Proposal for a Council Decision on the conclusion of the Agreement on customs cooperation and mutual assistance in customs matters between the European Community and Canada
Date: 1997-05-06
Institutions: European Commission
Subjects: Canada, cooperation agreement (EU), customs cooperation, customs regulations, exchange of information

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels,  06.05.1997 
COM(97) 206 final 

97/ 0133  (ACC) 

Proposal  for a 

COUNCIL DECISION 

on the conclusion  of the Agreement 
on customs cooperation  and mutual 
assistance  in customs  matters 
between  the European  Community 
and  Canada 

(presented by the  Commission) 

Explanatory memorandum 

By  its  decision  of  5 April 1993, the  Council  authorized  the  Commission  to  negotiate 
customs cooperation agreements with some of the Community's main trading partners, in 
particular Canada, and adopted the necessary negotiating directives. 

There  have been  a  number  of  meetings  with  the  Canadian  authorities,  in  Brussels  and 
Ottawa.  Following  these  negotiations,  the  text  of  the  Agreement  was  initialled  on 
28 February 1997. 

The Agreement is now being put to the Council to be signed and concluded. 

The Commission  considers that  the  initialled text  is  in  accordance  with  the  negotiating 
directives adopted by the Council on 5 April 1993. 

In  order  to  enable  the  Agreement  on  customs  cooperation  and  mutual  assistance  in 
customs  matters  to  be  signed  as  soon  as  posible,  the  Commission  proposes  that  the 
Council approve the attached proposal for a decision on the signing and conclusion of the 
Agreement. 

oo 

Proposal for a Council decision 
on the conclusion of the Agreement 
on customs cooperation and mutual 
assistance in customs matters 
between the European Community 
and Canada 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  establishing  the  European Community,  and  in  particular 
Article  113  thereof,  together  with  the  first  sentence  of  Article 228(2)  and  the  first 
subparagraph of Article 228(3), 

Having regard to the proposal from the Commission, 

Whereas on 5 April 1993 the Council authorized the Commission to negotiate, on behalf 
of the Community, customs cooperation  agreements with some of the Community's main 
trading partners; 

Whereas  the  Agreement  between  the  European Community  and  Canada  on  customs 
cooperation and mutual assistance in customs matters should be approved, 

HAS DECIDED AS FOLLOWS: 

Article 1 

The Agreement  between the European Community  and  Canada  on customs  cooperation 
and mutual  assistance in customs matters is hereby approved  on behalf of the European 
Community. 

The text of the Agreement is attached to this Decision. 

Article 2 

The Commission,  assisted  by  representatives  of  the  Member  States,  shall  represent  the 
European  Community  on  the  Joint  Customs  Cooperation  Committee  set  up  under 
Article 20 of the Agreement. 

-2 

Article 3 

The President of the Council  is hereby authorized to designate the persons empowered to 
sign the Agreement. 

Article 4 

The President  of the Council  shall effect  the notification  provided  for in Article 24  of the 
Agreement on behalf of the European Community.1 

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

Article 5 

Done at Brussels,... 

For the Council 
The President 

X 

1 

The  date  of  entry  into  force  of  the  Agreement  will  be  published  in  the Official 
Journal of the European Communities by the General Secretariat of the Council. 

4-

AGREEMENT 

BETWEEN 

THE EUROPEAN COMMUNITY 

AND CANADA 

ON CUSTOMS COOPERATION 

AND MUTUAL ASSISTANCE IN CUSTOMS MATTERS 

S 

The  Government  of  Canada  and  the  European  Community,  hereafter  referred  to  as  the 
Contracting Parties, 

BUILDING  on  the  privileged  relationship  established  by  the  Framework  Agreement  for 

commercial  and  economic  cooperation  between  the  European  Communities  and  Canada, 

signed at Ottawa on 6 July 1976; 

TAKING ACCOUNT of the declaration of 22 November  1990 on EC-Canada relations; 

RECOGNISING  the  Joint  Declaration  on  Canada-European  Union  relations  signed  at 

Ottawa on 17 December 1996; 

CONSIDERING  that  breaches  of  customs  legislation  are  prejudicial  to  their  economic, 

fiscal,  social, cultural and commercial interests; 

BELIEVING  that  there  should  be  an undertaking  to  develop  customs  cooperation  of the 

widest  possible  scope  in  matters  including,  but  not  limited  to,  simplification  and 

harmonisation of customs procedures; 

CONSIDERING  the  importance  of  accurate  assessment  of  customs  duties  and  taxes 

collected  at importation  or exportation  and of ensuring proper enforcement  of measures of 

prohibition, restriction and control; 

RECOGNISING the need for international  cooperation in matters related to the application 

and enforcement  of their customs laws; 

CONVINCED  that  action  against  breaches  of  customs  legislation  can  be  made  more 

effective by close cooperation between their customs administrations; 

HAVING REGARD  TO the relevant  instruments of the Customs Cooperation  Council,  in 
particular the Recommendation on mutual administrative assistance of 5 December 1953; 

HAVING  REGARD  ALSO  TO 

international  conventions  containing  prohibitions, 

restrictions and special measures of control in respect of specific goods; 

Q 

HAVE AGREED as follows: 

TITLE I 

GENERAL  PROVISIONS 

Article 1 

Definitions 

For the purposes of this Agreement, 

1. 

the  term  "customs  authority"  means:  in  Canada:  the  competent  services  of  the 

Department  of  National  Revenue;  in  the  European  Community:  the  competent 

services  of  the  Commission  of  the  European  Communities  and  the  customs 

authorities of the Member States of the European Community; 

2. 

the  term  "customs  legislation"  means:  for  Canada  the  statutory  and  regulatory 

provisions  concerning  the  importation,  exportation,  transit  of  goods,  and  their 

placing under any customs procedure,  including measures of prohibition,  restriction 

and control, the administration and enforcement  of which are specifically  charged to 

the customs authority,  and any regulations made by the customs authority under its 

statutory  powers;  and  for  the  European  Community:  provisions  adopted  by  the 

European  Community  and governing the import,  export,  transit  of goods  and their 

placing under any customs procedure,  including measures of prohibition,  restriction 

and control; 

3. 

the term "breach of customs legislation" means: any violation or attempted violation 

of customs legislation; 

4. 

the  term  "information"  means:  any  data,  documents,  reports,  certified  or 

authenticated  copies  thereof  or  other  communications,  including  data  which  has 

been processed  or analysed to provide an indication relevant to a breach of customs 

legislation; 

^ 

5. 

the term "person" means: either a physical human being or a legal entity; 

6. 

7. 

8. 

the  term  "personal  data"  means:  all  information  relating  to  an  identified  or 
identifiable individual; 

the term "requested authority" means: the competent  customs authority from which 
assistance is requested; 

the  term  "requesting  authority"  means:  the  competent  customs  authority  which 
requests assistance. 

TITLE II 

CUSTOMS  COOPERATION 

Article 2 

Scope of the cooperation 

1. 

The  Contracting  Parties  undertake  to  develop  customs  cooperation  of  the  widest 

possible scope. 

2. 

Under this  Agreement,  customs  cooperation  shall  cover  all  matters  relating  to  the 

application of customs legislation. 

Article 3 

Technical  assistance to third  countries 

The Contracting Parties shall, where  appropriate,  inform  each other  on actions undertaken 

or to  be undertaken with third  countries  in relation  to  technical  assistance  in the  customs 

field,  with the aim of improving these actions. 

<P 

Article 4 

Simplification  and harmonisation 

The Contracting Parties agree to strive for simplification  and harmonisation of their customs 
procedures,  taking  into  account  the  work  done  in  this  connection  by  international 
organisations.  They  also  agree to  examine ways  and  means to  solve  any  customs-related 
difficulties  that might arise between them. 

Article 5 

Exchange of staff 

The customs authorities may exchange personnel when mutually beneficial, for the purpose 
of advancing their understanding  of each other's  customs techniques  and  procedures, and 
computerised systems. 

Article 6 

Computerisation 

The Contracting Parties shall cooperate in the computerisation  of customs procedures and 
formalities, with the aim of facilitating trade between them. 

9 

TITLE III 

MUTUAL  ASSISTANCE 

Article 7 

Scope of assistance 

1. 

The  customs  authorities  shall  assist  each  other,  either  on  request  or  on  their  own 

initiative,  by  providing  appropriate  information  which  helps  to  ensure  proper 

application of customs legislation and the prevention, investigation  and combating of 

any breach of customs legislation. 

2. 

All  assistance  under  this  Title  by  either  Contracting  Party  shall  be  performed  in 

accordance  with  its  relevant  laws,  rules  and  other  legal  instruments  and  within  the 

limits of its customs authority's competence and available resources. 

3. 

This  Title  is  intended  solely  for  the  mutual  administrative  assistance  between  the 

Contracting  Parties; the  provisions  of this  Title  shall  not  give  rise  to  a right  on  the 

part  of any private  person to  obtain  information,  to  obtain,  suppress  or  exclude any 

evidence or to impede the execution of a request. 

4. 

This  Title  shall  not  prejudice  the  rules  governing  mutual  assistance  in  criminal 

matters.  Nor  shall  it  apply  to  information  obtained  under  powers  exercised  at  the 

request  of  the judicial  authority,  except  where  communication  of  such  information 

has the prior authorisation  of the said judicial authority consulted  for this purpose on 

a case-by-case basis. 

Jo 

Article 8 

Information  on methods, trends and  operations 

1. 

Either  customs  authority  shall  communicate,  either  on  request  or  on  its  own 
initiative, any available information  relating to: 

a) 

new customs law enforcement  techniques having proved their  effectiveness; 

b) 

new  trends,  means  or  methods  of  committing  breaches  of  customs 

legislation. 

2. 

Either  on  request  or  on  their  own  initiative,  the  customs  authorities  shall  provide 

each  other  with  information  on  operations,  completed  or  planned,  which  constitute 

or  appear  to  constitute  a breach  of customs  legislation  in  the  territory  of  the  other 

Contracting Party. 

Article 9 

Assistance  on  request 

1. 

On  request,  the  requested  authority  shall  inform  the  requesting  authority  about  the 

customs legislation  and procedures  applicable  in that  Contracting  Party  and  relevant 

to inquiries relating to a breach of customs legislation. 

2. 

On  request,  the  requested  authority  shall,  in  particular,  provide  the  requesting 

authority with the following  information: 

a) 

whether  goods  imported  into  the  territory  of  the  requesting  Contracting 

Party  have  been  lawfully  exported  from  the  territory  of  the  requested 

Contracting Party and  specifying,  where appropriate,  the customs  procedure 

applied to the goods; 

// 

b) 

whether  goods  exported  from  the  territory  of  the  requesting  Contracting 

Party  have  been  lawfully  imported  into  the  territory  of  the  requested 

Contracting Party, and specifying, where appropriate, the customs procedure 

applied to the goods. 

3. 

On  request,  and  subject  to  specific  provisions  under  Article  13,  the  requested 

authority shall provide information on, and maintain special surveillance over: 

(a) 

persons  known  to  the  requesting  authority  to  have  committed  a breach  of 

customs legislation or suspected of doing so; 

(b) 

goods either in transport or in storage notified by the requesting authority as 

giving rise to suspected illicit traffic; 

(c) 

means  of  transport  suspected  by  the  requesting  authority  of  being  used  to 

commit breaches of customs legislation; 

(d) 

premises  suspected  by  the  requesting  authority  of  being  used  to  commit 

breaches of customs legislation. 

Article 10 

Spontaneous  assistance 

In serious cases that could involve substantial  damage to the economy,  public health, public 

security  or any  other vital  interest  of  one  Contracting  Party,  the  customs  authority  of the 

other  Contracting  Party  shall,  to  the  extent  possible,  supply  information  on  its  own 

initiative. 

13, 

Article 11 

Form in which Information is to be communicated 

1. 

The  requested  authority  shall  communicate  appropriate  information 

to  the 

requesting  authority  in  the  form  of  documents,  certified  copies  of  documents, 

reports  or electronic versions thereof.  All relevant  information  for  interpreting  or 

utilising that information  shall be supplied at the same time. 

2. 

Original files, documents and other materials shall only be requested in cases where 

copies would be insufficient.  Upon specific request, copies of such files, documents 

and other materials shall be appropriately authenticated. 

3. 

Original files, documents  and  other  materials  that  have  been  transmitted  shall be 

returned  as  soon  as  possible;  rights  of  the  requested  authority  or  of third  parties 

relating thereto shall remain unaffected. 

Article 12 

Experts and witnesses 

1. 

The customs authority of one Contracting Party may authorise its employees, upon 
the request  of the customs  authority  of the  other  Contracting  Party,  to  appear as 
witnesses or experts in judicial  or administrative proceedings in the territory of the 
other Contracting Party and to produce such files, documents or other materials, or 
authenticated copies thereof, as may be considered essential for the proceedings. 

2.  When  appearing  in judicial  or  administrative  proceedings  in  the  circumstances  of 
paragraph  1, witnesses or experts will be afforded  the full  protection  of the law of 
the  requesting  Contracting  Party  pertaining  to  testimony  of  a  privileged  or 
confidential  nature which may be protected from disclosure under that law. 

/3 

3. 

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 

Communication  of requests 

1. 

Requests  for  assistance  under  this  Title  shall  be  made  in  writing  and  shall  be 

accompanied by any documents deemed useful.  When the circumstances so require, 

requests  may also  be  made verbally.  Such  requests  shall  be  promptly  confirmed  in 

writing.  Written  requests  may be  made  by  electronic  means  from  which  a paper 

record may be made. 

2. 

Requests pursuant to paragraph  1  shall include the following information: 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

the requesting authority; 

the measure requested; 

the object of and the reason for the request; 

the laws, rules and other legal elements involved; 

information which is as exact and comprehensive as possible on the persons 

who are the target of the investigations; and 

a summary of the relevant facts and of the investigations already carried out, 
including the customs authorities involved at the time of the request. 

3. 

The requested authority shall agree to follow  a certain procedure in responding to a 

request,  unless  that  procedure  would  conflict  with  legal  and  administrative 

provisions of the requested Contracting Party. 

4. 

The information referred to in this Title shall be communicated  only to officials  who 

are  specifically  designated  for  this  purpose  by  each  customs  authority.  Lists  of 

officials  so  designated  shall be exchanged  in accordance  with  Article  19 (3)  of this 

Agreement. 

5. 

Requests shall be submitted in an official  language of the requested  authority or in a 

language acceptable to that authority. 

/V 

6. 

If a request does not meet the formal  requirements, the requested  authority may ask 

for  its  correction  or  completion.  The  requested  authority  may  take  interim 

measures. 

Article 14 

Execution  of requests 

1. 

If  the  requested  authority  does  not  have  the  information  requested,  it  shall  in 
accordance with its legislation, either: 

(a) 

initiate inquiries to obtain that information; or 

(b) 

promptly transmit the request to the appropriate agency; or 

(c) 

indicate which relevant authorities are concerned. 

2. 

Any  inquiry under paragraph  1 may include  the taking  of  statements  from  persons 
from whom information is sought in connection with a breach of customs legislation 
and from witnesses and experts. 

Article 15 

Duties of  officials 

1. 

On written request,  with the authorisation  of the requested  authority and subject to 

conditions  the  latter  may  impose,  for  the  purpose  of  investigating  a  breach  of 

customs legislation, officials  specifically  designated by the requesting authority may 

be present during an inquiry conducted by the requested  authority in the territory of 
the requested Contracting Party and relevant to the requesting authority. 

2. 

When  officials  of  the  requesting  authority  are  present  in the  territory  of  the  other 

Contracting Party in the circumstances provided for in paragraph  1, they must at all 

times be able to furnish proof of their official  capacity. 

iz 

3. 

Duly  authorised  officials  of  a  Contracting  Party  may,  with  the  agreement  of  the 

other  Contracting  Party  and  within  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  a  breach  of  customs 

legislation which the requesting authority needs for the purposes of this Title. 

Article 16 

Confidentiality  of  information 

1. 

Any information received under this Title shall be treated as confidential  and shall at 

least  be  subject  to  the  same  protection  and  confidentiality  as  the  same  kind  of 

information is subject to under the laws applicable in the Contracting Party where it 

is received. 

•» 
Information  obtained  shall be used  solely  for the purposes  of this Title.  Where one 

2. 

of the Contracting Parties requests the use of such information for other purposes, it 

shall  obtain the prior written consent  of the  customs  authority  which furnished  the 

information.  Such  use  shall  then  be  subject  to  any  restrictions  laid  down  by  that 

authority. 

3. 

Paragraph 2 shall not impede the use of information in any judicial  or administrative 

proceedings  subsequently  instituted  for  failure  to  comply  with  customs  legislation. 

The  Contracting  Parties  may,  in their  records  of  evidence,  reports  and testimonies 

and in proceedings and charges brought before the courts, use evidence obtained in 

accordance  with  the  provisions  of  this  Title.  The  competent  authority  which 

supplied that evidence shall be notified in advance of such use. 

4. 

Personal  data  may  be  exchanged  only  where  the  Contracting  Party  which  will 

receive the data undertakes to protect such data in a way which is at least equivalent 

to  the  protection  applicable  to  that  particular  case  in the  Contracting  Party which 

may supply the data. 

i£ 

5. 

Dissemination  of  information  among  customs  authorities  within  each  Contracting 

Party  will  occur  only  on  a  need-to-know  basis.  Where  information  is  shared 

pursuant to this paragraph, the Contracting Party that supplied the information shall 

be so informed in advance of sharing the information. 

Article 17 

Exceptions to the obligation  to provide assistance 

1. 

In cases  where  assistance  under  this  Title  would  infringe  upon  the  sovereignty  of 

Canada or a Member State of the European Community or prejudice security, public 

policy  or  other  essential  interest  (such  as  that  referred  to  in  Article  16  (4))  of  a 

Contracting  Party,  or  would  involve  a  violation  of  industrial,  commercial  or 

professional  secrecy  or would be inconsistent  with its legislation,  assistance may be 

refused, or made subject to the fulfilment  of certain conditions or requirements. 

2. 

If the requesting authority would be unable to comply if a similar request were made 

by  the  requested  authority,  it  shall  draw  attention  to  that  fact  in  its  request.. 

Compliance with such a request shall be at the discretion of the requested authority. 

3. 

Assistance  may be postponed  by the requested  authority on the grounds that it will 

interfere  with  an ongoing  investigation,  prosecution  or  proceeding.  In such  a case 

the  requested  authority  shall  consult  with  the  requesting  authority  to  determine  if 

assistance  can  be  given  subject  to  such  terms  or  conditions  as  the  requested 

authority may require. 

4. 

Where  assistance  is  denied  or  postponed,  reasons  for  the  denial  or  postponement 

shall be given without delay. 

Article 18 

Costs 

1. 

The customs authorities shall waive all claims for reimbursement  of costs incurred in 

the execution of this Title. 

n 

2. 

If expenses of a substantial or extraordinary nature are or will be required to execute 

the  request,  the  Contracting  Parties  shall  consult  to  determine  the  terms  and 

conditions under which the request will be executed  as well as the manner in which 

the costs shall be borne. 

TITLE IV 

FINAL PROVISIONS 

Article 19 

Implementation  of the Agreement 

1. 

The  management  of this  Agreement  shall  be entrusted  to  the  customs  authority  of 
Canada  and  the  competent  services  of  the  Commission  of  the  European 

Communities and, where appropriate, the customs authorities of the Member States. 

2. 

The customs authorities shall take measures so that their officials  responsible for the 

investigation  or combating of breaches of customs legislation maintain personal and 

direct relations with each other. 

3. 

The  customs  authorities  shall  decide  on  detailed  arrangements  to  facilitate  the 

implementation of this Agreement. 

4. 

The  customs  authorities  shall  endeavour  to  resolve  any  problem  or  doubt  arising 

from the interpretation or application of this Agreement. 

Article 20 

Joint Customs Cooperation  Committee 

1. 

A  Joint  Customs  Cooperation  Committee  is  hereby  established,  consisting  of 

representatives  of  the  customs  authorities  of  the  Contracting  Parties.  The  Joint 

Customs Cooperation Committee shall meet at a place and on a date with an agenda 

fixed  by mutual consent. 

is-

2. 

The  Joint  Customs  Cooperation  Committee  shall  see  to  the  proper  functioning  of 
the Agreement  and shall  examine  all issues  arising from  its  application.  In  fulfilling 
this role, its main functions will be to: 

(a) 

take the measures necessary for customs cooperation  in accordance with the 

objectives of this Agreement and for the expansion of this Agreement with a 

view to increasing the level of customs cooperation  and supplementing  it on 

specific  sectors or matters; 

(b) 

exchange  views  on  any  points  of  common  interest  regarding  customs 

cooperation, including future measures and the resources for them; 

(c) 

in general  terms,  recommend  solutions  aimed  at  attaining  the  objectives  of 

this Agreement. 

3. 

The Joint Customs Cooperation Committee shall adopt its rules of procedure. 

Article 21 

Obligations  imposed  under other agreements 

1.  Taking into account  the respective competencies  of the European Community and the 

Member States, the provisions of this Agreement shall: 

-  not affect  the obligations of the Contracting Parties under any other international 

agreement or convention; 

-  be deemed  complementary  with agreements on customs cooperation  and mutual 

assistance  which  have  been  or  may  be  concluded  between  individual  Member 

States of the European Union and Canada; and 

-  not  affect  the  provisions  governing  the  communication  between  the  competent 
services of the Commission and the customs authorities of the Member States on 
a need-to-know  basis  of  any  information  obtained  under this  Agreement  which 
could be of interest to the European Community. 

n 

2.  Notwithstanding  the provisions  of paragraph  1, the provisions  of this Agreement  shall 

take  precedence  over  the  provisions  of  the  bilateral  agreements  on  customs 

cooperation  and  mutual  assistance  which  have  been  or  may  be  concluded  between 

individual Member States of the European Union and Canada insofar as the provisions 

of the latter are incompatible with those of this Agreement. 

3.  In respect  of questions  relating to the applicability  of this Agreement,  the Contracting 

Parties  shall  consult  each  other  to  resolve  the  matter  in  the  framework  of  the  Joint 

Committee set up under Article 20. 

Article 22 

Territorial  application 

This Agreement shall apply to the territories in which the Treaty establishing the European 

Community is applied and under the conditions laid down in that Treaty and to the territory 

of Canada under the conditions laid down in Canadian law. 

Article 23 

Future  developments 

The  Contracting  Parties  may  by  mutual  consent  expand  this  Agreement  with  a  view  to 

increasing  the  levels  of  customs  cooperation  and  supplementing  them,  in  accordance  with 

their respective customs legislation, by means of agreements on specific sectors or matters. 

Article 24 

Entry  into force and  termination 

1. 

This  Agreement  shall  enter  into  force  on  the first day  of  the  month  following  the 

date on which the Contracting Parties have notified  each other of the completion  of 

the procedures necessary for this purpose. 

2. 

This Agreement  is intended to be of unlimited duration but either Contracting Party 

may terminate it at any time by notification through diplomatic channels. 

o&O 

3. 

The  termination  shall  take  effect  one  month  from  the  date  of  the  notification  of 

denunciation  to  the  other  Contracting  Party.  Ongoing  proceedings  at  the  time  of 

termination shall nonetheless be completed  in accordance with the provisions of this 

Agreement. 

IN  WITNESS  whereof  the  undersigned,  being  duly  authorised  thereto,  have  signed  this 

Agreement. 

Done  at 

on  the 

day of 

199...,  in two  copies  in the 

Danish, Dutch,  English,  Finnish, French,  German,  Greek,  Italian,  Portuguese,  Spanish and 

Swedish languages, each text being equally authentic. 

For the European Community 

M...  Minister for 

President-in-Office  of the Council of the European Union; 

M ...  Member of the Commission of the European Communities; 

For Canada: 

M ...  Minister for 

£. 

ISSN 0254-1475 

COM(97) 206 final 

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