Proposal for a Council Decision concerning the conclusion of an Agreement in the form of an exchange of letters between the European Community and Malta adding a Protocol on mutual administrative assistance in customs matters to the Agreement establishing an association between the European Economic Community and Malta
Date: 2002-10-17
Institutions: European Commission
Subjects: Malta, administrative cooperation, association agreement (EU), customs cooperation, protocol to an agreement

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Proposal for a Council Decision concerning the conclusion of an Agreement in the form of an
exchange of letters between the European Community and Malta adding a Protocol on mutual
administrative assistance in customs matters to the Agreement establishing an association between
the European Economic Community and Malta

(2003/C 45 E/09)

COM(2002) 509 final — 2002/0249(ACC)

(Submitted by the Commission on 17 October 2002)

EXPLANATORY MEMORANDUM

1. The Agreement establishing an association between the European Economic Community and Malta
entered into force on 1 April 1971. It included among its objectives close and extensive co-operation to
increase and diversify trade between the parties, and provided for the reciprocal
liberalisation of
commerce.

2. However, this Agreement contains no specific requirements with regard to methods of administrative

co-operation to be applied to its general provisions.

3. In order to provide greater security in the customs sector for legitimate trade, the respective Agreement
parties considered it necessary to conclude an additional protocol to the Agreement on mutual adminis-
trative assistance in the customs sector.

4. On this basis, negotiations have taken place between the Commission and Malta. These exchanges have
resulted in the Protocol and the Agreement in the form of an exchange of letters initialled in Valletta in
October 2001.

5. The purpose of this Protocol is the prevention, detection and prosecution, by way of mutual assistance
conducted between the parties' competent authorities of activities in breach of customs legislation. The
assistance in question chiefly involves the forwarding of information and documents with regard to
investigations, and the surveillance of specific individuals, goods, and places or means of transport.

6. This Protocol is virtually identical to the standard version drawn up in 1997 by the Council Working

Group on Economic Questions.

7. In cases involving questions relating to the applicability of the Protocol, the Contracting Parties agree to
consult with each other in order to resolve such matters. Such consultation is to be carried out within
the framework of the Special Co-operation Committee set up by the Association Council.

8. The Agreement now needs to be signed and concluded. The Council is therefore invited:

— to approve, on behalf of the Community, the Agreement in the form of an exchange of letters
between the Community and the Malta adding a Protocol on mutual administrative assistance in
customs matters to the Association Agreement;

— to designate a person empowered to sign the exchange of letters.

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THE COUNCIL OF THE EUROPEAN UNION,

(3) The Agreement

in the form of an Exchange of Letters

should be approved on behalf of the Community,

Having regard to the Treaty establishing the European
Community, and in particular Article 133 in conjunction
with the first sentence of the first subparagraph of Article
300(2) thereof,

HAS DECIDED AS FOLLOWS:

Article 1

Having regard to the proposal from the Commission,

Whereas:

(1) To allow mutual administrative assistance in customs
matters between the two parties as provided for in the
Agreement
an association between the
European Economic Community and Malta (1), which
entered into force on 1 April 1971, a Protocol should be
added to that Agreement.

establishing

The Agreement in the form of an Exchange of Letters between
the European Community and Malta adding a Protocol on
mutual administrative assistance in customs matters to the
Agreement establishing an association between the European
Economic Community and Malta is hereby approved on behalf
of the Community.

The text of the Agreement in the form of an exchange of
letters is attached to this Decision.

Article 2

(2) To that end, the Commission has negotiated on behalf of
the Community a bilateral Agreement in the form of an
Exchange of Letters.

The President of the Council is hereby authorised to designate
the persons empowered to sign the Agreement in the form of
an Exchange of Letters, referred to in Article 1, in order to bind
the Community.

(1) OJ L 61, 14.3.1971, p. 1.

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AGREEMENT

in the form of an exchange of letters between the European Community and Malta adding a
Protocol on mutual administrative assistance in customs matters to the Agreement establishing
an association between the European Economic Community and Malta

A. Letter from the European Community

Brussels, . . .

Sir,

I have the honour to refer to the negotiations between representatives of the European Community and
Malta with a view to concluding an Agreement on Mutual Administrative Assistance in Customs Matters
to the Agreement establishing an association between the European Economic
adding a Protocol
Community and Malta signed in Valletta on 5 December 1970.

The Protocol, the text of which is annexed hereto, shall form an integral part of the Agreement and shall
enter into force on the first day of the second month following the accomplishment of this exchange of
letters.

I should be grateful if you could confirm the agreement of Malta to the foregoing.

Please accept, Sir, the assurance of my highest consideration.

On behalf of the European Community

B. Letter from Malta

Valletta, . . .

Sir,

I have the honour to acknowledge receipt of your letter of today's date with the following content:

‘I have the honour to refer to the negotiations between representatives of the European Community
and Malta with a view to concluding an Agreement on mutual administrative assistance in customs
matters adding a Protocol to the Agreement establishing an association between the European
Economic Community and Malta signed in Valletta on 5 December 1970.

This Protocol, the text of which is annexed hereto, shall form an integral part of the Agreement and
shall enter into force on the first day of the second month following the accomplishment of this
exchange of letters.

I should be grateful if you could confirm the agreement of Malta to the foregoing.’

I can confirm the agreement of Malta to the foregoing.

Please accept, Sir, the assurance of my highest consideration.

For Malta

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PROTOCOL

on mutual administrative assistance in customs matters

Article 1

Definitions

planned which are or could be operations in breach of
customs legislation.

For the purposes of this Protocol:

At the request of the applicant authority, the requested

2.
authority shall inform it:

(a)

adopted

‘customs legislation’ shall mean any legal or regulatory
provisions
or Malta
governing the import, export and transit of goods and
their placing under any other customs regime or procedure,
including measures of prohibition, restriction and control;

the Community

by

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

(b) ‘applicant authority’ shall mean a competent administrative
authority which has been designated by a Contracting Party
for this purpose and which makes a request for assistance
on the basis of this Protocol;

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

(c)

‘requested authority’ shall mean a competent administrative
authority which has been designated by a Contracting Party
for this purpose and which receives a request for assistance
on the basis of this Protocol;

(d) ‘personal data’ shall mean all

information relating to an

identified or identifiable individual;

(e)

‘operation in breach of customs legislation’ shall mean any
violation or attempted violation of customs legislation.

Article 2

Scope

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

legislation,

customs

the

2.
Assistance in customs matters, as provided for in this
Protocol, shall apply to any administrative authority of the
Contracting Parties which is competent for the application of
this Protocol. It shall not prejudice the rules governing mutual
assistance in criminal matters. Nor shall it cover information
obtained under powers exercised at the request of a judicial
authority, except where communication of such information is
authorised by that authority.

Assistance to recover duties, taxes or fines is not covered

3.
by this Protocol.

Article 3

Assistance on request

1.
At the request of the applicant authority, the requested
authority shall provide it with all relevant information which
may enable it to ensure that customs legislation is correctly
including information regarding activities noted or
applied,

3.
At the request of the applicant authority, the requested
authority shall, within the framework of its legal or regulatory
provisions,
special
surveillance of:

the necessary

to ensure

steps

take

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

(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 4

Spontaneous assistance

The Contracting Parties shall assist each other, at their own
initiative and in accordance with their legal or regulatory
provisions,
the
legislation, particularly by
correct application of customs
providing information obtained pertaining to:

to be necessary for

they consider

that

if

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

— new means or methods

employed in carrying out

operations in breach of customs legislation;

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— goods known to be subject to operations in breach of

(f) a summary of

the relevant

facts and of

the enquiries

customs legislation;

already carried out.

— natural or legal persons in respect of whom there are
they are or have
reasonable grounds for believing that
been involved in operations in breach of customs legis-
lation;

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

— 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.

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

Article 5

Delivery, Notification

the request of

At
authority shall,
provisions
measures in order:

applicable

the applicant authority,
in accordance with legal or

to the

latter,

take

the requested
regulatory
all necessary

— to deliver any documents; or

— to notify any decisions

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

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.

Article 6

Form and substance of requests for assistance

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

the

Requests pursuant

2.
following information:

to paragraph 1 shall

include the

(a) the applicant authority;

(b) the measure requested;

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

Article 7

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 by the requested authority when the latter
cannot act on its own.

Requests for assistance shall be executed in accordance
the requested
regulatory provisions of

2.
with the legal or
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
the requested authority or any other concerned
offices of
authority in accordance with paragraph 1,
information
relating to activities that are or may be operations in breach
of customs legislation which the applicant authority needs for
the purposes of this Protocol.

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 territory.

Article 8

Form in which information is to be communicated

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

(d) the legal or regulatory provisions and other legal elements

involved;

2.

This information may be in computerised form.

(e)

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

Original documents

3.
shall be transmitted only upon
request in cases where certified copies would be insufficient.
These originals shall be returned at the earliest opportunity.

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Article 9

Exceptions to the obligation to provide assistance

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

(a) be likely to prejudice the sovereignty of Malta or that of a
Member State which has been requested to provide
assistance under this Protocol; or

(b) be likely to prejudice public policy, security or other
in particular in the cases referred to

interests,

essential
under Article 10(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 investi-
gation, prosecution or proceeding. In such a case, the requested
authority shall
authority to
determine if assistance can be given subject to such terms or
conditions as the requested authority may require.

consult with the

applicant

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.

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
delay.

Article 10

Information exchange and confidentiality

Any

information communicated in whatever

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

exchanged only where

Personal data may be

2.
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.
To that end, 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.

The use,

3.
administrative proceedings
instituted in respect of operations in breach of customs legis-

in judicial or

this Protocol,

information obtained under

is
lation, of
considered to be for the purposes of this Protocol. Therefore,
the Contracting Parties may,
in their records of evidence,
reports and testimonies and in proceedings and charges
information
brought before the courts, use as evidence
obtained and documents consulted in accordance with the
provisions of this Protocol. The competent authority which
supplied that information or gave access to those documents
shall be notified of such use.

this Protocol. 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 11

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 in judicial or administrative proceedings
regarding the matters covered by this Protocol, and produce
such objects, documents or certified copies thereof, as may be
needed for the proceedings. The request for appearance must
indicate specifically before which judicial or administrative
authority the official will have to appear, on what matters
and by virtue of what title or qualification the official will be
questioned.

Article 12

Assistance expenses

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

Article 13

Implementation

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

for

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

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Article 14

Other agreements

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

— not affect the obligations of the Contracting Parties under

any other international agreement or convention;

— be deemed complementary to agreements on mutual
assistance which have been or may be concluded between
individual Member States and Malta; and

— not

affect

communication between the competent services of
Commission of

the Community provisions governing the
the
and the

the European Communities

authorities of

any
customs
information obtained under this Protocol which could be
of interest to the Community.

the Member

States of

this Protocol shall

Notwithstanding the provisions of paragraph 1,

the
2.
provisions of
take precedence over the
provisions of any bilateral agreement on mutual assistance
which has been or may be concluded between individual
the
Member States and Malta insofar as the provisions of
latter are incompatible with those of this Protocol.

3.
In respect of questions relating to the applicability of this
Protocol, the Contracting Parties shall consult each other to
resolve
Special
Committee set up by the Association Council under Article
12 of the Association Agreement.

framework of

the matter

in the

the