Council act of 8 May 2003 drawing up a Protocol amending, as regards the creation of a customs files identification database, the Convention on the use of information technology for customs purposes
Date: 2003-05-08
Institutions: Council of the European Union
Subjects: computer applications, customs, customs cooperation, data collection, database, judicial inquiry

13.6.2003

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Official Journal of the European Union

C 139/1

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

COUNCIL ACT

of 8 May 2003

drawing up a Protocol amending, as regards the creation of a customs files identification database,
the Convention on the use of information technology for customs purposes

(2003/C 139/01)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in
particular Article 34(2)(d) thereof,

Having regard to the initiative of the Kingdom of Belgium, the
Federal Republic of Germany and the French Republic (1),

Having regard to the opinion of the European Parliament (2),

WHEREAS the Customs Information System provided for in
the Convention on the use of information technology for

customs purposes (3) should be used for the exchange of
information concerning the existence of documents about
ongoing or completed investigations and for the appropriate
coordination of investigations,

HAS DECIDED that the Protocol, the text of which is given
in the Annex and which has been signed today by the
Representatives of the Governments of the Member States of
the European Union, is hereby established,

RECOMMENDS that it be adopted by the Member States in
accordance with their
require-
ments (4).

respective constitutional

Done at Brussels, 8 May 2003.

For the Council

The President

M. CHRISOCHOÏDIS

( 1) OJ C 328, 23.11.2001, p. 12.
( 2) Opinion delivered on 18 December 2002 (not yet published in

the Official Journal).

(3) OJ C 316, 27.11.1995, p. 34.
(4) The date of entry into force of the Protocol will be published in
the Official Journal of the European Union by the General Secretariat
of the Council.

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Official Journal of the European Union

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PROTOCOL

established in accordance with Article 34 of the Treaty on European Union, amending, as regards
the creation of a customs files identification database, the Convention on the use of information
technology for customs purposes

THE HIGH CONTRACTING PARTIES to this Protocol, Member States of the European Union,

REFERRING to the Act of the Council of the European Union of 8 May 2003,

WHEREAS customs cooperation in the European Union is an important component of the area of
freedom, security and justice,

WHEREAS the exchange of information between customs services of the various Member States is central
to such cooperation,

IMPLEMENTING the conclusions of the Tampere European Council of 15 and 16 October 1999, according
to which

— maximum benefit should be derived from cooperation between the Member States’ competent

authorities when investigating cross-border crime (point 43 of the conclusions),

— a balanced development should be achieved of Union-wide measures to fight crime while at the
same time protecting the freedom and the constitutional rights of individuals as well as of economic
operators (point 40 of the conclusions), and

— serious economic crime increasingly includes aspects of tax and customs law (point 49 of the

conclusions),

HAVING REGARD to the fact that in its Resolution of 30 May 2001 on a strategy for the customs union (1)
the Council:

— expressed its agreement that a main objective must be to improve cooperation to combat fraud and

other acts threatening the security of persons and goods efficiently,

— emphasised that customs play a significant role in the fight against cross-border crime through the
prevention, detection and, within the national competences of the customs services, through
investigation and prosecution of criminal activities in the areas of fiscal fraud, money laundering as
well as trafficking in drugs and other illicit goods, and,

— emphasised that, by virtue of the variety of tasks assigned to them, the customs authorities are
required to work both in a Community context and in the context of cooperation in the framework
of Title VI of the Treaty on European Union,

(1) OJ C 171, 15.6.2001, p. 1.

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CONSIDERING that the Customs Information System created by virtue of the Convention on the use of
information technology for customs purposes (1) permits the entry of personal data exclusively for the
purpose of sighting and reporting, discreet surveillance or specific checks (Article 5 of the Convention),
and that for any additional purposes a supplementary legal basis must be established,

MINDFUL of the fact that at the moment no possibility exists of exchanging information concerning the
existence of investigation files about ongoing or completed investigations between all competent
authorities electronically and systematically and thus of coordinating their investigations appropriately,
and that the Customs Information System should be used for that purpose,

MINDFUL of the fact that the findings of an evaluation of EU third pillar databases may identify the need
for complementarity between these systems,

WHEREAS, in connection with the storage, processing and use of personal data in the customs sphere,
due account should be taken of the principles laid down in the Council of Europe Convention of
28 January 1981 for the protection of individuals with regard to automatic processing of personal data
and of point 5.5 of Recommendation R (87)15 of the Committee of Ministers of the Council of Europe
of 17 September 1987 regulating the use of personal data in the police sector,

REALISING that according to point 48 of the Action plan of the Council and the Commission of
3 December 1998 on how best to implement the provisions of the Treaty of Amsterdam on an area of
freedom, security and justice (2), there is a need to examine whether and how the European Police Office
(Europol) could have access to the Customs Information System,

HAVE AGREED ON THE FOLLOWING PROVISIONS:

Article 1

The Convention on the use of information technology for
customs purposes (3), shall be amended as follows:

1.

after Chapter V, the following three chapters shall be
inserted:

‘CHAPTER V A

CREATION OF A CUSTOMS FILES IDENTIFICATION
DATABASE

Article 12A

1.
The Customs Information System shall contain data
in accordance with this chapter, in addition to data in
accordance with Article 3, in a special database, herein-
after referred to as “the customs files identification
database”. Without prejudice to the provisions of this
chapter and of Chapters V B and V C, all the provisions
of this Convention shall also apply to the customs files
identification database.

2.
The aim of the customs files identification database
shall be to enable the national authorities responsible for
carrying out customs investigations designated pursuant
to Article 7, when opening a file on or investigating one

( 1) OJ C 316, 27.11.1995, p. 34.
( 2) OJ C 19, 23.1.1999, p. 1.
( 3) OJ C 316, 27.11.1995, p. 34.

or more persons or businesses, to identify competent
authorities of other Member States which are investigating
or have investigated those persons or businesses, in order,
through information on the existence of investigation
files, to achieve the aim referred to in Article 2(2).

3.
For the purposes of the customs files identification
database, each Member State shall send the other Member
States and the committee mentioned in Article 16 a list
of serious infringements of its national laws.

This list shall comprise only infringements that are
punishable:

— by deprivation of liberty or a detention order for at

least 12 months, or

— by a fine of at least EUR 15 000.

If

4.
the Member State retrieving data from the
customs files identification database requires further
information on the stored investigation file on a person
it shall request the assistance of the
or a business,
supplying Member State on the basis of the instruments
in force relating to mutual assistance.

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CHAPTER V B

Data shall be entered for a limited period in

3.
accordance with Article 12E.

OPERATION AND USE OF THE CUSTOMS FILES IDENTI-
FICATION DATABASE

Article 12C

Article 12B

A Member State shall not be obliged to make entries
pursuant to Article 12B in any particular case if and for
such time as this would harm public policy or other
in particular with regard to data
essential
protection, of the Member State concerned.

interests,

1.
The competent authorities shall enter data from
investigation files in the customs files identification
database for the purposes set out in Article 12A(2). The
data shall cover only the following categories:

Article 12D

(i)

a person or a business which is or has been
the subject of an investigation file opened by a
competent authority of a Member State, and which:

1.
Entry of data in the customs files identification
database and consultation thereof shall be reserved for
the authorities referred to in Article 12A(2).

— in accordance with the national

law of the
Member State concerned, is suspected of com-
mitting or having committed, or participating
or having participated in the commission of, a
serious infringement of national laws, or

— has been the subject of a report establishing

that such an infringement has taken place, or

— has been the subject of an administrative or
legal sanction for such an infringement;

(ii)

the field covered by the investigation file;

(iii)

the name, nationality and contact information of
the Member State’s authority handling the case,
together with the file number.

Any consultation concerning the customs files
2.
identification database shall cover the following personal
data:

(i)

for persons: forename and/or name and/or maiden
name and/or aliases and/or date of birth;

(ii)

for businesses: business name and/or name under
which trade is conducted and/or VAT identifier.

CHAPTER V C

PERIOD OF RETENTION OF DATA IN THE CUSTOMS
FILES IDENTIFICATION DATABASE

Data according to (i) to (iii) shall be entered in a data
record separately for each person or business. Links
between data records shall not be permitted.

Article 12E

The personal data referred to in paragraph 1(i) shall

2.
consist only of the following:

Storage periods shall be determined in accordance
1.
with the laws, regulations and procedures of the Member
State introducing the data. However, the following time
limits, starting on the date on which the data were entered
in the file, shall on no account be exceeded:

(i)

for persons: name, maiden name, forenames and
aliases, date and place of birth, nationality and sex;

(i)

(ii)

for businesses: business name, name under which
trade is conducted, registered office and VAT identi-
fier.

data relating to current investigation files shall not
be retained beyond a period of three years if it has
not been established that an infringement has taken
place within that time; the data shall be deleted
before then if one year has passed since the last
investigative act;

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(ii) data relating to investigation files which have estab-
lished that an infringement has taken place but
which have not yet led to a conviction or to
imposition of a fine shall not be retained beyond a
period of six years;

(iii) data relating to investigation files which have led to
a conviction or a fine shall not be retained beyond a
period of 10 years.

2.
At all stages of an investigation as referred to in
paragraph 1(i), (ii) and (iii), as soon as a person or
business within the scope of Article 12B is eliminated
from an investigation pursuant to the laws and adminis-
trative regulations of the supplying Member State, all data
relating to that person or business shall be deleted
immediately.

3.
Data shall automatically be deleted from the cus-
toms files identification database as from the date on
which the maximum data retention periods laid down in
paragraph 1 are exceeded.’

2.

in Article 20, the words ‘Article 12(1) and (2)’ shall be
replaced by ‘Articles 12(1) and (2) and 12E’.

5. Member States shall enter in the customs files identifi-
cation database only data which are recorded in an investi-
gation after the entry into force of this Protocol.

Article 3

1.
This Protocol shall be open to accession by any State
which becomes a member of the European Union and which
accedes to the Convention.

2.
The text of this Protocol in the language of the acceding
State, drawn up by the Council of the European Union, shall
be authentic.

The instruments of accession shall be deposited with the

3.
depositary.

This Protocol shall enter into force with respect to any
4.
State that accedes to it 90 days after the date of deposit of its
instrument of accession or on the date of entry into force of
this Protocol if it has not already entered into force at the time
of expiry of the said period of ninety days, provided the
Convention is in force for it.

Article 2

Article 4

1.
This Protocol shall be subject to adoption by the Member
States in accordance with their respective constitutional
requirements.

2. Member States shall notify the depositary of the com-
pletion of their constitutional requirements for the adoption
of this Protocol.

Any State that becomes a member of the European Union and
accedes to the Convention in accordance with Article 25
thereof after the entry into force of this Protocol shall be
deemed to have acceded to the Convention as amended by this
Protocol.

Article 5

This Protocol shall, 90 days after the notification referred
3.
to in paragraph 2 by the State, member of the European Union
at the time of adoption by the Council of the Act drawing up
this Protocol, which is the eighth to complete this formality,
enter into force for the eight Member States concerned. If,
however, the Convention has not entered into force on that
date, this Protocol shall enter into force for the eight Member
States concerned on the date on which the Convention enters
into force.

The Secretary-General of the Council of the European Union
shall act as depositary of this Protocol.

The depositary shall publish in the Official
Journal of the
European Union information on the progress of adoptions and
accessions, declarations and any other notification concerning
this Protocol.

4.
to
Any notification by a Member State subsequent
the receipt of the eighth notification made pursuant to in
paragraph 2 shall have the effect that, 90 days after the
subsequent notification, this Protocol shall enter into force
between this Member State and those Member States for which
the Protocol has already entered into force.

in a single original

Done at Brussels, on the eighth day of May in the year two
thousand and three,
in the Danish,
Dutch, English, Finnish, French, German, Greek, Irish, Italian,
Portuguese, Spanish and Swedish languages, each text being
equally authentic, the original being deposited in the archives
of the General Secretariat of the Council of the European
Union.

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Pour le Royaume de Belgique

Voor het Koninkrijk België
Für das Königreich Belgien

På Kongeriget Danmarks vegne

Für die Bundesrepublik Deutschland

Για την Ελληνική ∆ηµοκρατία

Por el Reino de España

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Pour la République française

Thar cheann Na hÉireann

For Ireland

Per la Repubblica italiana

Pour le Grand-Duché de Luxembourg

Voor het Koninkrijk der Nederlanden

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Für die Republik Österreich

Pela República Portuguesa

Suomen tasavallan puolesta

För Republiken Finland

För Konungariket Sverige

For the United Kingdom of Great Britain and Northern Ireland