Cooperation agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other part, to combat fraud and any other illegal activity to the detriment of their financial interests - Final Act - Declarations
Date: 2004-10-26
Institutions: Austria, Belgium, Cyprus, Czechia, Denmark, Estonia, European Community, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, United Kingdom
Subjects: Switzerland, administrative cooperation, cooperation agreement (EU), exchange of information, fraud, fraud against the EU, judicial cooperation

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COOPERATION AGREEMENT

between the European Community and its Member States, of the one part, and the Swiss
Confederation, of the other part, to combat fraud and any other illegal activity to the detriment
of their financial interests

THE EUROPEAN COMMUNITY,

THE KINGDOM OF BELGIUM,

THE CZECH REPUBLIC,

THE KINGDOM OF DENMARK,

THE FEDERAL REPUBLIC OF GERMANY,

THE REPUBLIC OF ESTONIA,

THE HELLENIC REPUBLIC,

THE KINGDOM OF SPAIN,

THE FRENCH REPUBLIC,

IRELAND,

THE ITALIAN REPUBLIC,

THE REPUBLIC OF CYPRUS,

THE REPUBLIC OF LATVIA,

THE REPUBLIC OF LITHUANIA,

THE GRAND DUCHY OF LUXEMBOURG,

THE REPUBLIC OF HUNGARY,

THE REPUBLIC OF MALTA,

THE KINGDOM OF THE NETHERLANDS,

THE REPUBLIC OF AUSTRIA,

THE REPUBLIC OF POLAND,

THE PORTUGUESE REPUBLIC,

THE REPUBLIC OF SLOVENIA,

THE SLOVAK REPUBLIC,

THE REPUBLIC OF FINLAND,

THE KINGDOM OF SWEDEN,

THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND,

of the one part, and

THE SWISS CONFEDERATION,

of the other part,

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hereinafter referred to as the ‘Contracting Parties’,

CONSIDERING the close relations between the European Community and its Member States, of the one part, and the
Swiss Confederation, of the other part,

DESIRING to be effective in combating fraud and any other illegal activity to the detriment of the Contracting Parties’
financial interests,

TAKING ACCOUNT of the need to step up administrative assistance in these areas,

CONVINCED that mutual legal assistance, extending to searches and seizures, must be afforded, including in all cases of
smuggling and evasion in the field of indirect taxation, in particular value added tax and customs and excise duties,

RECOGNISING the importance of combating money laundering,

HAVE DECIDED TO CONCLUDE THIS AGREEMENT:

TITLE I

GENERAL PROVISIONS

Article 1

Objective

legal

assistance

The objective of this Agreement is to extend administrative and
in criminal matters between the
mutual
European Community and its Member States, of the one part,
and the Swiss Confederation, of the other part, so as to combat
the illegal activities to which Article 2 applies.

Article 2

Scope

1.

This Agreement is applicable to:

(a)

the administrative and criminal prevention, detection, inves­
tigation, prosecution and repression of fraud and any other
illegal activity to the detriment of the Contracting Parties’
respective financial interests concerning:

— trade in goods contrary to customs and agricultural

legislation,

— trade contrary to tax legislation applicable to value
taxes on consumption and excise

added tax, special
duties,

— the charging or retention of funds — including their use
for purposes other than those for which they were
initially granted — from the budget of the Contracting
Parties or budgets managed by them or on their behalf,
such as grants and refunds,

(b) the seizure and recovery of amounts due or wrongly
received as a result of the illegal activities referred to in
point (a).

(Mutual

Cooperation within the meaning of Titles II (Administra­
2.
tive assistance) and III
legal assistance) may not be
withheld on the sole ground that the request relates to an
offence treated as a tax offence in the requested Contracting
Party or that the legislation of the requested Contracting Party
does not provide for the same type of levy or expenditure or
does not contain the same type of rules or the same legal
characterisation of the facts as the legislation of the requesting
Contracting Party.

The scope of this Agreement includes the laundering of
3.
the activities covered by the Agreement
the proceeds of
provided that
the activities which constitute the precursor
offence are punishable under the law of the two Contracting
Parties by a penalty involving deprivation of
liberty or a
detention order of a maximum period of more than six months.

4.
Direct
Agreement.

taxes

are

excluded from the

scope of

this

Article 3

Minor cases

The authority of

1.
the requested Contracting Party may
refuse a request for cooperation where the alleged amount of
duty underpaid or evaded does not exceed EUR 25 000 or
where the presumed value of the goods exported or imported
without authorisation does not exceed EUR 100 000, unless,
given the circumstances or identity of the suspect, the case is
deemed to be extremely serious by the requesting Contracting
Party.

— procedures

for

the

award of

contracts by

the

Contracting Parties,

the requested Contracting Party shall
2.
The authority of
inform the authority of
the requesting Contracting Party
without delay of its reasons for refusing the request for cooper­
ation.

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Article 4

Ordre public

Cooperation may be refused if the requested Contracting Party
considers that execution of the request is likely to prejudice the
sovereignty, security, ordre public or other essential interests of
the requested Contracting Party.

Article 5

Transmission of information and evidence

1.
Information and evidence transmitted or received under
this Agreement, whatever its form, shall be subject to profes­
sional confidentiality and shall enjoy the protection enjoyed by
comparable information conferred by the domestic law of the
Contracting Party receiving it and by the corresponding
provisions applicable to the Community institutions.

In particular, such information and evidence may not be
divulged to persons other than those who, in the Community
institutions, the Member States or the Swiss Confederation, are
required by their functions to be acquainted with it, nor used by
them for purposes that are not within the scope of
this
Agreement.

2.
The information and evidence obtained by the requesting
Contracting Party under this Agreement may be transmitted to
any Contracting Party if this Contracting Party is conducting an
investigation in respect of which cooperation is not excluded or
if there are clear indications that this Contracting Party could
usefully conduct such an investigation. No such transmission
may serve any purpose other than those of this Agreement.

thereof remain confidential, except in so far as this is incom­
the requested
patible with the execution of
cannot
Party
Contracting
confidentiality
requirements,
inform the authority of the requesting
it shall
Contracting Party in advance.

the request.
comply with

If

TITLE II

ADMINISTRATIVE ASSISTANCE

CHAPTER 1

General provisions

Article 7

Relationship with other agreements

This Title shall not affect the provisions applicable to mutual
legal assistance in criminal matters or more extensive obli­
gations
in the field of administrative assistance or more
favourable provisions of bilateral or multilateral cooperation
arrangements between the Contracting Parties,
in particular
the Additional Protocol on mutual administrative assistance in
customs matters of 9 June 1997.

Article 8

Scope

The Contracting Parties shall provide each other with
1.
illegal activities to which this
mutual assistance to combat
in particular in preventing and detecting
Agreement applies,
operations
commission and omission
contrary to the relevant legislation and in conducting investi­
gations relating thereto.

and other

acts of

3.
The transmission of information and evidence obtained
pursuant to this Agreement by a Contracting Party to another
Contracting Party or to more than one Contracting Party may
not be open to appeal
in the Contracting Party initially
requested.

2.
The assistance provided for by this Title shall apply to all
competent administrative authorities in the Contracting Parties
acting in the exercise of administrative investigation powers or
criminal prosecution powers, including cases where these auth­
orities exercise powers at the request of the judicial authorities.

4.
Any Contracting Party to which information or evidence
is transmitted in conformity with paragraph 2 shall respect such
limits as are put by the requested Contracting Party on the use
of the information by the requesting Contracting Party of the
first transmission.

5.
The transmission of information and evidence obtained
under this Agreement by a Contracting Party to a third State
shall be subject to authorisation from the Contracting Party
from which the information or evidence originated.

Where a criminal investigation is carried out by or under the
direction of a judicial authority, that authority shall determine
whether requests for mutual assistance or cooperation in that
connection shall be submitted on the basis of the provisions
applicable
in criminal
matters or on the basis of this Title.

concerning mutual

legal assistance

Article 9

Powers

Article 6

Confidentiality

The requesting Contracting Party may ask the requested
Contracting Party to ensure that the request and the content

The authorities of the Contracting Parties shall apply this
1.
Title with the limits of the powers conferred upon them under
national provisions. Nothing in this Title may be construed as
affecting the powers conferred under national provisions upon
the authorities of the Contracting Parties within the meaning of
this Title.

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They shall proceed as though they were acting on their own
account or at the request of another authority of the same
Contracting Party. In so doing they shall avail themselves of
all the legal powers at their disposal within the framework of
their national law to respond to the request.

Requests addressed to non-competent authorities shall be

2.
forwarded without delay to the competent authority.

Article 10

Proportionality

The authority of the requested Contracting Party may refuse a
request for cooperation where it is clear that:

(a)

the number and the nature of the requests for information
made by the requesting Contracting Party within a specific
period impose a disproportionate administrative burden on
that requested authority;

(b) the authority of the requesting Contracting Party has not
exhausted the usual sources of information which it could
have used in the circumstances to obtain the information
requested without
jeopardising the
running the risk of
achievement of the desired end.

Article 11

Central units

Each Contracting Party shall designate one or more central
administrative
empowered to process

requests

for

1.
unit
assistance under this Title.

These units shall call on all competent administrative authorities
for the execution of the assistance requested.

The central units shall communicate directly with each

2.
other.

3.
The activities of the central units shall not exclude, espe­
cially in an emergency, direct cooperation between the other
authorities in the Contracting Parties having power to act in
matters to which this Agreement applies. The central units shall
be informed of any action involving such direct cooperation.

4.
The Contracting Parties, when making the notification
provided for by Article 44(2), shall announce which are the
authorities regarded as the central units for the purposes of
this Article.

CHAPTER 2

Assistance on request

Article 12

Requests for information

At

the

the

request of

the authority of

1.
requesting
Contracting Party, the authority of the requested Contracting
Party shall communicate to it, within the limits of the scope
of this Agreement, all information which may enable it or other
authorities of the same Contracting Party to prevent, detect and
prosecute the illegal activities to which the Agreement applies
or needed to recover a claim. The authority of the requested
Contracting Party shall undertake all requisite administrative
inquiries needed to gather such information.

The information communicated is to be accompanied by
2.
reports and other documents, or certified copies of or extracts
of the same, on which the information notified is based and
which are in the possession of the authorities of the requested
Contracting Party or which were produced or obtained in order
to execute the request for information.

the

and

Party

Party may,

By agreement between the authority of
authority of

3.
the requesting
requested
Contracting
the
Contracting Party, officers authorised by the authority of the
requesting Contracting
detailed
instructions from the authority of the requested Party, have
access
the requested
Contracting Party to documents and information pursuant to
paragraph 1 held by the authorities of the requested Contracting
Party which refer to specific illegal activities falling within the
scope of this Agreement. Those officers shall be authorised to
take copies of the said documentation.

the authorities of

in the offices of

subject

to

Article 13

Requests for surveillance

At the request of the authority of the requesting Contracting
Party, the authority of the requested Contracting Party shall as
far as possible exercise surveillance over trade in goods in
the legislation referred to in Article 2. Such
breach of
surveillance may relate to a person suspected on reasonable
grounds of having participated or of participating in the
commission of such illegal activities or having carried out
preparatory acts with a view to the commission of such
to the premises, means of
illegal
transport and goods connected with such activities.

activities,

as well

as

Article 14

Notification and transmission by post

At

the

the

request of

the authority of

1.
requesting
Contracting Party, the authority of the requested Contracting
Party shall,
the
in accordance with the national
requested Contracting Party, notify the addressee or have it
instruments or decisions emanating from the
notified, of all
competent authorities of
the requesting Contracting Party
which are within the scope of this Agreement.

rules of

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Requests for notification, mentioning the subject of the
2.
instrument or decision to be notified, shall be accompanied
the requested
by a translation in an official
Contracting Party or
to that
Contracting Party.

language of

acceptable

language

in a

3.
The Contracting Parties may post acts of notification and
requests for information and documents direct to the operators
concerned by the third and fourth indents of Article 2(1)(a)
residing in the other Contracting Party’s territory.

Such persons may respond thereto and provide the relevant
documents and information in the form provided for by the
rules and arrangements under which the funds were granted.

Article 15

Requests for enquiries

1.
The requested Contracting Party shall at the request of the
requesting Contracting Party carry out or arrange to have
carried out appropriate enquiries concerning operations or
forms of conduct that constitute illegal activities to which this
Agreement applies or which prompt
the
requesting Contracting Party to suspect on reasonable grounds
that such illegal activities have been committed.

the authority of

2.
The requested Contracting Party shall avail themselves of
all investigation means at its disposal within the framework of
their national law as though it were acting on its own account
or at the request of another internal authority,
including the
involvement or authorisation of the judicial authorities where
required.

This provision shall be without prejudice to the duty of
economic operators to cooperate under Article 17.

The authority of the requested Contracting Party shall commu­
nicate the results of such investigations to the authority of the
requesting Contracting Party. Article 12(2) shall apply mutatis
mutandis.

require the consent of the person or economic operator being
investigated.

Officers of

the authority of

the requested Contracting
2.
Party shall at all times carry out the enquiries. Officers of the
authority of the requesting Contracting Party may not, of their
own initiative, exercise the powers conferred on officers of the
authority of the requested Contracting Party.

They shall, however, have access to the same premises and the
same documents as the latter, through them and for the sole
purposes of the enquiry being carried out.

3.

Conditions may be attached to the authorisation.

The

information brought

4.
the
authority of the requesting Contracting Party may not be used
as evidence until the transmission of the documents relating to
execution has been authorised.

to the knowledge of

Article 17

Duty to cooperate

Economic operators shall be required to cooperate with the
execution of
for administrative assistance by
giving access to their premises, means of transport and docu­
mentation and providing all relevant information.

the request

Article 18

Form and content of requests for assistance

for

Requests

1.
in writing.
Documents necessary for the execution of such requests shall
accompany the requests.

shall be made

assistance

In cases of urgency, oral requests shall be accepted, but must be
confirmed in writing as soon as possible.

Requests shall be accompanied by the following infor­

2.
mation:

The authority of

3.
the requested Contracting Party shall
extend assistance to all circumstances, objects and persons
apparently linked to the object of the request for assistance,
without any need for a supplementary request.
In cases of
doubt, the authority of the requested Contracting Party shall
first contact the authority of the requesting Contracting Party.

(a)

the requesting authority;

(b) the measure requested;

Article 16

(c)

the object and the grounds for the request;

Presence of authorised staff

from the authority of the

requesting Contracting Party

(d) the laws, rules and other legal provisions involved;

Party

By agreement between the authority of
authority of

the requesting
1.
Contracting
requested
the
Contracting Party, officers appointed by the authority of the
requesting Contracting Party may be present at the enquiries
referred to in the previous Article. Their presence shall not

and

the

(e)

indications as exact and comprehensive as possible of the
natural or legal persons being the target of the investi­
gations;

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(f) a summary of the relevant facts and of the enquiries already
carried out, except in cases provided for in Article 14.

Requests shall be submitted in an official language of the
3.
requested Contracting Party or in a language that is acceptable
to that Contracting Party.

4.
Incorrect or incomplete requests may be corrected or
completed. The measures necessary to comply with the
request shall be commenced in the meantime.

CHAPTER 4

Special forms of cooperation

Article 21

Joint operations

1.
On imports, exports and transit of goods, where the
extent of the trade and the related risk to taxes and subsidies
loss to the budget of the
is such that the potential financial
Contracting Parties is considerable, those Parties may agree to
conduct joint cross-border operations for the prevention and
prosecution of illegal activities to which this Agreement applies.

Article 19

Use of information

The coordination and planning of

2.
such cross-border
operations shall be the responsibility of the central unit or of
an office designated by it.

1.
The information obtained shall be used exclusively for the
purposes of this Agreement. Where a Contracting Party asks to
use such information for other purposes,
it shall request the
prior written agreement of the supplying authority. Such use
shall then be subject to any restrictions laid down by that
authority.

Paragraph 1 shall not preclude the use of the information
2.
in judicial or administrative proceedings for failure to comply
with the legislation to which the request
for administrative
assistance applies if the same forms of assistance were to be
available for these proceedings. The competent authority of the
Contracting Party which supplied the information shall be
advised without delay of such use.

3.
The Contracting Parties may, in their records of evidence,
reports and testimonies and in proceedings and charges brought
before the courts, use as evidence the information obtained and
the documents consulted in accordance with this Agreement.

CHAPTER 3

Spontaneous assistance

Article 20

Spontaneous assistance

1.
The forms of cooperation established by the foregoing
Chapter may be given without the prior request of another
Contracting Party.

2.
The authority of the Contracting Party transmitting the
information may, in accordance with its domestic law, attach
conditions to the use of the information by the authority of the
recipient Contracting Party.

Article 22

Joint special investigation teams

By mutual

1.
authorities
agreement,
Contracting Parties may set up a joint special
team based in a Contracting Party.

the

of
several
investigation

The joint

2.
investigations
team shall conduct difficult
requiring the mobilisation of substantial resources and shall
coordinate joint actions.

3. Membership of the team shall not bestow on represen­
tatives of the participating Contracting Parties’ authorities any
powers of intervention in the territory of the Contracting Party
in which the investigations are conducted.

Article 23

Liaison officers

1.
The competent authorities of the Contracting Parties may
decide on the secondment, for limited or unlimited periods, of
liaison officers of a Contracting Party to the competent services
of another Contracting Party in order
to provide mutual
support in the execution of administrative assistance.

Liaison officers shall have the task of providing advice and
2.
assistance. They shall have no independent power to act in the
territory of the host Contracting Party. With the agreement or
at the request of the competent authorities of the Contracting
Parties, they may:

(a) promote and speed up the exchange of information;

(b) provide assistance in investigations;

All

3.
bound by such conditions.

the authorities of

the Contracting Parties shall be

(c) provide support in dealing with requests for assistance;

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(d) advise and assist the host Contracting Party in preparing

and carrying out cross-border operations;

2. More favourable provisions of bilateral or multilateral
Agreements between the Contracting Parties are not affected.

(e) perform any other duties on which the Contracting Parties

may agree between themselves.

The competent authorities of the Contracting Parties shall

3.
settle the details by agreement.

Article 26

Procedures in which mutual legal assistance shall also be
afforded

1. Mutual legal assistance shall also be afforded:

Liaison officers may represent the interests of one or more

4.
Contracting Parties.

CHAPTER 5

Recovery

Article 24

Recovery

At the request of the requesting Contracting Party, the
1.
requested Contracting Party shall proceed to the recovery of
claims to which this Agreement applies as if they were its
own claims.

The request for recovery of a claim shall be accompanied
2.
the document
by an official copy or a certified copy of
permitting execution,
issued by the requesting Contracting
Party and, where appropriate, the original or a certified copy
of other documents needed for recovery.

The requested Contracting Party shall take precautionary

3.
measures to ensure recovery of a claim.

The authority of

4.
the Contracting Party requested shall
transfer to the authority of the requesting Contracting Party
the amount of the claim that it has recovered. In agreement
with the requesting Contracting Party,
it may deduct a
percentage corresponding to the administrative costs it has
incurred.

5.
Notwithstanding paragraph 1, claims to be recovered shall
not necessarily enjoy the same priority status as comparable
claims arising in the requested Contracting Party.

TITLE III

MUTUAL LEGAL ASSISTANCE

Article 25

(a)

in proceedings brought by the administrative authorities in
respect of acts which are punishable under the national law
of one of the two Contracting Parties, or of both, by virtue
of being infringements of the rules of law, and where the
decision may give rise to proceedings before a court having
jurisdiction in particular in criminal matters;

(b) in civil actions joined to criminal proceedings, as long as the
criminal court has not yet taken a final decision in the
criminal proceedings;

(c)

for offences or infringements for which a legal person of the
requesting Contracting Party may be liable.

2.
Assistance shall also be given for the purposes of investi­
gations and proceedings for the seizure and confiscation of the
instruments and products of these illegal activities.

Article 27

Transmission of requests

Requests under

to the Contracting Party’s

this Title shall be presented by the
1.
authority of
the requesting Contracting Party either via a
relevant central authority of the requested Contracting Party,
or direct
authority which is
requesting Contracting Party’s
empowered to execute
request. The authority of the requesting Contracting Party and,
the Contracting Party
where appropriate,
requested shall send a copy of
to its central
authority for information.

the authority of

the request

the

All documents

relating to requests or

2.
the execution
thereof may be sent by the same channels. They, or at least a
copy, must be sent directly to the authority of the requesting
Contracting Party.

If

3.
the authority of
request has no power
forthwith forward it to the competent authority.

the Contracting Party receiving a
shall
to authorise

assistance,

it

Relationship with other Agreements

The provisions of this Title are intended to supplement
1.
the European Convention on Mutual Assistance in Criminal
Matters of 20 April 1959, and the Convention on Laundering,
Search, Seizure and Confiscation of the Proceeds from Crime of
8 November 1990, and to facilitate their
implementation
between the Contracting Parties.

4.
Defective or incomplete requests shall be applied if they
contain the information needed to satisfy them, without
prejudice to subsequent regularisation by the authority of the
requesting Contracting Party. The authority of the Contracting
Party requested shall
inform the authority of the requesting
Contracting Party of the defects and allow it time to regularise
them.

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The authority of the Contracting Party requested shall without
delay send the authority of the requesting Contracting Party all
other indications that may help it to complete its request or
extend it to include other measures.

5.
The Contracting Parties, when making the notification
provided for by Article 44(2), shall announce which are the
competent central authorities for the purposes of this Article.

Article 28

Service by post

1.
As a rule the Contracting Parties shall, in proceedings for
illegal activities covered by this Agreement, send procedural
documents intended for persons who are in the territory of
the other Contracting Party directly by post.

If the authority of the Contracting Party that issued the
2.
documents knows or has reason to believe that the addressee
understands only some other language, the documents, or at
least the most important passages thereof, shall be accompanied
by a translation into that other language.

3.
The authority of the serving Contracting Party shall advise
the addressee that no measure of restraint or punishment may
be enforced directly by that authority in the territory of the
other Contracting Party.

4.
All procedural documents shall be accompanied by a
report indicating that the addressee may obtain information
from the authority identified in the report regarding his or
her rights and obligations concerning the documents.

Article 29

Provisional measures

1. Within the limits of its domestic law and its respective
powers and at the request of the authority of the requesting
Contracting Party, the competent authority of the requested
the necessary provisional
Contracting
measures for the purpose of maintaining an existing situation,
protecting endangered legal interests or preserving evidence, if
the request for mutual assistance does not appear manifestly
inadmissible.

shall order

Party

2.
Preventive freezing and seizure of instrumentalities and
proceeds of offences shall be ordered in cases where assistance
is requested. If the proceeds of an offence no longer exist in
whole or in part, the same measures shall be ordered in relation
to assets
requested
Contracting Party corresponding in value to the proceeds in
question.

located within the

territory of

the

Article 30

Presence of the authorities of the requesting Contracting
Party

The requested Contracting Party shall, at the request of the
1.
requesting Contracting Party, authorise the representatives of the
latter Party’s authorities to attend the execution of the request
for mutual legal assistance. Their presence shall not require the
consent of the person concerned by the measure.

Conditions may be attached to the authorisation.

shall have access

The persons present

2.
to the same
premises and the same documents as the representatives of
through them and for the
the requested Contracting Party,
legal
sole purposes of execution of
assistance.
In particular they may be authorised to put or
propose questions and suggest measures of investigation.

the request

for mutual

Their presence shall not result in facts being divulged to
3.
persons other than those authorised by virtue of the preceding
paragraphs in breach of judicial confidentiality or the rights of
the person concerned. The
to the
the requesting Contracting
knowledge of
Party may not be used as evidence until the decision on trans­
mission of the documents relating to execution has acquired the
force of res judicata.

information brought

the authority of

Article 31

Searches and seizures

The Contracting Parties may not make the admissibility of
1.
letters rogatory for search or seizure dependent on conditions
other than the following:

(a)

the act giving rise to the letters rogatory is punishable under
the law of both Contracting Parties by a penalty involving
deprivation of liberty or a detention order of a maximum
period of at least six months, or is punishable under the law
of one of the two Contracting Parties by an equivalent
penalty and under the law of the other Contracting Party
by virtue of being an infringement of the rules of law which
is being prosecuted by the administrative authorities, and
where the decision may give rise to proceedings before a
court having jurisdiction in particular in criminal matters;

(b) execution of the letters rogatory is consistent with the law

of the requested Contracting Party.

2.
Letters rogatory for purposes of search and seizure for
laundering offences within the scope of this Agreement shall
also be admissible provided that the activities making up the
precursor offence are punishable under the law of the two
Contracting Parties by a penalty involving deprivation of
liberty or a detention order of a maximum period of more
than six months.

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Article 32

Article 33

Requests for banking and financial information

Controlled deliveries

1. Where the conditions of Article 31 are met, the requested
for assistance in
Contracting Party shall execute requests
obtaining and transmitting banking and financial information,
including:

(a)

the identification of, and information concerning, bank
accounts opened at banks established in its territory and
where persons under investigation are the account holders,
authorised signatories or in effective control;

(b) the

identification of,

information concerning,
and all
banking transactions and operations conducted from,
to
or via one or more bank accounts or by specified persons
during a specified period.

2.
To the extent authorised by virtue of its law governing
criminal proceedings for similar domestic cases, the requested
Contracting Party may order surveillance of banking operations
conducted from, to or via one or more bank accounts or by
specified persons during a specified period, and transmission of
the results to the requesting Contracting Party. The decision to
monitor transactions and transmit the results shall be taken in
each individual case by the competent authorities of
the
comply with that
requested Contracting Party and shall
Contracting
details
regarding the monitoring shall be determined by agreement
the requesting and
between the competent authorities of
requested Contracting Parties.

practical

national

Party’s

law.

The

Each Contracting Party shall take the necessary measures
3.
to ensure the financial
institutions do not disclose to the
customer concerned or to other third persons that measures
are being executed at the request of the requesting Contracting
Party or that an investigation is under way, for such time as is
necessary to avoid compromising the results.

The competent authority in the requested Contracting
1.
the
Party shall undertake to ensure that, at
controlled
authority of
deliveries may be permitted in its
territory within the
framework of criminal investigations into extraditable offences.

requesting Contracting Party,

the request of

the

2.
The decision to carry out controlled deliveries shall be
taken in each individual case by the competent authorities of
the requested Contracting Party, with due regard for its national
law.

Controlled deliveries shall take place in accordance with
3.
the requested
the procedures provided for
Contracting Party. The right to act and to direct and control
operations shall
that
Contracting Party.

lie with the competent authorities of

in the law of

Article 34

Handing-over for confiscation or return

At the request of the requesting Contracting Party, all
1.
objects, documents, funds or other items of value that have
been seized on a precautionary basis may be handed over for
confiscation or for return to the rightful owner.

2.
The requested Contracting Party may not refuse to return
funds on the sole ground that they correspond to a tax or
customs debt.

Rights asserted by a third party in good faith shall remain

3.
reserved.

The authority of the Contracting Party issuing the request

4.
shall:

Article 35

Speeding up assistance

(a) state why it considers that the requested information is
likely to be of substantial value for the purpose of the
investigation into the offence;

(b) state on what grounds it presumes that banks in the
requested Contracting Party hold the account and, to the
extent available, which banks may be involved;

(c)

include all
execution of the request.

information available which may facilitate the

5.
A Contracting Party shall not invoke banking secrecy as
grounds for rejecting all cooperation on a request for mutual
assistance from another Contracting Party.

for mutual

The authority of

the requested Contracting Party shall
1.
execute the request
legal assistance as soon as
possible, taking as full account as possible of the procedural
deadlines and other deadlines indicated by the authority of the
requesting Contracting Party. The requesting Contracting Party
shall explain the reasons for the deadline.

If

the authority of

the request cannot, or cannot

fully, be executed in
2.
accordance with the requirements set by the authority of the
requesting Contracting Party,
the requested
Contracting Party shall promptly inform the authority of the
requesting Contracting Party and indicate the conditions under
which it might be possible to execute the request. The auth­
orities of the requesting and the requested Contracting Parties
may subsequently agree on further
taken
concerning the request, where necessary by making such
action subject to the fulfilment of those conditions.

action to be

17.2.2009

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Official Journal of the European Union

L 46/17

indicate explicitly that any delay will

If it is foreseeable that the deadline set by the authority of the
requesting Contracting Party for executing its request cannot be
met and if the reasons referred to in the second sentence of
paragraph 1,
lead to
substantial impairment of the proceedings being conducted by
that authority, the authority of the requested Contracting Party
shall promptly indicate the estimated time needed for execution
of the request. The authority of the requesting Contracting Party
shall promptly indicate whether the request is to be upheld
nonetheless. The authorities of the requesting and requested
Contracting Parties may subsequently agree on further action
to be taken concerning the request.

Article 36

Use of information and evidence

Information and evidence transmitted in the course of
the
assistance procedure may be used for the following purposes
in addition to the purposes of the assistance procedure for
which it was supplied:

(a)

in criminal proceedings in the requesting Contracting Party
against other persons who participated in the commission
of the offence for which assistance was given;

(b) where the infringements on which the request

is based
constitute another offence for which assistance ought also
to be given;

(c)

in proceedings for the confiscation of the instrumentalities
and proceeds of offences for which assistance ought to be
given and in proceedings for damages in respect of infrin­
gements for which assistance had been given.

Article 37

Spontaneous transmission

1. Within the limits of their national law and their powers,
the judicial authorities of a Contracting Party may sponta­
neously transmit information or evidence to the judicial auth­
orities of another Contracting Party, when they consider that
such information or
receiving
Contracting Party’s authority in initiating or carrying out inves­
tigations or proceedings, or might lead to a request for mutual
legal assistance by the receiving authority.

evidence might assist

the

The authority of the Contracting Party transmitting the
2.
information may, pursuant
impose
conditions on the use of such information by the authority of
the receiving Contracting Party.

to its national

law,

All

3.
bound by such conditions.

the authorities of

the Contracting Parties shall be

Article 38

status as partie

its
of
proceedings
requested Contracting Party.

commenced

civile

in domestic judicial criminal
the
authorities

the

of

before

TITLE IV

FINAL PROVISIONS

Article 39

Joint Committee

A Joint Committee shall be established, consisting of
1.
representatives of
and shall be
the Contracting Parties,
responsible for the sound application of this Agreement. To
that end,
it shall make recommendations and take decisions
in the cases provided for by the Agreement. It shall act by
mutual agreement.

The Joint Committee shall adopt its Rules of Procedure,
2.
which shall
include provisions governing the convening of
meetings, the designation of the Chair and the determination
of his or her functions.

3.
The Joint Committee shall meet as required but no less
than once every year. Any Contracting Party may request that a
meeting be convened.

4.
The Joint Committee may decide to establish working
parties or expert groups to assist it in the performance of its
tasks.

Article 40

Dispute settlement

Each Contracting

1.
Joint
Party may
Committee a dispute relating to the interpretation or application
in particular if it considers that another
of this Agreement,
failing repeatedly to take action on
Contracting Party is
requests for cooperation made to it.

to the

submit

2.
The Joint Committee shall endeavour to settle the dispute
as quickly as possible. The Joint Committee shall be supplied
with all relevant items of information to assist its detailed exa­
mination of the situation with a view to identifying a satis­
factory solution. To that end,
the Joint Committee shall
examine all possibilities of preserving the sound operation of
this Agreement.

Article 41

Reciprocity

a

The authority of
for
request

the requested Contracting Party may
1.
refuse
requesting
cooperation where
Contracting Party fails repeatedly to take action on a request
for cooperation in similar cases.

the

Procedures in the requested Contracting Party

The request for assistance shall be without prejudice to such
rights as the requesting Contracting Party may enjoy as a result

2.
Before a request for cooperation is refused on the grounds
of reciprocity, the Joint Committee shall be informed to give it
the opportunity to state its opinion on the matter.

L 46/18

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Official Journal of the European Union

17.2.2009

Article 42

Revision

Article 46

Application over time

If a Contracting Party wishes this Agreement to be revised, it
lay a proposal before the Joint Committee, which shall
shall
make recommendations, notably for the commencement of
negotiations.

The provisions of this Agreement shall be applicable to requests
concerning illegal activities committed at least six months after
it was signed.

Article 43

Territorial scope

This Agreement shall apply, on the one hand, to the territory of
the Swiss Confederation and, on the other hand, to the terri­
tories
European
Community is applied and under the conditions laid down in
that Treaty.

in which the Treaty

establishing

the

Article 44

Entry into force

This Agreement shall be concluded for an indefinite

1.
period.

2.
It shall be ratified or approved by the Contracting Parties
in accordance with their respective procedures. It shall enter
into force on the first day of the second month after the last
notification of instruments of ratification or approval.

Until

the entry into force of

3.
this Agreement, each
Contracting Party may, at the time of the notification referred
to in paragraph 2 or at any other subsequent time, declare that
it shall consider itself bound by the Agreement in its relations
with any other Contracting Party having made the same
declaration. These declarations shall take effect 90 days after
the date of receipt of the notification.

Article 47

Extension of the Agreement to the new Member States of
the European Union

1.
the
Any State which becomes a Member State of
European Union may, by written notification to the Contracting
Parties, become a Contracting Party to this Agreement.

2.
The text of the Agreement in the language of the new
acceding Member State as established by the Council of the
European Union shall be authenticated by an Exchange of
Letters between the European Community and the Swiss
Confederation.
It shall be considered to be authentic within
the meaning of Article 48.

3.
This Agreement shall enter into force in relation to any
new Member State of the European Union which accedes to it
90 days after the receipt of its instrument of accession, or on
the date of entry into force of this Agreement if it was not yet
in force when that 90-day period expired.

If

this Agreement

4.
acceding
Article 44(3) shall apply.

State

notifies

is not yet
its

in force when the new
accession,
of

instrument

Article 48

Languages

1.
This Agreement is drawn up in duplicate in the Czech,
Danish, Dutch, English, Estonian, Finnish, French, German,
Polish,
Greek, Hungarian,
Portuguese, Slovak, Slovenian, Spanish and Swedish languages,
each of these texts being equally authentic.

Lithuanian,

Latvian,

Italian,

Article 45

Denunciation

The European Community or the Swiss Confederation may
denounce this Agreement by notifying the other Contracting
take effect six
Party of
months after the date of receipt of
the
denunciation.

its decision. The denunciation shall

the notification of

The Maltese language version of this Agreement shall be
2.
authenticated by the Contracting Parties on the basis of an
Exchange of Letters.
in the same
way as for the languages referred to in paragraph 1.

It shall also be authentic,

IN WITNESS WHEREOF, the undersigned Plenipotentiaries have
hereunto set their hands.

17.2.2009

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Official Journal of the European Union

L 46/19

Hecho en Luxemburgo, el veintiseis de octubre del dos mil cuatro.

V Lucemburku dne dvacátého šestého října dva tisíce čtyři.

Udfærdiget i Luxembourg den seksogtyvende oktober to tusind og fire.

Geschehen zu Luxemburg am sechsundzwanzigsten Oktober zweitausendundvier.

Kahe tuhande neljanda aasta oktoobrikuu kahekümne kuuendal päeval Luxembourgis.

Έγινε στo Λουξεμβούργο, στις είκοσι έξι Οκτωβρίου δύο χιλιάδες τέσσερα.

Done at Luxembourg on the twenty sixth day of October in the year two thousand and four.

Fait à Luxembourg, le vingt six octobre deux mille quatre.

Fatto a Lussembourgo, addì ventisei ottobre duemilaquattro.

Luksemburgā, divi tūkstoši ceturtā gada divdesmit sestajā oktobrī.

Priimta du tūkstančiai ketvirtų metų spalio dvidešimt šeštą dieną Liuksemburge.

Kelt Luxembourgban, a kettőezer negyedik év október huszonhatodik napján.

Magħmul fil-Lussemburgu fis-sitta u għoxrin jum ta' Ottubru tas-sena elfejn u erbgħa.

Gedaan te Luxemburg, de zesentwintigste oktober tweeduizendvier.

Sporządzono w Luksemburgu, dnia dwudziestego szóstego października roku dwutysięcznego czwartego.

Feito no Luxemburgo, em vinte e seis de Outubro de dois mil e quatro.

V Luxemburgu dvadsiateho šiesteho októbra dvetisícštyri.

V Luxembourgu, dne šestindvajsetega oktobra leta dva tisoč štiri.

Tehty Luxemburgissa kahdentenakymmenentenäkuudentena päivänä lokakuuta vuonna kaksituhattaneljä.

Som skedde i Luxemburg den tjugosjätte oktober tjugohundrafyra.

L 46/20

EN

Official Journal of the European Union

17.2.2009

Pour le Royaume de Belgique
Voor het Koninkrijk België
Für das Königreich Belgien

Cette signature engage également la Communauté française,
germanophone, la Région wallonne, la Région flamande et la Région de Bruxelles-Capitale.
Deze handtekening verbindt eveneens de Vlaamse Gemeenschap, de Franse Gemeenschap, de Duitstalige
Gemeenschap, het Vlaamse Gewest, het Waalse Gewest en het Brussels Hoofdstedelijk Gewest.
Diese Unterschrift bindet zugleich die Deutschsprachige Gemeinschaft, die Flämische Gemeinschaft, die
Französische Gemeinschaft, die Wallonische Region, die Flämische Region und die Region Brüssel-Haupt­
stadt.

la Communauté flamande,

la Communauté

Za Českou republiku

På Kongeriget Danmarks vegne

Für die Bundesrepublik Deutschland

Eesti Vabariigi nimel

17.2.2009

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Official Journal of the European Union

L 46/21

Για την Ελληνική Δημοκρατία

Por el Reino de España

Pour la République française

Thar cheann Na hÉireann
For Ireland

Per la Repubblica italiana

L 46/22

EN

Official Journal of the European Union

17.2.2009

Για την Κυπριακή Δημοκρατία

Latvijas Republikas vārdā

Lietuvos Respublikos vardu

Pour le Grand-Duché de Luxembourg

A Magyar Köztársaság részéről

17.2.2009

EN

Official Journal of the European Union

L 46/23

Għar-Repubblika ta' Malta

Voor het Koninkrijk der Nederlanden

Für die Republik Österreich

W imieniu Rzeczypospolitej Polskiej

Pela República Portuguesa

L 46/24

EN

Official Journal of the European Union

17.2.2009

Za Republiko Slovenijo

Za Slovinskú republiku

Suomen tasavallan puolesta
För Republiken Finland

För Konungariket Sverige

For the United Kingdom of Great Britain and Northern Ireland

17.2.2009

EN

Official Journal of the European Union

L 46/25

Por la Comunidad Europea
Za Evropské společenství
For Det Europæiske Fællesskab
Für die Europäische Gemeinschaft
Euroopa Ühenduse nimel
Για την Ευρωπαϊκή Κοινότητα

For the European Community
Pour la Communauté européenne
Per la Comunità europea
Eiropas Kopienas vārdā
Europos bendrijos vardu
Az Európai Közösség részéről
Għall-Komunità Ewropea
Voor de Europese Gemeenschap
W imieniu Wspólnoty Europejskiej
Pela Comunidade Europeia
Za Európske spoločenstvo
Za Evropsko skupnost
Euroopan yhteisön puolesta
På Europeiska gemenskapens vägnar

Für die Schweizerische Eidgenossenschaft
Pour la Confédération suisse
Per la Confederazione svizzera

L 46/26

EN

Official Journal of the European Union

17.2.2009

FINAL ACT

The plenipotentiaries of

THE KINGDOM OF BELGIUM,

THE CZECH REPUBLIC,

THE KINGDOM OF DENMARK,

THE FEDERAL REPUBLIC OF GERMANY,

THE REPUBLIC OF ESTONIA,

THE HELLENIC REPUBLIC,

THE KINGDOM OF SPAIN,

THE FRENCH REPUBLIC,

IRELAND,

THE ITALIAN REPUBLIC,

THE REPUBLIC OF CYPRUS,

THE REPUBLIC OF LATVIA,

THE REPUBLIC OF LITHUANIA,

THE GRAND DUCHY OF LUXEMBOURG,

THE REPUBLIC OF HUNGARY,

THE REPUBLIC OF MALTA,

THE KINGDOM OF THE NETHERLANDS,

THE REPUBLIC OF AUSTRIA,

THE REPUBLIC OF POLAND,

THE PORTUGUESE REPUBLIC,

THE REPUBLIC OF SLOVENIA,

THE SLOVAK REPUBLIC,

THE REPUBLIC OF FINLAND,

THE KINGDOM OF SWEDEN,

THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND,

THE EUROPEAN COMMUNITY,

of the one part, and of

THE SWISS CONFEDERATION,

of the other part,

meeting on 26 October 2004 for the signature of the Cooperation Agreement between the European
Community and its Member States, of the one part, and the Swiss Confederation, of the other part, to
combat fraud and any other illegal activity to the detriment of their financial interests, have adopted the
joint declarations listed below and attached to this Final Act:

1. Joint declaration on money laundering;

2. Joint declaration on cooperation by the Swiss Confederation with Eurojust and, if possible, with the

European Judicial Network.

The plenipotentiaries of the European Union and of its Member States and the plenipotentiaries of the Swiss
Confederation have furthermore adopted the Agreed Minute of the negotiations attached to this Final Act.
The Agreed Minute is binding.

17.2.2009

EN

Official Journal of the European Union

L 46/27

Hecho en Luxemburgo, el veintiseis de octubre del dos mil cuatro.

V Lucemburku dne dvacátého šestého října dva tisíce čtyři.

Udfærdiget i Luxembourg den seksogtyvende oktober to tusind og fire.

Geschehen zu Luxemburg am sechsundzwanzigsten Oktober zweitausendundvier.

Kahe tuhande neljanda aasta oktoobrikuu kahekümne kuuendal päeval Luxembourgis.

Έγινε στo Λουξεμβούργο, στις είκοσι έξι Οκτωβρίου δύο χιλιάδες τέσσερα.

Done at Luxembourg on the twenty sixth day of October in the year two thousand and four.

Fait à Luxembourg, le vingt six octobre deux mille quatre.

Fatto a Lussemburgo, addì ventisei ottobre duemilaquattro.

Luksemburgā, divi tūkstoši ceturtā gada divdesmit sestajā oktobrī.

Priimta du tũkstančiai ketvirtų metų spalio dvidešimt šeštą dieną Liuksemburge.

Kelt Luxembourgban, a kettőezer negyedik év október huszonhatodik napján.

Magħmul fil-Lussemburgu fis-sitta u għoxrin jum ta' Ottubru tas-sena elfejn u erbgħa.

Gedaan te Luxemburg, de zesentwintigste oktober tweeduizendvier.

Sporządzono w Luksemburgu, dnia dwudziestego szóstego października roku dwutysięcznego czwartego.

Feito no Luxemburgo, em vinte e seis de Outubro de dois mil e quatro.

V Luxemburgu dvadsiateho šiesteho októbra dvetisícštyri.

V Luxembourgu, dne šestindvajsetega oktobra leta dva tisoč štiri.

Tehty Luxemburgissa kahdentenakymmenentenäkuudentena päivänä lokakuuta vuonna kaksituhattaneljä.

Som skedde i Luxemburg den tjugosjätte oktober tjugohundrafyra.

L 46/28

EN

Official Journal of the European Union

17.2.2009

Pour le Royaume de Belgique
Voor het Koninkrijk België
Für das Königreich Belgien

Cette signature engage égalerment la Communauté française, la Communauté flamande, la Communauté
germanophone, la Région wallonne, la Région flamande et la Région de Bruxelles-Capitale.
Deze handtekening verbindt eveneens de Vlaamse Gemeenschap, de Franse Gemeenschap, de Duitstalige
Gemeenschap, het Vlaamse Gewest, het Waalse Gewest en het Brussels Hoofdstedelijk Gewest.
Diese Unterschrift bindet zugleich die Deutschsprachige Gemeinschaft, die Flämische Gemeinschaft, die
Französische Gemeinschaft, die Wallonische Region, die Flämische Region und die Region Brüssel-Haupt­
stadt.

Za Českou republiku

På Kongeriget Danmarks vegne

Für die Bundesrepublik Deutschland

Eesti Vabariigi nimel

17.2.2009

EN

Official Journal of the European Union

L 46/29

Για την Ελληνική Δημοκρατία

Por el Reino de España

Pour la République française

Thar cheann Na hÉireann
For Ireland

Per la Repubblica italiana

L 46/30

EN

Official Journal of the European Union

17.2.2009

Για την Κυπριακή Δημοκρατία

Latvijas Republikas vārdā

Lietuvos Respublikos vardu

Pour le Grand-Duché de Luxembourg

A Magyar Köztársaság részéről

17.2.2009

EN

Official Journal of the European Union

L 46/31

Għar-Repubblika ta' Malta

Voor het Koninkrijk der Nederlanden

Für die Republik Österreich

W imieniu Rzeczypospolitej Polskiej

Pela República Portuguesa

L 46/32

EN

Official Journal of the European Union

17.2.2009

Za Republiko Slovenijo

Za Slovinskú republiku

Suomen tasavallan puolesta
För Republiken Finland

För Konungariket Sverige

For the United Kingdom of Great Britain and Northern Ireland

17.2.2009

EN

Official Journal of the European Union

L 46/33

Por la Comunidad Europea
Za Evropské společenství
For Det Europæiske Fællesskab
Für die Europäische Gemeinschaft
Euroopa Ühenduse nimel
Για την Ευρωπαϊκή Κοινότητα

For the European Community
Pour la Communauté européenne
Per la Comunità europea
Eiropas Kopienas vārdā
Europos bendrijos vardu
Az Európai Közösség részéről
Għall-Komunità Ewropea
Voor de Europese Gemeenschap
W imieniu Wspólnoty Europejskiej
Pela Comunidade Europeia
Za Európske spoločenstvo
Za Evropsko skupnost
Euroopan yhteisön puolesta
På Europeiska gemenskapens vägnar

Für die Schweizerische Eidgenossenschaft
Pour la Confédération suisse
Per la Confederazione svizzera

L 46/34

EN

Official Journal of the European Union

17.2.2009

JOINT DECLARATION ON MONEY LAUNDERING

The Contracting Parties hereby agree that Article 2(3) of the Agreement on cooperation in combating
money laundering shall
include as precursor offences those which constitute tax fraud or professional
smuggling under Swiss law. Information received in response to a request concerning laundering may be
used in proceedings for laundering, save in proceedings against Swiss persons if all the acts relevant to the
offence were committed in Switzerland only.

JOINT DECLARATION ON COOPERATION BY THE SWISS CONFEDERATION WITH EUROJUST AND, IF POSSIBLE,
WITH THE EUROPEAN JUDICIAL NETWORK

The Contracting Parties take note of the Swiss Confederation’s wish to study the possibility of cooperating
in the work of Eurojust and, if possible, the European Judicial Network.

17.2.2009

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Official Journal of the European Union

L 46/35

AGREED MINUTE OF THE NEGOTIATIONS ON THE COOPERATION AGREEMENT BETWEEN THE EUROPEAN
COMMUNITY AND ITS MEMBER STATES, OF THE ONE PART, AND THE SWISS CONFEDERATION, OF THE
OTHER PART, TO COMBAT FRAUD AND ANY OTHER ILLEGAL ACTIVITY TO THE DETRIMENT OF THEIR
FINANCIAL INTERESTS

The Contracting Parties have agreed as follows:

Ad Article 2(1)(a)
The expression ‘fraud and any other illegal activity’ extends to smuggling, corruption and laundering of the
proceeds of the activities covered by this Agreement, subject to Article 2(3).

The expression ‘trade in goods contrary to customs and agricultural legislation’ is to be understood inde­
pendently of the passage (departure, destination or transit) or otherwise of the goods through the territory
of the other Contracting Party.

The expression ‘trade contrary to tax legislation applicable to value added tax, special taxes on consumption
and excise duties’ is to be understood independently of the passage (departure, destination or transit) or
otherwise of the goods or services through the territory of the other Contracting Party.

Ad Article 15(2)
The term ‘investigation means’ includes the questioning of persons, the searching of premises and means of
transport, the copying of documents, the requesting of information and the seizure of objects, documents
and items of value.

Ad second subparagraph of Article 16(2)

This subparagraph also means that those present may in particular be authorised to put questions and
propose measures of investigation.

Ad Article 25(2)

The concept of multilateral Agreements between the Contracting Parties includes in particular, as of its entry
into force, the Agreement between the European Union, the European Community and the Swiss Confed­
eration concerning the latter’s association with the implementation, application and development of the
Schengen acquis.

Ad Article 35(1)
‘Request for mutual
authority of the requesting Contracting Party.

legal assistance’ also means the transmission of information and evidence to the

Ad Article 43

The European Commission will, at the latest at the date of signature of this Agreement, send an indicative
list of the territories to which this Agreement applies.