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
IMPLEMENTATION AND FINAL PROVISIONS
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.
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.
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.
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.
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, 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
and in Regulation (EC No 82/97 of the European Parliament and
of the Council of 19 December 1996,
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
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.
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
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.
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).
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.
. , 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.
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
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)
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.
OJ L 302, 19 October 1992, p. 2. Back
OJ L 1, 1 January 1995, p. 181. Back
OJ L 17, 21 January 1997, p. 2. Back