CELEX: 51997PC0206
Language: en
Date: 1997-05-06
Title: Proposal for a Council Decision on the conclusion of the Agreement on customs cooperation and mutual assistance in customs matters between the European Community and Canada

COMMISSION OF THE EUROPEAN COMMUNITIES
                              Brussels, 06.05.1997
                              COM(97) 206 final
                              97/ 0133 (ACC)
               Proposal for a
           COUNCIL DECISION
    on the conclusion of the Agreement
   on customs cooperation and mutual
       assistance in customs matters
    between the European Community
                and Canada
      (presented by the Commission)
 ---pagebreak---  ---pagebreak---                               Explanatory memorandum
By its decision of 5 April 1993, the Council authorized the Commission to negotiate
customs cooperation agreements with some of the Community's main trading partners, in
particular Canada, and adopted the necessary negotiating directives.
There have been a number of meetings with the Canadian authorities, in Brussels and
Ottawa. Following these negotiations, the text of the Agreement was initialled on
28 February 1997.
The Agreement is now being put to the Council to be signed and concluded.
The Commission considers that the initialled text is in accordance with the negotiating
directives adopted by the Council on 5 April 1993.
In order to enable the Agreement on customs cooperation and mutual assistance in
customs matters to be signed as soon as posible, the Commission proposes that the
Council approve the attached proposal for a decision on the signing and conclusion of the
Agreement.
                                            oo
 ---pagebreak---                              Proposal for a Council decision
                          on the conclusion of the Agreement
                          on customs cooperation and mutual
                              assistance in customs matters
                          between the European Community
                                       and Canada
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular
Article 113 thereof, together with the first sentence of Article 228(2) and the first
subparagraph of Article 228(3),
Having regard to the proposal from the Commission,
Whereas on 5 April 1993 the Council authorized the Commission to negotiate, on behalf
of the Community, customs cooperation agreements with some of the Community's main
trading partners;
Whereas the Agreement between the European Community and Canada on customs
cooperation and mutual assistance in customs matters should be approved,
HAS DECIDED AS FOLLOWS:
                                         Article 1
The Agreement between the European Community and Canada on customs cooperation
and mutual assistance in customs matters is hereby approved on behalf of the European
Community.
The text of the Agreement is attached to this Decision.
                                         Article 2
The Commission, assisted by representatives of the Member States, shall represent the
European Community on the Joint Customs Cooperation Committee set up under
Article 20 of the Agreement.
                                             -2
 ---pagebreak---                                           Article 3
The President of the Council is hereby authorized to designate the persons empowered to
sign the Agreement.
                                         Article 4
The President of the Council shall effect the notification provided for in Article 24 of the
Agreement on behalf of the European Community.1
                                         Article 5
This Decision shall be published in the Official Journal of the European Communities.
Done at Brussels,...
                                                               For the Council
                                                               The President
                                                               X
1
        The date of entry into force of the Agreement will be published in the Official
        Journal of the European Communities by the General Secretariat of the Council.
                                               4-
 ---pagebreak---                AGREEMENT
                BETWEEN
        THE EUROPEAN COMMUNITY
               AND CANADA
        ON CUSTOMS COOPERATION
AND MUTUAL ASSISTANCE IN CUSTOMS MATTERS
                    S
 ---pagebreak--- The Government of Canada and the European Community, hereafter referred to as the
Contracting Parties,
BUILDING on the privileged relationship established by the Framework Agreement for
commercial and economic cooperation between the European Communities and Canada,
signed at Ottawa on 6 July 1976;
TAKING ACCOUNT of the declaration of 22 November 1990 on EC-Canada relations;
RECOGNISING the Joint Declaration on Canada-European Union relations signed at
Ottawa on 17 December 1996;
CONSIDERING that breaches of customs legislation are prejudicial to their economic,
fiscal, social, cultural and commercial interests;
BELIEVING that there should be an undertaking to develop customs cooperation of the
widest possible scope in matters including, but not limited to, simplification and
harmonisation of customs procedures;
CONSIDERING the importance of accurate assessment of customs duties and taxes
collected at importation or exportation and of ensuring proper enforcement of measures of
prohibition, restriction and control;
RECOGNISING the need for international cooperation in matters related to the application
and enforcement of their customs laws;
CONVINCED that action against breaches of customs legislation can be made more
effective by close cooperation between their customs administrations;
HAVING REGARD TO the relevant instruments of the Customs Cooperation Council, in
particular the Recommendation on mutual administrative assistance of 5 December 1953;
HAVING REGARD ALSO TO international conventions containing prohibitions,
restrictions and special measures of control in respect of specific goods;
                                               Q
 ---pagebreak--- HAVE AGREED as follows:
                                          TITLE I
                                GENERAL PROVISIONS
                                          Article 1
                                         Definitions
For the purposes of this Agreement,
1.     the term "customs authority" means: in Canada: the competent services of the
       Department of National Revenue; in the European Community: the competent
        services of the Commission of the European Communities and the customs
        authorities of the Member States of the European Community;
2.     the term "customs legislation" means: for Canada the statutory and regulatory
       provisions concerning the importation, exportation, transit of goods, and their
        placing under any customs procedure, including measures of prohibition, restriction
        and control, the administration and enforcement of which are specifically charged to
       the customs authority, and any regulations made by the customs authority under its
        statutory powers; and for the European Community: provisions adopted by the
       European Community and governing the import, export, transit of goods and their
        placing under any customs procedure, including measures of prohibition, restriction
        and control;
3.     the term "breach of customs legislation" means: any violation or attempted violation
        of customs legislation;
4.      the term "information" means: any data, documents, reports, certified or
        authenticated copies thereof or other communications, including data which has
        been processed or analysed to provide an indication relevant to a breach of customs
        legislation;
                                           ^
 ---pagebreak--- 5.      the term "person" means: either a physical human being or a legal entity;
6.      the term "personal data" means: all information relating to an identified or
        identifiable individual;
7.      the term "requested authority" means: the competent customs authority from which
        assistance is requested;
8.      the term "requesting authority" means: the competent customs authority which
        requests assistance.
                                           TITLE II
                                 CUSTOMS COOPERATION
                                            Article 2
                                   Scope of the cooperation
1.      The Contracting Parties undertake to develop customs cooperation of the widest
        possible scope.
2.      Under this Agreement, customs cooperation shall cover all matters relating to the
        application of customs legislation.
                                            Article 3
                            Technical assistance to third countries
The Contracting Parties shall, where appropriate, inform each other on actions undertaken
or to be undertaken with third countries in relation to technical assistance in the customs
field, with the aim of improving these actions.
                                             <P
 ---pagebreak---                                              Article 4
                               Simplification and harmonisation
The Contracting Parties agree to strive for simplification and harmonisation of their customs
procedures, taking into account the work done in this connection by international
organisations. They also agree to examine ways and means to solve any customs-related
difficulties that might arise between them.
                                             Article 5
                                        Exchange of staff
The customs authorities may exchange personnel when mutually beneficial, for the purpose
of advancing their understanding of each other's customs techniques and procedures, and
computerised systems.
                                             Article 6
                                        Computerisation
The Contracting Parties shall cooperate in the computerisation of customs procedures and
formalities, with the aim of facilitating trade between them.
                                               9
 ---pagebreak---                                       TITLE III
                              MUTUAL ASSISTANCE
                                       Article 7
                                 Scope of assistance
1. The customs authorities shall assist each other, either on request or on their own
   initiative, by providing appropriate information which helps to ensure proper
   application of customs legislation and the prevention, investigation and combating of
   any breach of customs legislation.
2. All assistance under this Title by either Contracting Party shall be performed in
   accordance with its relevant laws, rules and other legal instruments and within the
   limits of its customs authority's competence and available resources.
3. This Title is intended solely for the mutual administrative assistance between the
   Contracting Parties; the provisions of this Title shall not give rise to a right on the
   part of any private person to obtain information, to obtain, suppress or exclude any
   evidence or to impede the execution of a request.
4. This Title shall not prejudice the rules governing mutual assistance in criminal
   matters. Nor shall it apply to information obtained under powers exercised at the
   request of the judicial authority, except where communication of such information
    has the prior authorisation of the said judicial authority consulted for this purpose on
    a case-by-case basis.
                                           Jo
 ---pagebreak---                                         Article 8
                   Information on methods, trends and operations
1. Either customs authority shall communicate, either on request or on its own
   initiative, any available information relating to:
   a)       new customs law enforcement techniques having proved their effectiveness;
   b)       new trends, means or methods of committing breaches of customs
            legislation.
2. Either on request or on their own initiative, the customs authorities shall provide
   each other with information on operations, completed or planned, which constitute
   or appear to constitute a breach of customs legislation in the territory of the other
   Contracting Party.
                                       Article 9
                                 Assistance on request
1. On request, the requested authority shall inform the requesting authority about the
   customs legislation and procedures applicable in that Contracting Party and relevant
   to inquiries relating to a breach of customs legislation.
2. On request, the requested authority shall, in particular, provide the requesting
   authority with the following information:
   a)       whether goods imported into the territory of the requesting Contracting
            Party have been lawfully exported from the territory of the requested
            Contracting Party and specifying, where appropriate, the customs procedure
            applied to the goods;
                                         //
 ---pagebreak---          b)      whether goods exported from the territory of the requesting Contracting
                 Party have been lawfully imported into the territory of the requested
                 Contracting Party, and specifying, where appropriate, the customs procedure
                 applied to the goods.
3.       On request, and subject to specific provisions under Article 13, the requested
         authority shall provide information on, and maintain special surveillance over:
         (a)     persons known to the requesting authority to have committed a breach of
                 customs legislation or suspected of doing so;
         (b)     goods either in transport or in storage notified by the requesting authority as
                 giving rise to suspected illicit traffic;
         (c)     means of transport suspected by the requesting authority of being used to
                 commit breaches of customs legislation;
         (d)     premises suspected by the requesting authority of being used to commit
                 breaches of customs legislation.
                                             Article 10
                                     Spontaneous assistance
In serious cases that could involve substantial damage to the economy, public health, public
security or any other vital interest of one Contracting Party, the customs authority of the
other Contracting Party shall, to the extent possible, supply information on its own
initiative.
                                                    13,
 ---pagebreak---                                        Article 11
                Form in which Information is to be communicated
1. The requested authority shall communicate appropriate information to the
   requesting authority in the form of documents, certified copies of documents,
   reports or electronic versions thereof. All relevant information for interpreting or
   utilising that information shall be supplied at the same time.
2. Original files, documents and other materials shall only be requested in cases where
   copies would be insufficient. Upon specific request, copies of suchfiles,documents
   and other materials shall be appropriately authenticated.
3. Original files, documents and other materials that have been transmitted shall be
   returned as soon as possible; rights of the requested authority or of third parties
   relating thereto shall remain unaffected.
                                       Article 12
                                Experts and witnesses
1. The customs authority of one Contracting Party may authorise its employees, upon
   the request of the customs authority of the other Contracting Party, to appear as
   witnesses or experts in judicial or administrative proceedings in the territory of the
   other Contracting Party and to produce suchfiles,documents or other materials, or
   authenticated copies thereof, as may be considered essential for the proceedings.
2. When appearing in judicial or administrative proceedings in the circumstances of
   paragraph 1, witnesses or experts will be afforded the full protection of the law of
   the requesting Contracting Party pertaining to testimony of a privileged or
   confidential nature which may be protected from disclosure under that law.
                                           /3
 ---pagebreak--- 3. 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
                             Communication of requests
1. Requests for assistance under this Title shall be made in writing and shall be
   accompanied by any documents deemed useful. When the circumstances so require,
   requests may also be made verbally. Such requests shall be promptly confirmed in
   writing. Written requests may be made by electronic means from which a paper
   record may be made.
2. Requests pursuant to paragraph 1 shall include the following information:
   (a)      the requesting authority;
   (b)      the measure requested;
   (c)      the object of and the reason for the request;
   (d)      the laws, rules and other legal elements involved;
   (e)      information which is as exact and comprehensive as possible on the persons
            who are the target of the investigations; and
   (f)      a summary of the relevant facts and of the investigations already carried out,
            including the customs authorities involved at the time of the request.
3. The requested authority shall agree to follow a certain procedure in responding to a
   request, unless that procedure would conflict with legal and administrative
   provisions of the requested Contracting Party.
4. The information referred to in this Title shall be communicated only to officials who
   are specifically designated for this purpose by each customs authority. Lists of
   officials so designated shall be exchanged in accordance with Article 19 (3) of this
   Agreement.
5. Requests shall be submitted in an official language of the requested authority or in a
   language acceptable to that authority.
                                            /V
 ---pagebreak--- 6. If a request does not meet the formal requirements, the requested authority may ask
   for its correction or completion. The requested authority may take interim
   measures.
                                       Article 14
                                 Execution of requests
1. If the requested authority does not have the information requested, it shall in
   accordance with its legislation, either:
   (a)     initiate inquiries to obtain that information; or
   (b)     promptly transmit the request to the appropriate agency; or
   (c)     indicate which relevant authorities are concerned.
2. Any inquiry under paragraph 1 may include the taking of statements from persons
   from whom information is sought in connection with a breach of customs legislation
   and from witnesses and experts.
                                       Article 15
                                   Duties of officials
1. On written request, with the authorisation of the requested authority and subject to
   conditions the latter may impose, for the purpose of investigating a breach of
   customs legislation, officials specifically designated by the requesting authority may
   be present during an inquiry conducted by the requested authority in the territory of
   the requested Contracting Party and relevant to the requesting authority.
2. When officials of the requesting authority are present in the territory of the other
   Contracting Party in the circumstances provided for in paragraph 1, they must at all
   times be able to furnish proof of their official capacity.
                                            iz
 ---pagebreak--- 3. Duly authorised officials of a Contracting Party may, with the agreement of the
    other Contracting Party and within 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 a breach of customs
    legislation which the requesting authority needs for the purposes of this Title.
                                       Article 16
                           Confidentiality of information
1.  Any information received under this Title shall be treated as confidential and shall at
    least be subject to the same protection and confidentiality as the same kind of
    information is subject to under the laws applicable in the Contracting Party where it
    is received.
   •»
2.  Information obtained shall be used solely for the purposes of this Title. Where one
    of the Contracting Parties requests the use of such information for other purposes, it
    shall obtain the prior written consent of the customs authority which furnished the
    information. Such use shall then be subject to any restrictions laid down by that
    authority.
3.  Paragraph 2 shall not impede the use of information in any judicial or administrative
    proceedings subsequently instituted for failure to comply with customs legislation.
    The Contracting Parties may, in their records of evidence, reports and testimonies
     and in proceedings and charges brought before the courts, use evidence obtained in
     accordance with the provisions of this Title. The competent authority which
     supplied that evidence shall be notified in advance of such use.
4.  Personal data may be exchanged only where the Contracting Party which will
     receive the data undertakes to protect such data in a way which is at least equivalent
     to the protection applicable to that particular case in the Contracting Party which
     may supply the data.
                                            i£
 ---pagebreak--- 5. Dissemination of information among customs authorities within each Contracting
   Party will occur only on a need-to-know basis. Where information is shared
   pursuant to this paragraph, the Contracting Party that supplied the information shall
   be so informed in advance of sharing the information.
                                     Article 17
                Exceptions to the obligation to provide assistance
1. In cases where assistance under this Title would infringe upon the sovereignty of
   Canada or a Member State of the European Community or prejudice security, public
   policy or other essential interest (such as that referred to in Article 16 (4)) of a
   Contracting Party, or would involve a violation of industrial, commercial or
   professional secrecy or would be inconsistent with its legislation, assistance may be
   refused, or made subject to the fulfilment of certain conditions or requirements.
2. If the requesting authority would be unable to comply if a similar request were made
   by the requested authority, it shall draw attention to that fact in its request..
   Compliance with such a request shall be at the discretion of the requested authority.
3. Assistance may be postponed by the requested authority on the grounds that it will
   interfere with an ongoing investigation, prosecution or proceeding. In such a case
   the requested authority shall consult with the requesting authority to determine if
   assistance can be given subject to such terms or conditions as the requested
   authority may require.
4. Where assistance is denied or postponed, reasons for the denial or postponement
   shall be given without delay.
                                     Article 18
                                         Costs
1. The customs authorities shall waive all claims for reimbursement of costs incurred in
   the execution of this Title.
                                        n
 ---pagebreak--- 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 which the request will be executed as well as the manner in which
   the costs shall be borne.
                                      TITLE IV
                               FINAL PROVISIONS
                                      Article 19
                         Implementation of the Agreement
1. The management of this Agreement shall be entrusted to the customs authority of
   Canada and the competent services of the Commission of the European
   Communities and, where appropriate, the customs authorities of the Member States.
2. The customs authorities shall take measures so that their officials responsible for the
   investigation or combating of breaches of customs legislation maintain personal and
   direct relations with each other.
3. The customs authorities shall decide on detailed arrangements to facilitate the
   implementation of this Agreement.
4. The customs authorities shall endeavour to resolve any problem or doubt arising
   from the interpretation or application of this Agreement.
                                      Article 20
                      Joint Customs Cooperation Committee
1. A Joint Customs Cooperation Committee is hereby established, consisting of
   representatives of the customs authorities of the Contracting Parties. The Joint
   Customs Cooperation Committee shall meet at a place and on a date with an agenda
   fixed by mutual consent.
                                        is-
 ---pagebreak--- 2.     The Joint Customs Cooperation Committee shall see to the proper functioning of
       the Agreement and shall examine all issues arising from its application. In fulfilling
       this role, its main functions will be to:
       (a)     take the measures necessary for customs cooperation in accordance with the
                objectives of this Agreement and for the expansion of this Agreement with a
               view to increasing the level of customs cooperation and supplementing it on
                specific sectors or matters;
       (b)      exchange views on any points of common interest regarding customs
                cooperation, including future measures and the resources for them;
       (c)     in general terms, recommend solutions aimed at attaining the objectives of
               this Agreement.
3.     The Joint Customs Cooperation Committee shall adopt its rules of procedure.
                                           Article 21
                       Obligations imposed under other agreements
1. Taking into account the respective competencies of the European Community and the
   Member States, the provisions of this Agreement shall:
     -   not affect the obligations of the Contracting Parties under any other international
         agreement or convention;
     -   be deemed complementary with agreements on customs cooperation and mutual
         assistance which have been or may be concluded between individual Member
         States of the European Union and Canada; and
     -   not affect the provisions governing the communication between the competent
         services of the Commission and the customs authorities of the Member States on
         a need-to-know basis of any information obtained under this Agreement which
         could be of interest to the European Community.
                                              n
 ---pagebreak--- 2. Notwithstanding the provisions of paragraph 1, the provisions of this Agreement shall
    take precedence over the provisions of the bilateral agreements on customs
    cooperation and mutual assistance which have been or may be concluded between
    individual Member States of the European Union and Canada insofar as the provisions
    of the latter are incompatible with those of this Agreement.
3. In respect of questions relating to the applicability of this Agreement, the Contracting
    Parties shall consult each other to resolve the matter in the framework of the Joint
    Committee set up under Article 20.
                                          Article 22
                                    Territorial application
This Agreement shall apply to the territories in which the Treaty establishing the European
Community is applied and under the conditions laid down in that Treaty and to the territory
of Canada under the conditions laid down in Canadian law.
                                          Article 23
                                    Future developments
The Contracting Parties may by mutual consent expand this Agreement with a view to
increasing the levels of customs cooperation and supplementing them, in accordance with
their respective customs legislation, by means of agreements on specific sectors or matters.
                                          Article 24
                             Entry into force and termination
 1.     This Agreement shall enter into force on the first day of the month following the
        date on which the Contracting Parties have notified each other of the completion of
        the procedures necessary for this purpose.
2.      This Agreement is intended to be of unlimited duration but either Contracting Party
        may terminate it at any time by notification through diplomatic channels.
                                           o&O
 ---pagebreak--- 3.     The termination shall take effect one month from the date of the notification of
        denunciation to the other Contracting Party. Ongoing proceedings at the time of
       termination shall nonetheless be completed in accordance with the provisions of this
       Agreement.
IN WITNESS whereof the undersigned, being duly authorised thereto, have signed this
Agreement.
Done at                       on the        day of              199..., in two copies in the
Danish, Dutch, English, Finnish, French, German, Greek, Italian, Portuguese, Spanish and
Swedish languages, each text being equally authentic.
For the European Community
       M...    Minister for
               President-in-Office of the Council of the European Union;
       M ...   Member of the Commission of the European Communities;
For Canada:
       M ...   Minister for
                                          £.
 ---pagebreak---  ---pagebreak---                                                                   ISSN 0254-1475
                                                            COM(97) 206 final
                                              DOCUMENTS
EN                                                                       02 il
                                    Catalogue number : CB-CO-97-190-EN-C
                                                             ISBN 92-78-19443-3
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