AGREEMENT
between the European Community and the Government of the People ’s Republic of China on
cooperation and mutual administrative assistance in customs matters
THE EUROPEAN COMMUNITY,
and
THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINA
hereinafter referred to as the ‘Contracting Parties ’,
CONSIDERING the importance of the commercial links between the European Community and the People ’s
Republic of China, and desirous of contributing to the benefit of both Contracting Parties, to theharmonious development of those links;
BELIEVING THAT, in order to attain this objective, there should be an undertaking to develop customs
cooperation;
TAKING into account the development of customs cooperation between the Contracting Parties, concerning
customs procedures;
CONSIDERING that operations in breach of customs legislation including infringements of intellectual
property rights, are prejudicial to the economic, fiscal and commercial interests of both ContractingParties, and recognising the importance of ensuring the accurate assessment of customs duties and othertaxes, in particular, by a correct application of the rules on customs valuation, origin and tariff classification;
CONVINCED that action against such operations can be made more effective through cooperation between
competent administrative authorities;
HAVING regard to obligations imposed under international conventions already accepted by, or applied to
the Contracting Parties; as well as customs related activities undertaken by the World Trade Organisation;
HAVING regard to the Agreement on Trade and Economic Cooperation between the European Economic
Community and the People's Republic of China signed in 1985,
HAVE AGREED AS FOLLOWS:
TITLE I
GENERAL PROVISIONS
Article 1
Definitions
For the purposes of the Agreement:
(a) ‘customs legislation ’shall mean any laws, provisions or
other legally binding instruments of the EuropeanCommunity or the People ’s Republic of China, governing
the import, export and transit of goods and their placing
under any other customs regime or procedure, includingmeasures of prohibitions, restrictions and control;
(b) ‘customs authority ’shall mean, in the European
Community, the competent services responsible forcustoms matters of the Commission of the European
Communities and the customs authorities of the MemberStates of the European Community and in the People ’s
Republic of China, the General Administration of Customsof the People ’s Republic of China;
(c) ‘applicant authority ’shall mean a competent customs
authority which is designated by a Contracting Party forthis purpose and which makes a request for administrativeassistance, on the basis of this Agreement;
(d) ‘requested authority ’shall mean a competent customs
authority which is designated by a Contracting Party forthis purpose and which receives a request for administrativeassistance, on the basis of this Agreement;
(e) ‘personal data ’shall mean all information relating to an
identified or identifiable individual;EN L 375/20 Official Journal of the European Union 23.12.2004
(f) ‘operation in breach of customs legislation ’shall mean any
violation or attempted violation of the customs legislation;
(g) ‘person ’shall mean either a human being or a legal entity;
(h) ‘information ’shall mean data, whether or not processed or
analysed, and documents, reports, and other communi-cations in any format, including electronic, or certified orauthenticated copies thereof.
Article 2
Territorial application
This Agreement shall apply on the one hand, to the territories
in which the Treaty establishing the European Community isapplied and under the conditions laid down in that Treaty and,on the other hand, to the customs territory of the People ’s
Republic of China.
Article 3
Future developments
The Contracting Parties may by mutual consent expand this
Agreement with a view to increasing the levels of customs
cooperation and supplementing them, in accordance withtheir respective customs legislation, by means of agreementson specific sectors or matters.
TITLE II
SCOPE OF THE AGREEMENT
Article 4
Performance of cooperation and assistance
All cooperation and assistance under this Agreement shall be
performed by the Contracting Parties in accordance with their
relevant laws, provisions, and other legal instruments. In
addition, all cooperation and assistance under this Agreementby either Contracting Party shall be performed within the limitsof its competence and available resources.
Article 5
Obligations imposed under other agreements
1. Taking into account the respective competencies of the
European Community and the Member States, the provisionsof this Agreement shall:
(a) not affect the obligations of the Contracting Parties under
any other international agreement or convention,
(b) be deemed complementary to agreements on customs coop-
eration and mutual administrative assistance which havebeen or may be concluded between individual MemberStates and the People's Republic of China,(c) not affect the Community provisions governing the
communication between the competent services of theCommission and the customs authorities of the MemberStates of any information obtained under this Agreementwhich could be of interest to the Community;
2. Notwithstanding the provisions of paragraph 1, the
provisions of this Agreement shall take precedence over theprovisions of any bilateral agreement on customs cooperation
and mutual administrative assistance which has been or may be
concluded between individual Member States and the People'sRepublic of China, insofar as the provisions of the latter areincompatible with those of this Agreement.
3. In respect of questions relating to the applicability of this
Agreement, the Contracting Parties shall consult each other toresolve the matter in the framework of the Joint Customs Coop-eration Committee set up under Article 21 of this Agreement.
TITLE III
CUSTOMS COOPERATION
Article 6
Scope of the cooperation
1. The Contracting Parties shall undertake to develop
customs cooperation. In particular, the Contracting Partiesshall seek to cooperate in:
(a) establishing and maintaining channels of communication
between their customs authorities to facilitate and securethe rapid exchange of information;
(b) facilitating effective coordination between their customs
authorities;
(c) any other administrative matters related to this Agreement
that may from time to time require their joint action.
2. The Contracting Parties undertake to develop trade facil-
itation actions in customs matters taking account of the workdone in this connection by international organisations.
3. Under this Agreement, customs cooperation shall cover all
matters relating to the application of customs legislation.
Article 7
Cooperation in customs procedures
The Contracting Parties affirm their commitment to the facil-
itation of the legitimate movement of goods and shall exchangeinformation and expertise on measures to improve customstechniques and procedures and on computerised systems witha view towards implementing that commitment in accordancewith the provisions of this Agreement.EN 23.12.2004 Official Journal of the European Union L 375/21
Article 8
Technical cooperation
The customs authorities of the Contracting Parties may provide
each other with technical assistance when mutually beneficial incustoms matters including:
(a) the exchange of personnel and experts, for the purposes of
promoting the mutual understanding of each other ’s
customs law, procedures and techniques;
(b) the training, particularly developing specialised skills of their
customs officials;
(c) the exchange of professional, scientific and technical data
relating to customs law and procedures.
(d) techniques and improved methods of processing passengers
and cargo.
(e) any other general administrative matters that may from time
to time require joint actions by their customs adminis-trations.
Article 9
Coordination in international organisations
The customs authorities shall seek to develop and strengthen
their cooperation on topics of common interest in order to seeka coordinated position when those topics are discussed in theframework of international organisations.
TITLE IV
MUTUAL ADMINISTRATIVE ASSISTANCE
Article 10
Scope
1. The customs authorities shall assist each other by
providing appropriate information which helps to ensure theproper application of customs legislation and the prevention,investigation and combating of any breach of customs legis-lation.
2. Assistance in customs matters, as provided for in this
Agreement, shall apply to any administrative authority of theContracting Parties which is competent for the application ofthis Agreement. It shall not prejudice the rules governingmutual assistance in criminal matters. Nor shall it cover infor-mation obtained under powers exercised at the request of ajudicial authority;
3. Assistance to recover duties, taxes or fines, or the arrest or
detention of any person or seizure or detention of property isnot covered by this Agreement.Article 11
Assistance on request
1. At the request of the applicant authority, the requested
authority shall provide it with all relevant information whichmay enable it to ensure that customs legislation is correctlyapplied, including information regarding activities detected orplanned which are or could be operations in breach ofcustoms legislation. In particular, upon request, the customsauthorities shall furnish to each other information regarding
activities that may result in offences within the territory of
the other Party, for example, incorrect customs declarationsand certificates of origin, invoices or other documents knownto be, or suspected of being, incorrect or falsified.
2. At the request of the applicant authority, the requested
authority shall inform it of:
(a) the authenticity of official documents produced in support
of a goods declaration made to the customs authority of therequesting Party;
(b) whether goods exported from the territory of one of the
Contracting Parties have been legally imported into theterritory of the other Contracting Party, specifying, whereappropriate, the customs procedure applied to the goods;
(c) whether goods imported into the territory of one of the
Contracting Parties have been legally exported from theterritory of the other Contracting Party, specifying, whereappropriate, the customs procedure applied to the goods.
3. At the request of the applicant authority, the requested
authority shall, within the framework of its laws, provisions orother legally binding instruments, take the necessary steps toensure special surveillance of:
(a) persons in respect of whom there are reasonable grounds
for believing that they are or have been involved inoperations in breach of customs legislation;
(b) places where stocks of goods have been or may be stored or
assembled in such a way that there are reasonable groundsfor believing that these goods are intended to be used inoperations in breach of customs legislation;
(c) goods that are or may be transported in such a way that
there are reasonable grounds for believing that they are
intended to be used in operations in breach of customs
legislation;
(d) means of transport that are or may be used in such a way
that there are reasonable grounds for believing that they areintended to be used in operations in breach of customslegislation.EN L 375/22 Official Journal of the European Union 23.12.2004
Article 12
Spontaneous assistance
The Contracting Parties shall assist each other, at their own
initiative and in accordance with their laws, provisions orother legally binding instruments if they consider that to benecessary for the correct application of customs legislation, inparticular in situations that could involve substantial damage tothe economy, public health, public security or similar vitalinterest of the other Contracting Party pertaining to:
(a) activities which are or appear to be operations in breach of
customs legislation and which may be of interest to theother Contracting Party;
(b) new means or methods employed in carrying out
operations in breach of customs legislation;
(c) goods known to be subject to operations in breach of
customs legislation;
(d) persons in respect of whom there are reasonable grounds
for believing that they are or have been involved inoperations in breach of customs legislation;
(e) means of transport in respect of which there are reasonable
grounds for believing that they have been, are, or may beused in operations in breach of customs legislation.
Article 13
Form and substance of requests for assistance
1. Requests pursuant to this Agreement shall be made in
writing. They shall be accompanied by the documents
necessary to enable compliance with the request. Whenrequired because of the urgency of the situation, oral requestsmay be accepted, but shall be confirmed promptly in writing.
2. Requests pursuant to paragraph 1 shall include the
following information:
(a) the formal endorsement of the applicant authority;(b) the action requested;(c) the object of and the reason for the request;
(d) the laws, regulations or other legally binding instruments
involved;
(e) indications as exact and comprehensive as possible on the
persons who are the target of the investigations;
(f) a summary of the relevant facts and of the enquiries already
carried out.
3. Requests shall be submitted in an official language of the
requested authority or in a language acceptable to thatauthority. This requirement shall not apply to any documents
that accompany the request under paragraph 1.
4. If a request does not meet the formal requirements set out
above, its correction or completion may be requested; precau-tionary measures may be ordered in the meantime.
Article 14
Execution of requests
1. In order to comply with a request for assistance, the
requested authority shall proceed, within the limits of itscompetence and available resources, as though it were actingon its own account or at the request of other authorities of thatsame Contracting Party, by supplying information alreadypossessed, by carrying out appropriate enquiries or byarranging for them to be carried out.
2. Requests for assistance shall be executed in accordance
with the laws, regulations or other legally binding instrumentsof the requested authority.
3. Duly authorised officials of a Contracting Party may, with
the agreement of the other Contracting Party and subject to theconditions laid down by the latter, be present at enquiriescarried out in the latter's jurisdiction into specific cases.
4. In the event that the request cannot be complied with, the
applicant authority shall be notified promptly of that fact, witha statement of the reasons and of any other information thatthe requested authority considers may be of assistance to theapplicant authority.
Article 15
Form in which information is to be communicated
1. The requested authority shall communicate results of
enquiries to the applicant authority in writing together withrelevant documents, certified copies or other items.
2. This information may be in computerised form which
shall where necessary be confirmed in writing immediatelyafterwards.
Article 16
Exceptions to the obligation to provide assistance
1. Assistance may be refused or may be subject to the satis-
faction of certain conditions or requirements in cases where aContracting Party is of the opinion that assistance under this
Agreement would:
(a) be likely to prejudice the sovereignty of a Member State of
the European Community which has been requested toprovide assistance under this Agreement or that of thePeople ’s Republic of China; orEN 23.12.2004 Official Journal of the European Union L 375/23
(b) be likely to prejudice public order, security or other essential
interests, in particular in the cases referred to under Article17(2) or
(c) violate an industrial, commercial or professional secret.
2. Assistance may be postponed by the requested authority
on the ground that it will interfere with an ongoing investi-gation, prosecution or proceeding. In such a case, the requestedauthority shall consult with the applicant authority to determineif assistance can be given subject to such terms or conditions asthe requested authority may require.
3. Where the applicant authority seeks assistance which it
would itself be unable to provide if so requested, it shalldraw attention to that fact in its request. It shall then be forthe requested authority to decide how to respond to such arequest.
4. For the cases referred to in paragraphs 1 and 2, the
decision of the requested authority and the reasons thereformust be communicated to the applicant authority withoutundue delay.
Article 17
Information exchange and confidentiality
1. Any information communicated in whatsoever form
pursuant to this Agreement shall be of a confidential or
restricted nature, depending on the rules applicable in each of
the Contracting Parties. It shall be covered by the obligation ofofficial secrecy and shall enjoy the protection extended tosimilar information under the relevant laws of the ContractingParty that received it and the corresponding provisions applyingto the Community authorities.
2. Personal data may be exchanged only where the
Contracting Party which may receive it undertakes to protectsuch data in at least an equivalent way to the one applicable to
that particular case in the Contracting Party that may supply it.
The Contracting Party that may supply the information shallnot stipulate any requirements that are more onerous thanthose applicable to it in its own jurisdiction. The ContractingParties shall communicate to each other information on theirapplicable rules, including where appropriate, legal provisions inforce in the Member States of the Community.
3. Nothing in this Agreement shall preclude the use of infor-
mation or documents obtained in accordance with this
Agreement as evidence in administrative proceedings subse-
quently instituted in respect of operations in breach ofcustoms legislation. Therefore, the Contracting Parties may, intheir records of evidence, reports and testimonies and in admin-istrative proceedings use as evidence information obtained anddocuments consulted in accordance with the provisions of thisAgreement. The competent authority which supplied that infor-mation or gave access to those documents shall be notified ofsuch use.4. Information obtained shall be used solely for the purposes
of this Agreement. Where one of the Contracting Parties wishesto use such information for other purposes, it shall obtain theprior written consent of the authority which provided the infor-mation. Such use shall then be subject to any restrictions laiddown by that authority.
5. Practical arrangements for the implementation of this
Article shall be determined by the Joint Customs CooperationCommittee established under Article 21.
Article 18
Experts and witnesses
An official of a requested authority may be authorised to
appear, within the limitations of authorisation granted, as an
expert or witness in administrative proceedings regarding the
matters covered by this Agreement in the territory of the otherContracting Party, and produce such objects, documents orcertified copies thereof, as may be needed for the proceedings.The request for appearance must indicate specifically beforewhich administrative authority the official will have to appear,on what matters and by virtue of what title or qualification theofficial will be questioned.
Article 19
Assistance expenses
1. The Contracting Parties shall waive all claims on each
other for the reimbursement of expenses incurred pursuant to
this Agreement, except, as appropriate, for expenses to experts
and witnesses, and those to interpreters and translators who arenot public service employees.
2. If expenses of a substantial or extraordinary nature are, or
will be, required to execute the request, the Contracting Partiesshall consult to determine the terms and conditions underwhich the request will be executed as well as the manner inwhich the costs shall be borne.
TITLE V
FINAL PROVISIONS
Article 20
Implementation
1. The implementation of this Agreement shall be entrusted
to the customs authorities of the Commission of the European
Communities and, where appropriate, of the Member States ofthe European Community on the one hand, and to the customsauthority of the People ’s Republic of China, on the other. They
shall decide on all practical measures and arrangementsnecessary for its application, taking into consideration therules in force in particular in the field of data protection.They may recommend to the competent bodies amendmentswhich they consider should be made to this Agreement.EN L 375/24 Official Journal of the European Union 23.12.2004
2. The Contracting Parties shall consult each other and
subsequently keep each other informed of the detailed rulesof implementation which are adopted in accordance with theprovisions of this Agreement.
Article 21
Joint Customs Cooperation Committee
1. A Joint Customs Cooperation Committee is hereby estab-
lished, consisting of representatives of the customs authoritiesof the European Community and the People ’s Republic of
China. It shall meet at a place, on a date and with an agenda,fixed by mutual agreement.
2. The Joint Customs Cooperation Committee shall, inter alia:
(a) see to the proper functioning of the Agreement;
(b) examine all issues arising from its application;
(c) take measures necessary for customs cooperation in
accordance with the objectives of this Agreement;
(d) exchange views on any points of common interest regarding
customs cooperation, including future measures and theresources for them;
(e) recommend solutions aimed at helping to attain the
objectives of this Agreement.
3. The Joint Customs Cooperation Committee shall adopt its
internal rules of procedure.4. The Joint Customs Cooperation Committee will where
appropriate, keep informed the Joint Commission set upunder Article 15 of the Agreement on Trade and EconomicCooperation between the European Economic Community andthe People ’s Republic of China of activities going on under this
Agreement.
Article 22
Entry into force and duration
1. This Agreement shall enter into force on the first day of
the month following the date on which the Contracting Partieshave notified each other of the completion of the proceduresnecessary for this purpose.
2. Each Contracting Party may terminate this Agreement by
giving notice to the other in writing. The termination shall takeeffect three months from the day of notification to the otherContracting Party. Requests for assistance which have beenreceived prior to the termination of the Agreement shall becompleted in accordance with the provisions of this Agreement.
Article 23
Authentic texts
This Agreement shall be drawn up in duplicate in the Czech,
Danish, Dutch, English, Estonian, Finnish, French, German,
Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish,
Portuguese, Slovak, Slovenian, Spanish, Swedish and Chineselanguages, each text being equally authentic.
In witness whereof, the undersigned, being duly authorised to do so, have signed this
Agreement.
Done at The Hague, 8 December 2004.EN 23.12.2004 Official Journal of the European Union L 375/25
Por la Comunidad Europea
Za Evropské spole čenství
For Det Europæiske Fællesskab
Für die Europäische Gemeinschaft
Euroopa Ühenduse nimelΓια την Ευρωπαϊκή Κοινότητα
For the European Community
Pour la Communauté européenne
Per la Comunità europea
Eiropas Kopienas v ārdā
Europos bendrijos vardu
az Európai Közösség részér ől
Voor de Europese Gemeenschap
W imieniu Wspólnoty Europejskiej
Pela Comunidade Europeia
Za Európske spolo čenstvo
za Evropsko skupnost
Euroopan yhteisön puolesta
På Europeiska gemenskapens vägnar
Por el Gobierno de la República Popular China
Za vládu Činské lidové republiky
For Folkerepublikken Kinas regering
Im Namen der Regierung der Volksrepublik China
Hiina Rahvavabariigi valitsuse nimel
Για την κυβέρνηση της Λαϊκής Δημοκρατίας της Κίνας
For the Government of the People's Republic of China
Pour le gouvernement de la République populaire de ChinePer il Governo della Repubblica popolare cinese
Kīnas Tautas Republikas v ārdā
Kinijos Liaudies Respublikos Vyriausyb ės vardu
A Kínai Népköztársaság kormánya részér ől
Voor de Regering van de Volksrepubliek China
W imieniu rz ądu Chi ńskiej Republiki Ludowej
Pelo Governo da República Popular da China
Za vládu Činskey ľudovej republiky
Za Vlado Ljudske republike Kitajske
Kiinan kansantasavallan hallituksen puolesta
På Folkrepubliken Kinas regerings vägnar
EN L 375/26 Official Journal of the European Union 23.12.2004