commercial trade in taxable
goods to evade tax or to obtain unauthorised State payments in
connection with the import or export of goods, where the extent
of the trade and the related risk to taxes and subsidies is such
that the potential financial cost to the budget of the European
Communities or the Member States is considerable;
(d) any other trade in goods prohibited by Community
or national customs rules.
3. The requested authority shall not be obliged to engage
in the specific forms of co-operation referred to in this Title
if the type of investigation sought is not permitted or not provided
for under the national law of the requested Member State. In this
case, the applicant authority shall be entitled to refuse, for
the same reason, the corresponding type of cross-border co-operation
in the reverse case, where it is requested by an authority of
the requested Member State.
4. If necessary under the national law of the Member States,
the participating authorities shall apply to their judicial authorities
for approved of the planned investigations. Where the competent
judicial authorities make their approval subject to certain conditions
and requirements, the participating authorities shall ensure that
those conditions and requirements are observed in the course of
the investigations.
5. Where officers of a Member State engage in activities
in the territory of another Member State by virtue of this Title
and cause damage by their activities, the Member State in whose
territory the damage was caused shall make good the damage, in
accordance with its national legislation in the same way as it
would have done if the damage had been caused by its own officers.
That Member State will be reimbursed in full by the Member State
whose officers have caused the damage for the amounts it has paid
to the victims or to other entitled persons or institutions.
6. Without prejudice to the exercise of its rights vis-aÁ-vis
third parties and notwithstanding the obligation to make good
damages according to the second sentence of paragraph 5, each
Member State shall refrain, in the case provided for in the first
sentence of paragraph 5, from requesting reimbursement of the
amount of damages it has sustained from another Member State.
7. Information obtained by officers during cross-border co-operation
provided for in Articles 20 to 24 may be used, in accordance with
national law and subject to particular conditions laid down by
the competent authorities of the State in which the information
was obtained, as evidence by the competent bodies of the Member
State receiving the information.
8. In the course of the operations referred to in Articles
20 to 24, officers on mission in the territory of another Member
State shall be treated in the same way as officers of that State
as regards infringement committed against them or by them.
Article 20
HOT PURSUIT
1. Officers of the customs administration of one of the Member
States pursuing in their country, an individual observed in the
act of committing one of the infringements referred to in Article
19(2) which could give rise to extradition, or participating in
such an infringement, shall be authorised to continue pursuit
in the territory of another Member State without prior authorisation
where, given the particular urgency of the situation, it was not
possible to notify the competent authorities of the other Member
State prior to entry into that territory or where these authorities
have been unable to reach the scene in time to take over the pursuit.
The pursuing officers shall, not later than when they cross
the border, contact the competent authorities of the Member State
in whose territory the pursuit is to take place. The pursuit shall
cease as soon as the Member State in whose territory the pursuit
is taking place so requests. At the request of the pursuing officers,
the competent authorities of the said Member State shall challenge
the pursued person so as to establish his identity or to arrest
him. Member States shall inform the depositary of the pursuing
officers to whom this provision applies; the depositary shall
inform the other Member States.
2. The pursuit shall be carried out in accordance with the
following procedures, defined by the declaration provided for
in paragraph 6:
(a) the pursuing officers shall not have the right to
apprehend;
(b) however, if no request to cease the pursuit is made
and if the competent authorities of the Member State in whose
territory the pursuit is taking place are unable to intervene
quickly enough, the pursuing officers may apprehend the person
pursued until the officers of the said Member State, who must
be informed without delay, are able to establish his identity
or arrest him.
3. Pursuit shall be carried out in accordance with paragraphs
1 and 2 in one of the following ways as defined by the declaration
provided for in paragraph 6:
(a) in an area or during a period, as from the crossing
of the border, to be established in the declaration;
(b) without limit in space or time.
4. Pursuit shall be subject to the following general conditions:
(a) the pursuing officers shall comply with the provisions
of this Article and with the law of the Member States in whose
territory they are operating; they shall obey the instructions
of the competent authorities of the Member State;
(b) when the pursuit takes places on the sea, it shall,
where it extends to the high sea or the exclusive economic zone,
be carried out in conformity with the international law of the
sea as reflected in the United Nations Convention on the Law of
the Sea, and, when it takes place in the territory of another
Member State, it shall be carried out in accordance with the provisions
of this Article;
(c) entry into private homes and places not accessible
to the public shall be prohibited;
(d) the pursuing officers shall be easily identifiable,
either by their uniform or an armband or by means of accessories
fitted to their means of transport; the use of civilian clothes
combined with the use of unmarked means of transport without the
aforementioned identification is prohibited; the pursuing officers
shall at all times be able to prove that they are acting in an
official capacity;
(e) the pursuing officers may carry their service weapons,
save (i) where the requested Member State has made a general declaration
that weapons may never be carried into its territory or (ii) where
specifically decided otherwise by the requested Member State.
When officers of another Member State are permitted to carry their
service weapons, their use shall be prohibited save in cases of
legitimate self-defence;
(f) once the pursued person has been apprehended as provided
for in paragraph 2(b), for the purpose of bringing him before
the competent authorities of the Member State in whose territory
the pursuit took place he may be subjected only to a security
search; handcuffs may be used during his transfer; objects carried
by the pursued person may be seized;
(g) after each operation mentioned in paragraphs 1, 2
and 3, the pursuing officers shall present themselves before the
competent authorities of the Member State in whose territory they
were operating and shall give an account of their mission; at
the request of those authorities, they must remain at their disposal
until the circumstances of their action have been adequately elucidated;
this condition shall apply even where the pursuit has not resulted
in the arrest of the pursued person;
(h) the authorities of the Member State from which the
pursuing officers have come shall, when requested by the authorities
of the Member State in whose territory the pursuit took place,
assist the enquiry subsequent to the operation in which they took
part, including legal proceedings.
5. A person who, following the action provided for in paragraph
2, has been arrested by the competent authorities of the Member
State in whose territory the pursuit took place may, whatever
his nationality, be held for questioning. The relevant rules of
national law shall apply mutatis mutandis.
If the person is not a national of the Member State in whose
territory he was arrested, he shall be released no later than
six hours after his arrest, not including the hours between midnight
and 09.00 hours, unless the competent authorities of the said
Member State have previously received a request for his provisional
arrest for the purposes of extradition in any form.
6. On signing this Convention, each Member State shall make
a declaration in which it shall define, on the basis of paragraphs
2, 3 and 4, the procedures for implementing pursuit in its territory.
A Member State may at any time replace its declaration by
another declaration, provided the latter does not restrict the
scope of the former.
Each declaration shall be made after consultations with each
of the Member States concerned and with a view to obtaining equivalent
arrangements in those States.
7. Member States may, on a bilateral basis, extend the scope
of paragraph 1 and adopt additional provisions in implementation
of this Article.
8. When depositing its instruments of adoption of this Convention,
a Member State may declare that it is not bound by this Article
or by part thereof. Such declaration may be withdrawn at any time.
Article 21
CROSS-BORDER SURVEILLANCE
1. Officers of the customs administration of one of the Member
States who are keeping under observation in their country persons
in respect of whom there are serious grounds for believing that
they are involved in one of the infringements referred to in Article
19(2) shall be authorised to continue their observation in the
territory of another Member State where the latter has authorised
cross-border observation in response to a request for assistance
which has previously been submitted. Conditions may be attached
to the authorisation.
Member States shall inform the depositary of the officers
to whom this provision applies; the depositary shall inform the
other Member States.
On request, the observation shall be entrusted to officers
of the Member State in whose territory it is carried out.
The request referred to in the first subparagraph shall be
sent to an authority designated by each of the Member States empowered
to grant the requested authorisation or pass on the request.
Member States shall inform the depositary of the authority
designated for this purpose; the depositary shall inform the other
Member States.
2. Where, for particularly urgent reasons, prior authorisation
of the other Member State cannot be requested, the officers conducting
the observation shall be authorised to continue beyond the border
the observation of persons in respect of whom there are serious
grounds for believing that they are involved in one of the infringements
referred to in Article 19(2), provided that the following conditions
are met:
(a) the competent authorities of the Member State in
whose territory the observation is to be continued shall be notified
immediately of the crossing of the border, during the observation;
(b) a request submitted in accordance with paragraph
1 and outlining the grounds for crossing the border without prior
authorisation shall be submitted without delay.
Observation shall cease as soon as the Member State in whose
territory it is taking place so requests, following the notification
referred to in (a) or the request referred to in (b), or where
authorisation has not been obtained five hours after the border
was crossed.
3. The observation referred to in paragraphs 1 and 2 shall
be carried out only under the following general conditions:
(a) the officers conducting the observation shall comply
with the provisions of this Article and with the law of the Member
State in whose territory they are operating; they must obey the
instructions of the competent authorities of the said Member State;
(b) except in the situations provided for in paragraph
2, the officers shall, during the observation, carry a document
certifying that authorisation has been granted;
(c) the officers conducting the observation shall be
able at all times to provide proof that they are acting in an
official capacity;
(d) the officers conducting the observation may carry
their service weapons during the observation save:
(i) where the requested Member State has made a general
declaration that weapons may never be carried into its territory;
or
(ii) where specifically decided otherwise by the requested
Member State. When officers of another Member State are permitted
to carry their service weapons, their use shall be prohibited
save in cases of legitimate self-defence;
(e) entry into private homes and places not accessible
to the public shall be prohibited;
(f) the officers conducting the observation may neither
challenge nor arrest the person under observation;
(g) all operations shall be the subject of a report to
the authorities of the Member State in whose territory they took
place; the officers conducting the observation may be required
to appear in person;
(h) the authorities of the Member State from which the
observing officers have come shall, when requested by the authorities
of the Member State in whose territory the observation took place,
assist the enquiry subsequent to the operation in which they took
part, including legal proceedings.
4. The Member States may, at bilateral level, extend the
scope of this Article and adopt additional measures in implementation
thereof.
5. When depositing its instruments of adoption of this Convention,
a Member State may declare that it is not bound by this Article
or by part thereof. Such declaration may be withdrawn at any time.
Article 22
CONTROLLED DELIVERY
1. Each Member State shall undertake to ensure that, at the
request of another Member State, controlled deliveries may be
permitted on its territory in the framework of criminal investigations
into extraditable offenses.
2. The decision to carry out controlled deliveries shall
be taken in each individual case by the competent authorities
of the requested Member State, with due regard for the national
law of that State.
3. Controlled deliveries shall take place in accordance with
the procedures of the requested Member State. Competence to act
and to direct operations shall lie with the competent authorities
of that Member State.
The requested authority shall take over control of the delivery
when the goods cross the border or at an agreed hand-over point
in order to avoid any interruption of surveillance. During the
rest of the journey it shall ensure that the goods are kept permanently
under surveillance in such a way that at any time it has the possibility
of arresting the perpetrators and seizing the goods.
4. Consignments, the controlled delivery of which is agreed
to may, with the consent of the Member States concerned, be intercepted
and allowed to continue with the initial contents intact or removed
or replaced in whole or in part.
Article 23
COVERT INVESTIGATIONS
1. At the request of the applicant authority, the requested
authority may authorise officers of the customs administration
of the requesting Member State or officers acting on behalf of
such administration operating under cover of a false identity
(covert investigators) to operate on the territory of the requested
Member State. The applicant authority shall make the request only
where it would be extremely difficult to elucidate the facts without
recourse to the proposed investigative measures. The officers
in question shall be authorised in the course of their activities
to collect information and make contact with suspects or other
persons associated with them.
2. Covert investigations in the requested Member State shall
have a limited duration. The preparation and supervision of the
investigations shall take place in close co-operation between
the relevant authorities of the requested and applicant Member
States.
3. The conditions under which a covert investigation is allowed,
as well as the conditions under which it is carried out, shall
be determined by the requested authority in accordance with its
national law. If, in the course of a covert investigation, information
is acquired in relation to an infringement other than that covered
by the original request, then the conditions concerning the use
to which such information may be put shall also be determined
by the requested authority in accordance with its national law.
4. The requested authority shall provide the necessary manpower
and technical support. It shall take measures to protect the officers
referred to in paragraph 1, while they are active in the requested
Member State.
5. When depositing its instruments of adoption of this Convention,
a Member State may declare that it is not bound by this Article
or part thereof. Such declaration may be withdrawn at any time.
Article 24
JOINT SPECIAL INVESTIGATION TEAMS
1. By mutual agreement, the authorities of several Member
States may set up a joint special investigation team based in
a Member State and comprising officers with the relevant specialisations.
The joint special investigation team shall have the following
tasks:
- implementation of difficult and demanding investigations
of specific infringement, requiring simultaneous, co-ordinated
action in the Member States concerned;
- co-ordinated of joint activities to prevent and
detect particular types of infringement and obtain information
on the persons involved, their associates and the methods used.
2. Joint special investigation teams shall operate under
the following general conditions:
(a) they shall be set only for a specific purpose and
for a limited period;
(b) an officer from the Member State in which the team's
activities take place shall head the team;
(c) the participating officers shall be bound by the
law of the Member State in whose territory the team's activities
take place;
(d) the Member State in which the team's activities take
place shall make the necessary organisational arrangements for
the team to operate.
3. Membership of the team shall not bestow on officers any
powers of intervention in the territory of another Member State.
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