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)
Date: 1998-05-28
Institutions: Council of the European Union
Subjects: aid policy, customs cooperation, customs regulations

17.6.98

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(Acts  adopted  under  Title  VI  of  the  Treaty  on  European  Union)

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

(iv) 

(i) 

(ii) 

(iii) 

the 

between 

investigating 

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
customs
cooperation 
administrations  of  the  EU  Member  States  in
preventing, 
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
the
Convention  of 
the  Member  States  of 
European  Economic  Community  on 
the
provision  of  mutual  assistance  by  their  customs
authorities  —  signed  in  Rome  on  7  September
1967  (‘the  1967  Naples  Convention’).

and 

Historical  background

Effective 
customs
administrations  has  always  been  a  high  priority.

cooperation 

between 

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).

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

Convention.

(v) 

(vi) 

to  update 

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
the  1967  Naples
Convention 
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).

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
information
Convention  on 
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.

the  use  of 

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

recently 

there  have  been 

several
More 
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

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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 
general
recommendation that any ratification procedures
be  put  urgently  on  the  agendas  of  national
parliaments.

included 

Plan 

also 

a 

(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 
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.’

regards 

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 
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

enforcement 

relation 

to 

in 

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 
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.

sets  out 

(x) 

(xi) 

the 

superseded 

The  provisions  of  Regulation  (EC)  No  515/97
the
they  apply, 
have,  where 
corresponding  provisions  of  the  1967  Naples
Convention.  However 
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

The  Convention  will  enter  into  force  90  days
after  the  last  Member  State  has  completed  its
in  relation  to  the
constitutional  procedures 
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

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to 

adopt 

procedures 

constitutional 
the
Convention,  or  have  completed  these  procedures
but  have  not  made  the  declaration  mentioned  in
the  previous  paragraph.  The  1967  Naples
the
Convention  will  cease 
Convention  enters  into  force.

to  apply  when 

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 
this
Explanatory  Report.  Parallel  provisions  are  also
shown  in  the  table  at  Annex  A.

is  given 

later 

in 

(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 
cooperation  in  criminal  matters

other 

provisions 

for

(xiv) 

to  mutual  assistance 

Article  1  of  the  Convention  sets  out  the
the  Convention  and
relationship  between 
provisions  relating 
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 
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.

to  mutual  assistance 

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.

delivery, 

controlled 

(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, 
covert
investigations  and 
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.

joint  special 

(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.

(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

(xx) 

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

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II. COMMENTARY  ON  THE  ARTICLES

that  the  Convention  does  not  affect  the  national
powers  of  customs  administrations.

TITLE  1

General provisions

Article  1:

2.2. 

2.3. 

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

In  relation  to  this  Convention,  it  is  useful  to  be
aware 
customs
administrations  differ  widely  between  Member
States.

competences  of 

that 

the 

1.1. 

1.2. 

1.3. 

1.4. 

1.5. 

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
infringements  of  Community  and
punishing 
national  customs  provisions.

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.

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 
favourable.  This
provision  reflects  a  similar  provision  in  Article
23  of  the  1967  Naples  Convention.

they  are  more 

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

interpretation  of 

Denmark and Finland have made declarations on
their 
‘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.

term 

the 

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

Article  3:

3.1. 

in 

This  Article  notes  that  the  Convention  relates  to
mutual  assistance  and  cooperation 
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. 

interpretation  of 

Denmark and Finland have made declarations on
their 
‘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.

term 

the 

Article  4:  This  Article  contains  a  set  of  definitions  of

terms  used  in  the  Convention.

4.1. 

or 

restricted 

‘National  customs  provisions’  are  all 
laws,
regulations  and  administrative  provisions  of  a
Member  State  concerning  cross-border  traffic  in
prohibited 
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 
customs
competences 
administrations  differ  widely  between  Member

goods 

the 

of 

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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
in  relation  to  national  customs
jurisdiction 
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.

to  establish 

associated 
the 

implementing 
import,  export, 

‘Community customs provisions’ are Community
provisions
and 
governing 
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 
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 
definition.  Community
provisions  connected  with  harmonised  excise
duties and value added tax on importations, and
national  provisions  for  implementing  them  are
also 
that
Community  customs  provisions  are  generally
wholly  within 
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.

should  be  noted 

included. 

this 

the 

in 

It 

are 

to 
to 

defined 

include
‘Infringements’ 
participation 
commit
in  or  attempts 
infringements of national or community customs
provisions, 
criminal
organisation  committing  such  infringements  and
the 
from
laundering  of  money  deriving 
infringements  as  provided  for  in  Article  4(3)  of
the  Convention.

participation 

in 

a 

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
laundering  of  money  deriving  from
of 

‘the 

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. 

4.6. 

4.7. 

4.8. 

4.9. 

‘applicant  authority’ 

the  competent
The 
authority  of  the  Member  State  which  makes  a
request  for  assistance.

is 

‘requested  authority’ 

is  the  competent
The 
authority  of  the  Member  State  which  receives  a
request  for  assistance.

jurisdiction 

authorities  with 

‘Customs  administrations’  are  defined  to  include
Member  States’  customs  authorities  as  well  as
other 
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 
the
Convention.

in  Article  4(1)  and  4(2)  of 

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

relates 

‘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.

4.2. 

4.3. 

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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
allocation  of
the  precise 
not  knowing 
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
include  promoting  and  speeding  up
might 
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

for 

it  provides 

information; 

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 
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 
presumed
the 
infringement).

seriousness 

the 

of 

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.

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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.

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

Convention.

Article  9:

Article  12:

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.

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 

all 

that 

findings,
information  and  documentation  obtained  by
officers  of  the  requested  authority  in  accordance
with  their  national  law  in  cases  of  assistance
in  Articles  10  to  12  of  the
provided  for 
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.

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TITLE  III

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

Spontaneous  assistance

Naples  Convention.

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 
investigating  or
in  detecting, 
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
that  Member  State  all
communicate 
concerning  operations
information 
connected  with 
committed
infringements  where  this  will  serve  to  prevent,
detect  or  prosecute  infringements  in  another
Member  State.

planned 

it  has 

or 

to 

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 
to
each  Member  State  are 
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.

required 

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

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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
illegal  manufacture  of

the 

intended  for 
drugs);

trade 

to  evade 

(c)  illegal  cross-border  commercial 

in
tax  or  obtain
taxable  goods 
the
unauthorised  State  payments  where 
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.

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
the
has  made  a  declaration  on 
Convention 
for
defining 
implementing  pursuit 
territory.  Such
declarations include the limits in space or time in
which  hot  pursuit  is  permitted,  and  whether
carried.  These
service  weapons  may  be 
declarations  may  be 
replaced  by  other
declarations  provided  the  latter  do  not  restrict
the  scope  of  the  former.

signing 
procedures 

the 

its 

in 

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.

Article  20:

20.1.  This  Article  relates  to  hot  pursuit.  It  provides
that  officers  from  one  Member  State  may

20.4. 

Pursuit  may  take  place  over  all  types  of  border.
into  private  homes  and  places  not
Entry 
is  prohibited  and
accessible 

the  public 

to 

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pursuing  officers  must  always  be 
identifiable.

easily

20.5. 

Pursuing  officers  may  carry 
weapons  unless 
territory 
declaration  prohibiting  this.

service
the  Member  State  whose
to  enter  has  made  a

they  wish 

their 

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 

the  Schengen 

Convention (1); 

their  obligations  under 

Implementing
Convention  contains  a  similar  provision  on  hot
pursuit.  The  key  differences  are:  the  Schengen
is  mandatory  while
Convention  provision 
signatories  to  the  Convention  can  opt  out  of  all
or part of the Article insofar as such reservations
do  not  affect 
the
Schengen 
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 
latter
authorises  this  in  advance.  Conditions  may  be

the 

if 

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

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 
the
crossing  of  the  border,  during  the  observation,
and  a  request 
for  authorisation  submitted
without  delay.

immediately  of 

21.2.  The 

the 

the 

instructions  of 

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 
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

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range  of 

serious  crime 

such  reservations  do  not  affect  their  obligations
under the Schengen Convention (1); the Schengen
Convention  provision  relates  to  all  extraditable
offences  for  surveillance  with  prior  approval,
for
and  a  wide 
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
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.

the  Convention; 

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,
the  Schengen  Convention  makes  no
while 
mention  of 
Schengen
Convention  provides  for  controlled  deliveries  of
drugs  and  psychotropic  substances  while  the
Convention  provides  for  controlled  deliveries  in
relation  to  ‘extraditable  offences’.

issues.  The 

these 

Article  22:

Article  23:

22.1.  This  Article  relates 

surveillance  until 

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 
their
destination.  This 
technique  allows  customs
organisations
administrations 
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.

identify 

reach 

they 

to 

investigations 

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 
into  extraditable
to  allow  controlled
offences.  The  decision 
deliveries  will  be  taken  by  the  competent
authorities  of  the  requested  Member  State  with
due 
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.

for  national 

regard 

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

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.

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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
customs
detect 
infringements.

particular 

types 

of 

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 
the  necessary
arrangements  for  the  team  to  operate.  The  team
must  work  within  the  laws  of  that  Member
State.

State  will  make 

24.3.  Membership  of  the  team  does  not  bestow  any
in  another  Member
intervention 

powers  of 
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
the  protection  of
for 
Europe  Convention 
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, 
the
it 
communicating  Member  State.

inform 

should 

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 
the  CIS
Convention.

in  relation 

this  role 

to 

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

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defined  in  Article  2(a)  and  (b)  of  that  Directive
as  follows:

(b) any  of  its  courts  or  tribunals,

to  an 

identified  or 

(a)  ‘personal  data’  shall  mean  any  information
relating 
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,
retrieval,
adaptation 
consultation,  use,  disclosure  by  transmission,
dissemination  or  otherwise  making  available,
alignment  or  combination,  blocking,  erasure
or  destruction.

alteration, 

or 

may  request  a  preliminary  ruling  from  the
Court.

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

for 

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

TITLE  VI

Article  27:

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 
the
interpretation  or  application  of 
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 
the
interpretation  or  application  of 
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

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:

implementation  of 

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

this  Convention  with 

extraordinary, 

substantial 

the 

or 

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Article  30:

30.1.  This  Article  concerns 

to 

reservations 

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. 

30.3. 

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.

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.

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 
the
these  procedures  may  declare 
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.

that 

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  31:

Article  35:

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).

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.

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ANNEX  A

Table showing, where appropriate, articles of the 1967 Naples Convention and Regulation (EC) No 515/97
which  cover  similar  subject  matter  to  the  Convention  on  mutual  assistance  and  cooperation  between
customs  administrations  (‘the  Convention’)

‘The  Convention’

‘The  1967
Naples  Convention’

Regulation  (EC)
No  515/97

Subject

Article  1(1)

Article  1(1)

Article  1

Scope

Article  1(2)
and  Article  30

Article  2

Article  3

Article  23

Article  1

Relationship  to  other  mutual  assistance  arrangements

Powers

Article  3
Article  51

Relationship  to  mutual  assistance  provided  by  the
judicial authorities

Article  4

Article  2

Article  2

Definitions

Article  4(7)

Article  1(2)

Article  2(2)

Other  authorities  to  be  brought  within  the  meaning  of
customs  administration  where  appropriate/Competent
authorities

Article  5

Article  10  and
Article  22(1)

Article  46(b)

Central  coordinating  units/direct  cooperation

Article  6

Article  14

Article  11

Liaison  officers/Presence  of  officers  in  another
Member  State

Article  7

Article  16

Article  11

Obligation  to  prove  identity

Article  8

Article  9

Article  10

Article  5
Article  6
Article  7
Article  8
Article  9

Article  8
Article  11

Article  4

Principles  of  assistance  on  request

Form  and  content  of  the  request  for  assistance

Article  5
Article  8
Article  10

Requests  for  information

Article  11

Article  6

Article  7

Requests  for  surveillance

Article  12

Articles  13  and  14

Article  9

Requests  for  enquiries

Article  13

Article  17

Article  6

Notification

Article  14

Article  15

Article  12

Use  as  evidence

Article  15

Article  5
Article  6
Article  8
Article  9

Article  13

Principle  of  spontaneous  assistance

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‘The  Convention’

‘The  1967
Naples  Convention’

Regulation  (EC)
No  515/97

Subject

Article  16

Article  6

Article  14

Surveillance

Article  17

Article  8
Article  9

Article  15

Spontaneous  information

Article  18

Article  15

Article  16

Use  as  evidence

Article  19

Article  20

Article  21

Article  22

Article  23

Article  24

Article  25

Article  20

Articles  34  to  41
(in  relation  to  CIS)

Article  42

Principles  of  special  forms  of  cooperation

Hot  pursuit

Cross-border  surveillance

Controlled  delivery

Covert investigations

Joint  special  investigation  teams

Data  protection  for  the  exchange  of  data

Article  26

Article  27

Article  20

Article  45
Article  51

Court  of  Justice

Confidentiality

Article  28

Article  19
Additional  protocol

Article  48

Exemptions  from  the  obligation  to  provide  assistance

Article  29

Article  18

Article  50

Expenses

Article  30

Reservations

Article  31

Article  23(2)

Territorial applications

Article  32

Article  24(1)
and  (2)

Article  53

Entry  into  force

Article  33

Article  24(3)

Article  34

Article  35

Article  24(1)
and  25(3)

Accession

Amendments

Depositary

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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.

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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.