ANNEX

RECOMMENDATION No 1/94 OF THE EC-EFTA JOINT COMMITTEE ON COMMON TRANSIT of 8 December 1994 for the amendment of the Convention of 20 May 1987 on a common transit procedure

THE JOINT COMMITTEE,

Having regard to the Convention of 20 May 1987 on a common transit procedure, and in particular Article 15 (2) (a) thereof,

Whereas the Convention of the 20 May 1987 contains the common transit rules on trade between the Community and the EFTA countries and between those countries themselves;

Whereas it is appropriate to modify the Convention to allow the recovery of charges by the means of mutual assistance between the Contracting Parties,

HEREBY RECOMMENDS that the Contracting Parties to the Convention:

- amend it, with effect from 1 July 1996 along the lines set out in the text annexed to this recommendation,

- inform each other, by means of an Exchange of Letters, of their acceptance of this recommendation.

Done at Brussels, 8 December 1994.

For the Joint Committee

The Chairman

>REFERENCE TO A FILM>

Annex to the Annex

AMENDMENT TO THE CONVENTION between the European Economic Community, the Republic of Austria, the Republic of Finland, the Republic of Iceland, the Kingdom of Norway, the Kingdom of Sweden and the Swiss Confederation on a common transit procedure

The Convention between the European Economic Community, the Republic of Austria, the Republic of Finland, the Republic of Iceland, the Kingdom of Norway, the Kingdom of Sweden and the Swiss Confederation is hereby amended as follows:

A. After Article 13 the following text shall be inserted:

'Recovery

Article 13 (a)

The competent authorities of the countries concerned shall, in accordance with the provisions of Appendix IV, render each other assistance for the recovery of claims, if these claims have arisen in connection with a T1 or T2 operation.`

B. The following Appendix IV shall be added to the Convention:

'APPENDIX IV

MUTUAL ASSISTANCE FOR THE RECOVERY OF CLAIMS

Aim

Article 1

This Appendix lays down the rules of ensuring recovery in each country of the claims referred to in Article 3 which arise in another country. Implementing provisions are set out in Annex I to the Appendix.

Definitions

Article 2

In this Appendix:

- "applicant authority" means the competent authority of a country which makes a request for assistance concerning a claim referred to in Article 3,

- "requested authority" means the competent authority of a country to which a request for assistance is made.

Scope

Article 3

This Appendix shall apply to:

(a) all claims relating to Article 11, paragraph 1 (c) of Appendix I, which are due in connection with a T1 or T2 operation which began after the entry into force of this Appendix;

(b) interest and costs incidental to the recovery of the claims referred to above.

Communication and use of information

Article 4

1. At the request of the applicant authority, the requested authority shall provide any information which would be useful to the applicant authority in the recovery of its claim.

In order to obtain this information, the requested authority shall make use of the powers provided under the laws, regulations or administrative provisions applying to the recovery of similar claims arising in the country where that authority is situated.

2. The request for information shall indicate the name and address of the person to whom the information to be provided relates and the nature and amount of the claim in respect of which the request is made.

3. The requested authority shall not be obliged to supply information:

(a) which it would not be able to obtain for the purpose of recovering similar claims arising in the country in which it is situated;

(b) which would disclose any commercial, industrial or professional secrets; or

(c) the disclosure of which would be liable to prejudice the security of or be contrary to the public policy of the country.

4. The requested authority shall inform the applicant authority of the grounds for refusing a request for information.

5. Information obtained in accordance with this Article shall be used solely for the purposes of this Convention and shall be accorded the same protection by a receiving country as is afforded to information of like nature under the national law of that country. Such information may be used for other purposes only with the written consent of the competent authority which furnished it and subject to any restrictions laid down by that authority.

6. The request for information shall be established on the form corresponding to the specimen contained in Annex II to this Appendix.

Notification

Article 5

1. The requested authority shall, at the request of the applicant authority, and in accordance with the rules of law in force for the notification of similar instruments or decisions in the country in which the requested authority is situated, notify to the addressee all instruments and decisions, including those of a judicial nature, which emanate from the country in which the applicant authority is situated and which relate to a claim and/or to its recovery.

2. The request for notification shall indicate the name and address of the addressee concerned, the nature and the subject of the instrument or decision to be notified, if necessary the name and address of the debtor and the claim to which the instrument or decision relates, and any other useful information.

3. The requested authority shall promptly inform the applicant authority of the action taken on its request for notification and, more especially, of the date on which the instrument or decision was forwarded to the addressee.

4. The request for notification shall be established on the form corresponding to the specimen contained in Annex III to this Appendix.

Execution of requests

Article 6

1. At the request of the applicant authority, the requested authority shall recover claims which are the subject of an instrument permitting their enforcement in accordance with the laws, regulations or administrative provisions applying to the recovery of similar claims arising in the country in which the requested authority is situated.

2. For this purpose any claim in respect of which a request for recovery has been made shall be treated as a claim of the country in which the requested authority is situated, except where Article 12 applies.

Article 7

1. The request for recovery of a claim which the applicant authority addresses to the requested authority must be accompanied by an official or certified copy of the instrument permitting its enforcement, issued in the country in which the applicant authority is situated and, if appropriate, by the original or a certified copy of other documents necessary for recovery.

2. The applicant authority may not make a request for recovery unless:

(a) the claim and/or the instrument permitting its enforcement are not contested in the country in which it is situated;

(b) it has, in the country in which it is situated, applied the recovery procedure available to it on the basis of the instrument referred to in paragraph 1, and the measures taken have not resulted in the payment in full of the claim;

(c) the claim exceeds ECU 1 500. The equivalent in national currencies of the amount expressed in ecus shall be calculated in accordance with the provisions of Article 51 of Appendix II.

3. The request for recovery shall indicate the name and address of the person concerned, the nature of the claim, the amount of the principal and the interest and costs due, as well as any other relevant information.

4. The request for recovery shall contain in addition a statement by the applicant authority indicating the date from which enforcement is possible under the laws in force in the country in which it is situated and confirming that the conditions set out in paragraph 2 are fulfilled.

5. As soon as any relevant information relating to the matter which gave rise to the request for recovery comes to the knowledge of the applicant authority it shall forward it to the requested authority.

Article 8

The instrument permitting enforcement of the claim shall, where appropriate, and in accordance with the provisions in force in the country in which the requested authority is situated, be accepted, recognized, supplemented or replaced by an instrument authorizing enforcement in the territory of that country.

Such acceptance, recognition, supplementing or replacement must take place as soon as possible following the date of receipt of the request for recovery. They may not be refused if the instrument permitting enforcement in the country in which the applicant authority is situated is properly drawn up.

If any of these formalities should give rise to an examination or contestation in connection with the claim and/or the instrument permitting enforcement issued by the applicant authority, Article 12 shall apply.

Article 9

1. Claims shall be recovered in the currency of the country in which the requested authority is situated.

2. The requested authority may, where the laws, regulations or administrative provisions in force in the country in which it is situated so permit, and after consultations with the applicant authority, allow the debtor time to pay or authorize payment by instalment. Any interest charged by the requested authority in respect of such extra time to pay shall be remitted to the applicant authority.

Any other interest charged for late payment under the laws, regulations and administrative provisions in force in the country in which the requested authority is situated shall also be remitted to the applicant authority.

Article 10

The claims to be recovered shall not be given preferential treatment in the country in which the requested authority is situated.

Article 11

The requested authority shall inform the applicant authority immediately of the action it has taken on the request for recovery.

Contested requests

Article 12

1. If, in the course of the recovery procedure, the claim and/or the instrument permitting its enforcement issued in the country in which the applicant authority is situated are contested by an interested party, the action shall be brought by the latter before the competent body of the country in which the applicant authority is situated, in accordance with the laws in force there. This action must be notified by the applicant authority to the requested authority. The party concerned may also notify the requested authority of the action.

2. As soon as the requested authority has received the notification referred to in paragraph 1 either from the applicant authority or from the interested party, it shall suspend the enforcement procedure pending the decision of the body competent in the matter. Should the requested authority deem it necessary, and without prejudice to Article 13, that authority may take precautionary measures to guarantee recovery insofar as the laws or regulations in force in the country in which it is situated allow such action for similar claims.

3. Where the enforcement measures taken in the country in which the requested authority is situated are contested, the action shall be brought before the competent body of that country in accordance with its laws and regulations.

4. Where the competent body before which the action has been brought in accordance with paragraph 1 is a judicial or administrative tribunal, the decision of that tribunal, insofar as it is favourable to the applicant authority and permits recovery of the claim in the country in which the applicant authority is situated shall constitute the "instrument permitting enforcement" within the meaning of Articles 6, 7 and 8 and the recovery of the claim shall proceed on the basis of that decision.

Precautionary measures

Article 13

1. On a reasoned request by the applicant authority, the requested authority shall take precautionary measures to ensure recovery of a claim insofar as the laws or regulations in force in the country in which it is situated so permit.

2. In order to give effect to the provisions of paragraph 1, Article 6, Article 7 (1), (3) and (5), Articles 8, 11, 12 and 14 shall apply mutatis mutandis.

3. The request for precautionary measures shall be established on the form corresponding to the specimen contained in Annex IV to this Appendix.

Exceptions

Article 14

The requested authority shall not be obliged:

(a) to grant the assistance provided for in Articles 6 to 13 if recovery of the claim would, because of the situation of the debtor, create serious economic or social difficulties in the country in which that authority is situated;

(b) to accept a recovery of a claim if it maintains that it could infringe the public policy or other essential interests of the country in which that authority is situated.

(c) to undertake recovery of a claim if the applicant authority has not exhausted the means of recovery in the territory of the country in which it is situated.

The requested authority shall inform the applicant authority of the grounds for refusing a request for assistance.

Article 15

1. Questions concerning periods of limitation shall be governed solely by the laws in force in the country in which the applicant authority is situated.

2. Steps taken in the recovery of claims by the requested authority in pursuance of a request for assistance which, if they had been carried out by the applicant authority, would have had the effect of suspending or interrupting the period of limitation according to the laws in force in the country in which the applicant authority is situated, shall be deemed to have been taken in the latter country, insofar as that effect is concerned.

Confidentiality

Article 16

Documents and information sent to the requested authority pursuant to this Appendix may only be communicated by the latter to:

(a) the person mentioned in the request for assistance;

(b) those persons and authorities responsible for the recovery of the claims, and solely for that purpose;

(c) the judicial authorities dealing with matters concerning the recovery of the claims.

Languages

Article 17

Requests for assistance and relevant documents shall be accompanied by a translation in the official language, or one of the official languages of the country in which the requested authority is situated or in a language acceptable to such authority.

Assistance expenses

Article 18

The countries concerned shall renounce all claims upon each other for the reimbursement of costs resulting from mutual assistance which they grant each other pursuant to this Appendix.

However, the country in which the applicant authority is situated shall remain liable to the country in which the requested authority is situated for costs incurred as a result of actions held to be unfounded, as far as either the substance of the claim or the validity of the instrument issued by the applicant authority are concerned.

Authorized authorities

Article 19

The countries shall provide each other with a list of authorities authorized to make or receive requests for assistance, as well as any subsequent relevant changes.

Articles 20 to 22

(This Appendix contains no Articles 20 to 22.)

Complementarity

Article 23

The provisions of this Appendix shall not prevent a greater measure of mutual assistance being afforded either now or in the future by particular countries under any agreements or arrangements, including those for the notification of legal or extra-legal acts.

Articles 24 to 26

(This Appendix contains no Articles 24 to 26.)

ANNEX I TO APPENDIX IV

IMPLEMENTING PROVISIONS

TITLE I

Scope

Article 1

1. This Annex lays down detailed rules for implementing Appendix IV.

2. This Annex also lays down detailed rules on conversion and transfer of sums recovered.

TITLE II

Request for information

Article 2

1. The request for information referred to in Article 4 of Appendix IV shall be made out in writing in accordance with the specimen in Annex II. The said request shall bear the official stamp of the applicant authority and shall be signed by an official thereof duly authorized to make such a request.

2. The applicant authority shall, where appropriate, indicate in its request for information the name of any other requested authority to which a similar request for information has been addressed.

Article 3

The request for information may be related to

(a) the debtor; or

(b) any person liable for settlement of the claim under the law in force in the country where the applicant authority is situated.

Where the applicant authority knows that a third party holds assets belonging to one of the persons mentioned in the foregoing paragraph, the request may also relate to that third party.

Article 4

The requested authority shall acknowledge receipt of the request for information in writing (e.g. by telex or fax) as soon as possible and in any event within seven days of such receipt.

Article 5

1. The requested authority shall transmit each item of requested information to the applicant authority as and when it is obtained.

2. Where all or part of the requested information cannot be obtained within a reasonable time, having regard to the particular case, the requested authority shall so inform the applicant authority, indicating the reasons therefor.

In any event, at the end of six months from the date of acknowledgement of receipt of the request, the requested authority shall inform the applicant authority of the outcome of the investigations which is has conducted in order to obtain the information requested.

In the light of the information received from the requested authority, the applicant authority may request the latter to continue its investigations. This request shall be made in writing (e.g. by telex or fax) within two months from the receipt of the notification of the outcome of the investigations carried out by the requested authority, and shall be treated by the requested authority in accordance with the provisions applying to the initial request.

Article 6

When the requested authority decides not to comply with the request for information addressed to it, it shall notify the applicant authority in writing of the reasons for the refusal, specifying the particular provisions of Article 4 of Appendix IV which it invokes. This notification shall be made by the requested authority as soon as it has taken its decisions and in any event within six months from the date of the acknowledgement of the receipt of the request.

Article 7

The applicant authority may at any time withdraw the request for information which it has sent to the requested authority. The decision to withdraw shall be transmitted to the requested authority in writing (e.g. by telex or fax).

TITLE III

Request for notification

Article 8

The request for notification referred to in Article 5 of Appendix IV shall be made out in writing in duplicate in accordance with the specimen in Annex III. The said request shall bear the official stamp of the applicant authority and shall be signed by an official thereof duly authorized to make such a request.

Two copies of the instrument (or decision), notification of which is requested, shall be attached to the request referred to in the foregoing paragraph.

Article 9

The request for notification may relate to any natural or legal person who, in accordance with the law in force in the country where the applicant authority is situated, shall be informed of any instrument or decision which concerns him.

Article 10

1. Immediately upon receipt of the request for notification, the requested authority shall take the necessary measures to effect that notification in accordance with the law in force in the country in which it is situated.

2. The requested authority shall inform the applicant authority of the date of notification as soon as this has been done, by returning to it one of the copies of its request with the certificate on the reverse side duly completed.

TITLE IV

Request for recovery and/or for the taking of precautionary measures

Article 11

1. The request for recovery and/or for the taking of precautionary measures referred to in Articles 6 and 13 of Appendix IV, shall be made out in writing in accordance with the specimen in Annex IV. The request, which shall include a declaration that the conditions laid down in Appendix IV for initiating the mutual assistance procedure in the particular case have been fulfilled, shall bear the official stamp of the applicant authority and shall be signed by an official thereof duly authorized to make such a request.

2. The instrument permitting enforcement which shall accompany the request for recovery and/or for the taking of precautionary measures may be issued in respect of several claims where it concerns one and the same person.

For the purposes of Articles 12 to 19, all claims which are covered by the same instrument permitting enforcement shall be deemed to constitute a single claim.

Article 12

1. The request for recovery and/or for the taking of precautionary measures may relate to

(a) the debtor; or

(b) any person liable for settlement of the claim under the law in force in the country in which the applicant authority is situated.

2. Where appropriate, the applicant authority shall inform the requested authority of any assets of the persons referred to in paragraph 1 which to its knowledge are held by a third party.

Article 13

1. The applicant authority shall state the amounts of the claim to be recovered both in the currency of the country in which it is situated and also in the currency of the country in which the requested authority is situated.

2. The rate of exchange to be used for the purposes of paragraph 1 shall be the latest selling rate recorded on the most representative exchange market or markets of the country in which the applicant authority is situated, on the date when the request for recovery is signed.

Article 14

The requested authority shall acknowledge receipt of the request for recovery and/or for the taking of precautionary measures in writing (e.g. by telex or fax) as soon as possible and in any event within seven days of its receipt.

Article 15

Where, within a reasonable time having regard to the particular case, all or part of the claim cannot be recovered or precautionary measures cannot be taken, the requested authority shall so inform the applicant authority, indicating the reasons therefor.

In any event, at the end of one year from the date of acknowledgement of the receipt of the request, the requested authority shall inform the applicant authority of the outcome of the procedure which it has undertaken for recovery and/or for the taking of precautionary measures.

In the light of the information received from the requested authority, the applicant authority may request the latter to continue the procedure which it has undertaken for recovery and/or for the taking of precautionary measures. This request shall be made in writing (e.g. by telex or fax) within two months from the receipt of the notification of the outcome of the procedure undertaken by the requested authority for recovery and/or for the taking of precautionary measures, and shall be treated by the requested authority in accordance with the provisions applying to the initial request.

Article 16

Any action contesting the claim or the instrument permitting its enforcement which is taken in the country in which the applicant authority is situated shall be notified to the requested authority in writing (e.g. by telex or fax) by the applicant authority immediately after it has been informed of such action.

Article 17

1. If the request for recovery and/or for the taking of precautionary measures becomes nugatory as a result of payment of the claim or of its cancellation or for any other reason, the applicant authority shall immediately inform the requested authority in writing (e.g. by telex or fax) so that the latter may stop any action which it has undertaken.

2. Where the amount of the claim which is the subject of the request for recovery and/or for the taking of precautionary measures is amended for any reason, the applicant authority shall immediately inform the requested authority in writing (e.g. by telex or fax).

If the amendment consists of a reduction in the amount of the claim, the requested authority shall continue the action which it has undertaken with a view to recovery and/or to the taking of precautionary measures, but that action shall be limited to the amount still outstanding if, at the time the requested authority is informed of the reduction of the amount of the claim, the original amount has already been recovered by it but the transfer procedure referred to in Article 18 has not yet been initiated, the requested authority shall repay the amount overpaid to the person entitled thereto.

If the amendment consists of an increase in the amount of the claim, the applicant authority shall as soon as possible address to the requested authority an additional request for recovery and/or for the taking of precautionary measures. This additional request shall, as far as possible, be dealt with by the requested authority at the same time as the original request of the applicant authority. Where, in view of the state of progress of the existing procedure, the joinder of the additional request and the original request is not possible, the requested authority shall only be required to comply with the additional request if it concerns an amount not less than that referred to in Article 7 of Appendix IV.

3. To convert the amended amount of the claim into the currency of the country in which the requested authority is situated, the applicant authority shall use the exchange rate used in its original request.

Article 18

Any sum recovered by the requested authority, including, where applicable, the interest referred to in Article 9 (2) of Appendix IV, shall be the subject of a transfer to the applicant authority in the currency of the country in which the requested authority is situated. This transfer shall take place within one month of the date on which the recovery was effected.

Article 19

Irrespective of any amounts collected by the requested authority by way of interest referred to in Article 9 (2) of Appendix IV, the claim shall be deemed to have been recovered in proportion to the recovery of the amount expressed in the national currency of the country in which the requested authority is situated, on the basis of the exchange rate referred to in Article 13 (2).

TITLE V

General and final provisions

Article 20

1. A request for assistance may be made by the applicant authority in respect of either a single claim or several claims where these are recoverable from one and the same person.

2. The information provided for in Annexes II, III and IV may be drawn up on plain paper by means of data processing systems provided that the resultant printouts comply with the format of the forms contained in the Annexes.

Article 21

Information and other particulars communicated by the requested authority to the applicant authority shall be made out in the official language or one of the official languages of the country in which the requested authority is situated.

ANNEX II TO APPENDIX IV

>START OF GRAPHIC>

CONVENTION OF 20 MAY 1987 ON A COMMON TRANSIT PROCEDURE

(Article 4 of Appendix IV)

>END OF GRAPHIC>

ANNEX III TO APPENDIX IV

>START OF GRAPHIC>

CONVENTION OF 20 MAY 1987 ON A COMMON TRANSIT PROCEDURE

(Article 5 of Appendix IV)

>END OF GRAPHIC>

CERTIFICATE

The undersigned hereby certifies:

-that the instrument/decision (*) attached to the request overleaf has been notified to the addressee referred to in the said request dated The notification was made in the following manner (1) (*):

-that the instrument/decision (*) attached to the request overleaf was not able to be notified to the addressee referred to in the said request for the following reasons (*):

.................................................

(Date)

.................................................

(Signature)

(Official stamp)

(*)Delete as appropriate.

(1)Indicate exactly whether the notification was made to the addressee in person or by another procedure.

ANNEX IV TO APPENDIX IV

>START OF GRAPHIC>

CONVENTION OF 20 MAY 1987 ON A COMMON TRANSIT PROCEDURE

(Articles 6 to 13 of Appendix IV)

>END OF GRAPHIC>