Proposal for a COUNCIL DECISION on the signing, on behalf of the European Union, of the Protocol to Eliminate Illicit Trade in Tobacco Products to the World Health Organisation’s Framework Convention on Tobacco Control, in so far as the provisions of the Protocol which do not fall under Title V of Part III of the Treaty on the Functioning of the European Union are concerned
Date: 2013-07-18
Institutions: European Commission
Subjects: health care, illicit trade, protocol to an agreement, smoking, tobacco













EUR-Lex - 52013PC0538 - EN











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52013PC0538

Proposal for a COUNCIL DECISION on the signing, on behalf of the European Union, of the Protocol to Eliminate Illicit Trade in Tobacco Products to the World Health Organisation’s Framework Convention on Tobacco Control, in so far as the provisions of the Protocol which do not fall under Title V of Part III of the Treaty on the Functioning of the European Union are concerned /* COM/2013/0538 final - 2013/0259 (NLE) */









EXPLANATORY MEMORANDUM
1.           CONTEXT OF THE PROPOSAL
The World Health Assembly adopted in 2003 the
Framework Convention on Tobacco Control (FCTC), which aims at reducing
tobacco-related deaths and diseases around the world in a comprehensive manner.
To date the FCTC has been ratified by 176 Parties. The EU concluded the FCTC by Council Decision 2004/513/EC of 2 June 2004 ([1]).
The FCTC recognises in its Article 15 that
the elimination of illicit trade in tobacco products, including smuggling,
illicit manufacturing and counterfeiting, is an essential component of tobacco
control, and obliges Parties to adopt and implement effective measures to
eliminate illicit trade. Article 33 of the FCTC
provides for the possibility for the Conference of the Parties to adopt
protocols to the Convention. On the basis of these Articles,
the Conference of the Parties (COP) to the FCTC, at its second session in
June-July 2007 decided to establish an Intergovernmental Negotiating Body (INB)
to negotiate and draft a protocol to eliminate illicit trade in tobacco
products (hereinafter referred to as ‘the Protocol’). 
The Council authorised the Commission to
negotiate the Protocol on behalf of the EU in its Decision of 20 December 2007.
This Decision amended the negotiating directives for the FCTC with regard to
the Protocol. The directives for the FCTC were adopted by the Council on 22
October 1999 and supplemented on 21 April 2001. After its fifth session, the INB decided to recommend that
the draft Protocol on which a consensus was obtained be considered at the fifth
COP of the FCTC. Accordingly, the fifth COP held in Seoul, Republic of Korea,
adopted the Protocol on 12 November 2012.
According to Article 43, the Protocol is open
for signature by the Parties to the FCTC in New York until 9 January 2014. By
10 June 2013, 18 Parties had already signed the Protocol. The EU should sign
the Protocol as soon as possible. 
The Protocol
consists of core provisions on the control of the supply chain of tobacco
products and of equipment for manufacturing those products (Part III: Supply
Chain Control). It requires the introduction of a licensing, equivalent
approval or control system by a competent authority for any natural or legal person
involved in the manufacturing and in the import and export of tobacco products
and manufacturing equipment (Article 6 – Licensing). It, furthermore, requires
all natural and legal persons engaged in the supply chain of tobacco, tobacco
products and manufacturing equipment to conduct due diligence with regard to
their customers (Article 7 – Due diligence). It provides for the establishment
of a global tracking and tracing regime, within five years of the entry into
force of the Protocol, consisting of national tracking and tracing systems
controlled by the Parties for all tobacco products manufactured in or imported into
their territory (Article 8 – Tracking and tracing).
Those articles are
complemented by provisions on record-keeping and security and preventive
measures, including anti-money-laundering measures, and reporting of suspicious
transactions (Articles 9 and 10). Further provisions concern sales by Internet,
telecommunication or any other evolving technology (Article 11), duty free
sales of tobacco products and the obligation to implement effective controls on
tobacco and tobacco products in the free zones, including not mixing tobacco
products with non-tobacco products at the time of removal from a free zone
(Article 12). 
Part IV of the
Protocol defines the conduct to be established as unlawful under the Parties’ legislation (Article 14) and obliges the
Parties to ensure that natural and legal persons are held liable for such unlawful
conduct, including criminal offences (Articles 15 and 16). Further provisions
concern seizure payments (Article 17), the handling of confiscated tobacco
(Article 18) and special investigative techniques (Article 19). Part V of the
Protocol contains provisions for the exchange of relevant information between
the Parties (Articles 20 to 22), cooperation and mutual assistance (both
administrative and legal in relation to criminal matters – Articles 23 and 24,
and Articles 27 to 29), jurisdiction (Article 26) and extradition (Articles 30
and 31). 
2.         RESULTS OF CONSULTATIONS WITH
THE INTERESTED PARTIES 
Coordination with Member States throughout
the negotiations took place in the Council Working Party on Customs Union and
in local coordination meetings during the sessions of the Intergovernmental
Negotiating Body and the Intersessional Working Groups.
The European Parliament was informed about
the outcome of the negotiations. 
3.           LEGAL ELEMENTS OF THE
PROPOSAL
The Protocol contains a complex set of
measures and rules. The main objective of the Protocol is to contribute to the
overall tobacco control efforts by combatting all forms of illicit trade in
tobacco products and manufacturing equipment. This objective is pursued through
several sets of measures which are equally important and complementary to each
other. These measures fall into different areas of EU activity which may be subdivided
as follows:
(a)        the manufacture, presentation
and sale of tobacco (and related) products,
(b)        harmonised taxation and related
rules,
(c)        customs controls and cooperation
including through mutual administrative assistance in customs matters,
(d)        approximation of criminal
offences, judicial cooperation in criminal matters and police cooperation.
Individual provisions usually fall under
one or, in a few cases, more of those headings. As a consequence, the EU has
external competence to deal with these matters. In some cases this competence
is of an exclusive nature, in accordance with Article 3 of the Treaty on the
Functioning of the European Union (TFEU).
Regarding heading (a), the Protocol contains provisions covered by EU legislation based on
Article 114 of the TFEU. For example, as regards tracking and tracing (Article
8 of the Protocol). Directive 2001/37/EC on the approximation of the laws,
regulations and administrative provisions of the Member States concerning the
manufacture, presentation and sale of tobacco products[2] grants power to the Commission
to adopt technical measures related to traceability and identification. The Commission
presented on 19 December 2012 a proposal to revise that Directive (COM/2012/0788
final — 2012/0366 (COD). This Commission proposal contains an article on
traceability and security features, including provisions on tracking and
tracing, and is based on Article 114 of the TFEU. The functioning of the single
tracking and tracing mechanisms envisaged in the Directive (and the one
proposed by the Commission) could be affected if Member States could
individually negotiate tracking and tracing systems. Other measures in the
Protocol (sales by internet, telecommunications and other evolving technology:
money laundering and cash control) are also covered by EU measures based on Article
114 of the TFEU. The EU shall therefore sign the Protocol on the basis of
Article 114 of the TFEU. 
Regarding heading (b), the Protocol contains provisions covered by existing EU legislation
on indirect taxation, notably licensing, record-keeping, duty free sales, and
administrative cooperation based on Article 113 of the TFEU. Certain of these
harmonised rules, at least, may be affected by the provisions of the Protocol.
Generally speaking, the non-coordinated implementation of the provisions of the
Protocol in this area could lead to the malfunctioning of the internal market
and to inefficiencies. Article 113 therefore provides a second legal basis for
the EU to sign the Protocol. 
Regarding heading (c), the Protocol contains the obligation to exercise effective controls
in free zones. It prohibits the intermingling of tobacco products with
non-tobacco products at the time of removal from free zones. It contains the
obligation to apply control and verification measures to the international
transit or transhipment of tobacco products and manufacturing equipment. Under EU
law, goods brought into the customs territory of the EU (including where
transhipment is involved) are, from the time of their entry, subject to customs
supervision (Article 37 of the Customs Code[3]).
Under Article 59(1) of that Code, all goods intended to be placed under a
customs procedure (including transit) must be covered by a declaration for that
procedure. Moreover, control and verification measures in respect of goods
coming in the EU from third countries fall within the area of the common
commercial policy under Article 207 of the TFEU. The Protocol also contains
provisions on international cooperation including mutual administrative
assistance (Part V, Articles 20 to 31) which also extend to the customs area.
These customs aspects are covered by EU legislation based on Article 33 of the
TFEU, insofar as assistance and cooperation between the Member States and between
Member States and the Commission is concerned, and on Article 207 of the TFEU,
insofar as such assistance or cooperation is to be provided to third countries.
Articles 33 and 207 of the TFEU therefore provide a third and a fourth legal
basis for the EU to sign the Protocol. 
The Protocol also contains provisions on the
definition of unlawful conduct that may be established by the Parties either as
a non-criminal or as a criminal offence. As far as non-criminal offences are
concerned they fall under EU activity in the fields described under headings (a)
to (c). 
Regarding heading (d), the Protocol contains provisions concerning approximation of
criminal offences, law enforcement cooperation and judicial cooperation in
criminal matters (respectively Chapters 4 and 5 of Title V of Part III of
the TFEU). Title V of Part III of the TFEU is governed by a special regime because
Denmark, the United Kingdom and Ireland do not participate in measures under that
Title. However, the United Kingdom and Ireland have the possibility to take
part in the adoption and application of the measures. Therefore together with
this proposal, a separate proposal for a Council Decision is presented on the
signing of the Protocol, on behalf of the European Union, in so far as those
provisions of the Protocol which fall under Title V of Part III of the TFEU are
concerned. 
2013/0259 (NLE)
Proposal for a
COUNCIL DECISION
on the signing, on behalf of the European
Union, of the Protocol to Eliminate Illicit Trade in Tobacco Products to the
World Health Organisation’s Framework Convention on Tobacco Control, in so far
as the provisions of the Protocol which do not fall under Title V of Part III
of the Treaty on the Functioning of the European Union are concerned

THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the
Functioning of the European Union, and in particular Articles 33, 113, 114 and
207 in conjunction with Article 218(5) and the second subparagraph of paragraph
8 thereof,
Having regard to the proposal from the
European Commission,
Whereas:
(1)       On 22 October 1999, the
Council authorised the Commission to negotiate, in the context of the World
Health Organisation (WHO), a Framework Convention on Tobacco Control (FCTC) and
related protocols. This authorisation was amended by the Council on 21 April
2001 and, in relation to the Protocol to Eliminate Illicit Trade in Tobacco
Products (hereinafter referred to as the ‘Protocol’) on 20 December 2007.
Negotiations were conducted by the Commission within the negotiating directives
adopted by the Council and were successfully finalised by the adoption of the
Protocol at the fifth Conference of the Parties to the WHO FCTC on 12 November
2012, in Seoul, Republic of Korea.
(2)       The conclusion of the FCTC
was approved on behalf of the Community by Council Decision 2004/513/EC of 2
June 2004 concerning the conclusion of the WHO Framework Convention on Tobacco
Control([4]),
which is a condition for the European Union to become a Party to the Protocol.
(3)       The Protocol represents a
significant contribution to the international efforts to eliminate all forms of
illicit trade in tobacco products which constitute an essential component of
tobacco control.
(4)       In so
far as the provisions of the Protocol which do not fall within the scope of Title
V of Part III of the Treaty on the Functioning of the European Union are
concerned, the Protocol should be signed on behalf of the European Union.
(5)       In so
far as the provisions of the Protocol which fall within the scope of Title V of
Part III of the Treaty on the Functioning of the European Union are concerned,
the Protocol should be signed on behalf of the European Union on the basis of a
separate Decision of the Council,
HAS ADOPTED THIS DECISION: 
Article 1
The signing of the Protocol to Eliminate
Illicit Trade in Tobacco Products to the WHO Framework Convention on Tobacco
Control is hereby approved on behalf of the European Union, subject to the
conclusion of the said Protocol.
The text of the Protocol to be signed is
attached to this Decision.
Article 2
This Decision shall apply in so far as the
provisions of the Protocol do not fall within the scope of Title V of Part III of
the Treaty on the Functioning of the European Union.
Article 3
The Council
Secretariat General shall establish the instrument of full powers to sign the
Protocol, subject to its conclusion, for the person indicated by the negotiator
of the Protocol.
Article 4
This Decision shall enter into force on the
day of its publication in the Official Journal of the European Union.
Done at Brussels, 
                                                                       For
the Council
                                                                       The
President
Annex
PROTOCOL TO
ELIMINATE ILLICIT TRADE IN TOBACCO PRODUCTS
Preamble
The Parties to this Protocol,
Considering that on 21
May 2003, the Fifty-sixth World Health Assembly adopted by
consensus the WHO Framework Convention on
Tobacco Control, which came
into force on 27 February 2005;
Recognizing that the WHO Framework Convention on Tobacco Control
is one of the United
Nations’ most rapidly ratified treaties and a fundamental tool for attaining the objectives of the World
Health Organization;
Recalling the
Preamble to the Constitution of the World Health Organization,
which states that the enjoyment of the
highest attainable standard
of health as a fundamental right of
every human being without distinction of race, religion,
political belief,
economic or social condition;
Determined also to give priority to their right to protect public health;
Deeply concerned that the illicit trade in tobacco products
is contributing to the spread of the tobacco epidemic, which is a global
problem with serious consequences for public
health that calls for effective, appropriate and comprehensive domestic and international responses;
Recognizing further that illicit
trade in tobacco
products undermines price and tax measures
designed to strengthen tobacco control and thereby increases
the accessibility and affordability of tobacco products;
Seriously concerned by the adverse effects that the increase in accessibility and affordability of illicitly traded tobacco
products has on public health and the well-being, in particular of young people,
the poor and other vulnerable
groups;
Seriously concerned
about the disproportionate economic
and social implications of illicit trade in tobacco products on developing countries and countries with economies in transition;
Aware of
the need to develop scientific, technical and institutional
capacity to plan and implement appropriate national, regional
and international measures to eliminate all forms of illicit trade in tobacco products;
Acknowledging that access to resources and relevant technologies is of great importance for enhancing the ability of Parties,
particularly in developing
countries and countries with economies
in transition, to eliminate all forms of illicit trade in tobacco products;
Acknowledging also that, although free zones are established to facilitate legal trade, they have
been used to facilitate the globalization of illicit trade
in tobacco products, both in relation
to the illicit transit of smuggled products and in the manufacture of illicit tobacco products;
Recognizing also that illicit trade in tobacco products
undermines the economies of Parties and
adversely affects their stability and security;
Also aware that illicit trade in tobacco
products generates financial profits that are used to fund
transnational criminal activity, which interferes with government objectives;
Recognizing that the illicit trade in tobacco products undermines health objectives, imposes additional strain on health systems and causes losses of revenue to the economies of the Parties;
Mindful of Article
5.3 of the WHO Framework Convention on Tobacco Control
in which Parties agree that in setting and implementing
their public health policies
with respect to tobacco
control, Parties shall act to protect these policies from commercial
and other vested interests of the
tobacco industry in accordance with national law;
Emphasizing the need to be alert to any efforts by the tobacco industry to undermine or subvert
strategies to combat illicit trade in tobacco products
and the need to be informed
of activities of the tobacco industry that have a negative impact on strategies to combat illicit
trade in tobacco
products;
Mindful of Article 6.2 of the WHO Framework Convention
on Tobacco Control,
which encourages Parties to prohibit or restrict, as appropriate, sales to and/or importation
by international travellers of tax- and duty-free tobacco
products;
Recognizing in addition that tobacco and tobacco products in international
transit and transhipment find a channel for illicit trade;
Taking into account
that effective
action to prevent and combat illicit trade in tobacco products requires a comprehensive
international approach to, and close cooperation on, all aspects
of illicit trade, including,
as appropriate, illicit trade in tobacco, tobacco products and manufacturing equipment;
Recalling and emphasizing the importance of other relevant
international agreements such as the United Nations Convention against Transnational Organized Crime, the United Nations Convention against Corruption and the United Nations Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances and the obligation that Parties to these Conventions have to apply, as appropriate, the relevant provisions
of these Conventions
to illicit trade in tobacco,
tobacco products and manufacturing equipment and encouraging those
Parties that have not yet become Parties
to these agreements to consider doing so;
Recognizing the need to build enhanced
cooperation between the Convention Secretariat of the
WHO Framework Convention on Tobacco Control
and the United Nations
Office on Drugs and Crime, the World Customs Organization and other bodies, as appropriate;
Recalling Article 15 of the WHO Framework Convention on Tobacco Control,
in which Parties recognize, inter alia, that the elimination of all forms of illicit trade in tobacco
products, including
smuggling and illicit manufacturing,
is an essential component of tobacco control;
Considering that this Protocol does not seek to address issues concerning intellectual property rights; and
Convinced that supplementing
the WHO Framework Convention on Tobacco Control by a comprehensive protocol will be a powerful, effective means to counter illicit
trade in tobacco products and its grave consequences,
Hereby agree as follows:
PART I:
INTRODUCTION
Article 1
Use of terms
1 “Brokering” means acting as an agent for others, as in negotiating contracts, purchases, or sales in return for a fee or commission.
2. “Cigarette” means a roll of cut tobacco for smoking, enclosed in cigarette paper. This excludes specific regional products such as bidis, ang hoon, or other similar products
which can be wrapped in paper or leaves. For the purpose of Article
8, “cigarette” also includes
fine cut “roll your own” tobacco for the purposes of making a cigarette.
3.
“Confiscation”, which includes
forfeiture where applicable, means the permanent deprivation of property by order
of a court or other competent authority.
4. “Controlled delivery” means the technique of allowing illicit or suspect consignments to pass
out of, through or into
the territory of one or more
States, with the knowledge and under
the supervision of their competent authorities, with a view to the investigation of an offence and the
identification of persons
involved in the commission of the offence.
5. “Free zone” means a part of the territory of a Party where any goods introduced are
generally regarded, in so far as import duties
and taxes are concerned, as being outside
the Customs territory.
6. “Illicit trade” means any practice
or conduct prohibited
by law and which relates to production,
shipment, receipt, possession, distribution, sale or purchase, including any practice or conduct intended to facilitate
such activity.
7. “Licence” means permission
from a competent
authority following submission of the requisite
application or other documentation
to the competent authority.
8. (a) “Manufacturing equipment” means machinery which is designed,
or adapted, to be used
solely for the manufacture of tobacco products and is integral
to the manufacturing process.[5]1
(b) “Any part thereof” in the
context of manufacturing equipment means any identifiable part which is unique to
manufacturing equipment used in the manufacture of tobacco products.
9. “Party” means, unless the context indicates
otherwise, a Party
to this Protocol.
10.
“Personal data” means any information relating to an identified
or identifiable natural
person.
11. ”Regional economic
integration organization”
means an organization
that is composed
of several sovereign states, and to which its Member States have transferred competence over a range of matters, including the authority to make decisions
binding on its Member States in respect of those
matters.[6]
12.
The “supply chain” covers the manufacture of tobacco products
and manufacturing equipment;
and import or export of tobacco products
and manufacturing equipment; and may be extended,
where relevant, to one or more of the following activities when so decided
by a Party:
(a) retailing
of tobacco products;
(b) growing
of tobacco, except
for traditional small-scale growers, farmers and producers;
(c) transporting commercial quantities of tobacco products or manufacturing equipment; and
(d) wholesaling, brokering, warehousing or distribution of tobacco and tobacco products
or manufacturing equipment.
13.
“Tobacco products” means products entirely or partly made of the leaf tobacco as raw material,
which are manufactured to be used for smoking, sucking,
chewing or snuffing.
14.
“Tracking and tracing” means systematic monitoring and re-creation by competent authorities
or any other person acting on their behalf
of the route or
movement taken by items through the supply
chain, as outlined in Article 8.
Article 2
Relationship between
this Protocol and other agreements and legal instruments
1. The provisions of the WHO Framework
Convention on Tobacco Control
that apply to its
protocols shall apply to this Protocol.
2. Parties that have entered
into the types of agreements mentioned
in Article 2 of the WHO
Framework Convention on
Tobacco Control shall communicate such agreements to the
Meeting of the Parties through the Convention Secretariat.
3. Nothing in
this Protocol shall affect
the rights and obligations
of any Party pursuant to
any other international convention, treaty or international agreement in force for that Party that it deems to be more conducive to the achievement of the elimination of illicit trade in tobacco
products.
4. Nothing in this Protocol shall affect other rights, obligations and responsibilities of Parties
under international law, including the United Nations Convention against
Transnational Organized Crime.
Article 3
Objective
The objective of this Protocol is to eliminate all
forms of illicit trade in tobacco products, in accordance with the terms of Article
15 of the WHO Framework Convention on Tobacco Control.
PART II:
GENERAL OBLIGATIONS
Article 4
General obligations
1. In addition to the provisions of Article 5 of the WHO
Framework Convention on Tobacco Control, Parties shall:
(a) adopt and implement effective measures to control
or regulate the supply chain of goods covered by this Protocol in order to prevent,
deter, detect, investigate and prosecute illicit trade in such goods and shall cooperate
with one another to this end;
(b) take any necessary measures in accordance
with their national law to increase the effectiveness of their competent authorities
and services, including customs and police responsible for preventing, deterring,
detecting, investigating, prosecuting and eliminating all forms of illicit trade
in goods covered by this Protocol;
(c) adopt effective measures for facilitating or
obtaining technical assistance and financial support, capacity building and international
cooperation in order to achieve the objectives of this Protocol and ensure the availability
to, and secure exchange with, the competent authorities of information to be exchanged
under this Protocol;
(d) cooperate closely with one another, consistent
with their respective domestic legal and administrative systems, in order to enhance
the effectiveness of law enforcement action to combat the unlawful conduct
including criminal offences established in accordance with Article 14 of this Protocol;
(e) cooperate and communicate, as appropriate, with
relevant regional and international intergovernmental organizations in the secure[7]1 exchange of information covered
by this Protocol in order to promote the effective implementation of this Protocol;
and
(f) within the means and resources at their
disposal, cooperate to raise financial resources for the effective implementation
of this Protocol through bilateral and multilateral funding mechanisms.
2. In implementing
their obligations under this Protocol, Parties shall ensure the maximum
possible transparency with respect to any interactions they may have with the tobacco industry.
Article 5
Protection of personal
data
Parties shall protect personal data of individuals
regardless of nationality or residence,
subject to national law, taking into consideration international standards regarding the protection of personal
data, when implementing this Protocol.
PART III:
SUPPLY CHAIN CONTROL
Article 6
Licence, equivalent approval
or control system
1. To achieve the objectives of the WHO Framework
Convention on Tobacco Control and with a
view to eliminating illicit trade in tobacco products and manufacturing equipment, each Party shall
prohibit the conduct of any of the
following activities by any natural or
legal person except pursuant to
a licence or equivalent approval
(hereafter “licence”) granted, or control system implemented, by a competent authority in accordance with national law:
(a) manufacture of tobacco products and manufacturing
equipment; and
(b) import or export of tobacco products and manufacturing
equipment.
2. Each Party shall endeavour to license, to the extent considered appropriate, and when the following activities are not prohibited by national
law, any natural
or legal person engaged
in:
(a) retailing of tobacco products;
(b) growing of tobacco, except for traditional small-scale
growers, farmers and producers;
(c) transporting commercial quantities of tobacco
products or manufacturing equipment; and
(d) wholesaling, brokering, warehousing or distribution
of tobacco and tobacco products or manufacturing equipment.
3. With a view to ensuring
an effective licensing system, each Party shall:
(a) establish or designate a competent authority
or authorities to issue, renew, suspend, revoke and/or cancel licences, subject
to the provisions of this Protocol, and in accordance with its national law, to
conduct the activities specified in paragraph 1;
(b) require that each application for a licence
contains all the requisite information about the applicant, which should include,
where applicable:
(i) where the applicant
is a natural person, information regarding
his or her identity, including full name, trade name, business
registration number (if any), applicable tax registration numbers (if any) and any other information to allow identification to take place;
(ii) when the applicant
is a legal person, information regarding
its identity, including full legal name,
trade name, business registration
number, date and place of incorporation, location of corporate headquarters and principal place of business, applicable tax registration numbers, copies of articles of incorporation
or equivalent documents, its corporate
affiliates, names of its directors
and of any designated legal
representatives, including
any other information to allow identification to take place;
(iii) precise
business location of the manufacturing unit(s), warehouse location
and production capacity of the business
run by the applicant;
(iv) details
of the tobacco products and manufacturing
equipment covered by the application, such as product
description, name, registered trade mark if any, design, brand, model or make and serial number of the manufacturing equipment;
(v) description of where manufacturing
equipment will be installed
and used; 
(vi) documentation or a declaration regarding any
criminal records;
(vii) complete identification of the bank accounts
intended to be used in the relevant
transactions and other relevant payment details;
and
(viii) a description of the intended use and intended market
of sale of the tobacco
products, with particular attention to ensuring that tobacco product
production or supply
is commensurate with reasonably anticipated demand;
(c) monitor and collect, where applicable, any licence
fees that may be levied and consider using them in effective administration and
enforcement of the licensing system or for public health or any other related activity
in accordance with national law;
(d) take appropriate measures to prevent, detect
and investigate any irregular or fraudulent practices in the operation of the licensing
system;
(e) undertake measures such as periodic review,
renewal, inspection or audit of licences where appropriate;
(f) establish, where appropriate, a time frame for
expiration of licences and subsequent requisite reapplication or updating of application
information;
(g) oblige any licensed natural or legal person
to inform the competent authority in advance of any change of location of their
business or any significant change in information relevant to the activities as
licensed;
(h) oblige any licensed natural or legal person
to inform the competent authority, for appropriate action, of any acquisition or
disposal of manufacturing equipment; and
(i) ensure that the destruction of any such manufacturing
equipment or any part thereof, shall take place under the supervision of the competent
authority.
4. Each Party shall ensure
that no licence shall be assigned and/or
transferred without receipt from the
proposed licensee of the appropriate
information contained in paragraph
3, and without prior approval from the competent authority.
5. Five years following the entry into force of this Protocol, the Meeting of the
Parties shall ensure at its next session that evidence-based research is conducted
to ascertain whether any key inputs exist
that are essential to the manufacture of tobacco products, are identifiable and can be subject to an
effective control mechanism. On the basis of such research,
the Meeting of the Parties
shall consider appropriate action.
Article 7
Due diligence
1. Each Party shall require,
consistent with its national law and the objectives of the WHO Framework
Convention on Tobacco Control,
that all natural and legal persons engaged
in the supply
chain of tobacco, tobacco
products and manufacturing equipment:
(a) conduct due diligence
before the commencement of and during the course of, a business relationship;
(b) monitor the sales to their customers to ensure that the quantities
are commensurate with the
demand for such products within the intended market of sale or use; and
(c) report to
the competent authorities any evidence that the customer is engaged in activities in contravention of its obligations arising
from this Protocol.
2. Due diligence pursuant to paragraph 1 shall, as appropriate, consistent with its national law and
the objectives of the WHO Framework
Convention on Tobacco Control, include,
inter alia, requirements for customer identification,
such as obtaining and updating
information relating to the following:
(a) establishing that the natural or legal person
holds a licence in accordance with Article 6;
(b) when the customer is a natural person, information
regarding his or her identity, including full name, trade name, business
registration number (if any), applicable tax registration numbers (if any) and
verification of his or her official identification;
(c) when the customer is a legal person, information
regarding its identity, including full name, trade name, business registration number,
date and place of incorporation, location of corporate headquarters and principal
place of business, applicable tax registration numbers, copies of articles of incorporation
or equivalent documents, its corporate affiliates, names of its directors and any
designated legal representatives, including the representatives’ names and
verification of their official identification;
(d) a description of the intended use and intended
market of sale of tobacco, tobacco products or manufacturing equipment; and
(e) a description of the location where manufacturing
equipment will be installed and used.
3. Due diligence pursuant to paragraph 1 may include requirements for customer identification, such as obtaining and updating information relating
to the following:
(a) documentation or a declaration regarding any
criminal records; and
(b) identification of the bank accounts intended
to be used in transactions.
4. Each Party shall, on the basis of the information
reported in paragraph 1(c), take all necessary measures to ensure compliance with the obligations arising from this Protocol, which may include the
designation of a customer within
the jurisdiction of the Party
to become a blocked customer
as defined by national law.
Article 8
Tracking and tracing
1. For the purposes
of further securing
the supply chain and to assist in the investigation of illicit trade
in tobacco products, the Parties agree to establish within five years of entry into force of this Protocol a global tracking and tracing regime,
comprising national and/or
regional tracking
and tracing systems and a global information sharing focal
point located at the Convention Secretariat of the WHO
Framework Convention on Tobacco Control
and accessible to all Parties, enabling Parties to
make enquiries and receive relevant information.
2. Each Party shall establish, in accordance with this Article, a tracking
and tracing system,
controlled by the Party for all tobacco products
that are manufactured in or imported onto its territory taking
into account their own national
or regional specific
needs and available best practice.
3. With a view to enabling
effective tracking and tracing, each Party shall require
that unique, secure and non-removable identification markings (hereafter called unique identification markings), such as codes or stamps, are affixed to or form part of all unit packets and packages
and any outside packaging of cigarettes within a period of
five years and other tobacco
products within a period of
ten years of entry into force
of this Protocol
for that Party.
4.1 Each Party shall, for purposes
of paragraph 3, as part of the global tracking
and tracing regime, require that the following
information be available,
either directly or accessible by means of a link, to
assist Parties in determining the origin of tobacco
products, the point of diversion where applicable,
and to monitor and control
the movement of tobacco products
and their legal status:
(a) date and location
of manufacture; 
(b) manufacturing facility;
(c) machine
used to manufacture tobacco
products; (d)           production shift or time of
manufacture;
(e) the name, invoice,
order number and payment records of the first customer who is not affiliated with the manufacturer;
(f) the intended market
of retail sale; (g)           product description;
(h) any warehousing and shipping;
(i) the identity of any known subsequent purchaser; and
(j) the intended shipment route, the shipment date, shipment destination, point of departure
and consignee.
4.2 The information in subparagraphs (a), (b), (g) and where available (f), shall form part of the unique
identification markings.
4.3 Where the information in subparagraph
(f) is not available at the time of marking, Parties shall
require the inclusion of such information
in accordance with Article 15.2(a) of the WHO Framework
Convention on Tobacco Control.
5. Each Party shall require, within the time limits specified in this Article, that the information set out
in paragraph 4 is recorded,
at the time of production, or at the time of first shipment by any
manufacturer or at the time of import onto its territory.
6. Each Party shall ensure that the information recorded under paragraph
5 is accessible by that Party by means of a link with the unique
identification markings required
under paragraphs 3 and 4.
7. Each Party shall
ensure that the information recorded
in accordance with paragraph 5, as well as
the unique identification markings rendering such information
accessible in accordance with paragraph 6 shall be included
in a format established or authorized by the Party and its competent
authorities.
8. Each Party
shall ensure that the information recorded under paragraph 5 is accessible to the global information
sharing focal point
on request, subject to paragraph
9, through a standard
electronic secure interface with its national
and/or regional central point. The global information sharing focal point shall compile a list of the competent authorities of Parties
and make the list available to all
Parties.
9. Each Party or the competent authority shall:
(a) have access to the information outlined in paragraph 4 in a timely manner by making a query to the global information sharing
focal point;
(b) request such information only where it is necessary for the purpose
of detection or investigation of illicit trade in tobacco
products;
(c) not unreasonably withhold information;
(d) answer the information requests in relation
to paragraph 4, in accordance
with its national law; and
(e) protect and treat as confidential, as mutually
agreed, any information that is exchanged.
10. Each Party shall require the further development
and expansion
of the scope of the applicable tracking and tracing system up to the point that all duties, relevant taxes, and where appropriate, other obligations have been discharged at the point of manufacture, import or release
from customs or excise
control.
11. Parties shall cooperate
with each other and with competent international organizations, as mutually agreed,
in sharing and developing best practices for tracking and tracing
systems including:
(a) facilitation of the development, transfer
and acquisition of improved tracking and tracing
technology, including knowledge, skills, capacity and expertise;
(b) support for training and capacity-building programmes for Parties that express
such a need; and
(c) further
development of the technology to mark and scan unit packets
and packages of tobacco products to make accessible
the information listed
in paragraph 4.
12. Obligations assigned
to a Party shall not be performed by or
delegated to the tobacco industry.
13. Each Party
shall ensure that its
competent authorities,
in participating in the tracking and tracing regime, interact with the tobacco industry and those representing
the interests of the tobacco
industry only to the extent
strictly necessary in the implementation of this Article.
14. Each Party may require the tobacco industry to bear any costs associated with that Party’s
obligations under this Article.
Article 9
Record-keeping
1. Each Party shall require,
as appropriate, that all natural and legal persons engaged
in the supply chain of tobacco, tobacco products and manufacturing equipment maintain
complete and accurate
records of all relevant transactions. Such records must allow for the full accountability
of materials used in the production
of their tobacco
products.
2. Each Party shall, as appropriate, require persons licensed
in accordance with Article 6 to
provide, on request, the following
information to the competent authorities:
(a) general information on market volumes, trends, forecasts and other relevant
information;
and
(b) the quantities of tobacco products and manufacturing equipment in the licensee’s
possession, custody or control kept in stock, in tax and customs warehouses under the regime of
transit or transhipment or duty suspension as of the date of the request.
3. With respect to tobacco
products and manufacturing equipment sold or manufactured
on the territory of the Party for export,
or subject to duty-suspended
movement in transit or transhipment
on the territory of the Party, each Party shall, as appropriate,
require that persons licensed in accordance with Article 6, provide, on
request, to the competent authorities in the country of departure (electronically, where the infrastructure exists) at the time of departure
from their control with the
following information:
(a) the date of shipment from the last point of
physical control of the products;
(b) the details concerning the products shipped
(including brand, amount, warehouse); 
(c) the intended shipping routes and destination;
(d) the identity of the natural or legal person(s)
to whom the products are being shipped; (e)     the mode of transportation, including
the identity of the transporter;
(f) the expected date of arrival of the shipment
at the intended shipping destination; and
(g) intended market of retail sale or use.
4. If feasible, each Party shall require that retailers and tobacco growers,
except for traditional
growers working on a non-commercial basis, maintain complete and accurate records of all relevant transactions in which they engage,
in accordance with its national law.
5. For the purposes of implementing paragraph 1, each Party shall adopt effective legislative, executive, administrative or other measures to require that all records
are:
(a) maintained for a period of at least four years;
(b) made available to the competent authorities;
and
(c) maintained in a format, as required by the competent
authorities.
6. Each Party shall, as appropriate and subject to national law, establish a system for sharing
details contained in all records
kept in accordance with this Article with other Parties.
7. Parties shall endeavour to cooperate, with each other and with competent
international organizations, in progressively sharing
and developing improved systems for record-keeping.
Article 10
Security and preventive
measures
1. Each Party shall, where appropriate,
consistent with its national law and the objectives of the
WHO Framework Convention on Tobacco Control,
require that all
natural and legal persons
subject to Article 6 take the necessary measures to prevent the diversion of tobacco products into illicit trade channels, including, inter alia:
(a) reporting
to the competent authorities:
(i) the cross-border transfer
of cash in amounts stipulated in national law or of cross- border payments in kind; and
(ii) all “suspicious transactions”; and
(b) supplying tobacco products
or manufacturing equipment
only in amounts commensurate with the demand
for such products
within the intended market of retail
sale or use.
2. Each Party shall, where appropriate, consistent with its national
law and the objectives of the
WHO Framework Convention on Tobacco Control,
require that payments for transactions
carried out by natural or legal persons
subject to Article 6 be
allowed only in the currency and in the same amount
as the invoice, and only through legal modes of payment from financial institutions located on the territory of the intended
market and shall not be operated through
any other alternative remittance system.
3.
A Party may require
that payments carried out by natural or legal persons subject to Article
6 for materials used for the manufacture of tobacco products in its jurisdiction
be allowed only in the currency and in the same amount as the invoice,
and only through legal modes of payment
from financial institutions located on the territory of the intended market and shall not be operated through any other alternative remittance system.
4. Each Party shall ensure that any contravention
of the requirements of this Article is subject to
appropriate criminal, civil or administrative procedures and effective, proportionate and dissuasive sanctions including, as appropriate, suspension or cancellation of a licence.
Article 11
Sale by Internet, telecommunication
or any other evolving technology
1. Each Party shall require
that all legal and natural persons engaged
in any transaction with regard
to tobacco products through Internet-, telecommunication- or any other evolving
technology-based modes of sale comply with all relevant obligations covered by
this Protocol.
2. Each Party
shall consider banning retail sales of tobacco product through Internet-, telecommunication-
or any other evolving technology-based modes of sale.
Article 12
Free zones and international
transit
1. Each Party shall,
within three years of the entry into force
of this Protocol for that Party,
implement effective controls
on all manufacturing of, and transactions in, tobacco and tobacco
products, in free zones,
by use of all relevant
measures as provided
in this Protocol.
2. In addition, the intermingling of tobacco products with non-tobacco
products in a single container or any other such similar transportation unit at the time of removal from free zones shall be
prohibited.
3. Each Party shall, in accordance with national law, adopt and apply control
and verification measures to the international
transit or transhipment,
within its territory, of tobacco products and manufacturing equipment in conformity with the provisions of this Protocol in order to prevent illicit trade in such products.
Article 13
Duty free sales
1. Each Party shall implement effective measures to subject any duty free sales to all relevant provisions of this Protocol,
taking into consideration Article
6 of the WHO Framework Convention on Tobacco Control.
2. No later than five years following
the entry into force of this Protocol,
the Meeting of the
Parties shall ensure at its next session that evidence-based research is conducted
to ascertain the extent
of illicit trade in tobacco products related to duty free sales of such products.
On the basis of such research, the Meeting of the Parties
shall consider appropriate further action.
PART IV:
OFFENCES
Article 14
Unlawful conduct including
criminal offences
1. Each Party shall adopt, subject to the basic principles
of its domestic law, such legislative and other measures as may be necessary to establish all of the following
conduct as unlawful
under its domestic law:
(a) manufacturing, wholesaling, brokering,
selling, transporting, distributing, storing, shipping, importing or exporting tobacco, tobacco
products or manufacturing equipment
contrary to the provisions of this Protocol;
(b)     (i) manufacturing, wholesaling, brokering,
selling, transporting, distributing, storing, shipping, importing or exporting tobacco,
tobacco products or manufacturing equipment without the payment of applicable
duties, taxes and other levies or without bearing applicable fiscal stamps, unique
identification markings, or any other required markings or labels;
(ii) any other acts of smuggling or attempted smuggling
of tobacco, tobacco products or manufacturing equipment not covered
by paragraph (b)(i);
(c)      (i) any other form of illicit manufacture
of tobacco, tobacco products or manufacturing equipment, or tobacco packaging bearing
false fiscal stamps, unique identification markings, or any other required markings
or labels;
(ii) wholesaling, brokering, selling, transporting,
distributing, storing, shipping, importing or exporting of illicitly manufactured
tobacco, illicit tobacco products, products bearing false fiscal stamps and/or other
required markings or labels, or illicit manufacturing equipment;
(d) mixing of tobacco
products with non-tobacco products during
progression through the supply chain, for the purpose of concealing or disguising tobacco
products;
(e) intermingling of tobacco products with
non-tobacco products in contravention
of Article 12.2 of this Protocol;
(f) using Internet-, telecommunication- or any other
evolving technology-based modes of sale
of tobacco products in contravention of this Protocol;
(g) obtaining,
by a person licensed in accordance with Article 6, tobacco, tobacco products
or manufacturing equipment from a person who should be, but is not, licensed in accordance with Article 6;
(h) obstructing any public officer
or an authorized officer
in the performance of duties relating to the prevention, deterrence, detection, investigation or elimination
of illicit trade in
tobacco, tobacco products or manufacturing equipment;
(i) (    i) making any material statement that is false, misleading or incomplete,
or failing to provide any required
information to any public officer or an authorized officer in the performance of duties relating to the prevention, deterrence, detection, investigation or elimination
of illicit trade in tobacco,
tobacco products or manufacturing
equipment and when not contrary to the right against self-incrimination;
(ii) mis-declaring on official forms the description, quantity or value of tobacco, tobacco products or manufacturing
equipment or any other information specified in the
protocol to:
(a) evade the payment
of applicable duties,
taxes and other
levies, or
(b) prejudice
any control measures for the prevention, deterrence, detection,
investigation or elimination of illicit
trade in tobacco, tobacco products
or manufacturing equipment;
(iii) failing
to create or maintain records covered by this Protocol or maintaining
false records; and
(j) laundering of proceeds of unlawful conduct established as a criminal offence under paragraph 2.
2. Each Party shall,
subject to the basic principles of its domestic
law, determine which of the
unlawful conduct set out
in
paragraph 1 or any other conduct related
to illicit trade in tobacco, tobacco products and manufacturing equipment contrary to the provisions of this Protocol shall be criminal offences and adopt legislative
and other measures
as may be necessary
to give effect to such
determination.
3. Each Party shall notify the Secretariat of this Protocol which of the unlawful
conduct set out in paragraphs 1 and 2 that the
Party has determined to be a
criminal offence in
accordance with paragraph 2, and shall furnish to the Secretariat copies of its laws, or a description
thereof, that give effect to paragraph
2, and of any subsequent changes to such laws.
4. In order to enhance
international cooperation in combatting the criminal offences related to
illicit trade in tobacco, tobacco products and manufacturing
equipment, Parties are encouraged to review
their national laws regarding
money laundering, mutual legal assistance and extradition, having regard to relevant
international conventions to which they are Parties, to ensure that they are effective
in the enforcement of the provisions of this Protocol.
Article 15
Liability of legal
persons
1. Each Party shall adopt such measures as may be necessary, consistent with its legal principles,
to establish the liability of legal persons for the unlawful
conduct including criminal offences
established in accordance with Article 14 of this Protocol.
2. Subject to the legal principles
of each Party, the liability of legal persons may be criminal, civil or administrative.
3. Such liability shall be
without prejudice to the liability of the natural persons who have engaged in the unlawful conduct or committed
the criminal offences established in
accordance with national laws and regulations and Article 14 of this Protocol.
Article 16
Prosecutions and
sanctions
1. Each Party shall adopt such measures as may be necessary, in accordance with national law, to
ensure that natural and legal persons held liable for the unlawful conduct including criminal offences
established in accordance with Article 14 are subjected to effective, proportionate
and dissuasive
criminal or non-criminal sanctions, including monetary sanctions.
2. Each Party shall endeavour to ensure that any discretionary legal powers
under its domestic law relating to the prosecution of persons for the unlawful
conduct, including criminal offences established in accordance with Article 14, are exercised
to maximize the effectiveness of law enforcement
measures in respect of such unlawful conduct including criminal offences, and with due regard to the need
to deter the commission of such unlawful conduct
including offences.
3. Nothing contained in this Protocol
shall affect the principle that the description of the unlawful conduct including criminal offences
established in accordance with this Protocol
and of the applicable legal defences
or other legal principles controlling the lawfulness of conduct is reserved to the
domestic law of a Party and that such
unlawful conduct including criminal offences shall be prosecuted and sanctioned in accordance with that law.
Article 17
Seizure payments
Parties should, in accordance with their domestic law, consider adopting such legislative and other
measures as may be necessary
to authorize competent authorities to levy an amount proportionate
to lost taxes and duties from the producer,
manufacturer, distributor, importer or exporter
of seized tobacco, tobacco products
and/or manufacturing equipment.
Article 18
Disposal or
destruction
All confiscated tobacco, tobacco products and manufacturing
equipment shall be destroyed, using environmentally
friendly methods to the greatest extent possible, or disposed of in accordance
with national law.
Article 19
Special investigative
techniques
1. If permitted by the basic principles of its domestic legal system, each Party shall, within
its possibilities and under the conditions prescribed by its domestic law, take the necessary
measures to allow for the appropriate use of controlled delivery and, where it deems it appropriate, for the use of other
special investigative techniques, such as electronic or other
forms of surveillance and undercover
operations, by its competent authorities on its territory for the purpose of effectively combating illicit
trade in tobacco, tobacco products
or manufacturing equipment.
2. For the purpose of investigating the
criminal offences established in accordance with Article
14, Parties are encouraged
to conclude, when necessary, appropriate bilateral
or multilateral agreements or arrangements
for using the techniques referred
to in paragraph 1 in the context of cooperation at the international level.
3. In the absence of an agreement or arrangement as set forth
in paragraph 2, decisions to use such special investigative
techniques at the international level shall be made on a case-by-case basis and may, when necessary, take into consideration
financial arrangements and understandings with respect to the exercise of jurisdiction by the Parties
concerned.
4. Parties recognize the importance of, and need for, international cooperation and assistance in this area and shall cooperate, with each other and with international organizations, in developing capacity to achieve the goals of this Article.
PART V:
INTERNATIONAL COOPERATION
Article 20
General information
sharing
1. Parties shall, for the purpose of achieving
the objectives of this Protocol,
report, as part of the
WHO Framework Convention on Tobacco Control reporting instrument
relevant information, subject
to domestic law, and where appropriate, inter alia, on matters such as:
(a) in aggregate form, details of seizures of tobacco, tobacco
products or manufacturing equipment, quantity, value of seizures,
product descriptions, dates and places of manufacture; and
taxes evaded;
(b) import, export, transit,
tax-paid and duty-free sales and quantity
or value of production of
tobacco, tobacco products or manufacturing equipment;
(c) trends, concealment methods and modi operandi used in illicit trade in tobacco,
tobacco products or manufacturing equipment; and
(d) any other relevant
information, as agreed by
the Parties.
2. Parties shall cooperate
with each other and with competent international organizations to build the capacity
of Parties to collect and exchange information.
3. Parties shall deem the said information to be confidential and for the use of Parties only, unless otherwise stated by the
transmitting Party.
Article 21
Enforcement information
sharing
1. Parties shall, subject
to domestic law or any applicable international treaties, where appropriate, exchange, on their own initiative
or on the request of a Party that provides
due justification that such information is necessary for the purpose
of detection or investigation of illicit trade in tobacco, tobacco products or manufacturing equipment, the following information:
(a) records of licensing
for the natural and legal persons concerned;
(b) information for identification, monitoring and prosecution of natural or legal persons involved in illicit
trade in tobacco,
tobacco products or manufacturing equipment;
(c) records of investigations and prosecutions;
(d) records of payment for import, export or duty-free sales of tobacco, tobacco
products or manufacturing equipment; and
(e) details of seizures of tobacco,
tobacco products or manufacturing equipment (including case reference information where appropriate, quantity, value of seizure, product
description, entities involved, date and place of manufacture)
and modi operandi
(including means of
transport, concealment, routing and detection).
2. Information received
from Parties under this Article shall
be used exclusively to meet the objectives of this Protocol.
Parties may specify that such information may not be passed on without the agreement of the Party which provided the information.
Article 22
Information sharing:
confidentiality and protection of information
1. Each Party shall designate
the competent national authorities to which data referred
to in Articles 20, 21 and 24 are supplied and notify Parties of such designation through the Convention
Secretariat.
2. The exchange of information under this Protocol shall be subject to domestic law regarding
confidentiality and privacy.
Parties shall protect, as mutually agreed, any confidential information that is
exchanged.
Article 23
Assistance and cooperation:
training, technical assistance and cooperation in scientific, technical and technological
matters
1. Parties shall cooperate, with each other and/or through
competent international and regional
organizations in providing
training, technical assistance and cooperation in scientific, technical
and technological matters,
in order to achieve the objectives of this Protocol, as mutually agreed.
Such assistance may include the transfer of expertise or appropriate
technology in the areas of information gathering, law enforcement, tracking and tracing,
information management, protection of personal data, interdiction, electronic surveillance, forensic analysis, mutual legal assistance and extradition.
2. Parties may, as appropriate, enter into bilateral, multilateral or any other agreements or arrangements in order to promote training, technical assistance
and cooperation in scientific,
technical and technological matters taking into account
the needs of developing-country Parties and Parties with
economies in transition.
3. Parties shall cooperate, as appropriate, to develop and research the possibilities of identifying the exact
geographical origin of seized tobacco
and tobacco products.
Article 24
Assistance and cooperation:
investigation and prosecution of offences
1. Parties shall,
in accordance with their domestic law, take all necessary measures, where appropriate, to strengthen
cooperation by multilateral, regional or bilateral
arrangements for the prevention, detection, investigation, prosecution and punishment of
natural or legal persons engaged
in illicit trade in tobacco,
tobacco products
or manufacturing equipment.
2. Each Party shall ensure that administrative, regulatory, law enforcement
and other authorities
dedicated to combating illicit trade in tobacco, tobacco products or manufacturing
equipment (including, where permitted under domestic law, judicial
authorities) cooperate and exchange relevant information at national and international levels
within the conditions prescribed by its domestic law.
Article 25
Protection of
sovereignty
1. Parties shall carry out their obligations under this Protocol in a manner consistent with the principles of sovereign equality and territorial integrity of States and that of non-intervention in the
domestic affairs of other States.
2. Nothing in this Protocol
entitles a Party
to undertake in the territory of another
State the exercise of jurisdiction
and performance of functions that are reserved exclusively for the authorities
of that other State by its domestic
law.
Article 26
Jurisdiction
1. Each Party shall adopt such measures as may be necessary to establish its jurisdiction over the criminal offences established
in accordance with Article 14 when:
(a) the offence is committed in the territory of that Party; or
(b) the offence is committed on board a vessel that is flying the flag of that Party or an
aircraft that is registered under
the laws of that Party at the time that the offence is committed.
2. Subject to Article 25, a Party may also establish its jurisdiction over any such criminal offence when:
(a) the offence is committed against that Party;
(b) the offence is committed by a national of that
Party or a stateless person who has his or her habitual residence on its territory;
or
(c) the offence is one of those established in accordance
with Article 14 and is committed outside its territory with a view to the commission
of an offence established in accordance with Article 14 within its territory.
3. For the purposes of Article 30, each Party shall adopt such measures
as may be necessary to establish its jurisdiction over the criminal offences established in accordance
with Article 14 when the alleged offender is present on its territory and it does not extradite
such person solely on the ground
that he or she is one of its nationals.
4. Each Party may also adopt such measures
as may be necessary to establish its jurisdiction over the criminal offences
established in accordance
with Article 14 when the alleged offender
is present on its territory and it does not extradite him or her.
5. If a Party exercising
its jurisdiction under paragraph 1 or 2 has been notified,
or has otherwise learnt, that one
or more
other Parties are conducting an investigation,
prosecution or judicial proceeding in respect of the same conduct, the competent authorities
of those Parties shall, as appropriate, consult one another
with a view to coordinating their actions.
6. Without prejudice to norms of general international law, this Protocol
does not exclude
the exercise of any criminal jurisdiction established by a Party in accordance with its domestic law.
Article 27
Law enforcement
cooperation
1. Each Party shall adopt, consistent with their respective domestic legal and
administrative systems, effective measures to:
(a) enhance and, where necessary, establish
channels of communication between the competent authorities,
agencies and services
in order to facilitate the secure and rapid exchange of information concerning
all aspects of the criminal offences
established in accordance with Article 14;
(b) ensure effective cooperation among the competent authorities, agencies,
customs, police and other law enforcement agencies;
(c) cooperate
with other Parties in conducting enquiries in specific
cases with respect
to criminal offences established
in accordance with Article 14 concerning:
(i) the identity, whereabouts and activities of persons suspected of involvement in such
offences or the location of other persons
concerned;
(ii) the movement of proceeds
of crime or property derived
from the commission of such
offences; and
(iii) the movement of property, equipment or other instrumentalities used or intended
for use in the commission of such offences;
(d) provide,
when appropriate, necessary items or quantities of substances for analytical or
investigative purposes;
(e) facilitate
effective coordination among its competent authorities, agencies
and services and promote the exchange of personnel
and other experts, including, subject to bilateral
agreements or arrangements between the Parties concerned, the posting of liaison officers;
(f) exchange
relevant information with other Parties
on specific means and methods used by
natural or legal persons in committing such offences, including, where applicable, routes and
conveyances and the use of false identities, altered
or false documents
or other means of
concealing their activities; and
(g) exchange
relevant information and coordinate administrative and other measures taken as
appropriate for the purpose of early identification
of the criminal offences established in accordance with Article
14.
2. With a view to giving effect
to this Protocol, Parties shall consider
entering into bilateral or multilateral agreements or arrangements on
direct cooperation between
their law enforcement agencies and, where such agreements or arrangements already exist, amending
them accordingly. In the absence of such agreements or arrangements
between the Parties concerned, the Parties
may consider this Protocol as the basis for mutual
law enforcement cooperation in respect of the offences
covered by this Protocol. Whenever appropriate, Parties shall make full use of agreements or arrangements, including international or regional organizations, to enhance the cooperation between their law enforcement agencies.
3. Parties shall endeavour
to cooperate within their means to respond to transnational illicit trade
of tobacco products committed
through the use of modern technology.
Article 28
Mutual administrative
assistance
Consistent with their respective domestic legal and
administrative systems, Parties shall provide each other, either on request or on their own initiative, with information to ensure proper application
of customs and other relevant
law in the prevention, detection, investigation, prosecution and
combating of illicit trade in tobacco,
tobacco products or manufacturing
equipment. The Parties shall deem the said information to be confidential and for restricted use, unless otherwise stated by the
transmitting Party. Such information may include:
(a) new customs and other enforcement techniques
of demonstrated effectiveness;
(b) new trends, means or methods of engaging
in illicit trade in tobacco,
tobacco products and manufacturing equipment;
(c) goods known to be the subject
of illicit trade in tobacco, tobacco products and manufacturing equipment as well as details of description, packaging, transport and storage and methods used in respect
of those goods;
(d) natural or
legal persons known to have committed or to be a party
to an offence established in accordance with Article 14; and
(e) any other data that would
assist designated agencies in risk assessment for control
and other enforcement purposes.
Article 29
Mutual legal
assistance
1. Parties shall afford one another the widest measure of mutual legal assistance in investigations, prosecutions and judicial
proceedings in relation to criminal offences established in accordance with Article 14 of this Protocol.
2. Mutual legal
assistance shall be afforded to the fullest
extent possible under relevant laws, treaties, agreements and arrangements of the requested Party with respect to investigations, prosecutions and judicial
proceedings in relation to the offences for which legal persons may be held liable in accordance with Article 15 of this Protocol in the requesting Party.
3. Mutual legal assistance
to be
afforded in accordance with this Article may be requested
for any of the following purposes:
(a) taking evidence or statements from persons; 
(b) effecting
service of judicial documents;
(c) executing
searches and seizures, and freezing; 
(d) examining objects and sites;
(e) providing information,
evidentiary items and expert
evaluations;
(f) providing
originals or certified copies
of relevant documents and
records, including government, bank, financial, corporate
or business records;
(g) identifying or tracing proceeds
of crime, property,
instrumentalities or other things for evidentiary purposes;
(h) facilitating the voluntary appearance of persons in the requesting Party; and
(i) any other type of assistance that is not contrary to the domestic law of the requested Party.
4. This Article shall not affect the obligations under any other
treaty, bilateral or multilateral,
which governs or will govern, in whole or in part, mutual legal assistance.
5. Paragraphs 6 to 24 shall, on the basis of reciprocity, apply to requests made pursuant to this
Article if the Parties in question are not bound by a treaty or intergovernmental
agreement of mutual legal assistance. If the Parties are bound by such a treaty or intergovernmental agreement, the
corresponding provisions of that treaty or intergovernmental
agreement shall apply unless the Parties
agree to apply paragraphs 6 to 24 in lieu thereof.
Parties are strongly encouraged to apply these
paragraphs if they facilitate cooperation.
6. Parties shall designate
a central authority that shall have the responsibility and power to receive requests for mutual legal assistance and either to execute
them or to transmit them to their respective
competent authorities
for execution. When a Party has a special region
or territory with a separate system of mutual legal assistance, it may designate a distinct
central authority that shall have the same function for that region
or territory. Central authorities shall
ensure the speedy and proper execution
or transmission of the requests
received. Where
the central authority transmits the request to a competent authority for execution, it shall encourage the speedy and proper execution of the request by the competent authority. Each Party shall notify the Head of the Convention Secretariat at the time of accession, acceptance, approval, formal confirmation
or ratification of this Protocol
of the central authority designated
for this purpose.
Transmission of requests for mutual legal assistance and any communication
related thereto shall be effected
between the central authorities designated by the
Parties. This requirement shall be
without prejudice to the right of
a Party to require that such
requests and communications
be addressed to it through the diplomatic channel and, in urgent circumstances, where the Parties
agree, through appropriate international organizations, if possible.
7. Requests shall be made in writing or, where possible, by any means capable of producing a
written record, in a language acceptable to the requested Party under conditions allowing the Party to
establish authenticity. The language
or languages acceptable to each Party shall be notified to the Head of
the Convention Secretariat at the time of accession, acceptance, approval, formal confirmation or ratification of this
Protocol. In urgent circumstances, and
where agreed by the Parties, requests
may be made orally, but shall be confirmed in writing
forthwith.
8. A request for mutual legal assistance shall contain:
(a) the identity of the authority making the request;
(b) the subject matter and nature of the investigation, prosecution or judicial
proceeding to which the request relates, and the name and the functions
of the authority conducting such investigation, prosecution or judicial proceeding;
(c) a summary of the relevant
facts, except in
respect of requests for the purpose of service of judicial documents;
(d) a description
of the assistance sought and details of any particular procedure that the requesting Party wishes to be followed;
(e) where possible, the identity, location
and nationality of any person
concerned; 
(f) the purpose for which the evidence, information or action is sought; and
(g) the provisions of the domestic law relevant to the criminal offence
and the punishment therefore.
9. The requested Party may request
additional information when it appears
necessary for the execution of the request
in accordance with its domestic law or when it can facilitate such execution.
10. A request shall be executed in accordance
with the domestic law of the requested Party and, to the extent not contrary to the domestic law of the requested Party and where possible,
in accordance with the procedures
specified in the request.
11. The requesting Party shall not transmit
or use information or evidence furnished
by the requested Party for investigations,
prosecutions or judicial
proceedings other than those stated in the request without the prior consent of the requested
Party. Nothing in this paragraph
shall prevent the requesting Party from disclosing in its proceedings information or evidence that is exculpatory to an
accused person. In the latter case, the requesting Party
shall notify the requested Party prior to the
disclosure and, if so requested,
consult with the requested Party. If, in an exceptional case, advance notice is not possible, the requesting
Party shall inform the requested Party of the disclosure
without delay.
12. The requesting Party may require
that the requested Party keep confidential the fact and
substance of the request,
except to the extent necessary to execute the request. If the requested Party cannot comply with the requirement of confidentiality, it shall promptly inform the requesting Party.
13. Wherever possible and consistent with fundamental principles of domestic law, when an
individual is in the territory of a Party
and has to be heard as a witness or expert by the judicial authorities of another
Party, the first Party may, at the request of the other, permit the hearing to take place
by video conference if it is not possible or desirable for the individual in question to appear in
person in the territory of the
requesting Party. Parties may agree that the hearing shall be conducted by a judicial authority of the requesting Party
and attended by
a judicial authority of the requested Party.
14. Mutual legal assistance may be refused:
(a) if the request
is not made in conformity with this Article;
(b) if the requested Party considers that execution of the request
is likely to prejudice its sovereignty, security, ordre public
or other essential interests;
(c) if the authorities of the requested
Party would be prohibited by its domestic law from
carrying out the action requested
with regard to any similar offence, had it been subject to investigation, prosecution or judicial
proceedings under
their own jurisdiction;
(d) where the request involves a crime where the maximum penalty in the requested Party is
less than two years of imprisonment
or other forms of deprivation of liberty or, if, in the
judgment of the requested Party, the provision of the assistance
would impose a burden on its resources that is disproportionate to the seriousness of the crime; or
(e) if it would be contrary
to the legal system of the requested
Party relating to mutual legal assistance for the request to be granted.
15. Reasons shall be given for any refusal of mutual legal assistance.
16. A Party shall not decline to render mutual legal assistance under this Article on the ground of bank secrecy.
17. Parties may not refuse a request for mutual legal assistance on the sole ground that the offence is also considered to involve fiscal matters.
18.
Parties may decline to render mutual legal assistance
pursuant to this Article on the ground of absence of dual criminality.
However, the requested Party may, when it deems appropriate,
provide assistance, to the extent
it decides at its discretion, irrespective of whether the
conduct would constitute an offence
under the domestic law of the requested Party.
19. The requested Party shall execute the request for mutual legal
assistance as soon as possible
and shall take as full account
as possible of any deadlines suggested by the requesting Party and for which reasons are given, preferably in the request. The requested Party shall respond to reasonable requests by the requesting
Party regarding progress in its handling of the request.
The requesting Party shall promptly inform the requested Party when the assistance sought
is no longer required.
20. Mutual legal assistance may
be postponed by the requested Party on the ground that it interferes with an on-going investigation, prosecution or judicial proceeding.
21. Before refusing a request
pursuant to paragraph
14 or postponing its execution pursuant
to paragraph 20, the requested Party shall consult with the requesting Party to consider whether assistance may be granted subject
to such terms and conditions as it deems necessary. If the
requesting Party accepts assistance subject to those conditions, it shall comply with the conditions.
22. The ordinary costs of executing
a request shall be borne by
the requested Party, unless
otherwise agreed by the Parties concerned. If expenses of a substantial or extraordinary
nature are or will be required to fulfil the request, the Parties shall consult to determine the terms and conditions
under which the request will be executed
as well as the manner in which the costs shall be borne.
23. In the event
of a request, the requested Party:
(a) shall provide to the requesting
Party copies of government records, documents or information in its possession that under its domestic law are available to the general
public; and
(b) may, at its discretion, provide to the requesting Party in whole, in part or subject
to such conditions as it deems appropriate, copies of any
government records, documents or information
in its possession that under its domestic law are not available to the general
public.
24.
Parties shall consider, as may be necessary, the possibility of concluding
bilateral or multilateral agreements or arrangements that would serve the
purposes of, give practical effect to, or enhance the provisions of this
Article.
Article 30
Extradition
1.         This Article
shall apply to the criminal offences established
in accordance with Article 14 of
this Protocol when:
(a) the person
who is the subject of the request for extradition is located
in the territory of the
requested Party;
(b) the criminal offence for which extradition is sought is punishable
under the domestic
law of both the requesting Party and the requested Party; and
(c) the offence is punishable by a maximum period of imprisonment or other forms of
deprivation of liberty of at least four years or by a more severe penalty or such lesser period as
agreed by the Parties concerned pursuant to bilateral and multilateral
treaties or other international agreements.
2. Each of the criminal offences
to which this Article applies shall be deemed to be included as an
extraditable offence in any extradition treaty existing
between Parties. The Parties undertake
to include such offences
as extraditable offences
in every extradition treaty to be concluded between
them.
3. If a Party that makes extradition
conditional on the existence of a treaty receives a request for extradition from another
Party with which it has no extradition treaty, it may consider
this Protocol as the
legal basis for extradition in respect of any criminal offence
to which this Article applies.
4. Parties
that do not make extradition conditional on the existence of a treaty shall recognize
the criminal offences to which this Article
applies as extraditable offences between themselves.
5. Extradition shall be subject to the conditions provided for by the domestic law of the requested
Party or by applicable extradition treaties, including, inter alia, conditions in relation to the minimum
penalty requirement for extradition and the grounds upon which the requested
Party may refuse extradition.
6. Parties shall, subject to their domestic
law, endeavour to expedite extradition procedures and to simplify evidentiary requirements
relating thereto in respect of any criminal offences to which this Article applies.
7. A Party in whose territory an alleged offender is present,
if it does not extradite such person in respect of a criminal offence
to which this Article applies
solely on the ground that he or she is one of
its nationals, shall,
at the request of the Party seeking extradition, be obliged to submit the case
without undue delay to its competent authorities
for the purpose of prosecution. Those
authorities shall
take their decision and conduct
their proceedings in the same manner as in the case of any other
offence of a similar nature
under the domestic law of that Party. The Parties concerned shall cooperate with each other, in particular on procedural
and evidentiary aspects, to ensure the efficiency
of such prosecution.
8. Whenever a Party is permitted
under its domestic law to extradite
or otherwise surrender one of its nationals
only upon the condition that the person will
be returned to that Party to serve the sentence imposed as a result of the trial or proceedings for which the extradition or surrender of the person was sought and that Party and the Party seeking the extradition
of the person agree with this option and
other terms that they may deem appropriate, such conditional extradition or surrender shall be sufficient to discharge the obligation set forth in paragraph 7.
9. If extradition, sought for purposes of enforcing a sentence, is refused
because the person sought is a national
of the requested Party, the requested
Party shall, if its domestic law so permits and in
conformity with the requirements
of such law, upon application of the requesting Party, consider the
enforcement of the sentence that has been imposed under the domestic
law of the requesting Party or the
remainder thereof.
10. Any person regarding
whom proceedings are being carried out in connection with any of the
criminal offences to which this Article applies shall be guaranteed
fair treatment at all stages of the proceedings, including enjoyment of all the rights and guarantees
provided by the domestic law of the Party
in the territory of which that person is present.
11. Nothing in this Protocol shall be interpreted as imposing an obligation to extradite if the
requested Party has substantial grounds for believing that the request has
been made for the purpose of prosecuting or punishing a person on account of that person’s sex, race, religion,
nationality, ethnic origin or political opinions or that compliance with the request would cause prejudice
to that person’s position for any one of these reasons.
12. Parties may not refuse a request for extradition
on
the sole ground that the offence is also
considered to involve fiscal
matters.
13. Before refusing extradition, the requested Party shall, where appropriate, consult with the
requesting Party to provide it
with ample opportunity to present its opinions and to provide information relevant to its allegation.
14. Parties shall seek to conclude bilateral
and multilateral agreements or arrangements to carry out or to enhance the effectiveness
of extradition. Where Parties are bound by an existing
treaty or intergovernmental
arrangement the corresponding provisions of that treaty or intergovernmental arrangement shall apply unless
the Parties agree to apply paragraph 1 to 13 in lieu thereof.
Article 31
Measures to ensure
extradition
1. Subject to its domestic law and its extradition treaties, the requested Party may, upon being
satisfied that the circumstances so
warrant and are urgent and at the request of the requesting
Party, take a person whose extradition
is sought and who is present in its territory into custody or take other
appropriate measures to ensure his or her presence at extradition proceedings.
2. Measures taken in accordance with
paragraph 1 shall be notified, in conformity with national
law, as appropriate and without
delay, to the requesting Party.
3. Any person regarding whom the measures in accordance with paragraph 1 are
being
taken, shall be entitled
to:
(a) communicate without
delay with the nearest appropriate representative of the State of which that person is a national or, if that person is a stateless person, the State in the territory of which
that person habitually resides;
and
(b) be visited by a representative of that State.
PART VI:
REPORTING
Article 32
Reporting and exchange
of information
1. Each Party shall submit to the Meeting of the Parties,
through the Convention Secretariat, periodic reports on its implementation
of this Protocol.
2. The format and content
of such reports shall be determined by the Meeting
of the Parties. These
reports shall form part of the regular
WHO Framework Convention on Tobacco Control reporting
instrument.
3. The content of the periodic reports
referred to in paragraph
1, shall be determined
having regard, inter alia, to the following:
(a) information
on legislative, executive, administrative or other measures
taken to implement this Protocol;
(b) information,
as appropriate, on any constraints or barriers encountered in the implementation
of this Protocol and on the measures taken to overcome those
barriers;
(c) information, as appropriate, on financial and technical assistance provided, received,
or requested for activities related to the elimination of illicit trade in tobacco
products; and
(d) the information specified
in Article 20.
In those cases when relevant data are already being collected
as part of the Conference
of the
Parties reporting mechanism, the Meeting of the Parties shall not duplicate these efforts.
4. The Meeting of the Parties, pursuant
to Articles 33 and 36, shall consider arrangements to assist developing-country Parties
and Parties with economies in transition, at their request, in meeting their obligations under this Article.
5. The reporting of information under those Articles shall be subject
to national law regarding confidentiality and privacy. Parties shall protect, as mutually
agreed, any confidential information that is reported or exchanged.
PART VII:
INSTITUTIONAL ARRANGEMENTS AND FINANCIAL RESOURCES
Article 33
Meeting of the
Parties
1. A Meeting of the Parties is hereby established. The first session of the Meeting of the Parties shall be convened by the Convention Secretariat immediately before
or immediately after the next regular session of the Conference of the Parties
following the entry
into force of this Protocol.
2. Thereafter, regular sessions of the Meeting of the Parties shall be convened
by the Convention Secretariat, immediately before or immediately after regular
sessions of the Conference of the Parties.
3. Extraordinary sessions
of the Meeting of the Parties shall be held at such other times as may be deemed necessary by the Meeting or at the written request of any Party, provided that, within six months of the request being communicated to them by the Convention
Secretariat, it is supported
by at least one third of the Parties.
4. The Rules of Procedure
and the Financial Rules of the Conference
of the Parties to the WHO
Framework Convention on Tobacco
Control shall apply, mutatis mutandis,
to the Meeting of the
Parties unless the Meeting of the Parties
decides otherwise.
5. The Meeting of the Parties
shall keep under regular review the implementation of the Protocol and take the decisions necessary to promote its effective implementation.
6. The Meeting of the Parties
shall decide on the scale and mechanism
of the voluntary assessed contributions from the Parties to the Protocol
for the operation of this Protocol as well as other
possible resources for its implementation.
7. At each ordinary
session, the Meeting
of the Parties shall by consensus
adopt a budget
and workplan for the financial period
until the next ordinary session, which
shall be distinct
from the WHO Framework Convention on Tobacco Control
budget and workplan.
Article 34
Secretariat
1. The Convention Secretariat shall be the Secretariat of
this Protocol.
2. The functions of the Convention Secretariat with regard
to its role as the secretariat of this Protocol shall be to:
(a) make arrangements for sessions of the Meeting of the Parties and any subsidiary bodies as
well as working groups and other
bodies established by the Meeting of the Parties
and provide them with services as required;
(b) receive,
analyse, transmit and provide feedback to Parties concerned as needed and
to the Meeting of the Parties on reports received by it pursuant to this Protocol and facilitate the exchange of information among Parties;
(c) provide
support to the Parties,
particularly developing country Parties
and Parties with economies in transition, on request, in the compilation, communication,
and exchange of information required in accordance
with
the provisions of this Protocol, and assistance in the identification of available resources
to facilitate implementation
of the obligations under this Protocol;
(d) prepare reports on its activities under
this Protocol under the
guidance of and for submission to the Meeting
of the Parties;
(e) ensure, under the guidance of the Meeting of the Parties, the necessary
coordination with the
competent international and regional intergovernmental organizations and other bodies;
(f) enter, under the guidance of the Meeting of the Parties, into such administrative
or contractual arrangements as may be required
for the effective discharge of its functions
as secretariat to this Protocol;
(g) receive and review
applications by intergovernmental and nongovernmental
organizations wishing to be accredited as observers to the Meeting of the Parties, while ensuring
that they are not affiliated with the tobacco
industry, and present the reviewed applications to the Meeting
of the Parties for its consideration; and
(h) perform other secretariat functions
specified by this Protocol and such other functions as may be determined by the Meeting of the Parties.
Article 35
Relations between the
Meeting of the Parties and intergovernmental organizations
In order to provide technical
and financial cooperation for achieving the objective
of this Protocol, the Meetings of the Parties may request the cooperation
of competent international and regional intergovernmental organizations, including
financial and development institutions.
Article 36
Financial resources
1. Parties recognize the important role that financial resources play in achieving
the objective of this Protocol, and acknowledge
the importance of Article 26 of the WHO Framework Convention on Tobacco Control in achieving the objectives of the Convention.
2. Each Party shall provide financial support
in respect of its national
activities intended to achieve the objective of this Protocol, in accordance with its national
plans, priorities and programmes.
3. Parties shall promote, as appropriate, the utilization of bilateral, regional, subregional and other multilateral channels
to provide funding for strengthening the capacity of developing-country Parties and Parties with economies in transition in order to meet the objectives of this Protocol.
4. Without prejudice to Article 18, Parties are encouraged,
subject to national
laws and policies and where appropriate, to use any confiscated proceeds of crime deriving from the illicit trade in tobacco, tobacco products and manufacturing
equipment to achieve the objectives
set out in this
Protocol.
5. Parties represented in relevant regional
and international intergovernmental organizations and financial and development institutions shall encourage
these entities to provide
financial assistance for developing-country Parties
and for Parties with economies in transition to assist them in meeting their obligations under this Protocol, without limiting the rights
of participation within these
organizations.
6. Parties agree that:
(a) to assist Parties in meeting their obligations under this Protocol,
all relevant potential and existing resources available for activities related to the objective
of this Protocol should be
mobilized and utilized
for the benefit of all Parties, especially
developing-country Parties and Parties with economies in transition; and
(b) the Convention Secretariat shall advise developing-country Parties and Parties with economies in transition, upon request,
on available sources of funding to facilitate
implementation of their obligations under this Protocol.
7. Parties may require
the tobacco industry to bear any costs associated with a Party’s obligations
to achieve the objectives of this Protocol,
in compliance
with Article 5.3 of the WHO Framework
Convention on Tobacco Control.
8. Parties shall endeavour,
subject to their domestic law, to achieve self-financing of the implementation of the Protocol including through the levying of taxes and other forms of charges on
tobacco products.
PART VIII:
SETTLEMENT OF DISPUTES
Article 37
Settlement of
disputes
The settlement of disputes
between Parties concerning the interpretation or application
of this Protocol is governed
by Article 27 of the WHO Framework Convention on Tobacco Control.
PART IX:
DEVELOPMENT OF THE PROTOCOL
Article 38
Amendments to this
Protocol
1. Any Party may propose amendments to this Protocol.
2. Amendments to this Protocol shall be considered and adopted by
the Meeting of the Parties.
The text of any proposed amendment to this Protocol
shall be communicated to the Parties by the Convention Secretariat at least six months before
the session at which it is proposed
for adoption. The Convention Secretariat shall also communicate proposed amendments to the signatories of this Protocol and, for information, to the Depositary.
3. The Parties shall make every effort to reach agreement by consensus on any proposed amendment to this Protocol. If all efforts
at consensus have been exhausted and no agreement reached,
the amendment shall as a last resort be
adopted by a three-quarters majority
vote of the Parties
present and voting at the session.
For purposes of this Article, “Parties present
and voting” means Parties
present and casting an affirmative or negative vote. Any adopted amendment shall be communicated
by the Convention Secretariat to the Depositary, who shall circulate it to all Parties for acceptance.
4. Instruments of acceptance in respect of an amendment shall be deposited with the Depositary. An amendment adopted in accordance with paragraph 3 shall enter into force for those Parties having accepted it on the 90th day after the date of receipt by the Depositary of an instrument of acceptance by at
least two thirds
of the Parties.
5. The amendment shall enter into force for any other Party on the 90th day after the date on which
that Party deposits with the Depositary its instrument of acceptance of the said amendment.
Article 39
Adoption and amendment
of annexes to this Protocol
1. Any Party may make proposals for an annex to this Protocol and may propose amendments to annexes to this Protocol.
2. Annexes shall
be restricted to lists, forms and any other descriptive material
relating to procedural, scientific, technical or administrative matters.
3. Annexes to this Protocol
and amendments thereto
shall be proposed, adopted and enter into
force in accordance with the procedure set forth in Article 38.
PART X:
FINAL PROVISIONS
Article 40
Reservations
No reservations may be made to this Protocol.
Article 41
Withdrawal
1. At any time after two years from the date on which this Protocol
has entered into force for a
Party, that Party may withdraw
from the Protocol by giving written
notification to the Depositary.
2. Any such withdrawal shall take effect upon expiry of one year from the date of receipt by the
Depositary of the notification of withdrawal or on such later date as
may be specified in the notification
of withdrawal.
3. Any Party that withdraws from the WHO Framework Convention on
Tobacco Control shall also
be considered as having withdrawn
from this Protocol, with effect
as of the date of its withdrawal from the WHO Framework Convention on Tobacco
Control.
Article 42
Right to vote
1. Each Party to this Protocol
shall have one vote, except as provided for in paragraph
2.
2. Regional economic integration organizations, in matters within their competence,
shall exercise their right to vote with a number of votes equal to the number of their Member States that are Parties to
the Protocol. Such an organization shall not exercise its right to vote if any of its Member States exercises its right, and vice versa.
Article 43
Signature
The Protocol shall be open for signature by all Parties to the WHO Framework Convention on Tobacco Control at World Health Organization
Headquarters in Geneva from 10 to 11 January 2013, and
thereafter at United Nations Headquarters in New York until
9 January 2014.
Article 44
Ratification, acceptance, approval,
formal confirmation or accession
1. This Protocol shall be subject to ratification, acceptance, approval
or accession by States and to
formal confirmation or accession
by regional economic
integration organizations that are Party to the WHO Framework Convention
on Tobacco Control. It shall be open for accession
from the day after
the date on which the Protocol is
closed for signature. Instruments of ratification, acceptance, approval, formal confirmation or accession shall be deposited
with the Depositary.
2. Any regional economic integration organization that
becomes a Party
without any of
its Member States being a Party shall be bound by all the obligations
under this Protocol. In the case of organizations one or more of whose Member States is a Party, the organization and its Member States shall
decide on their
respective responsibilities for the performance of their obligations under this Protocol. In such cases, the organization and the Member States
shall not be entitled to exercise rights under this Protocol
concurrently.
3. Regional economic integration organizations shall, in
their instruments relating to
formal confirmation or in their instruments of accession, declare the extent of their competence with respect to the matters governed
by this Protocol. These organizations shall also inform the Depositary, who shall
in turn inform the Parties,
of any substantial modification to the extent
of their competence.
Article 45
Entry into force
1. This Protocol shall enter into force on the 90th day following the date of deposit of the
40th instrument of ratification,
acceptance, approval, formal confirmation or accession with the Depositary.
2. For each Party to the WHO Framework
Convention on Tobacco Control that ratifies, accepts,
approves or formally confirms
this Protocol or accedes thereto after the conditions set out
in paragraph 1 for entry into force
have been fulfilled, this Protocol
shall enter into force
on the ninetieth day following the date of deposit of its instrument of ratification, acceptance, approval, accession or formal confirmation.
3. For the purposes of this Article,
any instrument deposited by a regional economic integration
organization shall not be counted as additional to those deposited by States Members of that organization.
Article 46
Depositary
The Secretary-General
of the United Nations
shall be the Depositary of this Protocol.
Article 47
Authentic texts
The original of this Protocol,
of which the Arabic, Chinese, English,
French, Russian and Spanish
texts are equally authentic, shall be deposited
with the Secretary-General
of the United Nations. 
[1]               OJ L 312, 15.06.2004, p. 8. 
[2]               OJ L 194, 18.7.2001, p. 26.
[3]               Council Regulation (EEC) No 2913/92 establishing the
Community Customs Code, OJ L 253, 11.10.1993, p.1-766.
[4]               OJ L 312, 15.06.2004, p. 8. 
[5]               Parties may include reference to the Harmonized
Commodity Description and Coding System of the World Customs Organization for
this purpose, wherever applicable.
[6]               Where appropriate, national or domestic will refer
equally to regional economic integration organizations. 
[7]               A secure exchange of information between two parties is resistant to interception and
tampering (falsification). In other words, the information exchanged between the two parties
cannot be read or
modified by a third party.