CELEX: 51997PC0081
Language: en
Date: 1997-03-05
Title: Proposal for a COUNCIL DECISION concerning the conclusion of the agreement in the form of an axchange of letters adding to the Free Trade Agreement between the European Economic Community and the Swiss Confederation an additional protocol on mutual administrative assistance in customs matters

COMMISSION OF THE EUROPEAN COMMUNITIES
                                              Brussels, 05.03.1997
                                              COM(97) 81 final
                                              97/ 0084 (ACC)
                               Proposal for a
                           COUNCIL DECISION
concerning the conclusion of the agreement in the form of an exchange
 of letters adding to the Free Trade Agreement between the European
 Economic Community and the Swiss Confederation an additional
 protocol on mutual administrative assistance in customs matters
                       (presented by the Commission)
 ---pagebreak---  ---pagebreak---                            EXPLANATORY MEMORANDUM
In 1989 the Council authorized the Commission to negotiate an agreement on mutual
administrative assistance in customs matters with the EFTA countries. Negotiations took
place between the Community and all the EFTA countries, including Switzerland,
culminating in Protocol 11 to the Agreement on the European Economic Area,1 to which
Switzerland did not in the end accede.
Therefore, in order establish the same type of administrative assistance with Switzerland
as exists with other EFTA countries and with the Central and Eastern European countries,
the Council authorized the Commission on 26 February 1996 to negotiate a similar
protocol to the free trade agreement with Switzerland.2
In accordance with these directives, the Commission, in liaison with the relevant Council
working party, negotiated an agreement in the form of an exchange of letters concerning
an additional protocol to the Free trade agreement.
The exchange of letters was initialled on 22 January.
The Community must now sign the exchange of letters and conclude the agreement.
 1
    OJL 1,3.1.1994.
2
    OJL 300, 31.12.1972.
                                                                                          /)A.
 ---pagebreak---                                COUNCIL DECISION
                                 of                 1997
       concerning the conclusion of the agreement in the form of an exchange
        of letters adding to the Free Trade Agreement between the European
        Economic Community and the Swiss Confederation an additional
        protocol on mutual administrative assistance in customs matters
                                       (97/    /EC)
THE COUNCIL OF THE EUROPEAN UNION,
having regard to the Treaty establishing the European Community, and in particular
Articles 113 and 228 (2) thereof,
having regard to the Commission's proposal ,
whereas, for mutual administrative assistance in customs matters to take 'place
between the two parties, it appears necessary to add an additional protocol to the Free
Trade Agreement concluded between the European Economic Community and the
Swiss Confederation ,
whereas negotiations to that effect have taken place with the Swiss Confederation and
have led to an agreement in the form of an exchange of letters which it is in the
Community's interest to approve;
 HAS DECIDED AS FOLLOWS :
                                       Article 1
The agreement in the form of an exchange of letters between the European
Community and the Swiss Confederation, adding to the Free Trade Agreement
concluded between the European Economic Community and the Swiss Confederation
an additional protocol on mutual administrative assistance in customs matters, is
hereby approved in the name of the Community.
If the agreement did not enter into force on 1 July 1997, it will temporabily be applied
as from this date.
The text of the agreement in the form of an exchange of letters is annexed to the
present decision.
                                       Article 2
The President of the Council is hereby authorized to designate the persons authorized
to sign the agreement in the form of an exchange of letters, referred to in Article 1,
with a view to committing the Community thereto.
                                       Article 3
This decision shall be published in the Official Journal of the European Communities.
Done at              , on             1997
1
   JOC
2
  JO L 300 du 31.12.72, p. 189
                                                                                         /I A
 ---pagebreak--- For the Council
  The President
                A L
 ---pagebreak--- AGREEMENT IN THE FORM OF AN EXCHANGE OF LETTERS
      BETWEEN THE EUROPEAN COMMUNITY
         AND THE SWISS CONFEDERATION
     ADDING TO THE FREE TRADE AGREEMENT
            AN ADDITIONAL PROTOCOL
     ON MUTUAL ADMINISTRATIVE ASSISTANCE
              IN CUSTOMS MATTERS
                                                1 I
 ---pagebreak---                                       AGREEMENT
   in the form of an exchange of letters amending the Agreement of 22 July 1972
            between Switzerland and the European Economic Community
                         A. Letter from the European Community
                                                                      Brussels,
Sir,
I have the honour to refer to the negotiations between representatives of the
Community and the Swiss Confederation with a view to concluding an agreement on
mutual assistance in customs matters adding an additional protocol to the agreement
of 22 July 1972.
This additional protocol, the text of which is annexed hereto, will form an integral part
of the agreement of 22 July 1972 and will enter into force on the first day of the
second month following the date of notification that the necessary procedures have
been accomplished. Pending the accomplishment of those procedures, it shall apply
provisionally from 1 July 1997.
I should be grateful if you would confirm the agreement of the Swiss Confederation to
the aforegoing.
Yours faithfully,
                                               For the Council of the European Union
                          B. Letter from the Swiss Confederation
                                                                      Berne,
Sir,
I have the honour to acknowledge receipt of your letter of today's date with the
following content.
"I have the honour to refer to the negotiations between representatives of the
Community and the Swiss Confederation with a view to concluding an agreement on
 ---pagebreak--- mutual assistance in customs matters adding an additional protocol to the Agreement
of 22 July 1972.
This additional protocol, the text of which is annexed hereto, will form an integral part
of the agreement of 22 July 1972 and will enter into force on the first day of the
second month following the date of notification that the necessary procedures have
been accomplished. Pending the accomplishment of those procedures, it shall apply
provisionally from 1 July 1997.
I should be grateful if you would confirm the agreement of the Swiss Confederation to
the aforegoing."
I can confirm the agreement of the Swiss Confederation to the aforegoing.
Yours faithfully,
                                               For the Swiss Confederation
 ---pagebreak---         ADDITIONAL PROTOCOL ON MUTUAL ADMINISTRATIVE
                     ASSISTANCE IN CUSTOMS MATTERS
                                       ARTICLE 1
                                        Definitions
For the purposes of this Protocol :
        a)  "Goods" shall mean all goods falling within Chapters 1 to 97 of the
            Harmonized System, irrespective of the scope of the agreement of 22 July
            1972;
        b)  "customs legislation" shall mean any legal or regulatory provision adopted
            by the European Community or by Switzerland governing the import,
            export, and transit of goods and their placing under any customs
            procedure, including measures of prohibition, restriction and control;
        c)  "applicant authority", shall mean a competent administrative authority
            which has been appointed by a Contracting Party for this purpose and
            which makes a request for assistance in customs matters;
        d)  "requested authority", shall mean a competent administrative authority
            which has been appointed by a Contracting Party for this purpose and
            which receives a request for assistance in customs matters;
        e)  "breaches of customs legislation" shall mean any violation or attempted
            violation of that legislation.
 ---pagebreak---                                      ARTICLE 2
                                        Scope
1. The Contracting Parties shall assist each other, in the areas within their
   jurisdiction, in the manner and under the conditions laid down in this Protocol, in
   ensuring that the customs legislation is correctly applied, in particular by the
   prevention, detection and investigation of operations in breach of that legislation.
2. Assistance in customs matters, as provided for in this Protocol, shall apply to any
   administrative authority of the Contracting Parties which is competent for the
   application of this Protocol. It shall not prejudice the rules governing mutual
   assistance in criminal matters. Nor shall it cover information obtained under
   powers exercised at the request of the judicial authorities, except where
   communication of such information has the prior authorization of the said
   authorities.
                                     ARTICLE 3
                                Assistance on request
1. At the request of the applicant authority, the requested authority shall furnish it
   with all relevant information which may enable it to ensure compliance with
   customs legislation, including information regarding operations noted or planned
   which are or might be in breach of such legislation.
2. At the request of the applicant authority, the requested authority shall inform it
   whether goods exported from the territory of one of the Contracting Parties have
   been properly imported into the territory of the other Party, specifying, where
   appropriate, the customs procedure applied to the goods.
3. At the request of the applicant authority, the requested authority shall, within the
   framework of its laws, take the necessary steps to ensure special surveillance of:
       (a)   natural or legal persons of whom there are reasonable grounds for
             believing that they are or have been in breach of customs legislation;
       (b)   places where goods are stored in a way that gives grounds for suspecting
             that they are intended to supply operations in breach of customs
             legislation;
       (c)   movements of goods notified as possibly giving rise to breaches of
             customs legislation;
                                                                                        5
 ---pagebreak---         (d)   means of transport for which there are reasonable grounds for believing
              that they have been, are or may be used in operations in breach of
              customs legislation.
                                       ARTICLE 4
                                  Spontaneous assistance
The Contracting Parties shall provide each other, at their own initiative and in
accordance with their laws, rules and other legal instruments, with assistance if they
consider that to be necessary for the correct application of customs legislation,
particularly when they obtain information pertaining to :
                operations which are or appear to be in breach of such legislation and
                which may be of interest to the other Contracting Party;
                new means or methods employed in carrying out such operations;
                goods known to be subject to breaches of customs legislation;
                natural or legal persons of whom there are reasonable grounds for
                believing that they are or have been in breach of customs legislation;
                means of transport for which there are reasonable grounds for believing
                that they have been, are or may be used in operations in breach of
                customs legislation.
 ---pagebreak---                                          ARTICLE 5
                                     Delivery/Notification
At the request of the applicant authority, the requested authority shall, in accordance
with its legislation, take all necessary measures in order :
         - to deliver all documents,
         - to notify all decisions, as well as any other relevant act which forms part
            of the procedure in question
falling within the scope of this Protocol to an addressee, residing or established in its
territory. In such a case, Article 6 (3) shall apply to the request for delivery or
notification.
                                         ARTICLE 6
                        Form and substance of requests for assistance
1.    Requests pursuant to this Protocol shall be made in writing. They shall be
      accompanied by the documents necessary to enable compliance with the request.
      When required because of the urgency of the situation, oral requests may be
      accepted, but must be confirmed in writing immediately.
2.    Requests pursuant to paragraph 1 shall include the following information :
         (a)      the applicant authority making the request;
         (b)      the measure requested;
         (c)      the object of and the reason for the request;
         (d)      the laws, rules and other legal elements involved;
         (e)      indications as exact and comprehensive as possible on the natural or
                  legal persons who are the target of the investigations;
         (f)      a summary of the relevant facts and of the enquiries already carried
                  out, except in cases provided for in Article 5.
3.    Requests shall be submitted in an official language of the requested authority or
      in a language acceptable to that authority.
4.    If a request does not meet the formal requirements, its correction or completion
      may be requested; precautionary measures may, however, be ordered.
 ---pagebreak---                                       AR TICLE 7
                                Execution of requests
   In order to comply with a request for assistance, the requested authority shall
   proceed, within the limits of its competence and available resources, as though it
   were acting on its own account or at the request of other authorities of that same
   Contracting Party, by supplying information already possessed, by carrying out
   appropriate enquiries or by arranging for them to be carried out. This provision
   shall also apply to the administrative department to which the request has been
   addressed by the requested authority when the latter cannot act on its own.
   Requests for assistance shall be executed in accordance with the laws, rules and
   other legal instruments of the requested Contracting Party.
   Duly authorized officials of a Contracting Party may, with the agreement of the
   other Contracting Party involved and subject to the conditions laid down by the
   latter, obtain from the offices of the requested authority or other authority for
   which the requested authority is responsible, information relating to operations
   which are or may be in breach of customs legislation which the applicant
   authority needs, in the context of an enquiry, for the purposes of this Protocol.
   Officials of a Contracting Party may, with the agreement of the other Contracting
   Party involved and subject to the conditions laid down by the latter, be present at
   enquiries carried out in the latter's territory.
                                      ARTICLE 8
                  Form in which information is to be communicated
1. The requested authority shall communicate results of enquiries to the applicant
   authority in the form of documents, certified copies of documents, reports and the
   like.
2. The documents provided for in paragraph 1 may be replaced by computerized
   information produced in any form for the same purpose.
 ---pagebreak---                                       ARTICLE 9
                   Exceptions to the obligation to provide assistance
1. The Contracting Parties may refuse to give assistance as provided for in this
   Protocol, where to do so would:
      (a)    be likely to prejudice the sovereignty of Switzerland or that of a Member
             State of the Community which has been asked to provide assistance
             under this Protocol; or
      (b)    be likely to prejudice public policy, security or other essential interests,
             in particular in the cases referred to under Article 10 (2); or
      (c)    involve currency or tax regulations other than customs legislation; or
       (d)   violate an industrial, commercial or professional secret.
2. Where the applicant authority requests assistance which it would itself be unable
   to provide if so asked, it shall draw attention to that fact in its request. It shall
   then be for the requested authority to decide how to respond to such a request.
3. If assistance is refused, the decision and the reasons therefor must be notified to
   the applicant authority without delay.
 ---pagebreak---                                       ARTICLE 10
                                      Confidentiality
    Any information communicated in whatsoever form pursuant to this Protocol
    shall be of a confidential or restricted nature, depending on the rules applicable in
    each of the Contracting Parties. It shall be covered by the obligation of official
    secrecy and shall enjoy the protection extended to similar information under the
    relevant laws of the Contracting Party which received it and the corresponding
    provisions applying to the Community institutions.
    Personal data, that is all information relating to an identified or identifiable
    individual, may be exchanged only where the receiving Contracting Party
    undertakes to protect such data in at least an equivalent way to the one applicable
    to that particular case in the supplying Contracting Party.
                                      ARTICLE 11
                                    Use of information
1.  Information obtained shall be used solely for the purposes of this Protocol.
    Where one of the Contracting Parties requests the use of such information for
    other purposes, it shall ask for the prior written consent of the authority which
    furnished the information. Such use shall then be subject to any restrictions laid
    down by that authority.
2.  Paragraph 1 shall not impede the use of infonnation in any judicial or
    administrative proceedings instituted for failure to comply with customs
    legislation. The competent authority which supplied that information shall be
    notified of such use without delay.
j . The Contracting Parties may, in their records of evidence, reports and testimonies
    and in proceedings and charges brought before the courts, use as evidence
    information obtained and documents consulted in accordance with the provisions
    of this Protocol.
 ---pagebreak---                                        A K 1 ICLr!/ 12.
                                   Experts and witnesses
An official of a requested authority may be authorized to appear, within the
limitations of the authorization granted, as an expert or witness in judicial or
administrative proceedings regarding the matters covered by this Protocol in the
jurisdiction of the other Contracting Party, and produce such objects, documents or
authenticated copies thereof, as may be needed for the proceedings. The request for an
appearance must indicate specifically on what matters and by virtue of what title or
qualification the official will be questioned.
                                       ARTICLE 13
                                    Assistance expenses
 The Contracting Parties shall waive all claims on each other for the reimbursement of
 expenses incurred pursuant to this Protocol, except, as appropriate, for expenses to
 experts and witnesses and to interpreters and translators who are not public service
 employees.
                                       ARTICLE 14
                                        Application
 1. The application of this Protocol shall be entrusted to the customs authorities of
     Switzerland on the one hand and the competent services of the Commission of the
     European Communities and, where appropriate, the customs authorities of the
     Member States of the European Community on the other. They shall decide on all
     practical measures and arrangements necessary for its application, taking into
     consideration the rules in force in thefieldof data protection.
 2. The Contracting Parties shall consult each other and subsequently keep each other
      informed of the detailed rules of implementation which are adopted in accordance
      with the provisions of this Protocol. In particular, they shall exchange the list of
      competent authorities authorized to intervene under this Protocol.
 ---pagebreak--- Joint declaration
The parties agree that a working group should be created by the Joint Committee to
assist it in the management of the protocol on mutual administrative assistance.
                                                                                 12
 ---pagebreak---                                 FINANCIAL STATEMENT
                  concerning the signing and conclusion of an agreement
   in the form of an exchange of letters between the European Community and the
      Swiss Confederation on an additional protocol to the free trade agreement
            concerning mutual administrative assistance in customs matters
1.       Title of operation:
         Signing and conclusion of an agreement in the form of an exchange of letters
        between the European Community and the Swiss Confederation on an additional
        protocol to the free trade agreement concerning mutual administrative assistance
        in customs matters
2.      Budget headings involved:
        No specific budget heading
3.      Legal basis:
        Articles 113 and 228 of the EC Treaty
4.      Description of operation:
4.1     General objective
        To provide a legal basis for the exchange of information and requests for
        assistance between the Community and Switzerland with a view to combating
        customs fraud.
4.2     Duration and arrangements for renewal
        Unlimited (same as the free trade agreement to which it will be annexed).
5.      Classification of expenditure or revenue:
        No expenditure or revenue foreseen
6.      Type of expenditure:
        None
7.      Financial impact:
        The agreement will make it easier to obtain assistance from Switzerland in finding
        the information and evidence needed by Member State customs authorities for,
        inter alia, the post-clearance recovery of customs duties evaded by frauds within
        the Community. No direct expenditure or revenue is involved.
8.      Fraud prevention measures:
        Not applicable: no expenditure involved.
9.      Cost-benefit analysis:
9.1.    Specific and quantified objectives: target population
        The usefulness of the provisions will depend on what future customs
        investigations throw up by way of cases where the information is available in
        Switzerland (where Switzerland is, for instance, the place of establishment of the
        person organizing the transactions in question, the place of payment, the place of
        transit to and from the Community or the actual place where goods are stored).
                                                                                           />3
 ---pagebreak---      Better international cooperation makes fraud and breaches of the rules more
     difficult to perpetrate and easier to detect and prosecute, and improves the
     implementation of customs legislation and thus all the financial and economic
     measures stemming from it that are designed to protect the Community's budget,
     economy and market.
9.2. Grounds for the operation
     This is part of a strategy embarked upon by the Community in 1989 with all
     neighbouring countries and its main trading partners.
9.3. Monitoring and evaluation of the operation
     It is up to the Member States to make proper use of the provisions, with the
     possibility of Community coordination under the relevant Community provisions
     on mutual administrative assistance (Regulation No 1468/81). Any bilateral
     problems can be dealt with by an ad hoc working party.
10.  Administrative expenditure (Section III. Part A. of the Budget):
10.1 Impact of the number of posts:
     The cost of the human resources required by this measure will be met from
     existing resources.
10.2 Increase in other administrative expenditure as a result of the operation
     The operating costs of this measure will be met from existing resources.
                                                                                    Ak
 ---pagebreak--- FOR AGREEMENT GIVEN BY:
 DG or department Name of official Date Telephone
l.SG
2.DGI
3. DG VI
4. DG IX
5. DG XV
6. DG XIX
7.DGXX
For opinion
(mandatory)
Legal Service
 ---pagebreak---  ---pagebreak---  ---pagebreak---  ---pagebreak---                                                                    ISSN 0254-1475
                                                             COM(97) 81 final
                                             DOCUMENTS
EN                                                                        11 02
                                    Catalogue number : CB-CO-97-093-EN-C
                                                              ISBN 92-78-16704-5
Office for Official Publications of the European Communities
L-2985 Luxembourg