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Interpretation.
2.
Conventions, Agreement and Protocols to have force of law.
3.
Designation of national authority.
4.
Designation of competent customs administration.
5.
Application of Data Protection Act, 1988.
6.
Designation of national supervisory authority.
7.
Special forms of co-operation.
8.
Regulations.
9.
Offences.
10.
Interpretation of Conventions.
11.
Laying of orders and regulations before Houses of the Oireachtas.
12.
Short title and commencement.
FIRST SCHEDULE SECOND SCHEDULE THIRD SCHEDULE FOURTH SCHEDULE FIFTH SCHEDULE SIXTH SCHEDULE SEVENTH SCHEDULE EIGHTH SCHEDULE NINTH SCHEDULE TENTH SCHEDULE Acts Referred to Data Protection Act, 1988 1988, No. 25 Number 2 of 2001 CUSTOMS AND EXCISE (MUTUAL ASSISTANCE) ACT, 2001 AN ACT TO GIVE THE FORCE OF LAW TO THE CONVENTION DRAWN UP ON THE BASIS OF ARTICLE K.3 OF THE TREATY ON EUROPEAN UNION ON THE USE OF INFORMATION TECHNOLOGY FOR CUSTOMS PURPOSES DONE AT BRUSSELS ON THE 26TH DAY OF JULY, 1995, THE AGREEMENT ON PROVISIONAL APPLICATION BETWEEN CERTAIN MEMBER STATES OF THE EUROPEAN UNION OF THE CONVENTION DRAWN UP ON THE BASIS OF ARTICLE K.3 OF THE TREATY ON EUROPEAN UNION ON THE USE OF INFORMATION TECHNOLOGY FOR CUSTOMS PURPOSES DONE AT BRUSSELS ON THE 26TH DAY OF JULY, 1995, THE 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 DONE AT BRUSSELS ON THE 18TH DAY OF DECEMBER, 1997, THE PROTOCOL DRAWN UP ON THE BASIS OF ARTICLE K.3 OF THE TREATY ON EUROPEAN UNION ON THE INTERPRETATION BY WAY OF PRELIMINARY RULINGS BY THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES OF THE CONVENTION ON THE USE OF INFORMATION TECHNOLOGY FOR CUSTOMS PURPOSES DONE AT BRUSSELS ON THE 29TH DAY OF NOVEMBER, 1996 AND THE PROTOCOL DRAWN UP ON THE BASIS OF ARTICLE K.3 OF THE TREATY ON EUROPEAN UNION ON THE SCOPE OF THE LAUNDERING OF PROCEEDS IN THE CONVENTION ON THE USE OF INFORMATION TECHNOLOGY FOR CUSTOMS PURPOSES AND THE INCLUSION OF THE REGISTRATION NUMBER OF THE MEANS OF TRANSPORT IN THE CONVENTION DONE AT BRUSSELS ON THE 12TH DAY OF MARCH, 1999 AND TO PROVIDE FOR RELATED MATTERS. [9th March, 2001] BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
Interpretation.
1.—(1) In this Act— “the Agreement” means the Agreement on provisional application between certain Member States of the European Union of the Convention drawn up on the basis of Article K.3 of the Treaty on European Union on the use of information technology for customs purposes done at Brussels on the 26th day of July, 1995; “the CIS Convention” means the Convention, drawn up on the basis of Article K.3 of the Treaty on European Union, on the use of information technology for customs purposes, done at Brussels on the 26th day of July, 1995, as amended by the 1999 Protocol; “Customs Information System” has the same meaning as it has in the CIS Convention; “the Customs Co-operation Convention” means the 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, done at Brussels on the 18th day of December, 1997; “the Minister” means the Minister for Finance; “the 1996 Protocol” means the Protocol, drawn up on the basis of Article K.3 of the Treaty on European Union, on the interpretation, by way of preliminary rulings, by the Court of Justice of the European Communities of the CIS Convention, done at Brussels on the 29th day of November, 1996; “the 1999 Protocol” means the Protocol, drawn up on the basis of Article K.3 of the Treaty on European Union, on the scope of the laundering of proceeds in the Convention on the use of information technology for customs purposes and the inclusion of the registration number of the means of transport in the Convention, done at Brussels on the 12th day of March, 1999.
(2)In this Act— (a) a reference to a section or a Schedule is a reference to a section of or Schedule to this Act unless it is indicated that reference to some other enactment is intended; (b) a reference to a subsection or paragraph is a reference to a subsection or paragraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended; and (c) a reference to any enactment shall be construed as a reference to that enactment as amended, adapted or extended by or under any enactment including this Act.
Conventions, Agreement and Protocols to have force of law.
2.—(1) Subject to the provisions of this Act, the Agreement, the CIS Convention, the 1996 Protocol, the 1999 Protocol and the Customs Co-operation Convention shall have the force of law in the State and judicial notice shall be taken of them.
(2)For convenience of reference there are set out in the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Schedules, respectively, to this Act— (a) the text in the English language of the CIS Convention, (b) the text in the English language of the Agreement, (c) the text in the English language of the 1996 Protocol, (d) the text in the English language of the Customs Co-operation Convention, (e) the text in the English language of the 1999 Protocol, (f) the text in the Irish language of the CIS Convention, (g) the text in the Irish language of the Agreement, (h) the text in the Irish language of the 1996 Protocol, (i) the text in the Irish language of the Customs Co-operation Convention, (j) the text in the Irish language of the 1999 Protocol.
Designation of national authority.
3.—The Revenue Commissioners are hereby designated as the national authority for the purposes of Articles 7(1) and 8(2) of the CIS Convention.
Designation of competent customs administration.
4.—The Revenue Commissioners are hereby designated as the competent customs administration for the purposes of Article 10 of the CIS Convention.
Application of Data Protection Act, 1988.
5.—(1) For the purposes of this Act, the CIS Convention and the Customs Co-operation Convention, the Data Protection Act, 1988 , shall apply and have effect, with any necessary modifications, to the collection, processing, keeping, use or disclosure of personal data included in or received from the Customs Information System.
(2)Without prejudice to the generality of subsection (1), for the purposes of Article 21 of the CIS Convention, section 7 of the Data Protection Act, 1988 , shall apply as regards the liability of the State for injury caused to a person through the use of the Customs Information System in the State.
(3)Without prejudice to the generality of subsection (1), for the purposes of Article 25 of the Customs Co-operation Convention, section 7 of the Data Protection Act, 1988 , shall apply as regards the liability of the State for injury caused to a person through the processing of data communicated in the State.
Designation of national supervisory authority.
6.—The Data Protection Commissioner is hereby designated as the national supervisory authority for the purposes of the CIS Convention and the Customs Co-operation Convention.
Special forms of co-operation.
7.—(1) Subject to subsection (2), the State shall not be bound by Articles 20, 21 and 23 of the Customs Co-operation Convention or any part of those Articles.
(2)The Government may, by order, provide that the State shall be bound by Articles 20, 21 or 23 or any part of those Articles.
Regulations.
8.—(1) The Minister may make regulations for the purpose of enabling this Act and the Customs Co-operation Convention to have full effect.
(2)Without prejudice to the generality of subsection (1), regulations under this section may— (a) specify that processing of personal data by the authority in the State receiving the data shall be authorised only for the purpose of preventing and detecting infringements of national customs provisions and prosecuting and punishing infringements of Community and national customs provisions, (b) provide that personal data may be forwarded by the authority in the State receiving the data without the consent of the authority supplying them to its customs administrations, its investigative authorities and its judicial bodies to enable them to prosecute and punish infringements of national and Community customs provisions; in all other cases consent to forward such data being necessary, (c) provide for an individual's right to have personal data which have been communicated and found to be inaccurate, corrected or erased, (d) provide for the recording by the communicating and recipient authorities of any personal data forwarded or received pursuant to the application of the Customs Co-operation Convention, (e) specify that the person in respect of whom personal data have been communicated may establish what data have been communicated and the use to which they have been put as well as setting out the circumstances under which this right may be restricted, (f) provide that personal data communicated shall be kept only for the period necessary for the purposes for which they were communicated.
(3)In this section references to personal data shall be construed as references to non-automated personal data.
(4)Regulations under this Act may contain such incidental, supplementary and consequential provisions as appear to be necessary or expedient for the purposes of the regulations.
(5)Where the Minister proposes to make regulations under this section he or she shall, before doing so, consult with such other (if any) Minister of the Government as the Minister considers appropriate having regard to the function of that other Minister of the Government in relation to the proposed regulations.
Offences.
9.—Without prejudice to the generality of section 5
(1), any person who uses personal data from the Customs Information System other than for the purpose of the aim specified in Article 2(2) of the CIS Convention shall, save where such use is in accordance with and is subject to the conditions specified in Article 8(1) of that Convention, be guilty of an offence under the Data Protection Act, 1988 .
Interpretation of Conventions.
10.—(1) For the purposes of Article 2 of the 1996 Protocol, paragraph (2)(a) of that Article shall apply in the State.
(2)(a) Where a declaration is made pursuant to Article 2 of the 1996 Protocol specifying that paragraph (2)(b) of that Article shall apply in the State, the Minister may by order declare that the declaration (the text of which shall be set out in the order) has been made. (b) On the commencement of an order under paragraph (a), subsection (1) shall cease to have effect.
(3)For the purposes of Article 26 of the Customs Co-operation Convention, paragraph (5)(a) of that Article shall apply in the State.
(4)(a) Where a declaration is made pursuant to Article 26(4) of the Customs Co-operation Convention specifying that paragraph (5)(b) of that Article shall apply in the State, the Minister may by order declare that the declaration (the text of which shall be set out in the order) has been made. (b) On the commencement of an order under paragraph (a), subsection (3) shall cease to have effect.
(5)Judicial notice shall be taken of any ruling or decision of, or expression of opinion by, the Court of Justice of the European Communities on any question as to the meaning or effect of any provision of the CIS Convention or the Customs Co-operation Convention.
Laying of orders and regulations before Houses of the Oireachtas.
11.—A draft of every order or regulation proposed to be made under this Act shall be laid before each House of the Oireachtas and the order or, as the case may be, regulation shall not be made unless a resolution approving of the draft has been passed by each such House.
Short title and commencement.
12.—(1) This Act may be cited as the Customs and Excise (Mutual Assistance) Act, 2001.
(2)This Act shall come into operation on such day or days as the Minister may fix by order either generally or with reference to any particular purpose or provision and different days may be so fixed for different purposes and different provisions.
FIRST SCHEDULE THE TEXT IN THE ENGLISH LANGUAGE OF THE CIS CONVENTION CONVENTION DRAWN UP ON THE BASIS OF ARTICLE K.3 OF THE TREATY ON EUROPEAN UNION, ON THE USE OF INFORMATION TECHNOLOGY FOR CUSTOMS PURPOSES 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 26 July 1995, RECALLING 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, together with other competent authorities, at the external frontiers of the Community and within the territorial limit thereof, for the prevention, investigation and suppression of offences against not only Community rules, but also against national laws, in particular those laws 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, 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 personal and other data concerned with illicit trafficking activities, using new technology for the management and transmission of such information, subject to the provisions of the Council of Europe Convention on the Protection of Individuals with Regard to Automatic Processing of Personal Data, done at Strasbourg on 28 January 1981, BEARING IN MIND that the customs administrations in their day-to-day work have to implement both Community and non-Community provisions, and that there is consequently an obvious need to ensure that the provisions of mutual assistance and administrative co-operation in both sectors evolve as far as possible in parallel, HAVE AGREED ON THE FOLLOWING PROVISIONS:
CHAPTER I
Definitions
Article 1
For the purposes of this Convention, 1. The term ‘national laws’ means laws or regulations of a Member State, in the application of which the customs administration of that Member State has total or partial competence, concerning: — the movement of goods subject to measures of prohibition, restriction or control, in particular those measures covered by Articles 36 and 223 of the Treaty establishing the European Community; — the transfer, conversion, concealment, or disguise of property or proceeds derived from, obtained directly or indirectly through or used in, illicit international drug trafficking.
2.The term ‘personal data’ means any information relating to an identified or identifiable individual.
3.The term ‘supplying Member State’ means a State which includes an item of data in the Customs Information System.
CHAPTER II
Establishment of a Customs Information System
Article 2
1.The customs administrations of the Member States shall set up and maintain a joint automated information system for customs purposes, hereinafter referred to as the ‘Customs Information System’.
2.The aim of the Customs Information System, in accordance with the provisions of this Convention, shall be to assist in preventing, investigating and prosecuting serious contraventions of national laws by increasing, through the rapid dissemination of information, the effectiveness of the co-operation and control procedures of the customs administrations of the Member States.
CHAPTER III
Operation and Use of the Customs Information System
Article 3
1.The Customs Information System shall consist of a central database facility and it shall be accessible via terminals in each Member State. It shall comprise exclusively data necessary to achieve its aim as stated in Article 2(2), including personal data, in the following categories: (i) commodities; (ii) means of transport; (iii) businesses; (iv) persons; (v) fraud trends; (vi) availability of expertise.
2.The Commission shall ensure the technical management of the infrastructure of the Customs Information System in accordance with the rules provided for by the implementing measures adopted within the Council.
The Commission shall report on the management to the committee referred to in Article 16.
3.The Commission shall communicate to that committee the practical arrangements adopted for the technical management.
Article 4
The Member States shall determine the items to be included in the Customs Information System relating to each of the categories (i) to (vi) in Article 3 to the extent that this is necessary to achieve the aim of the system. No items of personal data shall be included in any event within categories (v) and (vi) of Article 3. The items of information included in respect of persons shall comprise no more than: (i) name, maiden name, forenames and aliases; (ii) date and place of birth; (iii) nationality; (iv) sex; (v) any particular objective and permanent physical characteristics; (vi) reason for inclusion of data; (vii) suggested action; (viii) a warning code indicating any history of being armed, violent or escaping.
In any case personal data listed in Article 6, first sentence of the Council of Europe Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data, done at Strasbourg on 28 January 1981, hereinafter referred to as the ‘1981 Strasbourg Convention’, shall not be included.
Article 5
1.Data in categories (i) - (iv) of Article 3 shall be included in the Customs Information System only for the purpose of sighting and reporting, discreet surveillance or specific checks.
2.For the purpose of the suggested actions referred to in paragraph 1, personal data within any of the categories (i) - (iv) of Article 3 may be included in the Customs Information System only if, especially on the basis of prior illegal activities, there are real indications to suggest that the person concerned has committed, is in the act of committing, or will commit serious contraventions of national laws.
Article 6
1.If the suggested actions referred to in Article 5 (1) are carried out, the following information may in whole, or in part, be collected and transmitted to the supplying Member State: (i) the fact that the commodity, means of transport, business or person reported has been found; (ii) the place, time and reason for the check; (iii) the route and destination of the journey; (iv) persons accompanying the person concerned or occupants of the means of transport; (v) the means of transport used; (vi) objects carried; (vii) the circumstances under which the commodity, means of transport, business or person was found.
When such information is collected in the course of discreet surveillance steps must be taken to ensure that the discreet nature of the surveillance is not jeopardized.
2.In the context of a specific check referred to in Article 5(1) persons, means of transport and objects may be searched to the extent permissible and in accordance with the laws, regulations, and procedures of the Member State in which the search takes place. If the specific check is not permitted by the law of a Member State, it shall automatically be converted by that Member State into sighting and reporting.
Article 7
1.Direct access to data included in the Customs Information System shall be reserved exclusively for the national authorities designated by each Member State. These national authorities shall be customs administrations, but may also include other authorities competent, according to the laws, regulations and procedures of the Member State in question, to act in order to achieve the aim stated in Article 2(2).
2.Each Member State shall send the other Member States and the committee referred to in Article 16 a list of its competent authorities which have been designated in accordance with paragraph 1 to have direct access to the Customs Information System stating, for each authority which data it may have access to and for what purposes.
3.Notwithstanding the provisions of paragraphs 1 and 2, Member States may, by unanimous agreement, permit access to the Customs Information System by international or regional organizations. Such agreement shall take the form of a protocol to this Convention. In reaching their decision the Member States shall take account of any reciprocal arrangements and any opinion of the Joint Supervisory Authority referred to in Article 18 on the adequacy of data protection measures.
Article 8
1.The Member States may only use data obtained from the Customs Information System in order to achieve the aim stated in Article 2(2); however they may use it for administrative or other purposes with the prior authorization of and subject to any conditions imposed by the Member State which included it in the system. Such other use shall be in accordance with the laws, regulations and procedures of the Member State which seeks to use it and should take into account Principle 5.5. of the Recommendation R (87) 15 of 17 September 1987 of the Committee of Ministers of the Council of Europe.
2.Without prejudice to paragraphs 1 and 4 of this Article and Article 7(3), data obtained from the Customs Information System shall only be used by national authorities in each Member State designated by the Member State in question, which are competent, in accordance with the laws, regulations and procedures of that Member State, to act in order to achieve the aim stated in Article 2(2).
3.Each Member State shall send the other Member States and the committee referred to in Article 16 a list of the competent authorities it has designated in accordance with paragraph 2.
4.Data obtained from the Customs Information System may, with the prior authorization of, and subject to any conditions imposed by, the Member State which included it in the System, be communicated for use by national authorities other than those designated under paragraph 2, non-Member States, and international or regional organizations wishing to make use of them. Each Member State shall take special measures to ensure the security of such data when it is being transmitted or supplied to services located outside its territory. Details of such measures must be communicated to the Joint Supervisory Authority referred to in Article 18.
Article 9
1.The inclusion of data in the Customs Information System shall be governed by the laws, regulations and procedures of the supplying Member State unless this Convention lays down more stringent provisions.
2.The use of data obtained from the Customs Information System, including performance of any action under Article 5 suggested by the supplying Member State, shall be governed by the laws, regulations and procedures of the Member State using such data, unless this Convention lays down more stringent provisions.
Article 10
1.Each of the Member States shall designate a competent customs administration which shall have national responsibility for the Customs Information System.
2.This administration shall be responsible for the correct operation of the Customs Information System within the Member State and shall take the measures necessary to ensure compliance with the provisions of this Convention.
3.The Member States shall inform one another of the competent administration referred to in paragraph 1.
CHAPTER IV
Amendment of Data
Article 11
1.Only the supplying Member State shall have the right to amend, supplement, correct, or delete data which it has included in the Customs Information System.
2.Should a supplying Member State note, or have drawn to its attention, that the data it included are factually inaccurate or were included, or are stored contrary to this Convention, it shall amend, supplement, correct or delete the data, as appropriate, and shall advise the other Member States accordingly.
3.If one of the Member States has evidence to suggest that an item of data is factually inaccurate, or was included or is stored on the Customs Information System, contrary to this Convention, it shall advise the supplying Member State as soon as possible. The latter shall check the data concerned and, if necessary, correct or delete the item without delay. The supplying Member State shall advise the other Member States of any correction or deletion effected.
4.If, when including data in the Customs Information System, a Member State notes that its report conflicts with a previous report as to content or suggested action, it shall immediately advise the Member State which made the previous report. The two Member States shall then attempt to resolve the matter. In the event of disagreement, the first report shall stand, but those parts of the new report which do not conflict shall be included in the System.
5.Subject to the provisions of this Convention, where in any Member State a court, or other competent authority within that Member State, makes a final decision as to amendment, supplementation, correction, or deletion, of data in the Customs Information System, the Member States undertake mutually to enforce such a decision. In the event of conflict between such decisions of courts or other competent authorities in different Member States, including those referred to in Article 15(4) concerning correction or deletion, the Member State which included the data in question shall delete it from the System.
CHAPTER V
Retention of Data
Article 12
1.Data included in the Customs Information System shall be kept only for the time necessary to achieve the purpose for which it was included. The need for its retention, shall be reviewed at least annually by the supplying Member State.
2.The supplying Member State may, within the review period, decide to retain data until the next review if its retention is necessary for the purposes for which it was included. Without prejudice to Article 15, if there is no decision to retain data it shall automatically be transferred to that part of the Customs Information System to which access shall be limited in accordance with paragraph 4.
3.The Customs Information System shall automatically inform the supplying Member State of a scheduled transfer of data from the Customs Information System under paragraph 2, giving one month's notice.
4.Data transferred under paragraph 2 shall continue to be retained for one year within the Customs Information System, but, without prejudice to Article 15, shall be accessible only to a representative of the committee referred to in Article 16 or to the supervisory authorities referred to in Articles 17(1) and 18(1). During that period they may consult the data only for the purposes of checking its accuracy and lawfulness, after which it must be deleted.
CHAPTER VI
Personal Data Protection
Article 13
1.Each Member State intending to receive personal data from, or include it in, the Customs Information System shall, no later than the time of entry into force of this Convention, adopt the national legislation sufficient to achieve a level of protection of personal data at least equal to that resulting from the principles of the 1981 Strasbourg Convention.
2.A Member State shall receive personal data from, or include it in, the Customs Information System only where the arrangements for the protection of such data provided for in paragraph 1 have entered into force in the territory of that Member State. The Member State shall also have previously designated a national supervisory authority or authorities in accordance with Article 17.
3.In order to ensure the proper application of the data protection provisions in this Convention, the Customs Information System shall be regarded in every Member State as a national data file subject to the national provisions referred to in paragraph 1 and any more stringent provisions contained in this Convention.
Article 14
1.Subject to Article 8(1), each Member State shall ensure that it shall be unlawful under its laws, regulations and procedures for personal data from the Customs Information System to be used other than for the purpose of the aim stated in Article 2(2).
2.Data may be duplicated only for technical purposes, provided that such duplication is necessary for direct searching by the authorities referred to in Article 7. Subject to Article 8(1), personal data included by other Member States may not be copied from the Customs Information System into other national data files.
Article 15
1.The rights of persons with regard to personal data in the Customs Information System, in particular their right of access, shall be put into effect in accordance with the laws, regulations and procedures of the Member State in which such rights are invoked.
If laid down in the laws, regulations and procedures of the Member State concerned, the national supervisory authority provided for in Article 17 shall decide whether information is to be communicated and the procedures for so doing.
A Member State which has not supplied the data concerned may only communicate data if it has first given the supplying Member State an opportunity to adopt its position.
2.A Member State, to which an application for access to personal data is made, shall refuse access if access may undermine the performance of the legal task specified in the report pursuant to Article 5(1), or in order to protect the rights and freedoms of others. Access shall be refused in any event during the period of discreet surveillance or sighting and reporting.
3.In each Member State, a person may, according to the laws, regulations and procedures of the Member State concerned, have personal data relating to himself corrected or deleted if that data is factually inaccurate, or was included or is stored in the Customs Information System contrary to the aim stated in Article 2(2) of this Convention or to the provisions of Article 5 of the 1981 Strasbourg Convention.
4.In the territory of each Member State, any person may, in accordance with the laws, regulations and procedures of the Member State in question, bring an action or, if appropriate, a complaint before the courts or the authority competent under the laws, regulations and procedures of that Member State concerning personal data relating to himself on the Customs Information System, in order to: (i) correct or delete factually inaccurate personal data; (ii) correct or delete personal data included or stored in the Customs Information System contrary to this Convention; (iii) obtain access to personal data; (iv) obtain compensation pursuant to Article 21(2).
The Member States concerned undertake mutually to enforce the final decisions taken by a court, or other competent authority, pursuant to (i), (ii) and (iii).
5.The references in this Article and in Article 11(5) to a ‘final decision’ do not imply any obligation on the part of any Member State to appeal against a decision taken by a court or other competent authority.
CHAPTER VII
Institutional Framework
Article 16
1.A Committee consisting of representatives from the Customs Administrations of the Member States shall be set up. The Committee shall take its decisions unanimously where the provisions of the first indent of paragraph 2 are concerned and by a two-thirds majority where the provisions of the second indent of paragraph 2 are concerned. It shall adopt its rules of procedure unanimously.
2.The Committee shall be responsible: — for the implementation and correct application of the provisions of this Convention, without prejudice to the powers of the authorities referred to in Articles 17(1) and 18(1); — for the proper functioning of the Customs Information System with regard to technical and operational aspects. The Committee shall take all necessary steps to ensure that the measures set out in Articles 12 and 19 are properly implemented with regard to the Customs Information System. For the purpose of applying this paragraph, the Committee may have direct access to, and use of, data from the Customs Information System.
3.The Committee shall report annually to the Council, in accordance with Title VI of the Treaty on European Union, regarding the efficiency and effectiveness of the Customs Information System, making recommendations as necessary.
4.The Commission shall be party to the Committee's proceedings.
CHAPTER VIII
Personal Data Protection Supervision
Article 17
1.Each Member State shall designate a national supervisory authority or authorities responsible for personal data protection to carry out independent supervision of such data included in the Customs Information System.
The supervisory authorities, in accordance with their respective national laws shall carry out independent supervision and checks, to ensure that the processing and use of data held in the Customs Information System do not violate the rights of the person concerned. For this purpose the supervisory authorities shall have access to the Customs Information System.
2.Any person may ask any national supervisory authority to check personal data relating to himself on the Customs Information System and the use which has been or is being made of that data. That right shall be governed by the laws, regulations and procedures of the Member State in which the request is made. If the data has been included by another Member State, the check shall be carried out in close co-ordination with that Member State's national supervisory authority.
Article 18
1.A Joint Supervisory Authority shall be set up, consisting of two representatives from each Member State drawn from the respective independent national supervisory authority or authorities.
2.The Joint Supervisory Authority shall perform its task in accordance with the provisions of this Convention and of the 1981 Strasbourg Convention taking into account Recommendation R (87) 15 of 17 September 1987, of the Committee of Ministers of the Council of Europe.
3.The Joint Supervisory Authority shall be competent to supervise operation of the Customs Information System, to examine any difficulties of application or interpretation which may arise during its operation, to study problems which may arise with regard to the exercise of independent supervision by the national supervisory authorities of the Member States, or in the exercise of rights of access by individuals to the System, and to draw up proposals for the purpose of finding joint solutions to problems.
4.For the purpose of fulfilling its responsibilities, the Joint Supervisory Authority shall have access to the Customs Information System.
5.Reports drawn up by the Joint Supervisory Authority shall be forwarded to the authorities to which the national supervisory authorities submit their reports.
CHAPTER IX
Security of the Customs Information System
Article 191. All necessary administrative measures to maintain security shall be taken:
(i) by the competent authorities of the Member States in respect of the terminals of the Customs Information System in their respective States; (ii) by the Committee referred to in Article 16 in respect of the Customs Information System and the terminals located on the same premises as the System and used for technical purposes and the checks required by paragraph 3.
2.In particular the competent authorities and the committee referred to in Article 16 shall take measures: (i) to prevent any unauthorized person from having access to installations used for the processing of data; (ii) to prevent data and data media from being read, copied, modified or removed by unauthorized persons; (iii) to prevent the unauthorized entry of data and any unauthorized consultation, modification, or deletion of data; (iv) to prevent data in the Customs Information System from being accessed by unauthorized persons by means of data transmission equipment; (v) to guarantee that, with respect to the use of the Customs Information System, authorized persons have right of access only to data for which they have competence; (vi) to guarantee that it is possible to check and establish to which authorities data may be transmitted by data transmission equipment; (vii) to guarantee that it is possible to check and establish a posteriori what data has been introduced into the Customs Information System, when and by whom, and to monitor interrogation; (viii) to prevent the unauthorized reading, copying, modification or deletion of data during the transmission of data and the transport of data media.
3.The committee referred to in Article 16 shall monitor interrogation of the Customs Information System for the purpose of checking that searches made were admissible and were made by authorized users. At least 1% of all searches made shall be checked. A record of such searches and checks shall be maintained in the System, shall be used only for the abovementioned purpose by the said committee and the supervisory authorities referred to in Articles 17 and 18, and shall be deleted after six months.
Article 20
The competent customs administration referred to in Article 10(1) of this Convention shall be responsible for the security measures set out in Article 19, in relation to the terminals located in the territory of the Member State concerned, the review functions set out in Article 12(1) and (2), and otherwise for the proper implementation of this Convention so far as is necessary under the laws, regulations and procedures of that Member State.
CHAPTER X
Responsibilities and Liabilities
Article 21
1.Each Member State shall be responsible for the accuracy, currency and lawfulness of data it has included in the Customs Information System. Each Member State shall also be responsible for complying with the provisions of Article 5 of the 1981 Strasbourg Convention.
2.Each Member State shall be liable, in accordance with its own laws, regulations and procedures for injury caused to a person through the use of the Customs Information System in the Member State concerned.
This shall also be the case where the injury was caused by the supplying Member State entering inaccurate data or entering data contrary to this Convention.
3.If the Member State against which an action in respect of inaccurate data is brought is not the Member State which supplied it, the Member States concerned shall seek agreement as to what proportion, if any, of the sums paid out in compensation shall be reimbursed by the supplying Member State to the other Member State. Any such sums agreed shall be reimbursed on request.
Article 22
1.The costs incurred in connection with the operation and use of the Customs Information System by the Member States on their territories shall be borne by each of them.
2.Other expenditure incurred in the implementation of this Convention, except for that which cannot be kept separate from the operation of the Customs Information System for the purpose of applying the customs and agricultural rules of the Community, shall be borne by the Member States. Each Member State's share shall be determined according to the proportion of its gross national product to the sum total of the gross national products of the Member States for the year preceding the year in which the costs are incurred.
For the purpose of applying this paragraph, the expression ‘gross national product’ means the gross national product determined in accordance with Council Directive 89/130/EEC, Euratom of 13 February 1989 on the harmonization of the compilation of gross national product at market prices or any amending or replacing Community instrument.
CHAPTER XI
Implementation and Final Provisions
Article 23
The information provided for under this Convention shall be exchanged directly between the authorities of the Member States.
Article 24
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 Secretary-General of the Council of the European Union of the completion of their constitutional requirements for adopting this Convention.
3.This Convention shall enter into force ninety days after the notification, referred to in paragraph 2, by the last Member State to fulfil that formality.
Article 25
1.This Convention shall be open to accession by any State that becomes a member of the European Union.
2.The text of this Convention in the language of the acceding State, drawn up by the Council of the European Union, shall be authentic.
3.Instruments of accession shall be deposited with the depositary.
4.This Convention shall enter into force with respect to any State that accedes to it ninety 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 at the time of expiry of the said period of ninety days.
Article 26
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, declarations and reservations, and also any other notification concerning this Convention.
Article 27
1.Any dispute between Member States on the interpretation or application of this Convention must in an initial stage be examined by the Council in accordance with the procedure set out in Title VI of the Treaty on European Union with a view to reaching a solution.
If no solution is found within six months, the matter may be referred to the Court of Justice of the European Communities by a party to the dispute.
2.Any dispute between one or more Member States and the Commission of the European Communities concerning the application of this Convention which it has proved impossible to settle through negotiation may be submitted to the Court of Justice.
Done at Brussels on the twenty-sixth day of July in the year one thousand nine hundred and ninety-five 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.
SECOND SCHEDULE THE TEXT IN THE ENGLISH LANGUAGE OF THE AGREEMENT AGREEMENT ON PROVISIONAL APPLICATION BETWEEN CERTAIN MEMBER STATES OF THE EUROPEAN UNION OF THE CONVENTION DRAWN UP ON THE BASIS OF ARTICLE K.3 OF THE TREATY ON EUROPEAN UNION ON THE USE OF INFORMATION TECHNOLOGY FOR CUSTOMS PURPOSES THE KINGDOM OF BELGIUM, THE KINGDOM OF DENMARK, THE FEDERAL REPUBLIC OF GERMANY, THE HELLENIC REPUBLIC, THE KINGDOM OF SPAIN, THE FRENCH REPUBLIC, IRELAND, THE ITALIAN REPUBLIC, THE GRAND DUCHY OF LUXEMBOURG, THE KINGDOM OF THE NETHERLANDS, THE REPUBLIC OF AUSTRIA, THE PORTUGUESE REPUBLIC, THE REPUBLIC OF FINLAND, THE KINGDOM OF SWEDEN, THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, Member States of the European Union and signatories of the Convention drawn up on the basis of Article K.3 of the Treaty on European Union on the use of information technology for customs purposes, of 26 July 1995, hereinafter referred to as the ‘Convention’, HAVING REGARD to the importance of early application of the Convention;
WHEREAS, pursuant to Article K.7 of the Treaty on European Union, the provisions of Title VI of that Treaty do not prevent the establishment or development of closer cooperation between two or more Member States insofar as such cooperation does not conflict with, or impede, that provided for in Title VI of the said Treaty;
WHEREAS provisional application between certain Member States of the European Union of the Convention would not conflict with, or impede, the cooperation provided for in Title VI of the Treaty on European Union, HAVE AGREED AS FOLLOWS:
Article 1For the purposes of this Agreement:
— ‘Convention’ means the Convention drawn up on the basis of Article K.3 of the Treaty on European Union on the use of information technology for customs purposes; — ‘High Contracting Parties’ means the Member States of the European Union, parties to the Convention; — ‘Parties’ means the Member States of the European Union, parties to this Agreement.
Article 2
The Convention shall apply provisionally between the High Contracting Parties parties to this Agreement as of from the first day of the third month following the deposit of the instrument of approval, acceptance or ratification of this Agreement by the eighth High Contracting Party to do so.
Article 3
The transitional provisions necessary for provisional application of the Convention shall be adopted by common accord amongst the High Contracting Parties between which the Convention is to apply provisionally and in consultation with the other High Contracting Parties. During this period of provisional application, the functions of the Committee provided for in Article 16 of the Convention shall be exercised by the High Contracting Parties acting by common accord in close association with the Commission of the European Communities. Article 7(3) and Article 16 of the Convention shall not be implemented during that period.
Article 4
1.This Agreement shall be open for signing by the Member States signatories of the Convention. It shall be subject to approval, acceptance or ratification. It shall enter into force on the first day of the third month following the deposit of the instrument of approval, acceptance or ratification by the eighth High Contracting Party to do so.
2.For any High Contracting Party depositing its instrument of approval, acceptance or ratification at a later date, this Agreement shall enter into force on the first day of the third month following such deposit.
3.Instruments of approval, acceptance or ratification shall be deposited with the Secretary-General of the Council of the European Union, who shall act as depositary.
Article 5
This Agreement, drawn up 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, shall be deposited with the Secretary-General of the Council of the European Union, who shall transmit a certified copy to each of the Parties.
Article 6
This Agreement shall expire upon entry into force of the Convention.
Done at Brussels on the twenty-sixth day of July in the year one thousand nine hundred and ninety-five 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.
THIRD SCHEDULE THE TEXT IN THE ENGLISH LANGUAGE OF THE 1996 PROTOCOL PROTOCOL DRAWN UP ON THE BASIS OF ARTICLE K.3 OF THE TREATY ON EUROPEAN UNION, ON THE INTERPRETATION, BY WAY OF PRELIMINARY RULINGS, BY THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES OF THE CONVENTION ON THE USE OF INFORMATION TECHNOLOGY FOR CUSTOMS PURPOSES THE HIGH CONTRACTING PARTIES, HAVE AGREED on the following provisions, which shall be annexed to the Convention:
Article 1
The Court of Justice of the European Communities shall have jurisdiction, under the conditions laid down in this Protocol, to give preliminary rulings on the interpretation of the Convention on the use of information technology for customs purposes.
Article 2
1.By a declaration made at the time of the signing of this Protocol or at any time thereafter, any Member State shall be able to accept the jurisdiction of the Court of Justice of the European Communities to give preliminary rulings on the interpretation of the Convention on the use of information technology for customs purposes under the conditions specified in either paragraph 2(a) or paragraph 2(b).
2.A Member State making a declaration under paragraph 1 may specify that either: (a) any court or tribunal of that State against whose decisions there is no judicial remedy under national law may request the Court of Justice of the European Communities to give a preliminary ruling on a question raised in a case pending before it and concerning the interpretation of the Convention on the use of information technology for customs purposes if that court or tribunal considers that a decision on the question is necessary to enable it to give judgment, or (b) any court or tribunal of that State may request the Court of Justice of the European Communities to give a preliminary ruling on a question raised in a case pending before it and concerning the interpretation of the Convention on the use of information technology for customs purposes if that court or tribunal considers that a decision on the question is necessary to enable it to give judgment.
Article 3
1.The Protocol on the Statute of the Court of Justice of the European Communities and the Rules of Procedure of that Court of Justice shall apply.
2.In accordance with the Statute of the Court of Justice of the European Communities, any Member State, whether or not it has made a declaration pursuant to Article 2, shall be entitled to submit statements of case or written observations to the Court of Justice of the European Communities in cases which arise under Article 1.
Article 4
1.This Protocol 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 their respective constitutional requirements for adopting this Protocol and communicate to him any declaration made pursuant to Article 2.
3.This Protocol shall enter into force ninety days after the notification, referred to in paragraph 2, by the Member State which, being a member of the European Union on the date of adoption by the Council of the act drawing up this Protocol, is the last to fulfil that formality. However, it shall at the earliest enter into force at the same time as the Convention on the use of information technology for customs purposes.
Article 5
1.This Protocol shall be open to accession by any State that becomes a member of the European Union.
2.Instruments of accession shall be deposited with the depositary.
3.The text of this Protocol in the language of the acceding State, drawn up by the Council of the European Union, shall be authentic.
4.This Protocol shall enter into force with respect to any State that accedes to it ninety days after the date of deposit of its instrument of accession, or on the date of the entry into force of this Protocol if the latter has not yet come into force when the said period of ninety days expires.
Article 6
Any State that becomes a member of the European Union and accedes to the Convention on the use of information technology for customs purposes in accordance with Article 25 thereof shall accept the provisions of this Protocol.
Article 7
1.Amendments to this Protocol may be proposed by any Member State, being a High Contracting Party. Any proposal for an amendment shall be sent to the depositary, who shall forward it to the Council.
2.Amendments shall be established by the Council, which shall recommend that they be adopted by the Member States in accordance with their respective constitutional requirements.
3.Amendments thus established shall enter into force in accordance with the provisions of Article 4.
Article 8
1.The Secretary-General of the Council of the European Union shall act as depositary of this Protocol.
2.The depositary shall publish in the Official Journal of the European Communities the notifications, instruments or communications concerning this Protocol.
Done at Brussels, this twenty-ninth day of November in the year one thousand nine hundred and ninety-six, 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.
FOURTH SCHEDULE THE TEXT IN THE ENGLISH LANGUAGE OF THE CUSTOMS COOPERATION CONVENTION CONVENTION DRAWN UP ON THE BASIS OF ARTICLE K.3 OF THE TREATY ON EUROPEAN UNION, ON MUTUAL ASSISTANCE AND COOPERATION 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 18 December 1997;
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 cooperation 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 cooperation 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 cooperation in both sectors evolve as far as possible in parallel, HAVE AGREED ON THE FOLLOWING PROVISIONS:
TITLE I — GENERAL PROVISIONS
Article 1Scope
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 cooperate with one another through their customs administrations, with a view to: — preventing and detecting infringements of national customs provisions, and — prosecuting and punishing infringements of Community and national customs 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 cooperation 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 2Powers
The customs administrations shall apply this Convention with 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 3Relationship to mutual assistance provided by the judicial authorities
1.This Convention covers mutual assistance and cooperation 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 cooperation 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 4Definitions
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: — cross-border traffic in goods subject to bans, restrictions or controls, in particular under Articles 36 and 223 of the Treaty establishing the European Community; — non-harmonised excise duties;
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 organization 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 cooperation’: cooperation between customs administrations across the borders of each Member State.
Article 5Central coordinating units
1.Member States shall appoint in their customs authorities a central unit (coordinating unit). It shall be responsible for receiving all applications for mutual assistance under this Convention and for coordinating mutual assistance, without prejudice to paragraph 2. The unit shall also be responsible for cooperation with other authorities involved in an assistance measure under this Convention. The coordinating units of the Member States shall maintain the necessary direct contract with each other, particularly in the cases covered by Title IV.
2.The activity of the central coordinating units shall not exclude, particularly in an emergency, direct cooperation between other services of the customs authorities of the Member States. For reasons of efficiency and consistency, the central coordinating units shall be informed of any action involving such direct cooperation.
3.If the customs authority is not, or not completely, competent to process a request, the central coordinating 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 coordinating unit shall return the request to the applicant authority with an explanation as to why the request could not be processed.
Article 6Liaison 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 cooperation 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 7Obligation 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.
TITLE II — ASSISTANCE ON REQUEST
Article 8Principles
1.In order to provide the assistance required under this Title, the requested authority or the competent authority which it has addressed shall proceed as though it were acting on its own account or at the request of another authority in its own Member State. In so doing it shall avail itself of all the legal powers at its disposal within the framework of its national law in order to respond to the request.
2.The requested authority shall extend this assistance to all circumstances of the infringement which have any recognizable bearing on the subject of the request for assistance without this requiring any additional request. In case of doubt, the requested authority shall firstly contact the applicant authority.
Article 9Form and content of the request for assistance
1.Requests for assistance shall always be made in writing. Documents necessary for the execution of such requests shall accompany the request.
2.Requests pursuant to paragraph 1 shall include the following information: (a) the applicant authority making the request; (b) the measure requested; (c) the object of, and the reason for, the request; (d) the laws, rules and other legal provisions involved; (e) indications as exact and comprehensive as possible on the natural or legal persons being the target of the investigations; (f) a summary of the relevant facts, except in cases provided for in Article 13.
3.Requests shall be submitted in an official language of the Member State of the requested authority or in a language acceptable to such authority.
4.When required because of the urgency of the situation, oral requests shall be accepted, but must be confirmed in writing as soon as possible.
5.If a request does not meet the formal requirements, the requested authority may ask for it to be corrected or completed; measures necessary to comply with the request may be commenced in the meantime.
6.The requested authority shall agree to apply a particular procedure in response to a request, provided that that procedure is not in conflict with the legal and administrative provisions of the requested Member State.
Article 10Requests for information
1.At the request of the applicant authority, the requested authority shall communicate to it all information which may enable it to prevent, detect and prosecute infringements.
2.The information communicated is to be accompanied by reports and other documents, or certified copies or extracts of the same, on which that information is based and which are in the possession of the requested authority or which were produced or obtained in order to execute the request for information.
3.By agreement between the applicant authority and the requested authority, officers authorised by the applicant authority may, subject to detailed instructions from the requested authority, obtain information pursuant to paragraph 1 from the offices of the requested Member State. This shall apply to all information derived from the documentation to which the staff of those offices have access. Those officers shall be authorized to take copies of the said documentation.
Article 11Requests for surveillance
At the request of the applicant authority, the requested authority shall as far as possible keep a special watch or arrange for a special watch to be kept on persons where there are serious grounds for believing that they have infringed Community or national customs provisions or that they are committing or have carried out preparatory acts with a view to the commission of such infringements. At the request of the applicant authority, the requested authority shall also keep a watch on places, means of transport and goods connected with activities which might be in breach of the abovementioned customs provisions.
Article 12Requests for enquiries
1.The requested authority shall at the request of the applicant authority carry out, or arrange to have carried out, appropriate enquiries concerning operations which constitute, or appear to the applicant authority to constitute, infringements.
The requested authority shall communicate the results of such enquiries to the applicant authority. Article 10(2) shall apply mutatis mutandis.
2.By agreement between the applicant authority and the requested authority, officers appointed by the applicant authority may be present at the enquiries referred to in paragraph 1. Enquiries shall at all times be carried out by officers of the requested authority. The applicant authority's officers may not, of their own initiative, assume the powers conferred on officers of the requested authority. They shall, however, have access to the same premises and the same documents as the latter, through their intermediary and for the sole purpose of the enquiry being carried out.
Article 13Notification
1.At the request of the applicant authority, the requested authority shall, in accordance with the national rules of the Member State in which it is based, notify the addressee or have it notified of all instruments or decisions which emanate from the competent authorities of the Member State in which the applicant authority is based and concern the application of this Convention.
2.Requests for notification, mentioning the subject of the instrument or decision to be notified, shall be accompanied by a translation in the official language or an official language of the Member State in which the requested authority is based, without prejudice to the latter's right to waive such a translation.
Article 14Use as evidence
Findings, certificates, information, documents, certified true copies and other papers obtained in accordance with their national law by officers of the requested authority and transmitted to the applicant authority in the cases of assistance provided for in Articles 10 to 12 may be used as evidence in accordance with national law by the competent bodies of the Member State where the applicant authority is based.
TITLE III — SPONTANEOUS ASSISTANCE
Article 15Principle
The competent authorities of each Member State shall, as laid down in Articles 16 and 17, subject to any limitations imposed by national law, provide assistance to the competent authorities of the other Member States without prior request.
Article 16Surveillance
Where it serves the prevention, detection and prosecution of infringements in another Member State, each Member State's competent authorities shall: (a) as far as is possible keep, or have kept, the special watch described in Article 11; (b) communicate to the competent authorities of the other Member States concerned all information in their possession and, in particular, reports and other documents or certified true copies or extracts thereof, concerning operations which are connected with a planned or committed infringement.
Article 17Spontaneous information
The competent authorities of each Member State shall immediately send to the competent authorities of the other Member States concerned all relevant information concerning planned or committed infringements and, in particular, information concerning the goods involved and new ways and means of committing such infringements.
Article 18Use as evidence
Surveillance reports and information obtained by officers of one Member State and communicated to another Member State in the course of the spontaneous assistance provided for in Articles 15 to 17 may be used in accordance with national law as evidence by the competent bodies of the Member State receiving the information.
TITLE IV — SPECIAL FORMS OF COOPERATION
Article 19Principles
1.Customs administrations shall engage in cross-border cooperation in accordance with this Title. They shall provide each other with the necessary assistance in terms of staff and organization support. Requests for cooperation 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.
Coordination and planning of cross-border operations shall be the responsibility of the central coordinating units in accordance with Article 5.
2.Cross-border cooperation 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 cooperation 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 cooperation 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 approval 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-à-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 cooperation 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 infringements committed against them or by them.
Article 20Hot 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 authorized 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 State in whose territory they are operating; they shall obey the instructions of the competent authorities of the said Member State; (b) when the pursuit takes place 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 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 21Cross-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 authorized to continue their observation in the territory of another Member State where the latter has authorized cross-border observation in response to a request for assistance which has previously been submitted. Conditions may be attached to the authorization.
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 authorization 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 authorization of the other Member State cannot be requested, the officers conducting the observation shall be authorized 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 out-lining the grounds for crossing the border without prior authorization 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 authorization 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 authorization 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 selfdefence; (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 22Controlled 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 offences.
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 23Covert investigations
1.At the request of the applicant authority, the requested authority may authorize 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 authorized in the course of their activities to collect information and make contact with subjects 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 cooperation 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 24Joint 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 specializations.
The joint special investigation team shall have the following tasks: — implementation of difficult and demanding investigations of specific infringements, requiring simultaneous, coordinated action in the Member States concerned; — coordination 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 up 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 organizational 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.
TITLE V — DATA PROTECTION
Article 25Data protection for the exchange of data
1.When information is exchanged, the customs administrations shall take into account in each specific case the requirements for the protection of personal data. They shall respect the relevant provisions of the Convention of the Council of Europe of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data. In the interest of data protection, a Member State may, in accordance with paragraph 2, impose conditions concerning the processing of personal data by another Member State to which such personal data may be passed.
2.Without prejudice to the provisions of the Convention concerning the use of information technology for customs purposes, the following provisions shall apply to personal data which are communicated pursuant to the application of this Convention: (a) processing of the personal data by the recipient authority shall be authorized only for the purpose referred to in Article 1(1). That authority may forward them, without prior consent from the Member State supplying them, to its customs administrations, its investigative authorities and its judicial bodies to enable them to prosecute and punish infringements within the meaning of Article 4(3). In all other cases of data transmission, the consent of the Member State which supplied the information is necessary; (b) the authority of the Member State which communicates data shall ensure that they are accurate and up-to-date. If it emerges that inaccurate data have been communicated or data have been communicated which should not have been communicated or that lawfully communicated data are required at a later stage to be erased in accordance with the law of the communicating Member State, the recipient authority shall be immediately informed thereof. It shall be obliged to correct such data or have them erased. If the recipient authority has reason to believe that communicated data are inaccurate or should be erased, it shall inform the communicating Member State; (c) in cases where communicated data should, according to the law of the communicating Member State, be erased or amended, the persons concerned must be given the effective right to correct the data; (d) the forwarding and receipt of exchanged data shall be recorded by the authorities concerned; (e) if so requested, the communicating and recipient authorities shall inform the person concerned, at that person's request, of the personal data communicated and the use to which they are to be put. There is no obligation to provide the information if it is found, on consideration of the matter, that the importance to the public of the information being withheld outweighs the importance to the person concerned of receiving it. Moreover, the right of the person concerned to receive information about the personal data communicated shall be determined in accordance with the national laws, regulations and procedures of the Member State in whose territory the information is requested. Before any decision is taken on providing information, the communicating authority shall be given the opportunity of stating its position;
(f) Member States shall be liable, in accordance with their own laws, regulations and procedures, for injury caused to a person through the processing of data communicated in the Member State concerned. This shall also be the case where the injury was caused by the communication of inaccurate data or the fact that the communicating authority communicated data in violation of the Convention; (g) the data communicated shall be kept for a period not exceeding that necessary for the purposes for which they were communicated. The need to keep them shall be examined at the appropriate moment by the Member State concerned; (h) in any event, the data shall enjoy at least the same protection as is given to similar data in the Member State which received them; (i) every Member State shall take the appropriate measures to ensure compliance with this Article by the application of effective controls. Every Member State may assign the task of control to the national supervisory authority mentioned in Article 17 of the Convention concerning the use of information technology for customs purposes.
3.For the purposes of this Article, ‘the processing of personal data’ shall be understood in accordance with the definition in Article 2(b) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.
TITLE VI — INTERPRETATION OF THE CONVENTION
Article 26Court of Justice
1.The Court of Justice of the European Communities shall have jurisdiction to rule on any dispute between Member States regarding the interpretation or the application of this Convention whenever it has proved impossible for the dispute to be settled by the Council within six months of its being referred to the Council by one of its members.
2.The Court of Justice of the European Communities shall have jurisdiction to rule on any dispute between Member States and the Commission concerning the interpretation or application of this Convention which it has proved impossible to settle through negotiation. The dispute may be submitted to the Court of Justice after the expiry of a period of six months from the data on which one of the parties notified the other of the existence of a dispute.
3.The Court of Justice shall have jurisdiction, subject to the conditions laid down in paragraphs 4 to 7, to give preliminary rulings on the interpretation of this Convention.
4.By a declaration made at the time of the signing of this Convention or at any time thereafter, any Member State shall be able to accept the jurisdiction of the Court of Justice of the European Communities to give preliminary rulings on the interpretation of this Convention as specified in either paragraph 5(a) or (b).
5.A Member State which has made a declaration pursuant to paragraph 4 shall specify that either: (a) any court or tribunal of that State against whose decisions there is no judicial remedy under national law may request the Court of Justice of the European Communities to give a preliminary ruling on a question raised in a case pending before it and concerning the interpretation of this Convention if that court or tribunal considers that a decision on the question is necessary to enable it to give judgment, or (b) any court or tribunal of that State may request the Court of Justice of the European Communities to give a preliminary ruling on a question raised in a case pending before it and concerning the interpretation of this Convention if that court or tribunal considers that a decision on the question is necessary to enable it to give judgment.
6.The Protocol on the Statute of the Court of Justice of the European Communities and the Rules of Procedure of that Court of Justice shall apply.
7.Any Member State, whether or not it has made a declaration pursuant to paragraph 4, shall be entitled to submit statements of case or written observations to the Court in cases which arise under paragraph 5.
8.The Court of Justice shall not have jurisdiction to check the validity or proportionality of operations carried out by competent law enforcement agencies under this Convention nor to rule on the exercise of responsibilities which devolve upon Member States for maintaining law and order and for safeguarding internal security.
TITLE VII — IMPLEMENTATION AND FINAL PROVISIONS
Article 27Confidentiality
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.
Article 28Exemptions 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.
Article 29Expenses
1.Member States shall normally waive all claims for reimbursement 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.
Article 30Reservations
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 in so far 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 cooperation shall not be affected by this Convention in the context of relations between the Member States which are bound by those provisions.
Article 31Territorial application
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 Büsingen (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 Büsingen 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 air-space 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 to therein.
Article 32Entry 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 ninety days after the notification referred to 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 to its relations with Member States that have made the same declaration. Such declarations shall take effect ninety days after the date of deposit thereof.
5.This Convention shall apply only 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.
Article 33Accession
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 depositary.
4.This Convention shall come into force with respect to any State that accedes to it ninety 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 ninety 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.
Article 34Amendments
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 States 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).
Article 35Depositary
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.
Done at Brussels on the eighteenth day of December in the year one thousand nine hundred and ninety-seven 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.
FIFTH SCHEDULE THE TEXT IN THE ENGLISH LANGUAGE OF THE 1999 PROTOCOL PROTOCOL DRAWN UP ON THE BASIS OF ARTICLE K.3 OF THE TREATY ON EUROPEAN UNION, ON THE SCOPE OF THE LAUNDERING OF PROCEEDS IN THE CONVENTION ON THE USE OF INFORMATION TECHNOLOGY FOR CUSTOMS PURPOSES AND THE INCLUSION OF THE REGISTRATION NUMBER OF THE MEANS OF TRANSPORT IN THE CONVENTION THE HIGH CONTRACTING PARTIES to this Protocol, Member States of the European Union, REFERRING to the Act of the Council of the European Union of 12 March 1999, HAVING REGARD to the Convention drawn up on the basis of Article K.3 of the Treaty on European Union on the use of information technology for customs purposes, hereinafter referred to as ‘the Convention’;
HAVE AGREED ON THE FOLLOWING PROVISIONS:
Article 1The second indent of Article 1(1) of the Convention shall be amended to read as follows:
‘— the transfer, conversion, concealment or disguise of property or proceeds derived from, obtained directly or indirectly through or used in, illicit international drug trafficking or any infringement of: (i) 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 the Member State concerning cross-border traffic in goods subject to bans, restrictions or controls, in particular pursuant to Articles 36 and 223 of the Treaty establishing the European Community, and non-harmonised excise duties, or (ii) 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, or (iii) 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, or (iv) 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.’
Article 2
The data categories listed in Article 4 of the Convention shall be supplemented by the following category: ‘(ix) registration number of the means of transport.’.
Article 3
1.This Protocol 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 their respective constitutional requirements for adopting this Protocol.
3.This Protocol shall enter into force ninety days after the notification, referred to in paragraph 2, by the Member State which, being a member of the European Union on the date of adoption by the Council of the Act drawing up this Protocol, is the last to fulfil that formality. However, it shall at the earliest enter into force at the same time as the Convention.
Article 4
1.This Protocol shall be open to accession by any State that becomes a Member State of the European Union.
2.The instruments of accession shall be deposited with the depositary.
3.The texts of this Protocol in the language of the acceding State, drawn up by the Council of the European Union, shall be authentic.
4.This Protocol shall enter into force with respects to any State that accedes to it ninety days after the date of deposit of its instrument of accession or on the date of entry into force of this Protocol if the latter has not already entered into force upon expiry of the said period of ninety days.
Article 5
Any State that becomes a Member State of the European Union and accedes to the Convention in accordance with Article 25 thereof shall accept the provisions of this Protocol.
Article 6
1.Amendments to this Protocol 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.
2.Amendments shall be adopted by the Council, which shall recommend them to the Member States for adoption in accordance with their respective constitutional requirements.
3.Amendments adopted in this manner shall come into force in accordance with Article 3.
Article 7
1.The Secretary-General of the Council of the European Union shall act as depositary of this Protocol.
2.The depositary shall publish in the Official Journal of the European Communities the notifications, instruments or communications concerning this Protocol.
Done at Brussels on the twelfth day of March in the year one thousand nine hundred and ninety-nine.
SIXTH SCHEDULE COINBHINSIÚN ARNA DHRÉACHTÚ AR BHONN AIRTEAGAL K.3 DEN CHONRADH AR AN AONTAS EORPACH MAIDIR LE hÚSÁID THEICNEOLAÍOCHT AN EOLAIS CHUN CRÍOCHA CUSTAIM TÁ NA hARDPHÁIRTITHE CONARTHACHA sa Choinbhinsiún seo, Ballstáit an Aontais Eorpaigh, AG TAGAIRT do Ghníomh ó Chomhairle an Aontais Eorpaigh an 26/07/95, AG MEABHRÚ DÓIBH na ngealltanas atá sa Choinbhinsiú n maidir le Riaracháin Chustaim do Sholáthar Cúnamh Frithpháirteach, arna dhéanamh sa Róimh ar an 7 Meán Fómhair 1967, DE BHRÍ go bhfuil na riaracháin chustaim, mar aon le húdaráis inniúla eile, freagrach, ag teorainneacha seachtracha an Chomhphobail agus laistigh dá theorainneacha críochacha, as cionta ní hamháin in aghaidh rialacháin Chomhphobail ach in aghaidh dlíthe náisiúnta freisin, go háirithe na dlíthe sin atá folaithe ag Airteagail 36 agus 223 den Chonradh ag bunú an Chomhphobail Eorpaigh, a chosc, a imscrúdú agus a chur faoi chois, DE BHRÍ gur bagairt thromchúiseach do shláinte, moráltacht agus slándáil an phobail an treocht atá ag teacht chun cinn ionsar gháinneáil aindleathach de gach saghas, ÓS DEIMHIN leo gur gá an comhar idir riaracháin chustaim a athneartú trí nósanna imeachta a leagan síos faoina bhféadfaidh riaracháin chustaim gníomhú go comhpháirteach agus sonraí pearsanta agus sonraí eile a bhaineann le gníomhaíochtaí gáinneála aindleathacha a mhalartú ag úsáid na teicneolaíochta nua chun eolas den sórt sin a bhainisteoireacht agus a tharchur, faoi réir fhorálacha Choinbhinsiún Chomhairle na hEorpa um Chosaint Daoine Aonair maidir le hUathphróiseáil Sonraí Pearsanta arna dhéanamh in Strasbourg ar an 28 Eanáir 1981, AG MEABHRú DÓIBH go mbíonn ar na riaracháin chustaim ina n-obair laethúil idir fhorálacha Comhphobail agus fhorálacha neamhchomhphobail a chur chun feidhme agus go bhfuil, dá dheasca sin, riachtanas follasach ann a áirithiú go bhfabhraíonn na forálacha maidir le cúnamh frithpháirteach agus comhar riarthach sa dá earnáil go comhthreomhar a mhéad is féidir, TAR ÉIS COMHAONTú AR NA FORÁLACHA SEO A LEANAS:
CAIBIDIL I Sainmhínithe Airteagal 1 Chun críocha an Choinbhinsiúin seo:
1.Ciallaíonn an téarma “dlíthe náisiúnta” dlíthe nó rialacháin Ballstáit, a bhfuil inniúlacht iomlán nó pháirteach ag riarachán custaim an Bhallstáit sin ina gcur i bhfeidhm, maidir le: — gluaiseacht earraí atá faoi réir bearta toirmisc, srianta nó rialaithe, go háirithe na bearta sin atá folaithe in Airteagail 36 agus 223 den Chonradh ag bunú an Chomhphobail Eorpaigh; — aistriú, tiontú, ceilt nó folú maoine nó fáltas arna gcineadh ó gháinneáil idirnáisiúnta aindleathach drugaí, arna bhfáil go díreach nó go neamhdhíreach tríthi nó arna n-úsáid inti.
2.Ciallaíonn an téarma “sonraí pearsanta” aon eolas a bhaineann le duine aonair aitheanta nó inaitheanta.
3.Ciallaíonn an téarma “Ballstá t soláthair” Ballstát a dhéanann sonra a áireamh sa Chóras Eolais Custaim.
CAIBIDIL II CÓras Eolais Custaim a bhunú Airteagal 2 1. Cuirfidh riaracháin chustaim na mBallstát ar bun, agus cothabhálfaidh siad, uathchóras eolais comhpháirteach chun críocha custaim, dá ngairtear an Córas Eolais Custaim anseo feasta.
2.Beidh sé de chuspóir ag an gCóras Eolais Custaim, i gcomhréir le forálacha an Choinbhinsiúin seo, cabhrú chun sáruithe tromchúiseacha ar dhlíthe náisiúnta a chosc, a imscrúdú agus a ionchúiseamh trí éifeachtúlacht nósanna imeachta comhair agus rialaithe riaracháin chustaim na mBallstát a mhéadú trí eolas a scaipeadh go luath.
CAIBIDIL III An Córas Eolais Custaim a oibriú agus a úsáid Airteagal 3 1. Is áis bhunachar sonraí lárnach é an Córas Eolais Custaim agus beidh sé inrochtana trí theirminéil i ngach Ballstát. Cuimseoidh sé go heisiach na sonraí, lena n-áirítear sonraí pearsanta, is gá chun a chuspóir mar atá sé sonraithe in Airteagal 2(2) a bhaint amach sna hearnálacha seo a leanas: (i) tráchtearraí; (ii) córacha iompair; (iii) gnóthaí; (iv) daoine; (v) treochtaí calaoise; (vi) infhaighteacht saineolais.
2.Áiritheoidh an Coimisiún bainistíocht theicniúil bhonneagar an Chórais Eolais Custaim i gcomhréir leis na rialacha dá bhforáiltear sna bearta cur chun feidhme arna nglacadh laistigh den Chomhairle.
Tuairisceoidh an Coimisiún maidir leis an mbainistíocht don choiste dá dtagraítear in Airteagal 16.
3.Páirteoidh an Coimisiún leis an gcoiste sin na socruithe praiticiúla arna nglacadh don bhainistíocht theicniúil.
Airteagal 4 Cinnfidh na Ballstáit na míreanna atá le háireamh sa Chóras Eolais Custaim a bhaineann le gach ceann d'earnálacha (i) go (vi) in Airteagal 3 a mhéad is gá sin chun cuspóir an chórais a bhaint amach. Ní áireofar ar aon chúinse aon sonraí pearsanta in earnálacha (v) agus (vi) d'Airteagal 3. Ní chuimseoidh na sonraí pearsanta atá le hionchur ach: (i) sloinne, sloinne réamhphósta, céad ainmneacha agus ainmneacha bréige; (ii) dáta agus ionad breithe; (iii) náisiúntacht; (iv) gnéas; (v) aon bhuansaintréithe fisiceacha oibiachtú la áirithe; (vi) cúis leis na sonraí a áireamh; (vii) gníomhaíocht arna moladh; (viii) cód foláirimh a shonraíonn aon tuairisc go raibh an duine i dtrácht faoi arm, foréigneach nó tar éis éalú.
In aon chás, ní áireofar sonraí pearsanta atá liostaithe sa chéad abairt d'Airteagal 6 de Choinbhinsiún Chomhairle na hEorpa um Chosaint Daoine Aonair maidir le hUathphróiseáil Sonraí Pearsanta, arna dhéanamh in Strasbourg ar an 28 Eanáir 1981, dá ngairtear “Coinbhinsiún Strasbourg 1981” anseo feasta.
Airteagal 5 1. Ní iontrálfar sonraí in earnálacha (i) go (iv) d'Airteagal 3 sa Chóras Eolais Custaim ach amháin ar mhaithe le hamharc agus tuairisciú, faireachán discréideach nó seiceálacha sonracha.
2.Ar mhaithe leis na gníomhaíochtaí arna moladh dá dtagraítear i mír 1, ní iontrálfar sonraí pearsanta in aon cheann d'earnálacha (i) go (iv) d'Airteagal 3 sa Chóras Eolais Custaim ach amháin, go háirithe mar gheall ar ghníomhaíochtaí neamhdhlíthiúla roimhe sin, má tá taispeántaí fírinneacha ann a thugann le fios go bhfuil an duine i dtrácht tar éis sáruithe tromchúiseacha ar dhlíthe náisiúnta a dhéanamh, nó go bhfuil sé i mbun na sáruithe sin a dhéanamh nó go ndéanfaidh sé fós iad.
Airteagal 6 1. Má dhéantar na gníomhaíochtaí arna moladh dá dtagraítear in Airteagal 5(1), féadfar an t-eolas seo a leanas, go hiomlan nó go páirteach, a bhailiú agus a tharchur chuig an mBallstát soláthair: (i) go bhfuil an tráchtearra, an chóir iompair, an gnó nó an duine arna dtuairisciú aimsithe; (ii) ionad, uair agus cúis na seiceála; (iii) bealach agus ceann scríbe an turais; (iv) daoine tionlacain an duine i dtrácht nó lucht na córa iompair; (v) an chóir iompair arna húsáid; (vi) na réada arna n-iompar; (vii) na himthosca inar aimsíodh an tráchtearra, an chóir iompair, an gnó nó an duine.
Nuair a bhailítear eolas den sórt sin i gcúrsa faireachán discréideach, ní mór bearta a ghlacadh chun a áirithiú nach gcuirtear cineál discréideach an fhaireacháin i gcontúirt.
2.I gcomhthéacs seiceáil shonrach dá dtagraítear in Airteagal 5(1), féadfar daoine, córacha iompair agus réada a chuardach a mhéad is incheadaithe agus i gcomhréir le dlíthe, rialacháin agus nósanna imeachta an Bhallstáit ina ndéantar an cuardach. Mura gceadaítear an tseiceáil shonrach i ndlí Ballstáit, déanfaidh an Ballstát sin í a thiontú go huathoibríoch go hamhare agus tuairisciú.
Airteagal 7 1. Forchoimeádfar rochtain dhíreach ar shonraí sa Chóras Eolais Custaim go heisiach do na húdaráis náisiúnta arna n-ainmniú ag gach Ballstát. Is riaracháin chustaim iad na húdaráis náisiúnta sin ach féadfar údaráis eile a áireamh atá inniúil freisin, de réir dhlíthe, rialacháin agus nósanna imeachta an Bhallstáit i dtrácht, chun gníomhú d'fhonn an cuspóir atá sonraithe in Airteagal 2(2) a bhaint amach.
2.Cuirfidh gach Ballstát chuig gach Ballstát eile agus chuig an gcoiste dá dtagraítear in Airteagal 16 liosta dá údaráis inniúla atá ainmnithe i gcomhréir le mír 1 chun rochtain dhíreach a bheith acu ar an gCóras Eolais Custaim ag sonrú, i gcás gach údaráis, na sonraí a bhféadfaidh sé rochtain a bheith aige orthu agus na críocha ar chucu é.
3.De mhaolú ar mhíreanna 1 agus 2, féadfaidh Ballstáit, trí chomhaontú d'aon toil, rochtain ar an gCóras Eolais Custaim a cheadú d'eagraíochtaí idirnáisiúnta nó réigiúnacha. Beidh comhaontú den sórt sin i bhfoirm prótacail a ghabhann leis an gCoinbhinsiún seo. Ag teacht ar a gcinneadh dóibh, tabharfaidh na Ballstáit aird ar aon socruithe cómhalartacha agus ar aon tuairim ón gComhúdarás Maoirseachta dá dtagraítear in Airteagal 18 ar leormhaitheas na mbeart cosanta sonraí.
Airteagal 8 1. Ní fhéadfaidh na Ballstáit sonraí ón gCóras Eolais Custaim a úsáid ach amháin chun an cuspóir atá sonraithe in Airteagal 2(2) a ghnóthú, cé go bhféadfaidh siad iad a úsáid chun críocha riarthacha nó chun críocha eile le húdarú roimh ré ón mBallstát a d'ionchuir sa Chóras iad agus faoi réir aon choinníollacha arna bhforchur ag an mBallstát sin. Beidh aon úsáid eile den sórt sin i gcomhréir le dlíthe, rialacháin agus nósanna imeachta an Bhallstáit a fhéachann le hiad a úsáid agus ba chóir di aird a thabhairt ar Phrionsabal 5.5. de Mholadh R (87)15 ó Choiste Airí Chomhairle na hEorpa an 17 Meán Fómhair 1987.