COMMISSION OF THE EUROPEAN COMMUNITIES 
Brussels, 05.03.1997 
COM(97) 81 final 
97/ 0084 (ACC) 
Proposal for a 
COUNCIL DECISION 
concerning the conclusion of the agreement in the form of an exchange 
of letters adding to the Free Trade Agreement between the European 
Economic Community and the Swiss Confederation an additional 
protocol on mutual administrative assistance in customs matters 
(presented by the Commission) 

EXPLANATORY MEMORANDUM 
In 1989 the Council authorized the Commission to negotiate an agreement on mutual 
administrative assistance in customs matters with the EFTA countries. Negotiations took 
place between the Community and all the EFTA countries, including Switzerland, 
culminating in Protocol 11 to the Agreement on the European Economic Area,1 to which 
Switzerland did not in the end accede. 
Therefore, in order establish the same type of administrative assistance with Switzerland 
as exists with other EFTA countries and with the Central and Eastern European countries, 
the Council authorized the Commission on 26 February 1996 to negotiate a similar 
protocol to the free trade agreement with Switzerland.2 
In accordance with these directives, the Commission, in liaison with the relevant Council 
working party, negotiated an agreement in the form of an exchange of letters concerning 
an additional protocol to the Free trade agreement. 
The exchange of letters was initialled on 22 January. 
The Community must now sign the exchange of letters and conclude the agreement. 
1 OJL 1,3.1.1994. 
2 OJL 300, 31.12.1972. 
/)A. 
COUNCIL DECISION 
of 1997 
concerning the conclusion of the agreement in the form of an exchange 
of letters adding to the Free Trade Agreement between the European 
Economic Community and the Swiss Confederation an additional 
protocol on mutual administrative assistance in customs matters 
(97/ /EC) 
THE COUNCIL OF THE EUROPEAN UNION, 
having regard to the Treaty establishing the European Community, and in particular 
Articles 113 and 228 (2) thereof, 
having regard to the Commission's proposal , 
whereas, for mutual administrative assistance in customs matters to take 'place 
between the two parties, it appears necessary to add an additional protocol to the Free 
Trade Agreement concluded between the European Economic Community and the 
Swiss Confederation , 
whereas negotiations to that effect have taken place with the Swiss Confederation and 
have led to an agreement in the form of an exchange of letters which it is in the 
Community's interest to approve; 
HAS DECIDED AS FOLLOWS : 
Article 1 
The agreement in the form of an exchange of letters between the European 
Community and the Swiss Confederation, adding to the Free Trade Agreement 
concluded between the European Economic Community and the Swiss Confederation 
an additional protocol on mutual administrative assistance in customs matters, is 
hereby approved in the name of the Community. 
If the agreement did not enter into force on 1 July 1997, it will temporabily be applied 
as from this date. 
The text of the agreement in the form of an exchange of letters is annexed to the 
present decision. 
Article 2 
The President of the Council is hereby authorized to designate the persons authorized 
to sign the agreement in the form of an exchange of letters, referred to in Article 1, 
with a view to committing the Community thereto. 
Article 3 
This decision shall be published in the Official Journal of the European Communities. 
Done at , on 1997 
1 JOC 
2 JO L 300 du 31.12.72, p. 189 
/I A 
For the Council 
The President 
A L 
AGREEMENT IN THE FORM OF AN EXCHANGE OF LETTERS 
BETWEEN THE EUROPEAN COMMUNITY 
AND THE SWISS CONFEDERATION 
ADDING TO THE FREE TRADE AGREEMENT 
AN ADDITIONAL PROTOCOL 
ON MUTUAL ADMINISTRATIVE ASSISTANCE 
IN CUSTOMS MATTERS 
1 I 
AGREEMENT 
in the form of an exchange of letters amending the Agreement of 22 July 1972 
between Switzerland and the European Economic Community 
A. Letter from the European Community 
Brussels, 
Sir, 
I have the honour to refer to the negotiations between representatives of the 
Community and the Swiss Confederation with a view to concluding an agreement on 
mutual assistance in customs matters adding an additional protocol to the agreement 
of 22 July 1972. 
This additional protocol, the text of which is annexed hereto, will form an integral part 
of the agreement of 22 July 1972 and will enter into force on the first day of the 
second month following the date of notification that the necessary procedures have 
been accomplished. Pending the accomplishment of those procedures, it shall apply 
provisionally from 1 July 1997. 
I should be grateful if you would confirm the agreement of the Swiss Confederation to 
the aforegoing. 
Yours faithfully, 
For the Council of the European Union 
B. Letter from the Swiss Confederation 
Berne, 
Sir, 
I have the honour to acknowledge receipt of your letter of today's date with the 
following content. 
"I have the honour to refer to the negotiations between representatives of the 
Community and the Swiss Confederation with a view to concluding an agreement on 
mutual assistance in customs matters adding an additional protocol to the Agreement 
of 22 July 1972. 
This additional protocol, the text of which is annexed hereto, will form an integral part 
of the agreement of 22 July 1972 and will enter into force on the first day of the 
second month following the date of notification that the necessary procedures have 
been accomplished. Pending the accomplishment of those procedures, it shall apply 
provisionally from 1 July 1997. 
I should be grateful if you would confirm the agreement of the Swiss Confederation to 
the aforegoing." 
I can confirm the agreement of the Swiss Confederation to the aforegoing. 
Yours faithfully, 
For the Swiss Confederation 
ADDITIONAL PROTOCOL ON MUTUAL ADMINISTRATIVE 
ASSISTANCE IN CUSTOMS MATTERS 
ARTICLE 1 
Definitions 
For the purposes of this Protocol : 
a) "Goods" shall mean all goods falling within Chapters 1 to 97 of the 
Harmonized System, irrespective of the scope of the agreement of 22 July 
1972; 
b) "customs legislation" shall mean any legal or regulatory provision adopted 
by the European Community or by Switzerland governing the import, 
export, and transit of goods and their placing under any customs 
procedure, including measures of prohibition, restriction and control; 
c) "applicant authority", shall mean a competent administrative authority 
which has been appointed by a Contracting Party for this purpose and 
which makes a request for assistance in customs matters; 
d) "requested authority", shall mean a competent administrative authority 
which has been appointed by a Contracting Party for this purpose and 
which receives a request for assistance in customs matters; 
e) "breaches of customs legislation" shall mean any violation or attempted 
violation of that legislation. 
ARTICLE 2 
Scope 
1. The Contracting Parties shall assist each other, in the areas within their 
jurisdiction, in the manner and under the conditions laid down in this Protocol, in 
ensuring that the customs legislation is correctly applied, in particular by the 
prevention, detection and investigation of operations in breach of that legislation. 
2. Assistance in customs matters, as provided for in this Protocol, shall apply to any 
administrative authority of the Contracting Parties which is competent for the 
application of this Protocol. It shall not prejudice the rules governing mutual 
assistance in criminal matters. Nor shall it cover information obtained under 
powers exercised at the request of the judicial authorities, except where 
communication of such information has the prior authorization of the said 
authorities. 
ARTICLE 3 
Assistance on request 
1. At the request of the applicant authority, the requested authority shall furnish it 
with all relevant information which may enable it to ensure compliance with 
customs legislation, including information regarding operations noted or planned 
which are or might be in breach of such legislation. 
2. At the request of the applicant authority, the requested authority shall inform it 
whether goods exported from the territory of one of the Contracting Parties have 
been properly imported into the territory of the other Party, specifying, where 
appropriate, 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, take the necessary steps to ensure special surveillance of: 
(a) natural or legal persons of whom there are reasonable grounds for 
believing that they are or have been in breach of customs legislation; 
(b) places where goods are stored in a way that gives grounds for suspecting 
that they are intended to supply operations in breach of customs 
legislation; 
(c) movements of goods notified as possibly giving rise to breaches of 
customs legislation; 
5 
(d) means of transport for which there are reasonable grounds for believing 
that they have been, are or may be used in operations in breach of 
customs legislation. 
ARTICLE 4 
Spontaneous assistance 
The Contracting Parties shall provide each other, at their own initiative and in 
accordance with their laws, rules and other legal instruments, with assistance if they 
consider that to be necessary for the correct application of customs legislation, 
particularly when they obtain information pertaining to : 
operations which are or appear to be in breach of such legislation and 
which may be of interest to the other Contracting Party; 
new means or methods employed in carrying out such operations; 
goods known to be subject to breaches of customs legislation; 
natural or legal persons of whom there are reasonable grounds for 
believing that they are or have been in breach of customs legislation; 
means of transport for which there are reasonable grounds for believing 
that they have been, are or may be used in operations in breach of 
customs legislation. 
ARTICLE 5 
Delivery/Notification 
At the request of the applicant authority, the requested authority shall, in accordance 
with its legislation, take all necessary measures in order : 
- to deliver all documents, 
- to notify all decisions, as well as any other relevant act which forms part 
of the procedure in question 
falling within the scope of this Protocol to an addressee, residing or established in its 
territory. In such a case, Article 6 (3) shall apply to the request for delivery or 
notification. 
ARTICLE 6 
Form and substance of requests for assistance 
1. Requests pursuant to this Protocol shall be made in writing. They shall be 
accompanied by the documents necessary to enable compliance with the request. 
When required because of the urgency of the situation, oral requests may be 
accepted, but must be confirmed in writing immediately. 
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 elements involved; 
(e) indications as exact and comprehensive as possible on the natural or 
legal persons who are the target of the investigations; 
(f) a summary of the relevant facts and of the enquiries already carried 
out, except in cases provided for in Article 5. 
3. Requests shall be submitted in an official language of the requested authority or 
in a language acceptable to that authority. 
4. If a request does not meet the formal requirements, its correction or completion 
may be requested; precautionary measures may, however, be ordered. 
AR TICLE 7 
Execution of requests 
In order to comply with a request for assistance, the requested authority shall 
proceed, within the limits of its competence and available resources, as though it 
were acting on its own account or at the request of other authorities of that same 
Contracting Party, by supplying information already possessed, by carrying out 
appropriate enquiries or by arranging for them to be carried out. This provision 
shall also apply to the administrative department to which the request has been 
addressed by the requested authority when the latter cannot act on its own. 
Requests for assistance shall be executed in accordance with the laws, rules and 
other legal instruments of the requested Contracting Party. 
Duly authorized officials of a Contracting Party may, with the agreement of the 
other Contracting Party involved and subject to the conditions laid down by the 
latter, obtain from the offices of the requested authority or other authority for 
which the requested authority is responsible, information relating to operations 
which are or may be in breach of customs legislation which the applicant 
authority needs, in the context of an enquiry, for the purposes of this Protocol. 
Officials of a Contracting Party may, with the agreement of the other Contracting 
Party involved and subject to the conditions laid down by the latter, be present at 
enquiries carried out in the latter's territory. 
ARTICLE 8 
Form in which information is to be communicated 
1. The requested authority shall communicate results of enquiries to the applicant 
authority in the form of documents, certified copies of documents, reports and the 
like. 
2. The documents provided for in paragraph 1 may be replaced by computerized 
information produced in any form for the same purpose. 
ARTICLE 9 
Exceptions to the obligation to provide assistance 
1. The Contracting Parties may refuse to give assistance as provided for in this 
Protocol, where to do so would: 
(a) be likely to prejudice the sovereignty of Switzerland or that of a Member 
State of the Community which has been asked to provide assistance 
under this Protocol; or 
(b) be likely to prejudice public policy, security or other essential interests, 
in particular in the cases referred to under Article 10 (2); or 
(c) involve currency or tax regulations other than customs legislation; or 
(d) violate an industrial, commercial or professional secret. 
2. Where the applicant authority requests assistance which it would itself be unable 
to provide if so asked, it shall draw attention to that fact in its request. It shall 
then be for the requested authority to decide how to respond to such a request. 
3. If assistance is refused, the decision and the reasons therefor must be notified to 
the applicant authority without delay. 
ARTICLE 10 
Confidentiality 
Any information communicated in whatsoever form pursuant to this Protocol 
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 of official 
secrecy and shall enjoy the protection extended to similar information under the 
relevant laws of the Contracting Party which received it and the corresponding 
provisions applying to the Community institutions. 
Personal data, that is all information relating to an identified or identifiable 
individual, may be exchanged only where the receiving Contracting Party 
undertakes to protect such data in at least an equivalent way to the one applicable 
to that particular case in the supplying Contracting Party. 
ARTICLE 11 
Use of information 
1. Information obtained shall be used solely for the purposes of this Protocol. 
Where one of the Contracting Parties requests the use of such information for 
other purposes, it shall ask for the prior written consent of the authority which 
furnished the information. Such use shall then be subject to any restrictions laid 
down by that authority. 
2. Paragraph 1 shall not impede the use of infonnation in any judicial or 
administrative proceedings instituted for failure to comply with customs 
legislation. The competent authority which supplied that information shall be 
notified of such use without delay. 
j. The Contracting Parties may, in their records of evidence, reports and testimonies 
and in proceedings and charges brought before the courts, use as evidence 
information obtained and documents consulted in accordance with the provisions 
of this Protocol. 
AK1 ICLr!/ 12. 
Experts and witnesses 
An official of a requested authority may be authorized to appear, within the 
limitations of the authorization granted, as an expert or witness in judicial or 
administrative proceedings regarding the matters covered by this Protocol in the 
jurisdiction of the other Contracting Party, and produce such objects, documents or 
authenticated copies thereof, as may be needed for the proceedings. The request for an 
appearance must indicate specifically on what matters and by virtue of what title or 
qualification the official will be questioned. 
ARTICLE 13 
Assistance expenses 
The Contracting Parties shall waive all claims on each other for the reimbursement of 
expenses incurred pursuant to this Protocol, except, as appropriate, for expenses to 
experts and witnesses and to interpreters and translators who are not public service 
employees. 
ARTICLE 14 
Application 
1. The application of this Protocol shall be entrusted to the customs authorities of 
Switzerland on the one hand and the competent services of the Commission of the 
European Communities and, where appropriate, the customs authorities of the 
Member States of the European Community on the other. They shall decide on all 
practical measures and arrangements necessary for its application, taking into 
consideration the rules in force in the field of data protection. 
2. The Contracting Parties shall consult each other and subsequently keep each other 
informed of the detailed rules of implementation which are adopted in accordance 
with the provisions of this Protocol. In particular, they shall exchange the list of 
competent authorities authorized to intervene under this Protocol. 
Joint declaration 
The parties agree that a working group should be created by the Joint Committee to 
assist it in the management of the protocol on mutual administrative assistance. 
12 
FINANCIAL STATEMENT 
concerning the signing and conclusion of an agreement 
in the form of an exchange of letters between the European Community and the 
Swiss Confederation on an additional protocol to the free trade agreement 
concerning mutual administrative assistance in customs matters 
1. Title of operation: 
Signing and conclusion of an agreement in the form of an exchange of letters 
between the European Community and the Swiss Confederation on an additional 
protocol to the free trade agreement concerning mutual administrative assistance 
in customs matters 
2. Budget headings involved: 
No specific budget heading 
3. Legal basis: 
Articles 113 and 228 of the EC Treaty 
4. Description of operation: 
4.1 General objective 
To provide a legal basis for the exchange of information and requests for 
assistance between the Community and Switzerland with a view to combating 
customs fraud. 
4.2 Duration and arrangements for renewal 
Unlimited (same as the free trade agreement to which it will be annexed). 
5. Classification of expenditure or revenue: 
No expenditure or revenue foreseen 
6. Type of expenditure: 
None 
7. Financial impact: 
The agreement will make it easier to obtain assistance from Switzerland in finding 
the information and evidence needed by Member State customs authorities for, 
inter alia, the post-clearance recovery of customs duties evaded by frauds within 
the Community. No direct expenditure or revenue is involved. 
8. Fraud prevention measures: 
Not applicable: no expenditure involved. 
9. Cost-benefit analysis: 
9.1. Specific and quantified objectives: target population 
The usefulness of the provisions will depend on what future customs 
investigations throw up by way of cases where the information is available in 
Switzerland (where Switzerland is, for instance, the place of establishment of the 
person organizing the transactions in question, the place of payment, the place of 
transit to and from the Community or the actual place where goods are stored). 
/>3 
Better international cooperation makes fraud and breaches of the rules more 
difficult to perpetrate and easier to detect and prosecute, and improves the 
implementation of customs legislation and thus all the financial and economic 
measures stemming from it that are designed to protect the Community's budget, 
economy and market. 
9.2. Grounds for the operation 
This is part of a strategy embarked upon by the Community in 1989 with all 
neighbouring countries and its main trading partners. 
9.3. Monitoring and evaluation of the operation 
It is up to the Member States to make proper use of the provisions, with the 
possibility of Community coordination under the relevant Community provisions 
on mutual administrative assistance (Regulation No 1468/81). Any bilateral 
problems can be dealt with by an ad hoc working party. 
10. Administrative expenditure (Section III. Part A. of the Budget): 
10.1 Impact of the number of posts: 
The cost of the human resources required by this measure will be met from 
existing resources. 
10.2 Increase in other administrative expenditure as a result of the operation 
The operating costs of this measure will be met from existing resources. 
Ak 
FOR AGREEMENT GIVEN BY: 
DG or department Name of official Date Telephone 
l.SG 
2.DGI 
3. DG VI 
4. DG IX 
5. DG XV 
6. DG XIX 
7.DGXX 
For opinion 
(mandatory) 
Legal Service 



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COM(97) 81 final 
DOCUMENTS 
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