Proposal for a COUNCIL DECISION concerning the conclusion of the agreement in the form of an axchange 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
Date: 1997-03-05
Institutions: European Commission
Subjects: Switzerland, cooperation agreement (EU), customs cooperation, customs regulations, exchange of information

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 
1997 

of 

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. 

This decision  shall be published  in the Official Journal  of the European  Communities. 

Article 3 

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, 

Sir, 

For the Council of the European Union 

B. Letter from the Swiss  Confederation 

Berne, 

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) 

(b) 

(c) 

(d) 

(e) 

(f) 

the applicant authority making the request; 

the measure requested; 

the object of and the reason for the request; 

the laws, rules and other legal elements involved; 

indications as exact and comprehensive as possible on the natural or 
legal persons who are the target of the investigations; 

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 

involve currency or tax regulations other than customs legislation; or 

violate an industrial, commercial or professional  secret. 

(c) 

(d) 

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. 

A K1 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. 

2. 

3. 

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 

Budget headings involved: 
No specific  budget heading 

Legal basis: 
Articles  113 and 228 of the EC Treaty 

4. 

Description of operation: 

4.1 

4.2 

5. 

6. 

7. 

8. 

9. 
9.1. 

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. 
Duration and arrangements for renewal 
Unlimited  (same as the free trade agreement to which it will be annexed). 

Classification  of expenditure or revenue: 
No expenditure or revenue  foreseen 

Type of expenditure: 
None 

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. 

Fraud prevention  measures: 
Not applicable: no expenditure  involved. 

Cost-benefit  analysis: 
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 

10.2 

Impact of the number of posts: 
The  cost  of  the  human  resources  required  by  this  measure  will  be  met  from 
existing resources. 
Increase in other administrative expenditure as a result of the operation 
The operating costs of this measure will be met from  existing resources. 

Ak 

Date 

Telephone 

Name of official 

FOR AGREEMENT  GIVEN BY: 
DG or department 
l.SG 
2.DGI 
3. DG VI 
4. DG IX 
5. DG XV 
6. DG XIX 
7.DGXX 
For opinion 
(mandatory) 
Legal Service 

ISSN 0254-1475 

COM(97) 81 final 

DOCUMENTS 

EN 

11  02 

Catalogue  number  :  CB-CO-97-093-EN-C 

ISBN  92-78-16704-5 

Office  for  Official  Publications of the European  Communities 

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