Protocol on mutual administrative assistance in customs matters
Date: 2003-03-05
Institutions: European Community, Malta
Subjects: Malta, administrative cooperation, association agreement (EU), customs cooperation, protocol to an agreement

9.5.2003

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Official Journal of the European Union

L 115/71

PROTOCOL

on mutual administrative assistance in customs matters

Article 1

Definitions

For the purposes of this Protocol:

(a) ‘customs legislation’ shall mean any legal or regulatory
provisions adopted by the Community 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;

(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;

(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
in particular by
application of
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

applied,
including information regarding activities noted or
planned which are or could be operations in breach of customs
legislation.

At the request of the applicant authority, the requested

2.
authority shall inform it:

(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) 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.

At the request of the applicant authority, the requested
3.
authority shall, within the framework of its legal or regulatory
provisions, take the necessary steps to ensure special surveil-
lance of:

(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 legislation;

(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 provi-
sions, if they consider that to be necessary for the correct appli-
cation of customs legislation, particularly by providing informa-
tion obtained pertaining to:

— 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 opera-

tions in breach of customs legislation,

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— goods known to be subject to operations in breach of

customs legislation,

— 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 legislation,

— 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.

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.

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

Article 7

Execution of requests

the request of

the applicant authority,

At
the requested
authority shall, in accordance with legal or regulatory provi-
sions applicable to the latter, take all necessary measures in
order:

— 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

In order to comply with a request for assistance, the
1.
its
requested authority shall proceed, within the limits of
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 arran-
ging 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.

Requests pursuant

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

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.

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;

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

involved;

(e) indications as exact and comprehensive as possible on the
natural or legal persons who are the target of the investiga-
tions;

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

carried out.

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.

2.

This information may be in computerised form.

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 assis-
tance under this Protocol; or

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

tial
interests,
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 investiga-
tion, prosecution or proceeding. In such a case, the requested
authority shall consult with the applicant authority to deter-
mine if assistance can be given subject to such terms or condi-
tions 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.

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

The use,

in judicial or administrative proceedings insti-
3.
tuted in respect of operations in breach of customs legislation,
of information obtained under this Protocol, is considered to
be for the purposes of this Protocol. Therefore, the Contracting
Parties may, in their records of evidence, reports and testimo-
nies and in proceedings and charges brought before the courts,
use as evidence information obtained and documents consulted
in accordance with the provisions of this Protocol. The compe-
tent authority which supplied that information or gave access
to those documents shall be notified of such use.

4.
Information obtained shall be used solely for the purposes
of this Protocol. Where one of the Contracting Parties wishes
to use such information for other purposes, it shall obtain the
the authority which provided the
prior written consent of
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 ques-
tioned.

Article 12

Assistance expenses

Article 10

Information exchange and confidentiality

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.

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 offi-
cial secrecy and shall enjoy the protection extended to similar
information under the relevant laws of the Contracting Party
that received it and the corresponding provisions 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.

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
practical measures and arrangements necessary for its applica-
tion, 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 Protocol.

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

Article 14

Other agreements

Taking into account the respective competencies of the
1.
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 assis-
tance which have been or may be concluded between indi-
vidual Member States and Malta, and

— not

affect

the Community provisions governing the
the
communication between the competent services of
Commission of
and the
customs authorities of the Member States of any informa-
tion obtained under this Protocol which could be of interest
to the Community.

the European Communities

the provisions of

Notwithstanding paragraph 1,

this
2.
Protocol shall
take precedence over the provisions of any
bilateral agreement on mutual assistance which has been or
may be concluded between individual Member States and Malta
in so far as the provisions of the 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 the matter in the framework of the Special Committee
set up by the Association Council under Article 12 of the Asso-
ciation Agreement.