Agreement between the European Community and Hong Kong, China on cooperation and mutual administrative assistance in customs matters
Date: 1999-05-13
Institutions: European Community, Hong Kong
Subjects: Hong Kong, administrative cooperation, cooperation agreement (EU), customs cooperation, simplification of formalities

18. 6. 1999

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Official Journal of the European Communities

L 151/21

between the European Community and Hong Kong, China on cooperation and mutual
administrative assistance in customs matters

AGREEMENT

The EUROPEAN COMMUNITY and HONG KONG, CHINA (1) (hereinafter referred to as the ‘Contracting
Parties'),

CONSIDERING the importance of the commercial links between the European Community and Hong
Kong, China and desirous of contributing, to the benefit of both Contracting Parties, to the harmonious
development of those links;

BELIEVING THAT, in order to attain this objective, there should be an undertaking to develop customs
cooperation;

TAKING into account the development of customs cooperation between the Contracting Parties, concerning
customs procedures;

CONSIDERING that operations in breach of customs legislation are prejudicial to the economic, fiscal and
commercial interests of both Contracting Parties, and recognising the importance of ensuring the accurate
assessment of customs duties and other taxes;

CONVINCED that action against such operations can be made more effective by cooperation between their
competent administrative authorities;

HAVING regard to obligations imposed under international conventions already accepted by, or applied to
the Contracting Parties; and having regard also to the recommendation of the Customs Cooperation Council
on mutual administrative assistance of 5 December 1953,

HAVE AGREED AS FOLLOWS:

TITLE I

GENERAL PROVISIONS

Article 1

Definitions

For the purposes of this Agreement:

(a)

‘customs legislation' shall mean any laws, regulations
or other legally binding instruments of the European
Community or Hong Kong, China governing the
import, export and transit of goods and their placing
under
regime or procedure,
including measures of prohibition, restriction and
control falling under the competence of the customs
authorities and other administrative authorities;

any other customs

(b)

‘customs authority'
in the European
shall mean,
Community, the competent services of the Commis-
sion of the European Communities and the customs
authorities of
the European
the Member States of
Community, and in Hong Kong, China, the Customs
and Excise Department;

(c)

‘applicant authority' shall mean a competent adminis-
trative authority which has been designated by a

(1) In accordance with Article 151 of the Basic Law of the Hong
Kong Special Administrative Region of the People’s Republic
of China.

Contracting Party for this purpose and which makes a
request for assistance on the basis of this Agreement;

(d)

‘requested authority' shall mean a competent adminis-
trative authority which has been designated by a
Contracting Party for this purpose and which receives
a request for assistance, on the basis of this Agree-
ment;

(e)

‘personal data' shall mean all information relating to
an identified or identifiable human being;

(f)

‘operation in breach of customs legislation' shall mean
any violation or attempted violation of the customs
legislation;

(g)

‘person' shall mean either a human being or a legal
entity.

Article 2

Territorial application

This Agreement shall apply, on the one hand, to the
territories in which the Treaty establishing the European
Community is applied and under the conditions laid
down in that Treaty and, on the other hand, to Hong
Kong, China.

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Article 3

Future developments

The Contracting Parties may by mutual consent expand
this Agreement with a view to increasing and supple-
menting customs cooperation, in accordance with their
respective customs legislation, by means of agreements on
specific sectors or matters.

Article 4

Scope of the cooperation

customs

1. The
customs cooperation.
Parties shall seek to cooperate in:

authorities undertake
In particular,

to develop
the Contracting

(a) establishing and maintaining channels of communi-
cation between their customs authorities to facilitate
the secure and rapid exchange of information;

(b) facilitating

effective
customs authorities;

coordination between their

(c) any other administrative matters related to this Agree-
ment that may from time to time require their joint
action.

2. Under this Agreement, customs cooperation shall
cover all matters relating to the application of customs
legislation.

(a) not affect the obligations of the Contracting Parties
under any other international agreement or conven-
tion,

(b) be deemed complementary with agreements on
customs cooperation and mutual administrative assis-
tance which have been or may be concluded between
individual Member States and Hong Kong, China, and

(c) not affect the Community provisions governing the
communication between the competent services of
the Commission and the customs authorities of the
Member States of any information obtained under this
to the
Agreement which could be of
Community.

interest

2. Notwithstanding the provisions of paragraph 1, the
provisions of this Agreement shall take precedence over
the provisions of any bilateral agreement on customs
cooperation and mutual administrative assistance which
has been or may be concluded between individual
Member States and Hong Kong, China 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
Customs Cooperation Committee set up under Article 21
of this Agreement.

Article 5

Scope of assistance

TITLE II

CUSTOMS COOPERATION

1. The Contracting Parties shall assist each other, in the
areas within their competence and within the limits of
available resources, and in the manner and under the
conditions laid down in this Agreement, to ensure the
correct application of customs legislation, in particular by
preventing,
investigating and combating operations in
breach of that legislation.

2. Assistance in customs matters under this Agreement
shall be provided between the customs and other
administrative authorities of
the Contracting Parties
which are competent for the application of this Agree-
ment. It shall not prejudice the rules governing mutual
assistance in criminal matters. Nor shall it cover informa-
tion obtained under powers exercised at the request of a
judicial authority.

3. Assistance to recover duties, taxes or fines is not
covered by this Agreement.

Article 7

Cooperation in customs procedures

The Contracting Parties affirm their commitment to the
facilitation of the legitimate movement of goods and shall
to
exchange information and expertise on measures
improve customs techniques and procedures and on
computerised systems with a view towards implementing
that commitment in accordance with the provisions of
this Agreement.

Article 8

Technical assistance

Article 6

Obligations imposed under other agreements

1. Taking into account the respective competences of
the European Community and the Member States, the
provisions of this Agreement shall:

1. The customs authorities may provide technical assis-
tance to each other and exchange personnel when mutu-
ally beneficial, and according to the availability of
resources,
for the purpose of advancing their under-
standing of each other’s customs techniques, procedures
and computerised systems.

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2. They may also, when appropriate, exchange informa-
tion about
technical assistance to any other customs
administrations.

Article 9

Discussions in international organisations

shall

The customs authorities
seek to develop and
strengthen their cooperation on topics of common
interest with a view to facilitating discussions on customs
matters in the framework of international organisations,
such as the Customs Cooperation Council.

TITLE III

MUTUAL ADMINISTRATIVE ASSISTANCE

Article 10

Assistance on request

the request of

the applicant authority,

the
1. At
requested authority shall provide it with all relevant infor-
mation which may enable it to ensure that customs legis-
lation is
information
regarding activities detected or planned which are or
could be operations in breach of customs legislation.

including

correctly

applied,

2. At
requested authority shall inform it:

the request of

the applicant authority,

the

(a) whether goods exported from one of the Contracting
Parties have been properly imported into the other,
specifying, where appropriate, the customs procedure
applied to the goods;

(b) whether goods imported into one of the Contracting
Parties have been properly exported from the other,
specifying, where appropriate, the customs procedure
applied to the goods.

the request of

3. At
the
requested authority shall, within the framework of its
laws, regulations or other legally binding instruments,
take the necessary steps to ensure special surveillance of:

the applicant authority,

(a) persons in respect of whom there are reasonable
grounds for believing that
they are or have been
involved in operations in breach of customs legisla-
tion;

(b) places where stocks of goods have been or may be
assembled in such a way that there are reasonable
grounds for believing that these goods are intended to
be used in operations in breach of customs legislation;

(c) goods that are or may be transported in such a way
that there are reasonable grounds for believing that

they are intended to be used in operations in breach
of customs legislation;

(d) means of transport that are or may be used in such a
way that there are reasonable grounds for believing
that they are intended to be used in operations in
breach of customs legislation.

Article 11

Spontaneous assistance

The Contracting Parties shall assist each other, at their
own initiative and in accordance with their laws, regula-
tions or other
they
consider that to be necessary for the correct application of
customs legislation, particularly by providing information
obtained pertaining to:

legally binding instruments,

if

(a) activities which are or appear to be operations in
breach of customs legislation and which may be of
interest to the other Contracting Party;

(b) new means or methods employed in carrying out

operations in breach of customs legislation;

(c) goods known to be subject to operations in breach of

customs legislation;

(d) persons in respect of whom there are reasonable
grounds for believing that
they are or have been
involved in operations in breach of customs legisla-
tion;

(e) means of

transport

in respect of which there are
reasonable grounds for believing that they have been,
are, or may be used in operations in breach of customs
legislation.

Article 12

Delivery, notification

the request of

the
1. At
requested authority shall, in accordance with laws, regula-
tions or other legally binding instruments applicable to
the latter, take all necessary measures in order:

the applicant authority,

(a) to deliver any documents of an administrative nature,

or

(b) to notify any decisions,

emanating from the applicant authority and falling within
the scope of this Agreement, to an addressee residing or
established in the jurisdiction of the requested authority.

2. Requests for delivery of documents or notification of
decisions shall be made in writing in an official language
of the requested authority or in a language acceptable to
that authority. This requirement shall not apply to any
documents that are to be delivered under paragraph 1.

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Article 13

Form and substance of requests for assistance

1. Requests pursuant to this Agreement shall be made
in writing. They shall be accompanied by the documents
necessary to enable compliance with the request. When
required because of the urgency of the situation, oral
requests may be accepted, but must be confirmed in
writing immediately.

2. Requests pursuant to paragraph 1 shall include the
following information:

(a) the applicant authority;

(b) the action requested;

applicant authority needs for the purposes of this Agree-
ment.

4. Duly authorised officials of a Contracting Party may,
with the agreement of the other Contracting Party and
subject to the conditions laid down by the latter, be
present at enquiries carried out in the latter’s jurisdiction
into specific cases.

In the event that the request cannot be complied
5.
with, the applicant authority shall be notified promptly of
that fact, with a statement of the reasons and of any other
information that the requested authority considers may be
of assistance to the applicant authority.

Article 15

(c) the object of and the reason for the request;

Form in which information is to be communicated

(d) the laws, regulations or other legally binding instru-

ments involved;

(e) indications as exact and comprehensive as possible on
the persons who are the target of the investigations;

(f) a summary of the relevant facts and of the enquiries

already carried out.

3. Requests shall be submitted in an official language of
the requested authority or in a language acceptable to that
authority. This requirement shall not apply to any docu-
ments that accompany the request under paragraph 1.

If a request does not meet the formal requirements
4.
set out above,
its correction or completion may be
requested; precautionary measures may be taken in the
meantime.

Article 14

Execution of requests

In order to comply with a request for assistance, the
1.
requested authority shall proceed, within the limits of its
competence and available resources, as though it were
acting on its own account or at the request of other
authorities of that same Contracting Party, by supplying
information already possessed, by carrying out appropriate
enquiries or by arranging for them to be carried out. This
provision shall also apply to any other authority to which
the request has been addressed in accordance with this
Agreement by the requested authority when the latter
cannot act on its own.

2. Requests for assistance shall be executed in accord-
ance with the laws, regulations or other legally binding
instruments of the requested Contracting Party.

3. Duly authorised officials of a Contracting Party may,
with the agreement of the other Contracting Party and
subject to the conditions laid down by the latter, be
present to obtain in the offices of the requested authority
or any other concerned authority in accordance with para-
graph 1, information relating to activities that are or may
be operations in breach of customs legislation which the

1. The requested authority shall communicate results of
enquiries to the applicant authority in writing together
with relevant documents, certified copies or other items.

2. This information may be in computerised form.

3. Original files and documents shall be transmitted
only upon request in cases where certified copies would
be insufficient. These originals shall be returned at the
earliest opportunity. The rights of the requested authority
or of third parties relating to the originals shall remain
unaffected.

Article 16

Exceptions to the obligation to provide assistance

1. Assistance may be refused or may be subject to the
satisfaction of certain conditions or requirements, in cases
where a Party is of the opinion that assistance under this
Agreement would:

(a) be likely to prejudice the vital

interests of Hong
Kong, China or those of a Member State which has
been requested to provide assistance under this Agree-
ment; or

(b) be likely to prejudice public order, security or other
in particular those referred to

essential principles,
under Article 17(2); or

(c) violate an industrial, commercial or professional

secret.

2. Assistance may be postponed by the requested
authority on the ground that it will interfere with an
ongoing investigation, prosecution or proceeding. In such
a case, the requested authority shall consult with the
applicant authority to determine if assistance can be given
subject
to such terms or conditions as the requested
authority may require.

3. Where the applicant authority seeks assistance which
it would itself be unable to provide if so requested, it shall
draw attention to that fact in its request. It shall then be
for the requested authority to decide how to respond to
such a request.

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4. For the cases referred to in paragraphs 1 and 2, the
decision of
the requested authority and the reasons
therefor must be communicated to the applicant authority
without undue delay.

5. Practical arrangements for the implementation of this
Article shall be determined by the Joint Customs
Cooperation Committee established under Article 21.

Article 17

Information exchange and confidentiality

1. Any information communicated in whatsoever form
pursuant to this Agreement shall be of a confidential or
restricted nature, depending on the rules applicable in
each of the Contracting Parties. It shall be covered by the
obligation of official secrecy and shall enjoy the protec-
tion extended to similar information under the relevant
laws of the Contracting Party that received it and the
corresponding provisions applying to the Community
authorities.

2. Personal data may be exchanged only where the
Contracting Party which may receive it undertakes to
protect such data in at least an equivalent way to the one
applicable to that particular case in the Contracting Party
that may supply it. The Contracting Party that may
supply the information shall not stipulate any require-
ments that are more onerous than those applicable to it in
its own jurisdiction.

Contracting Parties shall communicate to each other
information on their applicable rules, including, where
appropriate,
legal provisions in force in the Member
States of the Community.

3. Nothing in this Agreement shall preclude the use of
information or documents obtained in accordance with
this Agreement as evidence in proceedings or charges
subsequently instituted before the courts or tribunals in
respect of operations in breach of customs legislation.
Therefore, the Contracting Parties may, in their records of
evidence, reports and testimonies and in proceedings and
charges which may subsequently be brought before the
courts or tribunals, use as evidence information obtained
and documents consulted in accordance with the provi-
sions of this Agreement. The competent authority which
supplied that information or gave access to those docu-
ments shall be notified of such use.

this Agreement. Where one of

Information obtained shall be used solely for the
4.
purposes of
the
Contracting Parties wishes to use such information for
other purposes, it shall obtain the prior written consent of
the authority which provided the information. Such use
shall then be subject to any restrictions laid down by that
authority.

Article 18

Experts and witnesses

An official of a requested authority may be authorised to
appear, within the limitations of
the authorisation
granted, as an expert or witness before an authority in the
other Contracting Party regarding the matters covered by
this Agreement, and produce such objects, documents or
certified copies thereof as may be needed for this purpose.
The request
indicate specifically
before which authority the official will have to appear, on
what matters and by virtue of what title or qualification
the official will be questioned.

for appearance must

Article 19

Assistance expenses

for

The Contracting Parties shall waive all claims on each
other
incurred
the reimbursement of expenses
pursuant to this Agreement, except, as appropriate, for
expenses payable to experts and witnesses, and those to
interpreters and translators who are not public service
employees.

TITLE IV

FINAL PROVISIONS

Article 20

Implementation

1. The implementation of
this Agreement shall be
entrusted on the one hand to the competent services of
the Commission of
the European Communities and,
where appropriate, the customs authorities of the Member
States of the European Community and on the other
hand to the Customs and Excise Department of Hong
Kong, China. They shall decide on all practical measures
and arrangements necessary for its application, taking into
consideration the rules in force in particular in the field
of data protection. They may recommend to the
competent bodies amendments which they consider
should be made to this Agreement.

2. The Contracting Parties shall consult each other and
subsequently keep each other informed of the detailed
rules of implementation which are adopted in accordance
with the provisions of this Agreement.

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Article 21

Article 22

Joint Customs Cooperation Committee

1. A Joint Customs Cooperation Committee is hereby
established, consisting of representatives of the European
Community and of Hong Kong, China. It shall meet at a
place, on a date and with an agenda, fixed by mutual
agreement.

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 fulfil-
ling this role, its main functions will be to:

(a) review the progress of the customs cooperation in
accordance with this Agreement and identify new
areas and specific sectors for further customs coopera-
tion;

(b) exchange views on any points of common interest
including future

regarding customs
measures and the resources for them; and

cooperation,

(c) in general

recommend solutions aimed at
helping to attain the objectives of this Agreement.

terms,

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

Entry into force and duration

1. This Agreement shall enter into force on the first day
the month following the date on which the
of
Contracting Parties have notified each other of
the
completion of the procedures necessary for this purpose.

2. Each Contracting Party may terminate this Agree-
ment by giving notice to the other in writing. The
termination shall take effect three months from the date
of notification to the other Contracting Party. Requests
for assistance which have been received prior to the
termination of
the Agreement shall be completed in
accordance with the provisions of this Agreement.

Article 23

Authentic texts

This Agreement shall be drawn up in duplicate in the
Danish, Dutch, English, Finnish, French, German, Greek,
Italian, Portuguese,
Swedish and Chinese
languages, each text being equally authentic.

Spanish,

In witness whereof, the undersigned, being duly authorised to do so, have signed this
Agreement.

Done at Hong Kong, China on the thirteenth day of May in the year one thousand nine
hundred and ninety-nine.

For the European Community

For Hong Kong, China