sou · H4B314 · 2016-03-01 00:00:00 — 4.“Controlled delivery” means the technique of allowing illicit or suspect consignments to pass out of, through or into the territory of one or more States, with the knowledge and under the supervision of their competent authorities, with a view to the investigation of an offence and the identification of persons involved in the commission of the offence. 5.“Free zone” means a part of the territory of a Party where any goods introduced are generally regarded, in so far as import duties and taxes are concerned, as being outside the Customs territory. 6.“Illicit trade” means any practice or conduct prohibited by law and which relates to production, shipment, receipt, possession, distribution, sale or purchase, including any practice or conduct intended to facilitate such activity. 7.“Licence” means permission from a competent authority following submission of the requisite application or other documentation to the competent authority. (a) “Manufacturing equipment” means machinery which is designed, or adapted, to be used solely for the manufacture of tobacco products and is integral to the manufacturing process.1 1Parties may include reference to the Harmonized Commodity Description and of the for this purpose, wherever applicable. Protocol to Eliminate Illicit Trade in (b)“part thereof” in the context of manufacturing equipment means any identifiable part which is unique to manufacturing equipment used in the manufacture of tobacco products. 9.“Party” means, unless the context indicates otherwise, a Party to this Protocol. 10.“Personal data” means any information relating to an identified or identifiable natural person. 11.“Regional economic integration organization” means an organization that is composed of several sovereign states, and to which its Member States have transferred competence over a range of matters, including the authority to make decisions binding on its Member States in respect of those matters.2 12.The “supply chain” covers the manufacture of tobacco products and manufacturing equipment; and import or export of tobacco products and manufacturing equipment; and may be extended, where relevant, to one or more of the following activities when so decided by a Party: (a)retailing of tobacco products; (b)growing of tobacco, except for traditional small-scale growers, farmers and producers; (c)transporting commercial quantities of tobacco products or manufacturing equipment; and (d)wholesaling, brokering, warehousing or distribution of tobacco and tobacco products or manufacturing equipment. 13.“Tobacco products” means products entirely or partly made of the leaf tobacco as raw material, which are manufactured to be used for smoking, sucking, chewing or snuffing. 14.“Tracking and tracing” means systematic monitoring and re-creation by competent authorities or any other person acting on their behalf of the route or movement taken by items through the supply chain, as outlined in Article 8. 2Where appropriate, national or domestic will refer equally to regional economic integration organizations. Protocol to Eliminate Illicit Trade in Relationship between this protocol and other agreements and legal instruments 1.The provisions of the WHO Framework Convention on Tobacco Control that apply to its protocols shall apply to this Protocol. 2.Parties that have entered into the types of agreements mentioned in Article 2 of the WHO Framework Convention on Tobacco Control shall communicate such agreements to the Meeting of the Parties through the Convention Secretariat. 3.Nothing in this Protocol shall affect the rights and obligations of any Party pursuant to any other international convention, treaty or international agreement in force for that Party that it deems to be more conducive to the achievement of the elimination of illicit trade in tobacco products. 4.Nothing in this Protocol shall affect other rights, obligations and responsibilities of Parties under international law, including the United Nations Convention against Transnational Organized Crime. The objective of this Protocol is to eliminate all forms of illicit trade in tobacco products, in accordance with the terms of Article 15 of the WHO Framework Convention on Tobacco Control. Protocol to Eliminate Illicit Trade in PART II: GENERAL OBLIGATIONS 1.In addition to the provisions of Article 5 of the WHO Framework Convention on Tobacco Control, Parties shall: (a)adopt and implement effective measures to control or regulate the supply chain of goods covered by this Protocol in order to prevent, deter, detect, investigate and prosecute illicit trade in such goods and shall cooperate with one another to this end; (b)take any necessary measures in accordance with their national law to increase the effectiveness of their competent authorities and services, including customs and responsible for preventing, deterring, detecting, investigating, prosecuting and eliminating all forms of illicit trade in goods covered by this Protocol; (c)adopt effective measures for facilitating or obtaining technical assistance and financial support, capacity and international cooperation in order to achieve the objectives of this Protocol and ensure the availability to, and secure exchange with, the competent authorities of information to be exchanged under this Protocol; (d)cooperate closely with one another, consistent with their respective domestic legal and administrative systems, in order to enhance the effectiveness of law enforcement action to combat the unlawful conduct including criminal offences established in accordance with Article 14 of this Protocol; (e)cooperate and communicate, as appropriate, with relevant regional and international intergovernmental organizations in the secure3 exchange of information covered by this Protocol in order to promote the effective implementation of this Protocol; and (f)within the means and resources at their disposal, cooperate to raise financial resources for the effective implementation of this Protocol through bilateral and multilateral funding mechanisms. 3A secure exchange of information between two parties is resistant to interception and tampering (falsification). In other words, the information exchanged between the two parties cannot be read or modified by a third party. Protocol to Eliminate Illicit Trade in 2.In implementing their obligations under this Protocol, Parties shall ensure the maximum possible transparency with respect to any interactions they may have with the tobacco industry. Protection of personal data Parties shall protect personal data of individuals regardless of nationality or , subject to national law, taking into consideration international standards regarding the protection of personal data, when implementing this Protocol. Protocol to Eliminate Illicit Trade in PART III: SUPPLY Licence, equivalent approval or control system 1.To achieve the objectives of the WHO Framework Convention on Tobacco Control and with a view to eliminating illicit trade in tobacco products and manufacturing equipment, each Party shall prohibit the conduct of any of the following activities by any natural or legal person except pursuant to a licence or equivalent approval (hereafter “licence”) granted, or control system implemented, by a competent authority in accordance with national law: (a)manufacture of tobacco products and manufacturing equipment; and (b)import or export of tobacco products and manufacturing equipment. 2.Each Party shall endeavour to license, to the extent considered appropriate, and when the following activities are not prohibited by national law, any natural or legal person engaged in: (a)retailing of tobacco products; (b)growing of tobacco, except for traditional small-scale growers, farmers and producers; (c)transporting commercial quantities of tobacco products or manufacturing equipment; and (d)wholesaling, brokering, warehousing or distribution of tobacco and tobacco products or manufacturing equipment. 3.With a view to ensuring an effective licensing system, each Party shall: (a)establish or designate a competent authority or authorities to issue, renew, suspend, revoke and/or cancel licences, subject to the provisions of this Protocol, and in accordance with its national law, to conduct the activities specified in paragraph 1; (b)require that each application for a licence contains all the requisite information about the applicant, which should include, where applicable: (i)where the applicant is a natural person, information regarding his or her identity, including full name, trade name, business registration number (if any), applicable tax registration numbers (if any) and any other information to allow identification to take place; Bilaga 4 SOU 2016:14 Protocol to Eliminate Illicit Trade in when the applicant is a legal person, information regarding its identity, including full legal name, trade name, business registration number, date and place of incorporation, location of corporate headquarters and principal place of business, applicable tax registration numbers, copies of articles of incorporation or equivalent documents, its corporate affiliates, names of its directors and of any designated legal representatives, including any other information to allow identification to take place; (iii)precise business location of the manufacturing unit(s), warehouse location and production capacity of the business run by the applicant; (iv)details of the tobacco products and manufacturing equipment covered by the application, such as product description, name, registered trade mark if any, design, brand, model or make and serial number of the manufacturing equipment; (v)description of where manufacturing equipment will be installed and used; (vi)documentation or a declaration regarding any criminal records; (vii)complete identification of the bank accounts intended to be used in the relevant transactions and other relevant payment details; and (viii)a description of the intended use and intended market of sale of the tobacco products, with particular attention to ensuring that tobacco product production or supply is commensurate with reasonably anticipated demand; (c)monitor and collect, where applicable, any licence fees that may be levied and consider using them in effective administration and enforcement of the licensing system or for public health or any other related activity in accordance with national law; (d)take appropriate measures to prevent, detect and investigate any irregular or fraudulent practices in the operation of the licensing system; (e)undertake measures such as periodic review, renewal, inspection or audit of licences where appropriate; (f)establish, where appropriate, a time frame for expiration of licences and subsequent requisite reapplication or updating of application information; Protocol to Eliminate Illicit Trade in (g)oblige any licensed natural or legal person to inform the competent authority in advance of any change of location of their business or any significant change in information relevant to the activities as licensed; (h)oblige any licensed natural or legal person to inform the competent authority, for appropriate action, of any acquisition or disposal of manufacturing equipment; and (i)ensure that the destruction of any such manufacturing equipment or any part thereof, shall take place under the supervision of the competent authority. 4.Each Party shall ensure that no licence shall be assigned and/or transferred without receipt from the proposed licensee of the appropriate information contained in paragraph 3, and without prior approval from the competent authority. 5.Five years following the entry into force of this Protocol, the Meeting of the Parties shall ensure at its next session that evidence-based research is conducted to ascertain whether any key inputs exist that are essential to the manufacture of tobacco products, are identifiable and can be subject to an effective control mechanism. On the basis of such research, the Meeting of the Parties shall consider appropriate action. 1.Each Party shall require, consistent with its national law and the objectives of the WHO Framework Convention on Tobacco Control, that all natural and legal persons engaged in the supply chain of tobacco, tobacco products and manufacturing equipment: (a)conduct due diligence before the commencement of and during the course of, a business relationship; (b)monitor the sales to their to ensure that the quantities are commensurate with the demand for such products within the intended market of sale or use; and (c)report to the competent authorities any evidence that the customer is engaged in activities in contravention of its obligations arising from this Protocol. 2.Due diligence pursuant to paragraph 1 shall, as appropriate, consistent with its national law and the objectives of the WHO Framework Convention on Protocol to Eliminate Illicit Trade in Tobacco Control, include, inter alia, requirements for customer identification, such as obtaining and updating information relating to the following: (a)establishing that the natural or legal person holds a licence in accordance with Article 6; (b)when the customer is a natural person, information regarding his or her identity, including full name, trade name, business registration number (if any), applicable tax registration numbers (if any) and verification of his or her official identification; (c)when the customer is a legal person, information regarding its identity, including full name, trade name, business registration number, date and place of incorporation, location of corporate headquarters and principal place of business, applicable tax registration numbers, copies of articles of incorporation or equivalent documents, its corporate affiliates, names of its directors and any designated legal representatives, including the representatives’ names and verification of their official identification; (d)a description of the intended use and intended market of sale of tobacco, tobacco products or manufacturing equipment; and (e)a description of the location where manufacturing equipment will be installed and used. 3.Due diligence pursuant to paragraph 1 may include requirements for customer identification, such as obtaining and updating information relating to the following: (a)documentation or a declaration regarding any criminal records; and (b)identification of the bank accounts intended to be used in transactions. 4.Each Party shall, on the basis of the information reported in paragraph 1(c), take all necessary measures to ensure compliance with the obligations arising from this Protocol, which may include the designation of a customer within the jurisdiction of the Party to become a blocked customer as defined by national law. Protocol to Eliminate Illicit Trade in 1.For the purposes of further securing the supply chain and to assist in the investigation of illicit trade in tobacco products, the Parties agree to establish within five years of entry into force of this Protocol a global tracking and tracing regime, comprising national and/or regional tracking and tracing systems and a global information-sharing focal point located at the Convention Secretariat of the WHO Framework Convention on Tobacco Control and accessible to all Parties, enabling Parties to make enquiries and receive relevant information. 2.Each Party shall establish, in accordance with this Article, a tracking and tracing system, controlled by the Party for all tobacco products that are manufactured in or imported onto its territory taking into account their own national or regional specific needs and available best practice. 3.With a view to enabling effective tracking and tracing, each Party shall require that unique, secure and non-removable identification markings (hereafter called unique identification markings), such as codes or stamps, are affixed to or form part of all unit packets and packages and any outside packaging of cigarettes within a period of five years and other tobacco products within a period of ten years of entry into force of this Protocol for that Party. 4.1Each Party shall, for purposes of paragraph 3, as part of the global tracking and tracing regime, require that the following information be available, either directly or accessible by means of a link, to assist Parties in determining the origin of tobacco products, the point of diversion where applicable, and to monitor and control the movement of tobacco products and their legal status: (a)date and location of manufacture; (b)manufacturing facility; (c)used to manufacture tobacco products; (d)production shift or time of manufacture; (e)the name, invoice, order number and payment records of the first customer who is not affiliated with the manufacturer; (f)the intended market of retail sale; (g)product description; (h)any warehousing and ; Protocol to Eliminate Illicit Trade in (i)the identity of any known subsequent purchaser; and (j)the intended shipment route, the shipment date, shipment destination, point of departure and consignee. 4.2The information in subparagraphs (a), (b), (g) and where available (f), shall form part of the unique identification markings. 4.3Where the information in subparagraph (f) is not available at the time of marking, Parties shall require the inclusion of such information in accordance with Article 15.2(a) of the WHO Framework Convention on Tobacco Control. 5.Each Party shall require, within the time limits specified in this Article, that the information set out in paragraph 4 is recorded, at the time of production, or at the time of first shipment by any manufacturer or at the time of import onto its territory. 6.Each Party shall ensure that the information recorded under paragraph 5 is accessible by that Party by means of a link with the unique identification markings required under paragraphs 3 and 4. 7.Each Party shall ensure that the information recorded in accordance with paragraph 5, as well as the unique identification markings rendering such information accessible in accordance with paragraph 6 shall be included in a format established or authorized by the Party and its competent authorities. 8.Each Party shall ensure that the information recorded under paragraph 5 is accessible to the global information-sharing focal point on request, subject to paragraph 9, through a standard electronic secure interface with its national and/or regional central point. The global information-sharing focal point shall compile a list of the competent authorities of Parties and make the list available to all Parties. 9.Each Party or the competent authority shall: (a)have access to the information outlined in paragraph 4 in a timely by making a query to the global information-sharing focal point; (b)request such information only where it is necessary for the purpose of detection or investigation of illicit trade in tobacco products; (c)not unreasonably withhold information; (d)answer the information requests in relation to paragraph 4, in accordance with its national law; and Protocol to Eliminate Illicit Trade in (e)protect and treat as confidential, as mutually agreed, any information that is exchanged. 10.Each Party shall require the further development and expansion of the scope of the applicable tracking and tracing system up to the point that all duties, relevant taxes, and where appropriate, other obligations have been discharged at the point of manufacture, import or release from customs or excise control. 11.Parties shall cooperate with each other and with competent international organizations, as mutually agreed, in sharing and developing best practices for tracking and tracing systems including: (a)facilitation of the development, transfer and acquisition of improved tracking and tracing technology, including knowledge, skills, capacity and expertise; (b)support for training and capacity-building programmes for Parties that express such a need; and (c)further development of the technology to mark and scan unit packets and packages of tobacco products to make accessible the information listed in paragraph 4. 12.Obligations assigned to a Party shall not be performed by or delegated to the tobacco industry. 13.Each Party shall ensure that its competent authorities, in participating in the tracking and tracing regime, interact with the tobacco industry and those representing the interests of the tobacco industry only to the extent strictly necessary in the implementation of this Article. 14.Each Party may require the tobacco industry to bear any costs associated with that Party’s obligations under this Article. 1.Each Party shall require, as appropriate, that all natural and legal persons engaged in the supply chain of tobacco, tobacco products and manufacturing equipment maintain complete and accurate records of all relevant transactions. Such records must allow for the full accountability of materials used in the production of their tobacco products. Protocol to Eliminate Illicit Trade in 2.Each Party shall, as appropriate, require persons licensed in accordance with Article 6 to provide, on request, the following information to the competent authorities: (a)general information on market volumes, trends, forecasts and other relevant information; and (b)the quantities of tobacco products and manufacturing equipment in the licensee’s possession, custody or control kept in stock, in tax and customs warehouses under the regime of transit or transhipment or duty suspension as of the date of the request. 3.With respect to tobacco products and manufacturing equipment sold or manufactured on the territory of the Party for export, or subject to duty- suspended movement in transit or transhipment on the territory of the Party, each Party shall, as appropriate, require that persons licensed in accordance with Article 6, provide, on request, to the competent authorities in the country of departure (electronically, where the infrastructure exists) at the time of departure from their control with the following information: (a)the date of shipment from the last point of physical control of the products; (b)the details concerning the products shipped (including brand, amount, warehouse); (c)the intended routes and destination; (d)the identity of the natural or legal person(s) to whom the products are being shipped; (e)the mode of transportation, including the identity of the transporter; (f)the expected date of arrival of the shipment at the intended destination; and (g)intended market of retail sale or use. 4.If feasible, each Party shall require that retailers and tobacco growers, except for traditional growers working on a non-commercial basis, maintain complete and accurate records of all relevant transactions in which they engage, in accordance with its national law. 5.For the purposes of implementing paragraph 1, each Party shall adopt effective legislative, executive, administrative or other measures to require that all records are: (a)maintained for a period of at least four years; Protocol to Eliminate Illicit Trade in (b)made available to the competent authorities; and (c)maintained in a format, as required by the competent authorities. 6.Each Party shall, as appropriate and subject to national law, establish a system for sharing details contained in all records kept in accordance with this Article with other Parties. 7.Parties shall endeavour to cooperate, with each other and with competent international organizations, in progressively sharing and developing improved systems for record-keeping. Security and preventive measures