Agreement between the European Community and Canada on customs cooperation and mutual assistance in customs matters
L 7/38 ‹ EN ‹ Official Journal of the European Communities 13. 1. 98 between the European Community and Canada on customs cooperation and mutual assistance in customs matters AGREEMENT THE EUROPEAN COMMUNITY and THE GOVERNMENT OF CANADA, hereafter referred to as ‘the Contracting Parties’, BUILDING on the privileged relationship established by the Framework Agreement for commercial and economic cooperation between the European Communities and Canada, signed at Ottawa on 6 July 1976, TAKING ACCOUNT of the declaration of 22 November 1990 on EC-Canada relations, RECOGNIZING the Joint Declaration on European Union-Canada relations signed at Ottawa on 17 December 1996, CONSIDERING that breaches of customs legislation are prejudicial to their economic, fiscal, social, cultural and commercial interests, BELIEVING that there should be an undertaking to develop customs cooperation of the widest possible scope in matters including, but not limited to, simplification and harmonization of customs procedures, CONSIDERING the importance of accurate assessment of customs duties and taxes collected at importation or exportation and of ensuring proper enforcement of measures of prohibition, restriction and control, RECOGNIZING the need for international cooperation in matters related to the application and enforce- ment of their customs laws, CONVINCED that action against breaches of customs legislation can be made more effective by close cooperation between their customs administrations, HAVING REGARD TO the relevant instruments of the Customs Cooperation Council, in particular the recommendation on mutual administrative assistance of 5 December 1953, HAVING REGARD ALSO TO international conventions containing prohibitions, restrictions and special measures of control in respect of specific goods, HAVE AGREED AS FOLLOWS: TITLE I GENERAL PROVISIONS Article 1 Definitions For the purposes of this Agreement, 1. ‘customs authority’ means: — in the European Community: the competent services of the European Communities and the customs authorities of the Member States of the European Community, the Commission of — in Canada: the competent services of the Depart- ment of National Revenue; 2. ‘customs legislation’ means: under any customs procedure, including measures of prohibition, restriction and control, — for Canada: the statutory and regulatory provisions concerning the importation, exportation, transit of goods, and their placing under any customs pro- cedure, including measures of prohibition, restric- tion and control, the administration and enforce- ment of which are specifically charged to the customs authority, and any regulations made by the customs authority under its statutory powers; 3. ‘breach of customs legislation’ means any violation or attempted violation of customs legislation; 4. reports, ‘information’ means any data, documents, thereof or other certified or authenticated copies communications, including data which has been processed or analysed to provide an indication relevant to a breach of customs legislation; — for the European Community: provisions adopted by the European Community and governing the import, export, transit of goods and their placing 5. ‘person’ means either a physical human being or a legal entity; 13. 1. 98 ‹ EN ‹ Official Journal of the European Communities L 7/39 6. 7. 8. ‘personal data’ means all identified or identifiable individual; information relating to an ‘requested authority’ means the competent customs authority from which assistance is requested; ‘requesting authority’ means the competent customs authority which requests assistance. TITLE III MUTUAL ASSISTANCE Article 7 Scope of assistance TITLE II CUSTOMS COOPERATION Article 2 Scope of the cooperation The Contracting Parties undertake 1. customs cooperation of the widest possible scope. to develop Under this Agreement, customs cooperation shall 2. cover all matters relating to the application of customs legislation. Article 3 Technical assistance to third countries The Contracting Parties shall, where appropriate, inform each other on actions undertaken, or to be undertaken, with third countries in relation to technical assistance in the customs field, with the aim of improving these actions. Article 4 Simplification and harmonization The Contracting Parties agree to strive for simplification and harmonisation of their customs procedures, taking into account the work done in this connection by interna- tional organisations. They also agree to examine ways and means to solve any customs-related difficulties that might arise between them. Article 5 Exchange of personnel The customs authorities may exchange personnel when mutually beneficial, for the purpose of advancing their understanding of each other’s customs techniques and procedures, and computerised systems. The customs authorities 1. shall assist each other, either on request or on their own initiative, by providing appropriate information which helps to ensure the proper application of customs legislation and the prevention, investigation and combating of any breach of customs legislation. All assistance under this Title by either Contracting 2. Party shall be performed in accordance with its relevant laws, rules and other legal instruments and within the limits of its customs authority’s competence and available resources. This Title is intended solely for the mutual adminis- 3. trative assistance between the Contracting Parties; the provisions of this Title shall not give rise to a right on the part of any private person to obtain information, to obtain, suppress or exclude any evidence or to impede the execution of a request. 4. This Title shall not prejudice the rules governing mutual assistance in criminal matters. Nor shall it apply to information obtained under powers exercised at the request of the judicial authority, except where commun- ication of such information has the prior authorization of the said judicial authority consulted for this purpose on a case-by-case basis. Article 8 Information on methods, trends and operations 1. Either customs authority shall communicate, either on request or on its own initiative, any available informa- tion relating to: (a) new customs law enforcement techniques having proved their effectiveness; (b) new trends, means or methods of committing breaches of customs legislation. 2. Either on request or on their own initiative, the customs authorities shall provide each other with in- formation on operations, completed or planned, which constitute, or appear to constitute, a breach of customs legislation in the territory of the other Contracting Party. Article 6 Computerization Article 9 Assistance on request The Contracting Parties shall cooperate in the computer- isation of customs procedures and formalities, with the aim of facilitating trade between them. 1. On request, the requested authority shall inform the requesting authority of the customs legislation and pro- L 7/40 ‹ EN ‹ Official Journal of the European Communities 13. 1. 98 cedures applicable in that Contracting Party and relevant to inquiries relating to a breach of customs legislation. ments and other materials shall be appropriately authen- ticated. 2. On request, the requested authority shall, in par- ticular, provide the requesting authority with the fol- lowing information: (a) whether goods imported into the territory of the requesting Contracting Party have been lawfully exported requested territory Contracting Party, and specifying, where appropriate, the customs procedure applied to the goods; from the the of (b) whether goods exported from the territory of the requesting Contracting Party have been lawfully imported requested territory Contracting Party, and specifying, where appropriate, the customs procedure applied to the goods. into the the of 3. On request, and subject to specific provisions under Article 13, the requested authority shall provide informa- tion on, and maintain special surveillance over: (a) persons known to the requesting authority to have legislation or customs committed a breach of suspected of doing so; (b) goods either in transport or in storage notified by the requesting authority as giving rise to suspected illicit traffic; (c) means of transport suspected by the requesting authority of being used to commit breaches of customs legislation; 3. Original files, documents and other materials that have been transmitted shall be returned as soon as possible; rights of third parties relating thereto shall remain unaffected. the requested authority or of Article 12 Experts and witnesses 1. The customs authority of one Contracting Party may authorize its employees, upon the request of the customs authority of the other Contracting Party, to appear as witnesses or experts in judicial or administrative pro- ceedings in the territory of the other Contracting Party and to produce such files, documents or other materials, or authenticated copies thereof, as may be considered essential for the proceedings. in judicial or 2. When appearing administrative proceedings in the circumstances provided for in para- graph 1, witnesses or experts will be afforded the full protection of the law of the requesting Contracting Party pertaining to testimony of a privileged or confidential nature which may be protected from disclosure under that law. Requests pursuant indicate 3. specifically on what matters and by virtue of what title or qualification the official will be questioned. to paragraph 1 must (d) premises suspected by the requesting authority of being used to commit breaches of customs legislation. Article 10 Spontaneous assistance In serious cases that could involve substantial damage to the economy, public health, public security or any other the customs vital to the authority of extent possible, supply information on its own initiative. interest of one Contracting Party, the other Contracting Party shall, Article 13 Communication of requests Requests for assistance under this Title shall be 1. made in writing and shall be accompanied by any docu- ments deemed useful. When the circumstances so require, requests may also be made verbally. Such requests shall be promptly confirmed in writing. Written requests may be made by electronic means from which a paper record may be made. Requests pursuant to paragraph 1 shall include the 2. following information: Article 11 Form in which information is to be communicated (a) the requesting authority; (b) the measure requested; The requested authority shall communicate appro- 1. priate information to the requesting authority in the form of documents, certified copies of documents, reports or electronic versions thereof. All relevant information for interpreting or utilizing that information shall be supplied at the same time. (c) the object of, and the reason for, the request; (d) the laws, rules and other legal elements involved; (e) information which is as exact and comprehensive as possible on the persons who are the target of the investigation; and 2. Original files, documents and other materials shall be requested only in cases where copies would be insuffi- cient. Upon specific request, copies of such files, docu- (f) a summary of the relevant facts and of the investiga- tions already carried out, including the customs au- thorities involved at the time of the request. 13. 1. 98 ‹ EN ‹ Official Journal of the European Communities L 7/41 3. The requested authority shall agree to follow a certain procedure in responding to a request, unless that procedure would conflict with legal and administrative provisions of the requested Contracting Party. 4. The information referred to in this Title shall be communicated only to officials who are specifically desig- nated for this purpose by each customs authority. Lists of officials so designated shall be exchanged in accordance with Article 19(3). 5. Requests shall be submitted in an official language of the requested authority or in a language acceptable to that authority. 6. If a request does not meet the formal requirements, the requested authority may ask for its correction or completion. The requested authority may take interim measures. Article 14 Execution of requests 1. If the requested authority does not have the in- formation requested, it shall, in accordance with its legis- lation, either: (a) initiate inquiries to obtain that information; (b) promptly transmit the request to the appropriate agency; or (c) indicate which relevant authorities are concerned. 2. Any inquiry under paragraph 1(a) may include the taking of statements from persons from whom informa- tion is sought in connection with a breach of customs legislation and from witnesses and experts. Article 15 Duties of officials for the purpose of 1. On written request, with the authorization of the requested authority and subject to conditions which the latter may impose, investigating a breach of customs legislation, officials specifically desig- nated by the requesting authority may be present during an inquiry conducted by the requested authority in the territory of the requested Contracting Party and relevant to the requesting authority. the requesting authority are 2. When officials of present in the territory of the other Contracting Party in the circumstances provided for in paragraph 1, they must at all times be able to furnish proof of their official capa- city. 3. Duly authorized officials of a Contracting Party may, with the agreement of the other Contracting Party and within the conditions laid down by the latter, obtain from the offices of the requested authority or other authority for which the requested authority is responsible, informa- tion relating to a breach of customs legislation which the requesting authority needs for the purposes of this Title. Article 16 Confidentiality of information 1. Any information received under this Title shall be treated as confidential and shall at least be subject to the same protection and confidentiality as the same kind of information is subject to under the laws applicable in the Contracting Party where it is received. 2. Information obtained shall be used solely for the purposes of this Title. Where one of the Contracting Parties requests the use of such information for other purposes, it shall obtain the prior written consent of the customs authority which furnished the information. Such use shall then be subject to any restrictions laid down by that authority. 3. Paragraph 2 shall not impede the use of information in any judicial or administrative proceedings subsequently instituted for failure to comply with customs legislation. The Contracting Parties may, in their records of evidence, reports and testimonies and in proceedings and charges brought before the courts, use evidence obtained in ac- cordance with the provisions of this Title. The com- petent authority which supplied that evidence shall be notified in advance of such use. 4. Personal data may be exchanged only where the Contracting Party which will receive the data undertakes to protect such data in a way which is at least equivalent to the protection applicable to that particular case in the Contracting Party which may supply the data. information among customs 5. Dissemination of authorities within each Contracting Party will occur only on a need-to-know basis. Where information is shared pursuant to this paragraph, the Contracting Party that supplied the information shall be so informed in advance of sharing the information. Article 17 Exceptions to the obligation to provide assistance 1. In cases where assistance under this Title would infringe upon the sovereignty of a Member State of the European Community or Canada or prejudice security, public policy or other essential (such as that referred to in Article 16(4)) of a Contracting Party, or would involve a violation of industrial, commercial or interest L 7/42 ‹ EN ‹ Official Journal of the European Communities 13. 1. 98 professional secrecy or would be inconsistent with its legislation, assistance may be refused or made subject to the fulfilment of certain conditions or requirements. The customs authorities shall decide on detailed this 3. arrangements to facilitate the implementation of Agreement. If 2. the requesting authority would be unable to comply were a similar request to be made by the request authority, it shall draw attention to that fact in its request. Compliance with such a request shall be at the discretion of the requested authority. 3. Assistance may be postponed by the requested authority on the grounds that it will interfere with an ongoing investigation, prosecution or proceeding. In such a case, the requested authority shall consult with the requesting authority to determine if assistance can be given subject to such terms or conditions as the requested authority may require. 4. Where assistance is denied or postponed, reasons for the denial or postponement shall be given without delay. Article 18 Costs 1. The customs authorities shall waive all claims for reimbursement of costs incurred in the execution of this Title. If expenses of a substantial or extraordinary nature 2. are, or will be, required to execute the request, the Contracting Parties shall consult to determine the terms and conditions under which the request will be executed as well as the manner in which the costs shall be borne. TITLE IV FINAL PROVISIONS Article 19 Implementation of the Agreement this Agreement The management of shall be 1. entrusted to the competent services of the Commission of the European Communities and, where appropriate, the customs authorities of the Member States and to the customs authority of Canada. 2. The customs authorities shall take measures so that their officials responsible for the investigation or combat- ing of breaches of customs legislation maintain personal and direct relations with each other. 4. The customs authorities shall endeavour to resolve any problem or doubt arising from the interpretation or application of this Agreement. Article 20 Joint Customs Cooperation Committee 1. A Joint Customs Cooperation Committee is hereby established, consisting of representatives of the customs authorities of the Contracting Parties. The Joint Customs Cooperation Committee shall meet at a place and on a date with an agenda fixed by mutual consent. 2. The Joint Customs Cooperation Committee shall see to the proper functioning of this Agreement and shall examine all issues arising from its application. In fulfil- ling this role, its main functions will be to: (a) take the measures necessary for customs cooperation in accordance with the objectives of this Agreement and for the expansion of this Agreement with a view to increasing the level of customs cooperation and supplementing it on specific sectors or matters; (b) exchange views on any points of common interest future regarding measures and the resources for them; cooperation, including customs (c) in general terms, recommend solutions aimed at at- taining the objectives of this Agreement. The Joint Customs Cooperation Committee shall 3. adopt its rules of procedure. Article 21 Obligations imposed under other agreements Taking into account the respective competencies of 1. the European Community and the Member States, the provisions of this Agreement shall: — not affect the obligations of the Contracting Parties under any other international agreement or conven- tion, — be deemed complementary with agreements on customs cooperation and mutual assistance which have been, or may be, concluded between individual Member States of the European Union and Canada, and — not affect the provisions governing the communica- tion between the competent services of the Commis- sion and the customs authorities of the Member States on a need-to-know basis of any information obtained under this Agreement which could be of interest to the European Community. 13. 1. 98 ‹ EN ‹ Official Journal of the European Communities L 7/43 2. Notwithstanding the provisions of paragraph 1, the provisons of this Agreement shall take precedence over the provisions of the bilateral agreements on customs cooperation and mutual assistance which have been, or may be, concluded between individual Member States of the European Union and Canada insofar as the provisions of the latter are incompatible with those of this Agree- ment. 3. In respect of questions relating to the applicability of this Agreement, the Contracting Parties shall consult each other to resolve the matter in the framework of the Joint Committee set up under Article 20. Article 22 Territorial application This Agreement shall apply, on the one hand, to the ter- ritories in which the Treaty establishing the European Community is applied and under the conditions laid down in that Treaty and, on the other hand, to the territ- ory of Canada under the conditions laid down in Cana- dian law. Article 23 Future developments The Contracting Parties may by mutual consent expand this Agreement with a view to increasing the levels of customs cooperation and supplementing them, in accord- ance with their respective customs legislation, by means of agreements on specific sectors or matters. Article 24 Entry into force and termination This Agreement shall enter into force on the first the month following the date on which the the 1. day of Contracting Parties have notified each other of completion of the procedures necessary for this purpose. This Agreement is intended to be of unlimited dura- 2. tion but either Contracting Party may terminate it at any time by notification through diplomatic channels. 3. The termination shall take effect one month from the date of the notification of denunciation to the other Contracting Party. Ongoing proceedings at the time of termination shall nonetheless be completed in accordance with the provisions of this Agreement. L 7/44 ‹ EN ‹ Official Journal of the European Communities 13. 1. 98 EN FE DE LO CUAL, los abajo firmantes, debidamente autorizados, suscriben el presente Acuerdo. TIL BEKRÆFTELSE HERAF har undertegnede, der er behørigt beføjede hertil, undertegnet denne aftale. ZU URKUND DESSEN haben die hierzu gehörig befugten Unterzeichneten ihre Unterschrift unter dieses Abkommen gesetzt. SE PISTYSG TYM AMYTEQY, oi upocecqall ˜emoi pkgqeno ˜usioi ˜ehesam tgm upocqav ˜g tour j ˜aty ap ˜o tgm paqo ˜usa sulvym˜ia. IN WITNESS whereof the undersigned, being duly authorised thereto, have signed this Agree- ment. EN FOI DE QUOI les soussignés, dûment autorisés, ont signé le présent accord. IN FEDE di che i sottoscritti, debitamente autorizzati, hanno apposto le loro firme in calce al presente accordo. TEN BLIJKE WAARVAN de ondergetekenden, daartoe naar behoren gemachtigd, deze over- eenkomst hebben ondertekend. EM FÉ DO QUE, os abaixo-assinados, devidamente autorizados para o efeito, apuseram as suas assinaturas no presente acordo. TÄMÄN VAKUUDEKSI allekirjoittaneet asianmukaisesti valtuutetut edustajat ovat allekirjoitta- neet tämän sopimuksen. TILL BEVIS HÄRPÅ har undertecknade undertecknat detta avtal. Hecho en Ottawa, el cuatro de diciembre de mil novecientos noventa y siete, en doble ejemplar en lenguas alemana, danesa, espa ˜nola, finesa, francesa, griega, inglesa, italiana, neerlandesa, portu- guesa y sueca, siendo cada uno de estos textos igualmente auténtico. Udfærdiget i Ottawa den fjerde december nitten hundrede og syvoghalvfems i to eksemplarer på dansk, engelsk, finsk, fransk, græsk, italiensk, nederlandsk, portugisisk, spansk, svensk og tysk, idet hver af disse tekster har samme gyldighed. Geschehen zu Ottawa am vierten Dezember neunzehnhundertsiebenundneunzig in zwei Urschriften in dänischer, deutscher, englischer, finnischer, französischer, griechischer, italieni- scher, niederländischer, portugiesischer, schwedischer und spanischer Sprache, wobei jeder Wortlaut gleichermaßen verbindlich ist. G paqo ˜usa sulvym˜ia ˜ecime stgm Ot ˜aba, stir t ˜esseqir Dejelbq˜iou w˜ikia emmiaj ˜osia emem ˜gmta ept ˜a, se d ˜uo amt˜itupa stgm acckij ˜g, cakkij ˜g, ceqlamij ˜g, damij ˜g, ekkgmij ˜g, ispamij ˜g, itakij ˜g, okkamdij ˜g, poqtocakij ˜g, sougdij ˜g jai vimkamdij ˜g ck ˜yssa· ˜oka ta je˜ilema e˜imai en˜isou auhemtij ˜a. Done at Ottawa on the fourth day of December in the year one thousand nine hundred and ninety-seven, in two copies in the Danish, Dutch, English, Finnish, French, German, Greek, Italian, Portuguese, Spanish and Swedish languages, each text being equally authentic. Fait à Ottawa, le quatre décembre mil neuf cent quatre-vingt-dix-sept, en double exemplaire en langues allemande, anglaise, danoise, espagnole, finlandaise, française, grecque, italienne, néerlan- daise, portugaise et suédoise, chaque texte faisant également foi. Fatto a Ottawa, addì quattro dicembre millenovecentonovantasette. Il presente accordo è redatto in duplice esemplare in lingua danese, finnica, francese, greca, inglese, italiana, olandese, porto- ghese, spagnola, svedese e tedesca, tutti i testi facenti ugualmente fede. Gedaan te Ottawa, de vierde december negentienhonderd zevenennegentig in twee exemplaren in de Deense, de Duitse, de Engelse, de Finse, de Franse, de Griekse, de Italiaanse, de Neder- landse, de Portugese, de Spaanse en de Zweedse taal, zijnde alle teksten gelijkelijk authentiek. 13. 1. 98 ‹ EN ‹ Official Journal of the European Communities L 7/45 Feito em Otava, em quatro de Dezembro de mil novecentos e noventa e sete, em duplo exem- plar, nas línguas alem˜a, dinamarquesa, espanhola, finlandesa, francesa, grega, inglesa, italiana, neerlandesa portuguesa e sueca, fazendo igualmente fé todos os textos. Tehty Ottawassa neljäntenä päivänä joulukuuta vuonna tuhatyhdeksänsataayhdeksänkymmentä- seitsemän kahtena kappaleena englannin, espanjan, hollannin, italian, kreikan, portugalin, ranskan, ruotsin, saksan, suomen ja tanskan kielillä kaikkien tekstien ollessa yhtä todistusvoi- maiset. Som skedde i Ottawa den fjärde december nittonhundranittiosju i två exemplar på danska, engelska, finska, franska, grekiska, italienska, nederländska, portugisiska, spanska, svenska och tyska, vilka samtliga texter är lika giltiga. Por la Comunidad Europea For Det Europæiske Fællesskab Für die Europäische Gemeinschaft Cia tgm Euqypaˇij ˜g Joim ˜otgta For the European Community Pour la Communauté européenne Per la Comunità europea Voor de Europese Gemeenschap Pela Comunidade Europeia Euroopan yhteisön puolesta På Europeiska gemenskapens vägnar For the Government of Canada Pour le gouvernement du Canada