CELEX: 22004A1223(01)
Language: en
Date: 2004-12-08 00:00:00
Title: Agreement between the European Community and the Government of the People’s Republic of China on cooperation and mutual administrative assistance in customs matters

L 375/20             EN                           Official Journal of the European Union                                         23.12.2004
                                                               AGREEMENT
             between the European Community and the Government of the People’s Republic of China on
                               cooperation and mutual administrative assistance in customs matters
             THE EUROPEAN COMMUNITY,
             and
             THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINA
             hereinafter referred to as the ‘Contracting Parties’,
             CONSIDERING the importance of the commercial links between the European Community and the People’s
             Republic of China, and desirous of contributing to the benefit of both Contracting Parties, to the
             harmonious development of those links;
             BELIEVING THAT, in order to attain this objective, there should be an undertaking to develop customs
             cooperation;
             TAKING into account the development of customs cooperation between the Contracting Parties, concerning
             customs procedures;
             CONSIDERING that operations in breach of customs legislation including infringements of intellectual
             property rights, are prejudicial to the economic, fiscal and commercial interests of both Contracting
             Parties, and recognising the importance of ensuring the accurate assessment of customs duties and other
             taxes, in particular, by a correct application of the rules on customs valuation, origin and tariff classification;
             CONVINCED that action against such operations can be made more effective through cooperation between
             competent administrative authorities;
             HAVING regard to obligations imposed under international conventions already accepted by, or applied to
             the Contracting Parties; as well as customs related activities undertaken by the World Trade Organisation;
             HAVING regard to the Agreement on Trade and Economic Cooperation between the European Economic
             Community and the People's Republic of China signed in 1985,
             HAVE AGREED AS FOLLOWS:
                              TITLE I                                         customs matters of the Commission of the European
                                                                              Communities and the customs authorities of the Member
                     GENERAL PROVISIONS                                       States of the European Community and in the People’s
                                                                              Republic of China, the General Administration of Customs
                             Article 1                                        of the People’s Republic of China;
                           Definitions
For the purposes of the Agreement:                                        (c) ‘applicant authority’ shall mean a competent customs
                                                                              authority which is designated by a Contracting Party for
                                                                              this purpose and which makes a request for administrative
                                                                              assistance, on the basis of this Agreement;
(a) ‘customs legislation’ shall mean any laws, provisions or
    other legally binding instruments of the European
    Community or the People’s Republic of China, governing                (d) ‘requested authority’ shall mean a competent customs
    the import, export and transit of goods and their placing                 authority which is designated by a Contracting Party for
    under any other customs regime or procedure, including                    this purpose and which receives a request for administrative
    measures of prohibitions, restrictions and control;                       assistance, on the basis of this Agreement;
(b) ‘customs authority’ shall mean, in the European                       (e) ‘personal data’ shall mean all information relating to an
    Community, the competent services responsible for                         identified or identifiable individual;
 ---pagebreak--- 23.12.2004           EN                          Official Journal of the European Union                                            L 375/21
(f) ‘operation in breach of customs legislation’ shall mean any          (c) not affect the Community provisions governing the
    violation or attempted violation of the customs legislation;              communication between the competent services of the
                                                                              Commission and the customs authorities of the Member
                                                                              States of any information obtained under this Agreement
(g) ‘person’ shall mean either a human being or a legal entity;               which could be of interest to the Community;
(h) ‘information’ shall mean data, whether or not processed or           2.     Notwithstanding the provisions of paragraph 1, the
    analysed, and documents, reports, and other communi-                 provisions of this Agreement shall take precedence over the
    cations in any format, including electronic, or certified or         provisions of any bilateral agreement on customs cooperation
    authenticated copies thereof.                                        and mutual administrative assistance which has been or may be
                                                                         concluded between individual Member States and the People's
                                                                         Republic of China, insofar as the provisions of the latter are
                            Article 2                                    incompatible with those of this Agreement.
                     Territorial application
This Agreement shall apply on the one hand, to the territories           3.     In respect of questions relating to the applicability of this
in which the Treaty establishing the European Community is               Agreement, the Contracting Parties shall consult each other to
applied and under the conditions laid down in that Treaty and,           resolve the matter in the framework of the Joint Customs Coop-
on the other hand, to the customs territory of the People’s              eration Committee set up under Article 21 of this Agreement.
Republic of China.
                            Article 3                                                                 TITLE III
                     Future developments                                                      CUSTOMS COOPERATION
The Contracting Parties may by mutual consent expand this                                             Article 6
Agreement with a view to increasing the levels of customs
cooperation and supplementing them, in accordance with                                       Scope of the cooperation
their respective customs legislation, by means of agreements             1.     The Contracting Parties shall undertake to develop
on specific sectors or matters.                                          customs cooperation. In particular, the Contracting Parties
                                                                         shall seek to cooperate in:
                             TITLE II                                    (a) establishing and maintaining channels of communication
                                                                              between their customs authorities to facilitate and secure
                  SCOPE OF THE AGREEMENT
                                                                              the rapid exchange of information;
                            Article 4
         Performance of cooperation and assistance                       (b) facilitating effective coordination between their customs
                                                                              authorities;
All cooperation and assistance under this Agreement shall be
performed by the Contracting Parties in accordance with their
relevant laws, provisions, and other legal instruments. In               (c) any other administrative matters related to this Agreement
addition, all cooperation and assistance under this Agreement                 that may from time to time require their joint action.
by either Contracting Party shall be performed within the limits
of its competence and available resources.
                                                                         2.     The Contracting Parties undertake to develop trade facil-
                                                                         itation actions in customs matters taking account of the work
                            Article 5                                    done in this connection by international organisations.
        Obligations imposed under other agreements
                                                                         3.     Under this Agreement, customs cooperation shall cover all
1.     Taking into account the respective competencies of the            matters relating to the application of customs legislation.
European Community and the Member States, the provisions
of this Agreement shall:
                                                                                                      Article 7
(a) not affect the obligations of the Contracting Parties under                         Cooperation in customs procedures
    any other international agreement or convention,
                                                                         The Contracting Parties affirm their commitment to the facil-
                                                                         itation of the legitimate movement of goods and shall exchange
(b) be deemed complementary to agreements on customs coop-               information and expertise on measures to improve customs
    eration and mutual administrative assistance which have              techniques and procedures and on computerised systems with
    been or may be concluded between individual Member                   a view towards implementing that commitment in accordance
    States and the People's Republic of China,                           with the provisions of this Agreement.
 ---pagebreak--- L 375/22               EN                           Official Journal of the European Union                                        23.12.2004
                              Article 8                                                                  Article 11
                      Technical cooperation                                                      Assistance on request
The customs authorities of the Contracting Parties may provide              1.     At the request of the applicant authority, the requested
each other with technical assistance when mutually beneficial in            authority shall provide it with all relevant information which
customs matters including:                                                  may enable it to ensure that customs legislation is correctly
                                                                            applied, including information regarding activities detected or
                                                                            planned which are or could be operations in breach of
(a) the exchange of personnel and experts, for the purposes of              customs legislation. In particular, upon request, the customs
     promoting the mutual understanding of each other’s                     authorities shall furnish to each other information regarding
     customs law, procedures and techniques;                                activities that may result in offences within the territory of
                                                                            the other Party, for example, incorrect customs declarations
                                                                            and certificates of origin, invoices or other documents known
(b) the training, particularly developing specialised skills of their       to be, or suspected of being, incorrect or falsified.
     customs officials;
(c) the exchange of professional, scientific and technical data             2.     At the request of the applicant authority, the requested
     relating to customs law and procedures.                                authority shall inform it of:
(d) techniques and improved methods of processing passengers                (a) the authenticity of official documents produced in support
     and cargo.                                                                 of a goods declaration made to the customs authority of the
                                                                                requesting Party;
(e) any other general administrative matters that may from time
     to time require joint actions by their customs adminis-                (b) whether goods exported from the territory of one of the
     trations.                                                                  Contracting Parties have been legally imported into the
                                                                                territory of the other Contracting Party, specifying, where
                                                                                appropriate, the customs procedure applied to the goods;
                              Article 9
           Coordination in international organisations
                                                                            (c) whether goods imported into the territory of one of the
The customs authorities shall seek to develop and strengthen                    Contracting Parties have been legally exported from the
their cooperation on topics of common interest in order to seek                 territory of the other Contracting Party, specifying, where
a coordinated position when those topics are discussed in the                   appropriate, the customs procedure applied to the goods.
framework of international organisations.
                                                                            3.     At the request of the applicant authority, the requested
                                                                            authority shall, within the framework of its laws, provisions or
                              TITLE IV                                      other legally binding instruments, take the necessary steps to
                                                                            ensure special surveillance of:
             MUTUAL ADMINISTRATIVE ASSISTANCE
                              Article 10
                                                                            (a) persons in respect of whom there are reasonable grounds
                               Scope                                            for believing that they are or have been involved in
                                                                                operations in breach of customs legislation;
1.     The customs authorities shall assist each other by
providing appropriate information which helps to ensure the
proper application of customs legislation and the prevention,               (b) places where stocks of goods have been or may be stored or
investigation and combating of any breach of customs legis-                     assembled in such a way that there are reasonable grounds
lation.                                                                         for believing that these goods are intended to be used in
                                                                                operations in breach of customs legislation;
2.     Assistance in customs matters, as provided for in this
Agreement, shall apply to any administrative authority of the
Contracting Parties which is competent for the application of               (c) goods that are or may be transported in such a way that
this Agreement. It shall not prejudice the rules governing                      there are reasonable grounds for believing that they are
mutual assistance in criminal matters. Nor shall it cover infor-                intended to be used in operations in breach of customs
mation obtained under powers exercised at the request of a                      legislation;
judicial authority;
                                                                            (d) means of transport that are or may be used in such a way
3.     Assistance to recover duties, taxes or fines, or the arrest or           that there are reasonable grounds for believing that they are
detention of any person or seizure or detention of property is                  intended to be used in operations in breach of customs
not covered by this Agreement.                                                  legislation.
 ---pagebreak--- 23.12.2004            EN                          Official Journal of the European Union                                            L 375/23
                             Article 12                                   authority. This requirement shall not apply to any documents
                                                                          that accompany the request under paragraph 1.
                     Spontaneous assistance
The Contracting Parties shall assist each other, at their own             4.     If a request does not meet the formal requirements set out
initiative and in accordance with their laws, provisions or               above, its correction or completion may be requested; precau-
other legally binding instruments if they consider that to be             tionary measures may be ordered in the meantime.
necessary for the correct application of customs legislation, in
particular in situations that could involve substantial damage to
the economy, public health, public security or similar vital                                           Article 14
interest of the other Contracting Party pertaining to:
                                                                                                Execution of requests
(a) activities which are or appear to be operations in breach of          1.     In order to comply with a request for assistance, the
     customs legislation and which may be of interest to the              requested authority shall proceed, within the limits of its
     other Contracting Party;                                             competence and available resources, as though it were acting
                                                                          on its own account or at the request of other authorities of that
(b) new means or methods employed in carrying out                         same Contracting Party, by supplying information already
     operations in breach of customs legislation;                         possessed, by carrying out appropriate enquiries or by
                                                                          arranging for them to be carried out.
(c) goods known to be subject to operations in breach of
     customs legislation;                                                 2.     Requests for assistance shall be executed in accordance
                                                                          with the laws, regulations or other legally binding instruments
(d) persons in respect of whom there are reasonable grounds               of the requested authority.
     for believing that they are or have been involved in
     operations in breach of customs legislation;
                                                                          3.     Duly authorised officials of a Contracting Party may, with
                                                                          the agreement of the other Contracting Party and subject to the
(e) means of transport in respect of which there are reasonable           conditions laid down by the latter, be present at enquiries
     grounds for believing that they have been, are, or may be            carried out in the latter's jurisdiction into specific cases.
     used in operations in breach of customs legislation.
                             Article 13                                   4.     In the event that the request cannot be complied with, the
                                                                          applicant authority shall be notified promptly of that fact, with
        Form and substance of requests for assistance                     a statement of the reasons and of any other information that
                                                                          the requested authority considers may be of assistance to the
1.     Requests pursuant to this Agreement shall be made in               applicant authority.
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                                        Article 15
may be accepted, but shall be confirmed promptly in writing.
                                                                               Form in which information is to be communicated
2.     Requests pursuant to paragraph 1 shall include the                 1.     The requested authority shall communicate results of
following information:                                                    enquiries to the applicant authority in writing together with
                                                                          relevant documents, certified copies or other items.
(a) the formal endorsement of the applicant authority;
                                                                          2.     This information may be in computerised form which
(b) the action requested;                                                 shall where necessary be confirmed in writing immediately
                                                                          afterwards.
(c) the object of and the reason for the request;
                                                                                                       Article 16
(d) the laws, regulations or other legally binding instruments
     involved;                                                                  Exceptions to the obligation to provide assistance
                                                                          1.     Assistance may be refused or may be subject to the satis-
(e) indications as exact and comprehensive as possible on the             faction of certain conditions or requirements in cases where a
     persons who are the target of the investigations;                    Contracting Party is of the opinion that assistance under this
                                                                          Agreement would:
(f) a summary of the relevant facts and of the enquiries already
     carried out.
                                                                          (a) be likely to prejudice the sovereignty of a Member State of
                                                                               the European Community which has been requested to
3.     Requests shall be submitted in an official language of the              provide assistance under this Agreement or that of the
requested authority or in a language acceptable to that                        People’s Republic of China; or
 ---pagebreak--- L 375/24                EN                           Official Journal of the European Union                                         23.12.2004
(b) be likely to prejudice public order, security or other essential         4.     Information obtained shall be used solely for the purposes
     interests, in particular in the cases referred to under Article         of this Agreement. Where one of the Contracting Parties wishes
     17(2) or                                                                to use such information for other purposes, it shall obtain the
                                                                             prior written consent of the authority which provided the infor-
                                                                             mation. Such use shall then be subject to any restrictions laid
(c) violate an industrial, commercial or professional secret.                down by that authority.
2.     Assistance may be postponed by the requested authority                5.     Practical arrangements for the implementation of this
on the ground that it will interfere with an ongoing investi-                Article shall be determined by the Joint Customs Cooperation
gation, prosecution or proceeding. In such a case, the requested             Committee established under Article 21.
authority shall consult with the applicant authority to determine
if assistance can be given subject to such terms or conditions as
the requested authority may require.
                                                                                                          Article 18
                                                                                                   Experts and witnesses
3.     Where the applicant authority seeks assistance which it
would itself be unable to provide if so requested, it shall                  An official of a requested authority may be authorised to
draw attention to that fact in its request. It shall then be for             appear, within the limitations of authorisation granted, as an
the requested authority to decide how to respond to such a                   expert or witness in administrative proceedings regarding the
request.                                                                     matters covered by this Agreement in the territory of the other
                                                                             Contracting Party, and produce such objects, documents or
                                                                             certified copies thereof, as may be needed for the proceedings.
4.     For the cases referred to in paragraphs 1 and 2, the                  The request for appearance must indicate specifically before
decision of the requested authority and the reasons therefor                 which administrative authority the official will have to appear,
must be communicated to the applicant authority without                      on what matters and by virtue of what title or qualification the
undue delay.                                                                 official will be questioned.
                               Article 17                                                                 Article 19
           Information exchange and confidentiality                                                 Assistance expenses
1.     Any information communicated in whatsoever form                       1.     The Contracting Parties shall waive all claims on each
pursuant to this Agreement shall be of a confidential or                     other for the reimbursement of expenses incurred pursuant to
restricted nature, depending on the rules applicable in each of              this Agreement, except, as appropriate, for expenses to experts
the Contracting Parties. It shall be covered by the obligation of            and witnesses, and those to interpreters and translators who are
official secrecy and shall enjoy the protection extended to                  not public service employees.
similar information under the relevant laws of the Contracting
Party that received it and the corresponding provisions applying
to the Community authorities.
                                                                             2.     If expenses of a substantial or extraordinary nature are, or
                                                                             will be, required to execute the request, the Contracting Parties
                                                                             shall consult to determine the terms and conditions under
2.     Personal data may be exchanged only where the                         which the request will be executed as well as the manner in
Contracting Party which may receive it undertakes to protect                 which the costs shall be borne.
such data in at least an equivalent way to the one applicable to
that particular case in the Contracting Party that may supply it.
The Contracting Party that may supply the information shall
not stipulate any requirements that are more onerous than
those applicable to it in its own jurisdiction. The Contracting                                            TITLE V
Parties shall communicate to each other information on their
applicable rules, including where appropriate, legal provisions in                                   FINAL PROVISIONS
force in the Member States of the Community.
                                                                                                          Article 20
                                                                                                       Implementation
3.     Nothing in this Agreement shall preclude the use of infor-
mation or documents obtained in accordance with this                         1.     The implementation of this Agreement shall be entrusted
Agreement as evidence in administrative proceedings subse-                   to the customs authorities of the Commission of the European
quently instituted in respect of operations in breach of                     Communities and, where appropriate, of the Member States of
customs legislation. Therefore, the Contracting Parties may, in              the European Community on the one hand, and to the customs
their records of evidence, reports and testimonies and in admin-             authority of the People’s Republic of China, on the other. They
istrative proceedings use as evidence information obtained and               shall decide on all practical measures and arrangements
documents consulted in accordance with the provisions of this                necessary for its application, taking into consideration the
Agreement. The competent authority which supplied that infor-                rules in force in particular in the field of data protection.
mation or gave access to those documents shall be notified of                They may recommend to the competent bodies amendments
such use.                                                                    which they consider should be made to this Agreement.
 ---pagebreak--- 23.12.2004            EN                         Official Journal of the European Union                                         L 375/25
2.    The Contracting Parties shall consult each other and               4.    The Joint Customs Cooperation Committee will where
subsequently keep each other informed of the detailed rules              appropriate, keep informed the Joint Commission set up
of implementation which are adopted in accordance with the               under Article 15 of the Agreement on Trade and Economic
provisions of this Agreement.                                            Cooperation between the European Economic Community and
                                                                         the People’s Republic of China of activities going on under this
                            Article 21                                   Agreement.
           Joint Customs Cooperation Committee
                                                                                                     Article 22
1.    A Joint Customs Cooperation Committee is hereby estab-
lished, consisting of representatives of the customs authorities                         Entry into force and duration
of the European Community and the People’s Republic of
China. It shall meet at a place, on a date and with an agenda,           1.    This Agreement shall enter into force on the first day of
fixed by mutual agreement.                                               the month following the date on which the Contracting Parties
                                                                         have notified each other of the completion of the procedures
2.    The Joint Customs Cooperation Committee shall, inter alia:         necessary for this purpose.
(a) see to the proper functioning of the Agreement;                      2.    Each Contracting Party may terminate this Agreement by
                                                                         giving notice to the other in writing. The termination shall take
(b) examine all issues arising from its application;                     effect three months from the day of notification to the other
                                                                         Contracting Party. Requests for assistance which have been
(c) take measures necessary for customs cooperation in                   received prior to the termination of the Agreement shall be
    accordance with the objectives of this Agreement;                    completed in accordance with the provisions of this Agreement.
(d) exchange views on any points of common interest regarding
    customs cooperation, including future measures and the                                           Article 23
    resources for them;
                                                                                                 Authentic texts
(e) recommend solutions aimed at helping to attain the                   This Agreement shall be drawn up in duplicate in the Czech,
    objectives of this Agreement.                                        Danish, Dutch, English, Estonian, Finnish, French, German,
                                                                         Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish,
3.    The Joint Customs Cooperation Committee shall adopt its            Portuguese, Slovak, Slovenian, Spanish, Swedish and Chinese
internal rules of procedure.                                             languages, each text being equally authentic.
                     In witness whereof, the undersigned, being duly authorised to do so, have signed this
                     Agreement.
                     Done at The Hague, 8 December 2004.
 ---pagebreak--- L 375/26         EN                         Official Journal of the European Union 23.12.2004
         Por la Comunidad Europea
         Za Evropské společenství
         For Det Europæiske Fællesskab
         Für die Europäische Gemeinschaft
         Euroopa Ühenduse nimel
         Για την Ευρωπαϊκή Κοινότητα
         For the European Community
         Pour la Communauté européenne
         Per la Comunità europea
         Eiropas Kopienas vārdā
         Europos bendrijos vardu
         az Európai Közösség részéről
         Voor de Europese Gemeenschap
         W imieniu Wspólnoty Europejskiej
         Pela Comunidade Europeia
         Za Európske spoločenstvo
         za Evropsko skupnost
         Euroopan yhteisön puolesta
         På Europeiska gemenskapens vägnar
         Por el Gobierno de la República Popular China
         Za vládu Činské lidové republiky
         For Folkerepublikken Kinas regering
         Im Namen der Regierung der Volksrepublik China
         Hiina Rahvavabariigi valitsuse nimel
         Για την κυβέρνηση της Λαϊκής Δημοκρατίας της Κίνας
         For the Government of the People's Republic of China
         Pour le gouvernement de la République populaire de Chine
         Per il Governo della Repubblica popolare cinese
         Kīnas Tautas Republikas vārdā
         Kinijos Liaudies Respublikos Vyriausybės vardu
         A Kínai Népköztársaság kormánya részéről
         Voor de Regering van de Volksrepubliek China
         W imieniu rządu Chińskiej Republiki Ludowej
         Pelo Governo da República Popular da China
         Za vládu Činskey ľudovej republiky
         Za Vlado Ljudske republike Kitajske
         Kiinan kansantasavallan hallituksen puolesta
         På Folkrepubliken Kinas regerings vägnar