Version 1
Date: 09JAN19

EU-Japan EPA Guidance
Confidentiality of information
1. Legal basis
Chapter 3: Rules of Origin and Origin Procedures
ARTICLE 3.21
Verification

1.
For the purposes of verifying whether a product imported into a Party is originatingin the other Party or whether the other requirements of this Chapter are satisfied, the customs
authority of the importing customs authorities may conduct a verification based on risk
assessment methods, which may include random selection, by means of a request for
information from the importer who made the claim referred to in Article 3.16. The customs
authority of the importing customs authorities may conduct a verification either at the time of
the customs import declaration, before the release of products, or after the release of theproducts.
2.
The information requested pursuant to paragraph 1 shall cover no more than thefollowing elements:(a)

if a statement on origin was the basis of the claim referred to in subparagraph 2(a) ofArticle 3.16, that statement on origin;(b)

the tariff classification number of the product under the Harmonized System andorigin criteria used;(c)a brief description of the production process;(d)

if the origin criterion was based on a specific production process, a specificdescription of that process;(e)

if applicable, a description of the originating and non-originating materials used in
the production process;(f)if the origin criterion was "wholly obtained", the applicable category (such as
harvesting, mining, fishing and place of production);(g)

if the origin criterion was based on a value method, the value of the product as wellas the value of all the non-originating or, as appropriate to establish compliance withthe value requirement, originating materials used in the production;(h)if the origin criterion was based on weight, the weight of the product as well as theweight of the relevant non-originating or, as appropriate to establish compliance withthe weight requirement, originating materials used in the product;(i)

if the origin criterion was based on a change in tariff classification, a list of all thenon-originating materials including their tariff classification number under theHarmonized System (in two-, four- or six- digit format depending on the origincriteria); or(j)the information relating to the compliance with the provision on non-alterationreferred to in Article 3.10.

3.
When providing the requested information, the importer may add any otherinformation that it considers relevant for the purpose of verification.
4.
If the claim for preferential tariff treatment was based on a statement on origin
referred to in subparagraph 2(a) of Article 3.16, the importer shall inform the customs
authority of the importing customs authorities when the requested information may beprovided in full or in relation to one or more data elements by the exporter directly.
5.

(…)

6.

(…)

ARTICLE 3.22
Administrative cooperation
1. (…)
2.
If the claim for preferential tariff treatment was based on a statement on origin
referred to in subparagraph 2(a) of Article 3.16, after having first requested information inaccordance with paragraph 1 of Article 3.21, the customs authority of the importing customs
authorities conducting the verification may also request information from the customs
authority of the exporting customs authorities within a period of two years after theimportation of the products if the customs authority of the importing customs authoritiesconducting the verification considers that additional information is necessary in order toverify the originating status of the product. The request for information should include thefollowing information:(a)the statement on origin;(b)

the identity of the customs authority issuing the request;(c)the name of the exporter;(d)the subject and scope of the verification; and(e)if applicable, any relevant documentation.

In addition to this information, the customs authority of the importing customs authorities
may request the customs authority of the exporting customs authorities for specificdocumentation and information, where appropriate.
3.
The customs authority of the exporting customs authorities may, in accordance with
its laws and regulations, request documentation or examination by calling for any evidenceor by visiting the premises of the exporter to review records and observe the facilities used in
the production of the product.
4.
Without prejudice to paragraph 5, the customs authority of the exporting customs
authorities receiving the request referred to in paragraph 2 shall provide the customs
authority of the importing customs authorities with the following information:(a)the requested documentation, where available;(b)an opinion on the originating status of the product;(c)the description of the product subject to examination and the tariff classification
relevant to the application of this Chapter;2(d)a description and explanation of the production process sufficient to support theoriginating status of the product;(e)

information on the manner in which the examination was conducted; and(f)supporting documentation, if appropriate.

5.
The customs authority of the exporting customs authorities shall not provide theinformation referred to in paragraph 4 to the customs authority of the importing customs
authorities if that information is deemed confidential by the exporter.
6. (…)ARTICLE 3.25
Confidentiality
1.
Each Party shall maintain, in accordance with its laws and regulations, theconfidentiality of any information provided to it by the other Party pursuant to this
Chapter, and shall protect that information from disclosure.
2.
Information obtained by the authorities of the importing Party pursuant to thisChapter may only be used by those authorities for the purposes of this Chapter.
3.
Confidential business information obtained from the exporter by the customs
authority of the exporting Party or of the importing Party through the application ofArticles 3.21 and 3.22 shall not be disclosed, unless otherwise provided for in thisChapter.
4.
Information obtained by the customs authority of the importing Party pursuant tothis Chapter shall not be used by the importing Party in any criminal proceedings carriedout by a court or a judge, unless permission to use such information is granted by theexporting Party in accordance with its laws and regulations.

3

2. GuidanceAscertaining the origin of a product requires knowledge of the particular Introduction
production process, the classification, weight or value of non-originating
materials or any other element used to confer originating status to the finalproduct.
This knowledge often includes information, which may be confidential as
any disclosure of such information could harm the commercial interests ofthe exporter1 in question. In any case, before the importing customs
authority decides to grant or deny preferential tariff treatment, it must beable to obtain adequate information to confirm that the product isoriginating. This makes ‘business confidentiality’ such an important aspectof applying preferential tariff treatment on the basis of the origin of aproduct. In this respect, a distinction must be made between disclosing
information from the exporter to the importer as well as from the exporteror the importer to the customs authorities. The way the exporter informs
the importer of the originating status of the product has an impact on theverification process, in particular for the question how this verification isconducted by the customs authorities.
Except from possible contractual obligations it is up to the exporter to Relationshipdetermine how information relating to the production of the originating exporter andimporterproduct is shared with the importer:-where a claim is based on a statement on origin (Article 3.16(2)(b)),
the exporter who made out the statement, in subsequent phases ofverification by the importing customs authority establishes which
information is shared with the importer. The exporter may decide: not to share any information at all, or to share one or more of the information elements included in theArticle 3.21(2); in case the exporter decides that the information is of a confidential
nature vis-a-vis the importer, to share one or more of theinformation elements included in the Article 3.21(2) with theimporting customs authority directly as foreseen in Article 3.21(4);-where a claim is based on importer’s knowledge (Article 3.16(2)(b))
the exporter has already agreed to share all information with theimporter as this information must be available at the time when theclaim is made.

Conclusion: the exporter is free to determine which, if any, information
pertaining to the originating status of the products is shared with theimporter. The importing customs authority cannot deny preferential tariff
treatment at this stage, unless the importer, upon request by the importing
customs authority does not provide the statement on origin which was usedas the basis for the claim of preferential tariff treatment;

1The terms ‘exporter’ or ‘importer’ in this Guidance are understood as defined in Article 3.1 of the EUJapan EPA
4The information sharing from the exporter to the importer determines the Relationshipexporter andconduct of the verification process:-where a claim is based on a statement on origin and the exporter
decides not to share any information with the importer or with theimporting customs authority directly, then all information needed by
the importing customs authority following the initial request for
information by that authority to the importer on the basis of Article
3.21(2) must be obtained via the exporting customs authority throughadministrative cooperation;-

where a claim is based on a statement on origin and the exporter
shares one or more of the information elements included in the Article
3.21(2) through the importer or directly to the importing customs
authority, this may allow the importing customs authority to confirm
the originating status of the product, or in any case limit the amount ofinformation which would need to be obtained through administrative
cooperation;-where the claim for preferential tariff treatment is based on importer’sknowledge, verification by the importing customs authority is
exclusively focussed on the importer and shall not in any way involvethe exporter and verification by means of a request for administrative
cooperation between the customs authorities is not possible.

If the importing customs authority request information from the exporting
customs authority through the procedure of Article 3.22 (administrativecooperation), it is for the exporter to decide, in accordance with Article
3.22(5), whether the information it provides to the exporting customs
authority may be forwarded by that authority to the importing customs
authority.

theimportingcustoms
authority

Interaction
between theexporter andthe customs
authorities

Direct requests for information from the importing customs authority to theexporter, or participation in visits to the premises of the exporter are notpossible as part of the verification process. However, such visits arepossible under the provisions of Article 3.23 in case of a suspected breachof the provisions of the Rules of Origin Chapter, in accordance with theCMAA2.
Conclusion: With the exception to the procedures under the CMAA, theexporter is free to determine which, if any, information is shared with theimporting customs authority.
Article 3.25 contains a number of specific provisions primarily directed at
the competent authorities of each Party to protect confidential information
obtained by exporting or importing customs authorities under the Rules ofOrigin Chapter from disclosure and restrict their use to the purposes of thisChapter. Non-compliance to these provisions, for each Party within the2Rights andobligations
fortheauthorities ofthe Parties

Agreement between the European Community and the Government of Japan on Co-operation and Mutual Administrative
Assistance in Customs Matters, done at Brussels on 30 January 2008
5boundaries of their own data protection laws3 constitutes a breach ofobligations under the Agreement.
Paragraph 1 provides for a general obligation for each Party to maintainconfidentiality and protection from disclosure of information obtained
from the other Party. This particularly applies to business confidential
information, such as the description and explanation of the production
process sufficient to support the originating status of the product asprovided by the exporting Party to the importing Party following a request
for administrative cooperation.
Paragraph 2 provides for a so called ‘purpose limitation clause’ meaningthat any information obtained by the importing Party from either theimporter, the exporter or the exporting Party may be used for no otherpurpose than to establish the originating status of a product for which
preferential tariff treatment is claimed. As a result, the customs authoritiesof the importing Party are prohibited from sharing information with othergovernmental agencies including those of the importing Party, such as tax
authorities. However, use of information by the importing Party collectedpursuant to Chapter 3 in an administrative, judicial, or quasi-judicial
proceedings for the purpose to establish the originating status of a productfor which preferential tariff treatment is claimed is permitted.
Paragraph 3 complements in particular Article 3.22(5) by prohibiting thedisclosure of information by the exporting or importing Party without theconsent of the exporter.
The use of information obtained through the application of Section B ofChapter 3 in any criminal proceedings carried out by a court or a judge isallowed provided it is permitted by the exporting Party in accordance withits laws and regulations. The framework for this judicial cooperation isprovided by the ‘Agreement between the European Union and Japan on
mutual legal assistance in criminal matters’4. The use of information in aproceeding before a quasi-judicial body (e.g. an arbitrator) is not subject toa permission from the exporting Party.

3For Japan the Act on the Protection of Personal Information (Act No. 57 of 2003) (the “APPI”) provides for equivalent treatmentof personal data as the EU Data Protection Directive (GDPR)

4OJ L 039 , 12/02/2010 P. 20 - 35
6