EXPLANATORY REPORT ON THE CONVENTION DRAWN UP ON THE BASIS OF ARTICLE K.3 OF THE TREATY ON EUROPEAN UNION, ON MUTUAL ASSISTANCE AND COOPERATION BETWEEN CUSTOMS ADMINISTRATIONS (Text approved by the Council on 28 May 1998) (98/C 189/01)

1. INTRODUCTION

(i) The Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on mutual assistance and cooperation between customs administrations ('the Convention`) (OJ C 24, 23.1.1998, p. 1), is intended to improve cooperation between the customs administrations of the EU Member States in preventing, investigating and prosecuting contraventions of customs laws. The Convention was drawn up by the Council of the European Union in Brussels on 18 December 1997 and signed on the same day. It builds on an earlier Convention for customs cooperation - the Convention of the Member States of the European Economic Community on the provision of mutual assistance by their customs authorities - signed in Rome on 7 September 1967 ('the 1967 Naples Convention`).

Historical background

(ii) Effective cooperation between customs administrations has always been a high priority.

(iii) The 1967 Naples Convention came about as a result of recognising that cooperation between customs administrations would help to ensure accuracy in the collection of customs duties and other import and export charges and improve the effectiveness of preventing, investigating and prosecuting contraventions of customs laws. All Member States of the European Union apart from Sweden, Finland and Austria have since acceded to that Convention (1).

(iv) Since the coming into force of the Maastricht Treaty, customs cooperation has constituted a high priority under Title VI of the Treaty on European Union. The need to develop a new Convention to update the 1967 Naples Convention in the light of the Single Market and the abolition of routine customs controls at internal borders was recognised. Work on the draft Convention featured among the priority activities in Council resolution of 14 October 1996 laying down the priorities for cooperation in the field of justice and home affairs for the period 1 July 1996 to 30 June 1998 (OJ C 319, 26.10.1996, p. 1).

(v) Discussions on a new Convention had begun in 1990. Early drafts of the Convention included proposals for a customs information system (CIS) which were subsequently removed and dealt with under a separate Convention. The Convention on the use of information technology for customs purposes ('the CIS Convention` - OJ C 316, 27.11.1995, p. 33) was agreed in 1995. Following agreement on the CIS Convention, negotiations on the Convention on mutual assistance and cooperation between customs administrations were restarted.

High level support for the Convention on mutual assistance and cooperation between customs administrations

(vi) More recently there have been several expressions of high-level support for concluding the Convention. For example, in recognition of the important role customs administrations have to play in fighting organised crime, the Council recommended in its Action Plan on organised crime which was endorsed by the Amsterdam European Council in June 1997 that discussions on the Convention should be concluded by the end of 1997 (OJ C 251, 15.8.1997, p. 1). That Action Plan also included a general recommendation that any ratification procedures be put urgently on the agendas of national parliaments.

(vii) Also, the Commission communication to the European Parliament and the Council (Action plan for transit in Europe - A new customs policy) which follows a European Parliament Temporary Committee of Inquiry into Transit Fraud recommends (at paragraph 4.3.4):

'In addition to fraud prevention, we need to develop a policy for detecting and dealing with fraud, particularly as regards large-scale, organised financial and economic crime. This should be done by implementing the present legislation in practice (some of it recent) and developing other tools and schemes needed to crack down on crime.`

The conclusion of the Convention should be seen as a significant contribution to this objective.

Existing legal bases for customs cooperation

(viii) There is a need for effective cooperation between the customs administrations of the Member States both under the Treaty establishing the European Community and Title VI of the Treaty on European Union. Customs cooperation within the framework of the Treaty establishing the European Community is concerned with the correct application of the law on Community customs matters and agricultural matters. Customs cooperation under Title VI of the Treaty on European Union is concerned with law enforcement in relation to customs infringements; that is detection, investigation and prosecution of infringements of national customs provisions, and punishment and prosecution of infringements of Community customs provisions. These terms are defined in the Convention and explained later on in this Explanatory Report. The existing 1967 Naples Convention will be repealed when this Convention has been ratified in all Member States and enters into force.

(ix) Within the Community framework, Council Regulation (EC) No 515/97 provides for mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs and agricultural matters (OJ L 82, 22.3.1997, p. 1). The Regulation's provisions for assistance on request and for spontaneous assistance are similar to the provisions for these matters in the Convention. The table in Annex A to this Explanatory Report sets out the parallel provisions. Whilst Regulation (EC) No 515/97 provides for assistance and cooperation in the detection and investigation of infringements of Community customs provisions, this Convention provides for the necessary forms of cooperation at the stage of prosecuting and punishing these infringements, in particular through criminal proceedings.

(x) The provisions of Regulation (EC) No 515/97 have, where they apply, superseded the corresponding provisions of the 1967 Naples Convention. However the 1967 Naples Convention continues to provide for customs cooperation in relation to criminal procedures. Until Member States have adopted the new Convention, the 1967 Naples Convention remains the basis of customs cooperation under Title VI of the Treaty on European Union. The 1967 Naples Convention provides the legal base for information exchange between Customs administrations. Once the Convention enters into force it will add to the legal base for information exchange provided for by the CIS Convention.

Entry into force

(xi) The Convention will enter into force 90 days after the last Member State has completed its constitutional procedures in relation to the Convention. Until the Convention enters into force any Member State may declare that it will apply the Convention with other Member States which have made the same declaration. This means that Member States do not have to wait for the last Member State to complete their constitutional procedures before they can apply the provisions of the Convention.

(xii) The 1967 Naples Convention will apply for cooperation involving the signatory Member States which have not yet completed their constitutional procedures to adopt the Convention, or have completed these procedures but have not made the declaration mentioned in the previous paragraph. The 1967 Naples Convention will cease to apply when the Convention enters into force.

(xiii) Requests for assistance and cooperation will be complied with in accordance with national law. Once the Convention enters into force, Member States will be obliged to apply its provisions. The only exceptions are set out in Articles 19(3), 19(4) and 28 of the Convention which provide for exemptions from the obligation to provide assistance and in Article 30 of the Convention which allows for reservations in relation to optional provisions on hot pursuit, cross-border surveillance and covert investigations.

Relationship with other provisions for cooperation in criminal matters

(xiv) Article 1 of the Convention sets out the relationship between the Convention and provisions relating to mutual assistance in criminal matters between judicial authorities as well as existing bilateral and multilateral agreements. Under the Convention mutual assistance between customs administrations has to be distinguished from mutual assistance in criminal matters; while the former relates to national and Community customs provisions involving aspects of criminal law, the latter relates solely to the provisions of criminal law. Member States are not prevented from entering into or using existing arrangements provided they are more favourable than the Convention's provisions.

(xv) Article 3 of the Convention provides that when a judicial authority carries out or directs a criminal investigation, that authority will choose whether to use the provisions of the Convention or provisions relating to mutual assistance in criminal matters. Whether a judicial authority is involved, and the decision of a judicial authority on which provisions to use will depend on national law and on the particular circumstances of any given case.

(xvi) Article 30 of the Convention sets out the relationship between the Convention and the Schengen arrangements. The Convention does not affect more favourable provisions of the Schengen Implementing Convention of 1990 ('the Schengen Convention`), and does not allow Member States who are also Schengen members to withdraw from any obligations they have entered into under the Schengen Convention. More detail about the parallel provisions in the two Convention is given later in this Explanatory Report. Parallel provisions are also shown in the table at Annex A.

Brief outline of the provisions of the Convention on mutual assistance and cooperation between customs administrations

(xvii) The Convention provides for assistance on request and spontaneous assistance between customs administrations. These provisions largely repeat provisions of the 1967 Naples Convention. A table showing the equivalent provisions is to be found in Annex A to this Explanatory Report.

(xviii) The Convention goes further than the 1967 Naples Convention in several ways. It provides for 'special forms of cooperation` between customs administrations. These special forms of cooperation include hot pursuit, cross-border surveillance, controlled delivery, covert investigations and joint special investigation teams. Under Articles 20(8), 21(5) and 23(5), Member States may declare that they are not bound by all or part of certain of the provisions relating to special forms of cooperation. These declarations may be withdrawn at any time. Law enforcement agencies other than customs may in certain circumstances use provisions of the Convention which did not appear in the 1967 Naples Convention.

(xix) The Convention includes data protection provisions which cover data exchanged outside the CIS. This will largely be non-automated exchanges of data. The CIS Convention includes its own data protection arrangements.

(xx) The Convention also includes in Article 26 a role for the Court of Justice of the European Communities in interpreting the Convention.

II. COMMENTARY ON THE ARTICLES

TITLE 1 General provisions

Article 1:

1.1. This Article provides that the scope of the Convention extends to Member States providing each other with mutual assistance with a view to preventing and detecting infringements of national customs provisions and prosecuting and punishing infringements of Community and national customs provisions.

1.2. In this context it should be noted that prevention and detection of infringements of Community customs provisions is covered by Regulation (EC) No 515/97; however, enforcement (i. e. prosecution and punishment) in relation to such infringements falls within Title VI of the Treaty on European Union and is the subject of this Convention. 'Community customs provisions` and 'national customs provisions` are defined in Article 4 of the Convention.

1.3. The Article also provides that the Convention shall not affect provisions applicable regarding mutual assistance in criminal matters between judicial authorities, and more favourable provisions in bilateral or multilateral agreements already in place. Member States are not precluded from entering into or using existing mutual legal assistance arrangements or bilateral or multilateral mutual assistance agreements provided they are more favourable. This provision reflects a similar provision in Article 23 of the 1967 Naples Convention.

1.4. The choice of which route to use for mutual assistance will depend on the particular circumstances of each case.

1.5. Denmark and Finland have made declarations on their interpretation of the term 'judicial authorities` in Article 1(2) and 3(2) of the Convention. The declarations are set out in full in Annex B to this Explanatory Report.

Article 2:

2.1. This Article makes it clear that the customs administrations can only apply the Convention within the limits of their national powers and that the Convention does not affect the national powers of customs administrations.

2.2. Customs administrations for the purposes of the Convention are defined in Article 4(7) of the Convention.

2.3. In relation to this Convention, it is useful to be aware that the competences of customs administrations differ widely between Member States.

Article 3:

3.1. This Article notes that the Convention relates to mutual assistance and cooperation in the framework of criminal investigations concerning infringements of national and Community customs provisions. It states that a judicial authority carrying out or directing a criminal investigation may choose whether to use the provisions of this Convention or those relating to mutual assistance in criminal matters.

3.2. The decision will depend on the particular circumstances of any given case and on the principles of criminal procedure of the applicant Member State.

3.3. Member States will apply the Convention within the framework of their national law. It will depend on the provisions of national law whether a judicial authority would be involved in applying the provisions of this Convention.

3.4. Denmark and Finland have made declarations on their interpretation of the term 'judicial authorities` in Articles 1(2) and 3(2) of the Convention. The declarations are set out in full in Annex B to this Explanatory Report.

Article 4: This Article contains a set of definitions of terms used in the Convention.

4.1. 'National customs provisions` are all laws, regulations and administrative provisions of a Member State concerning cross-border traffic in prohibited or restricted goods and non-harmonised excise duties, the application of which comes wholly or partly within the jurisdiction of the customs administration of that Member State. It is important to note the 'wholly or partly` aspect of this definition, because the competences of customs administrations differ widely between Member States. Article 4(7) of the Convention defines 'customs administrations` and provides that other law enforcement agencies may apply the provisions of the Convention when they have jurisdiction in relation to national customs provisions.

Some examples of national customs provisions include laws prohibiting the import and export of psychotropic substances and narcotic drugs or paedophile materials; restricting the conditions under which certain firearms may be imported; and limiting personal importations of alcohol and tobacco products to goods for personal use only. This list is simply an illustration. National customs provisions vary between Member States.

4.2. 'Community customs provisions` are Community and associated implementing provisions governing the import, export, transit and presence of goods traded between Member States and third countries, and between Member States in the case of goods without Community status or which are subject to additional controls or investigations to establish their Community status. Provisions adopted at Community level under the common agricultural policy and specific provisions relating to goods resulting from processing agricultural products are included in this definition. Community provisions connected with harmonised excise duties and value added tax on importations, and national provisions for implementing them are also included. It should be noted that Community customs provisions are generally wholly within the jurisdiction of national customs administrations. This is in contrast to national customs provisions in relation to which other law enforcement agencies may have partial jurisdiction.

4.3. 'Infringements` are defined to include participation in or attempts to commit infringements of national or community customs provisions, participation in a criminal organisation committing such infringements and the laundering of money deriving from infringements as provided for in Article 4(3) of the Convention.

Denmark has made declarations in relation to Article 4(3) which set out Denmark's interpretation of 'participation in a criminal organisation committing such infringements` and of 'the laundering of money deriving from infringements`. The declarations are set out in full in Annex B to this Explanatory Report.

4.4. 'Mutual assistance` is assistance between customs administrations.

4.5. The 'applicant authority` is the competent authority of the Member State which makes a request for assistance.

4.6. The 'requested authority` is the competent authority of the Member State which receives a request for assistance.

4.7. 'Customs administrations` are defined to include Member States' customs authorities as well as other authorities with jurisdiction for implementing the provisions of the Convention. The competences of customs authorities vary widely between Member States, and this definition allows other law enforcement agencies (for example the police) to apply the provisions of this Convention where they are competent to act in relation to customs infringements as defined in Article 4(1) and 4(2) of the Convention.

4.8. 'Personal data` means all information relating to any identified or identifiable natural person. This definition relates to the data protection provisions in Article 25 of the Convention.

4.9. 'Cross-border cooperation` means cooperation between customs administrations across the borders of each Member State. This type of cooperation is provided for by Title IV of the Convention.

Article 5:

5.1. This Article states that requests for assistance under the Convention are to be coordinated by a central unit and that a central unit is to be appointed in each of the customs authorities of the Member States for this purpose. It adds, however, that direct cooperation between other services of the customs administrations of the Member States is not excluded particularly in an emergency. The purpose of these provisions is to seek to ensure proper control and coordination of mutual assistance measures and that the optimum use is made of available resources; it is also to ensure that the arrangements in place are responsive and effective in each case.

5.2. If a request for assistance falls outside the competence of a customs authority, it must be forwarded by the central coordinating unit to the competent authority. This provision recognises that different agencies and administrations in different Member States have different areas of responsibility and competence. The provision is intended to ensure that cooperation is not hindered by the Member State seeking assistance not knowing the precise allocation of competence in another Member State.

5.3. If requests cannot be met, their refusal must be accompanied by an explanation.

Article 6:

6.1. This Article allows for liaison officers from one Member State to be based in another Member State on mutually agreed conditions. Member States might agree, for example, that liaison officers should not be armed. The Article makes clear that these officers will have no powers of intervention, but will simply act to facilitate cooperation. The role of the liaison officers might include promoting and speeding up information exchange between Member States; assisting with investigations; providing support in dealing with requests for assistance; advising and assisting the host country in preparing and carrying out cross-border investigations.

6.2. The Council adopted Joint Action 96/602/JHA on 14 October 1996 (OJ L 268, 19.10.1996, p. 2). This provides for a common framework for the initiatives of the Member States concerning liaison officers.

Article 7:

This Article states that officers present in another Member State in connection with the Convention must at all times be able to produce written authority stating their identity and their official functions. This is to avoid misunderstandings with other officials or citizens. This requirement is qualified by the proviso 'unless otherwise specified in this Convention`. This qualification refers to the fact that under Article 23, which provides for covert investigations, it is possible for an officer to be present in the territory of another Member State under a false identity.

TITLE II Assistance on request

TII.1. The provisions in Title II cover the manner in which requests for assistance should be made and the actions to be taken by a Member State when it receives a request for assistance under the provisions of this Convention. This Title provides for the form and content of written requests for information; it provides that Member States should respond fully to such requests; it provides that on request Member States should as far as possible carry out surveillance on behalf of another Member State; it provides that on request enquiries should be carried out on behalf of another Member State; it also provides for the use as evidence of information obtained in this way. Requests for assistance may only be refused for the reasons specified in Article 28 of the Convention (threat to public policy or other essential interests of the State concerned, or where it is obvious that the scope of the action requested is disproportionate to the seriousness of the presumed infringement).

TII.2. The principle underlying this Title is that Member States should honour requests for assistance from other Member States. In signing up to the provisions of the Convention, Member States are entering into a commitment to provide information and assistance on request to other Member States where possible and within the bounds of national law. Article 28 sets out the exemptions to this general obligation to provide assistance.

TII.3. The terms 'requested authority` and 'applicant authority` which are used frequently in this Title are defined in Article 4 of this Convention.

TII.4. This Title repeats similar provisions found in the 1967 Naples Convention. Regulation (EC) No 515/97 also contains similar provisions on assistance on request in relation to Community customs matters as do most mutual assistance agreements concluded between the Community and its Member States and third countries (for example, the so-called 'Europe agreements`).

Article 8:

This Article lays down the general principles governing the provision of mutual assistance. These are that a requested authority must proceed as if it were acting on its own account and will use all the legal powers available to it within the framework of its national law. Furthermore, it is required to extend its assistance to all circumstances of the infringement that appear to have a bearing on the request it received.

Article 9:

9.1. This Article sets out the form and content of requests for assistance.

9.2. Requests must always be in writing and in either an official language of the Member State of the requested authority or in a language acceptable to such authority.

9.3. Oral requests are acceptable when the urgency of the situation requires, but must subsequently be confirmed in writing.

9.4. Requests for assistance must include specific information to facilitate their execution.

Article 10:

10.1. This Article covers requests for information. It provides that a requested authority will supply all information which may enable the applicant authority to prevent, detect or prosecute infringements. This is based on Article 4 of the 1967 Naples Convention.

10.2. By mutual agreement, officers from one Member State may obtain information from documents held in the offices of another Member State. They may take copies of this documentation. This is based on Article 11 of the 1967 Naples Convention.

Article 11:

11.1. This Article covers requests for special watches to be kept by one Member State on behalf of another. It states that a requested authority will as far as possible keep a special watch on persons where there are serious grounds for believing they are involved in infringements.

11.2. If requested, the Member State will also keep a watch on places, means of transport and goods.

11.3. The special watch referred to in this Article is carried out by the customs administration of a Member State on that Member State's own territory.

11.4. This is based on Article 6 of the 1967 Naples Convention.

Article 12:

12.1. This Article relates to requests for enquiries to be made. A requested authority is required to carry out appropriate enquiries into operations which constitute or appear to the applicant authority to constitute infringements.

12.2. Officers from the applicant authority may be authorised to be present while such enquiries are being carried out. The Convention enables them to be authorised, by the competent officials of the requested authority, to attend verification and inquiry operations. They will do so in an advisory capacity only: enquiries are at all times to be carried out by officers of the requested authority.

12.3. Similar provisions appear in Articles 13 and 14 of the 1967 Naples Convention.

Article 13:

13.1. This Article provides that the requested authority shall, on request, notify the addressee of instruments and decisions emanating from the competent authorities of the applicant Member State and which concern the application of this Convention. Requests for notification should be accompanied by a translation in an official language of the requested Member State.

13.2. This is based on Article 17 of the 1967 Naples Convention.

Article 14:

14.1. This Article provides that all findings, information and documentation obtained by officers of the requested authority in accordance with their national law in cases of assistance provided for in Articles 10 to 12 of the Convention may be used as evidence in accordance with national law by the competent bodies of the Member State where the applicant authority is based.

14.2. This is based on Article 15 of the 1967 Naples Convention.

TITLE III Spontaneous assistance

TIII.1. The provisions of this Title cover arrangements for customs administrations to provide assistance to other Member States without requests being made. The general principle underlying this Title is that Member States should, without being asked, carry out relevant investigative activity and offer up any evidence or information they come across which may be of use to another Member State in detecting, investigating or prosecuting customs infringements.

TIII.2. This Title repeats similar provisions found in the 1967 Naples Convention. Regulation (EC) No 515/97 also contains similar provisions in relation to Community customs matters as do most mutual assistance agreements concluded between the Community and its Member States and third countries (for example, the so-called 'Europe agreements`).

Article 15:

This Article lays down the general principle that, subject to any limitations imposed by national law, each Member State will in the cases described in Articles 16 and 17 provide assistance without prior request.

Article 16:

16.1. This Article states the Member States will keep persons and goods under special watch and will communicate to that Member State all information it has concerning operations connected with planned or committed infringements where this will serve to prevent, detect or prosecute infringements in another Member State.

16.2. This is based on Article 6 of the 1967 Naples Convention.

Article 17:

17.1. This Article states that the competent authorities of each Member State are required to immediately send to the competent authorities in other Member States all relevant information concerning planned or committed infringements and in particular information concerning the goods involved and new ways and means of committing infringements.

17.2. This is based on Article 8 and 9 of the 1967 Naples Convention.

Article 18:

18.1. This Article states that surveillance reports and information obtained under this Title may be used as evidence in accordance with national law by the competent bodies of the Member State receiving the information.

18.2. This relates to Article 15 of the 1967 Naples Convention.

TITLE IV Special forms of cooperation

TIV.1. This Title sets out special forms of cooperation for detecting, investigating and prosecuting customs infringements. The special forms of cooperation provided for in this Title are hot pursuit across borders, cross-border surveillance, controlled delivery, covert investigation and the use of joint special investigation teams.

TIV.2. A number of the forms of cooperation outlined in this Title involve the possibility of officers from one Member State being present or engaging in activities in the territory of another Member State for the purpose of investigating cross-border customs infringements as defined in Article 19(2).

TIV.3. The 1967 Naples Convention did not explicitly provide for cross-border investigations and these provisions represent one of the most significant developments under the new Convention.

TIV.4. When they deposit their instruments of adoption of the Convention, Member States may declare that they are not bound by some or all of the provisions in certain specified articles of this Title, namely Article 20 on hot pursuit, Article 21 on cross-border surveillance and Article 23 on covert investigations. Member States may withdraw their declarations in relation to these provisions at any time.

Article 19:

19.1. This Article sets out general principles relating to special forms of cooperation. It makes clear that the special forms of cross-border cooperation described in this Title will only be allowed in relation to infringements concerning:

(a) illicit traffic in drugs and certain other prohibited goods;

(b) trade in precursor substances (i.e. substances intended for the illegal manufacture of drugs);

(c) illegal cross-border commercial trade in taxable goods to evade tax or obtain unauthorised State payments where the potential financial cost to the budget of the European Communities or a Member State is considerable; or

(d) any other trade in goods prohibited by Community or national customs rules.

19.2. It states that a Member State can refuse a request from another Member State if the form of investigation is not permitted or provided for by its own national law.

19.3. Where approval by the judicial authorities is necessary, this must be sought and obtained and any conditions imposed must be observed.

19.4. If damage is caused by the officers of one Member State while in the territory of another, the latter must make good the damage. Money paid to third parties for damages must be reimbursed by the Member State whose officers caused the damage.

19.5. The Article states that information obtained as a result of the cross-border cooperation provided for in this Title may be used as evidence in accordance with national law by the competent bodies of the Member State receiving the information.

19.6. The Article also states that in the course of the cross-border operations provided for in Title IV, officers on mission will be treated in the same way as officers of the host Member State as regards infringements committed by or against them.

Article 20:

20.1. This Article relates to hot pursuit. It provides that officers from one Member State may continue to pursue into another Member State an individual observed in the act of committing or participating in one of the infringements referred to in Article 19(2) of the Convention which could give rise to extradition. This pursuit may occur without prior authorisation if the urgency of the situation makes prior notification impossible or where the competent authorities of the other Member State have been unable to reach the scene in time to take over the pursuit. Not later than when they cross the border, the pursuing officers must contact the competent authorities of the Member States in whose territory the pursuit is to take place, and the latter Member State may at any time request that the pursuit be ceased. The pursuing officers have no right to apprehend the individual but may, if not request to cease the pursuit has been made, apprehend him in order to hand him over to the competent authorities of the Member State on whose territory the pursuit took place. In these circumstances he may be subject to a security search and handcuffs may be used.

20.2. However, the precise circumstances in which hot pursuit can be carried out are set out in this Article and in declarations made by Member States as provided for in Article 20(6) of the Convention. Each Member State which has opted to participate in the hot pursuit provisions has made a declaration on signing the Convention defining the procedures for implementing pursuit in its territory. Such declarations include the limits in space or time in which hot pursuit is permitted, and whether service weapons may be carried. These declarations may be replaced by other declarations provided the latter do not restrict the scope of the former.

Denmark has made a declaration defining the circumstances in which hot pursuit may be allowed in Danish territory. The declaration is set out in full at Annex B to this Explanatory Report.

20.3. This Article lists the general conditions which must be met before, during and after the pursuit.

20.4. Pursuit may take place over all types of border. Entry into private homes and places not accessible to the public is prohibited and pursuing officers must always be easily identifiable.

20.5. Pursuing officers may carry their service weapons unless the Member State whose territory they wish to enter has made a declaration prohibiting this.

20.6. As the time of depositing their instruments adopting the Convention, Member States may make a declaration that they are not bound by all or part of this Article. Such declarations may be withdrawn at any time.

20.7. Article 41 of the Schengen Implementing Convention contains a similar provision on hot pursuit. The key differences are: the Schengen Convention provision is mandatory while signatories to the Convention can opt out of all or part of the Article insofar as such reservations do not affect their obligations under the Schengen Convention (2); the Schengen Convention provision allows each Contracting Party to choose whether to allow hot pursuit into its territory in relation to all extraditable offences or in relation to a list of serious crimes, while the provision of the Convention relates only to the customs infringements defined in Article 19(2) of the Convention which could give rise to extradition; the Schengen Convention provision relates to land borders only, while the provision of the Convention relates to all borders; the Schengen Convention provision allows service weapons to be carried without exception, while the provision of the Convention allows each Member State to make a general declaration that weapons may never be carried into its territory or to decide in a specific case that weapons may not be carried.

Article 21:

21.1. This Article relates to cross-border surveillance. It states that officers from one Member State may be allowed to continue their observation of persons in respect of whom there are serious grounds for believing that they are involved in one of the infringements listed in Article 19(2) into another Member State if the latter authorises this in advance. Conditions may be attached to the authorisation. Where there are urgent reasons for doing so, the border may be crossed without prior authorisation provided that the competent authorities of the Member State in whose territory the observation is to be continued are notified immediately of the crossing of the border, during the observation, and a request for authorisation submitted without delay.

21.2. The conditions under which cross-border surveillance may be carried out include the following. Officers conducting an observation must comply with the law of the Member State in whose territory they are operating and must obey the instructions of the competent authorities of that Member State; they must be able to prove their official identity and that they are acting in an official capacity and are not allowed to enter private homes or non-public places. Such officers will have no powers of intervention; they may neither challenge nor arrest the person under observation. The officers may carry their service weapons unless the Member State whose territory they wish to enter has made a declaration prohibiting this.

21.3. All cross-border surveillance operations shall be the subject of a report to the authorities of the Member State in whose territory they took place. The officers who carried out the surveillance may be required to appear in person.

21.4. At the time of depositing their instruments adopting the Convention, Member States may make a declaration that they are not bound by all or part of this Article. Such declarations may be withdrawn at any time.

21.5. Denmark has made a declaration defining the circumstances in which it accepts the provisions of Article 21. The declaration is set out in full in Annex B to this Explanatory Report.

21.6. Article 40 of Schengen also provides for cross-border surveillance. The provisions of both Conventions are similar: both provide for cross-border surveillance with prior approval and without prior approval in cases of urgent need. The key differences are: the Schengen provision is mandatory while signatories to the Convention can opt out of all or part of the cross-border surveillance provision insofar as such reservations do not affect their obligations under the Schengen Convention (3); the Schengen Convention provision relates to all extraditable offences for surveillance with prior approval, and a wide range of serious crime for surveillance without prior approval, while the provision of the Convention relates only to Customs infringements as defined in Articles 4(3) and Article 19(2) of the Convention; the Schengen Convention provision allows service weapons to be carried except where specifically otherwise decided by the requested party, while the provision of the Convention allows each Member State to make a general declaration that weapons may never be carried into its territory or to decide in a specific case that weapons may not be carried. Under the Convention not only persons directly committing, but also those involved in an infringement can be observed.

Article 22:

22.1. This Article relates to controlled delivery. Controlled delivery is an investigation technique in which suspicious or illicit consignments of goods are not seized at the frontier but are kept under surveillance until they reach their destination. This technique allows customs administrations to identify organisations responsible for trafficking and to prosecute the main persons involved in those organisations, rather than just seizing goods at the frontier and/or prosecuting the couriers of those goods.

22.2. The Article states that Member States will undertake to ensure that controlled deliveries may be permitted in their territories in relation to criminal investigations into extraditable offences. The decision to allow controlled deliveries will be taken by the competent authorities of the requested Member State with due regard for national law. Controlled deliveries will take place under the direction of the competent authorities of the Member State where the delivery is taking place. Consignments may be intercepted and their contents left intact, removed or replaced in part or in whole.

22.3. This Article is derived from Article 11 of the 1988 UN Convention against the illicit traffic in narcotic drugs and psychotropic substances (Vienna Convention) which encourages the principles of international controlled deliveries in relation to drug trafficking.

22.4. Article 73 of the Schengen Convention also provides for controlled deliveries. The provisions of both Conventions are similar. The key differences are that the Convention contains an obligation to keep the controlled delivery under surveillance and allows consignments to be intercepted and allowed to continue with their original contents intact, removed or replaced, while the Schengen Convention makes no mention of these issues. The Schengen Convention provides for controlled deliveries of drugs and psychotropic substances while the Convention provides for controlled deliveries in relation to 'extraditable offences`.

Article 23:

23.1. This Article relates to covert investigations. In the context of this Article, covert investigation means an officer of the customs administration of one Member State (or an officer acting on behalf of such administration) being authorised to operate in the territory of another Member State under cover of a false identity. The way in which Member States apply this Article will depend on the provisions of their national law.

23.2. Requests for covert investigations may only be made where it would otherwise be extremely difficult to elucidate the facts.

23.3. In the course of covert investigations, officers are authorised only to collect information and make contact with suspects or other persons associated with them.

23.4. The covert investigation must be conducted under conditions set by the national law of the Member State where it occurs, and must be of limited duration. The requested authority is required to provide necessary manpower and technical support.

23.5. At the time of depositing their instruments adopting the Convention, Member States may make a declaration that they are not bound by all or part of this Article. Such declarations may be withdrawn at any time.

Article 24:

24.1. This Article relates to joint special investigation teams and allows Member States to set these up by mutual agreement. Their purpose is to implement difficult and demanding investigations requiring simultaneous, coordinated action and to coordinate joint activities to prevent and detect particular types of customs infringements.

24.2. These teams may only be set up for a specific purpose and for a limited duration. An officer from the Member State in which the team is located will be in charge of the team and that Member State will make the necessary arrangements for the team to operate. The team must work within the laws of that Member State.

24.3. Membership of the team does not bestow any powers of intervention in another Member State's territory.

TITLE V Data protection

Article 25:

25.1. This Article covers data protection issues in relation to personal data exchanged by customs administrations under the provisions of the Convention.

25.2. The Article commits Member States to respecting the relevant provisions of the 1981 Council of Europe Convention for the protection of individuals with regard to automatic processing of personal data.

25.3. It allows Member States to impose conditions with regard to the processing of personal data when it passes information to another Member State.

25.4. This Article provides that personal data may only be processed by a recipient authority for the purposes of the Convention as set out in Article 1(1). The authority which receives data under this Convention may pass them on to its customs administrations, its investigative authorities and its judicial bodies without the permission of the Member State supplying the data to enable them to prosecute and punish infringements within the meaning of Article 4(3). In all other cases of data transmission, the consent of the Member State supplying the information is necessary.

25.5. The Member State which communicates the data has the duty to ensure they are kept up to date, amended if inaccurate and erased if unlawfully communicated. Similarly, a recipient Member State must make the necessary corrections where these have been brought to its attention. If the Member State which receives data has reason to believe that communicated data are inaccurate or should be erased, it should inform the communicating Member State.

25.6. The person concerned has the right to correct the data and can ask to be told what data about him has been communicated and for what purposes (subject to a public interest exception). The person's right to obtain this information is determined by the national laws, regulations and procedures of the Member State in whose territory the data is requested. However, the communicating authority shall be given the opportunity of stating its position before any decision is taken to provide information.

25.7. Data communicated must only be kept for the period necessary for the purpose for which they were communicated. The data must also be given the same level of protection as similar data supplied from national sources within that Member State.

25.8. Member States are liable in accordance with their own laws, regulations and procedures for injury caused to people through the processing of personal data communicated in relation to this Convention.

25.9. Member States may assign a supervisory role to the national data protection authorities who perform this role in relation to the CIS Convention.

25.10. The Article is without prejudice to the CIS Convention which contains its own provisions for protection of personal data exchanged using the CIS.

25.11. The term 'processing of personal data` in this Convention is to be understood as having the meaning defined in Directive 95/46/EC. 'Personal data` and 'processing of personal data` are defined in Article 2(a) and (b) of that Directive as follows:

(a) 'personal data` shall mean any information relating to an identified or identifiable natural person ('data subject`); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity;

(b) 'processing of personal data` ('processing`) shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.

TITLE VI Interpretation of the Convention

Article 26:

26.1. This Article covers the role of the Court of Justice of the European Communities (hereafter referred to as the 'Court`) in relation to the Convention.

26.2. The Court will have jurisdiction to resolve disputes between Member States in relation to the interpretation or application of the Convention where the Council itself is unable to do so within six months. The Court will also have jurisdiction in relation to disputes between Member States and the Commission concerning the interpretation or application of the Convention. The Court will also have jurisdiction to give preliminary rulings on the interpretation of the Convention but only for those Member States who make a declaration that they will accept this role for the Court. A Member State which makes such a declaration may specify that either:

(a) any of its courts and tribunals against whose decision there is no judicial remedy, or

(b) any of its courts or tribunals,

may request a preliminary ruling from the Court.

Even those Member States who do not accept this role for the Court may still submit statements of case or written observations on matters referred to it.

26.3. The Court will not have jurisdiction to check the validity proportionality of operations carried out by competent law enforcement agencies nor on Member States' exercise of their responsibilities for maintaining law and order and safeguarding internal security.

TITLE VII Implementation and final provisions

Article 27:

This Article commits customs administrations to take account of the requirements of investigation secrecy when exchanging information. In this regard, Member States may impose conditions on the use of information they pass to another Member State when the requirements of investigation secrecy require them to do so.

Article 28:

This Article provides that Member States will not be obliged to offer assistance where doing so would harm the public policy or other essential interests of the State concerned, especially in relation to data protection. Requests may also be refused where the scope of the action requested, especially in the context of the special forms of cooperation under Title IV, is obviously disproportionate to the seriousness of the presumed infringement. Reasons must be given for refusals.

Article 29:

This Article provides that Member States will normally waive all claims for reimbursement of costs incurred in the implementation of this Convention with the exception of expenses for fees paid to experts. If expenses are substantial or extraordinary, the customs administrations concerned will consult with each other to decide how the expenses will be borne.

Article 30:

30.1. This Article concerns reservations to the Convention and states that the only reservations permissible are those provided for in Articles 20(8), 21(5) and 23(5) which allow Member States to opt not to be bound by all or part of the provisions on hot pursuit, cross-border surveillance and covert investigation.

30.2. It also notes that obligations arising under other agreements and notably the provisions of the Schengen Implementing Convention which provide for closer cooperation will not be affected by this Convention. This means that Member States who are Contracting Parties to the Schengen arrangements cannot be released from more binding obligations under the Schengen Convention by signing up to less binding obligations under the Convention.

30.3. For example, the Schengen Convention provision on hot pursuit across land borders is mandatory. The Convention on mutual assistance and cooperation between customs administrations provides for hot pursuit across all types of border, but the provision is optional. Schengen members cannot, however, opt out of the hot pursuit provision of the Convention on mutual assistance and cooperation between customs administrations where it relates to land borders.

Article 31:

31.1. This Article limits the territorial application of the Convention to the Community customs territory. The Community customs territory is defined fully in Article 3 of Council Regulation (EEC) No 2913/92 (the Customs Code).

31.2. The Council, acting unanimously by the procedure provided for in Title VI of the Treaty on European Union, may adapt paragraph 1 to any amendment of the provisions of Community law referred to therein.

Article 32:

This Article provides that the Convention will enter into force 90 days after the last Member State has notified that it has completed its constitutional procedures for its adoption. In the meantime, however, any States that have completed these procedures may declare that the Convention (with the exception of Article 26) will govern their relations with other Member States that have made the same declaration. The 1967 Naples Convention will be repealed on the day this Convention enters into force.

Article 33:

This Article provides that the Convention will be open to accession by any Member State that joins the European Union in the future. It also lays down the procedures to be followed by new Member States wishing to accede to the Convention.

Article 34:

This Article relates to future amendments to the Convention and states that any Member State which has acceded to the Convention may propose amendments which will be decided on by the Council.

Article 35:

This Article states that the General Secretary of the Council will act as the depositary of the Convention; in this regard he will arrange to publish in the Official Journal information on the progress of adoptions and accessions, implementation, declarations and reservations as well as any other notifications concerning the Convention.

(1) Austria is in the process of ratifying the 1967 Naples Convention.

(2) See also the description in this Explanatory Report of Article 30 of the Convention on mutual assistance and cooperation between customs administrations.

(3) See also the description in this Explanatory Report of Article 30 of the Convention on mutual assistance and cooperation between customs administrations.

ANNEX A

>TABLE>

ANNEX B

DECLARATIONS 1 TO 8 ANNEXED TO THE CONVENTION AND PUBLISHED IN THE OFFICIAL JOURNAL (OJ C 24, 23.1.1998, p. 20)

1. Re Articles 1(1) and Article 28

With reference to the exceptions to the obligation to provide assistance under Article 28 of the Convention, Italy declares that the execution of mutual assistance requests, on the basis of the Convention, concerning infringements which under Italian law are not infringements of national or Community customs provisions, may - for reasons relating to the subdivision of competence among domestic authorities in prevention and prosecution of crimes - harm the public policy or other national essential interests.

2. Re Article 1(2) and Article 3(2)

Denmark and Finland declare that they interpret the term 'judicial authorities` or 'judicial authority` in Articles 1(2) and 3(2) of the Convention in the sense of their declarations made pursuant to Article 24 of the European Convention on mutual assistance in criminal matters, signed in Strasbourg on 20 April 1959.

3. Re Article 4(3), second indent

Denmark declares, as far as it is concerned, that Article 4(3), second indent, covers only actions by which a person participates in the commission by a group of people, acting toward a common goal, of one or more of the infringements concerned, including situations where the person concerned does not take part in the actual commission of the offence or offences in question; such participation must be based on knowledge of the purpose and general criminal activities of the group, or on knowledge of the group's intention to commit the offence(s) in question.

4. Re Article 4(3), third indent

Denmark declares, as far as it is concerned, that Article 4(3), third indent, applies only to the predicate offences in respect of which at any time receiving stolen goods is punishable under Danish Law, including section 191a of the Danish Criminal Code on receiving stolen drugs and section 284 of the Criminal Code on receiving goods in connection with smuggling of a particularly aggravated nature.

5. Re Article 6(4)

Denmark, Finland and Sweden declare that the liaison officers referred to in Article 6(4) may also represent the interest of Norway and Iceland or vice versa. The five Nordic Countries have since 1982 had an arrangement whereby the stationed liaison officers from one of the countries involved also represent the other Nordic Countries. This arrangement was made in order to strengthen the fight against drug trafficking and to limit the economic burden imposed on individual countries by the stationing of the liaison officers. Denmark, Finland and Sweden attach great importance to the continuation of this arrangement, which operates well.

6. Re Article 20(8)

Denmark declares that it accepts the provisions of Article 20, subject to the following conditions:

In case of a hot pursuit exercised by the customs authorities of another Member State at sea or through the air, such pursuit may be extended to Danish territory, including Danish territorial waters and the airspace above Danish territory and territorial waters, only if the competent Danish authorities have received prior notice thereof.

7. Re Article 21(5)

Denmark declares that it accepts the provisions of Article 21, subject to the following conditions:

Cross-border surveillance without prior authorisation may be carried out only in accordance with Article 21(2) and (3) if there are serious grounds for believing that the persons under observation are involved in one of the infringements referred to in Article 19(2) which could give rise to extradition.

8. Re Article 25(2)(i)

Member States undertake to keep each other informed in the Council on measures taken to ensure that the commitments referred to in point (i) are observed.