CUSTOMS CO-OPERATION - mutual assistance

Mutual Assistance within the EU First Pillar Regulation 515/97 CIS - Regulation 515/97 Amendment of Regulation 515/97 (proposal in the pipeline) Third Pillar Naples II Convention CIS - Convention FIDE-Protocol

Legal Assistance within the EU Schengen provisions (Articles of the Schengen Application Agreement) EU-Convention on legal Assistance in penal matters of 2000 and Protocols

Mutual Assistance to third Countries in Customs Matters EC-Agreements on mutual Assistance EC-Protocols on mutual Assistance as part of Agreements on Association, Trade Policy and others Bilateral Agreements between EU-Members and third Countries (legal) Assistance based on the respective Convention of the Council of Europe or within the WCO- framework

EC-Model Agreement Definitions (customs legislation, applicant authority, requested authority, personal data, operation in breach of customs legislation) Scope (to ensure the correct application of the customs legislation, no prejudice to assistance in criminal matters, but use of information if authorized, no recovery)

EC-Model Agreement Assistance on request (import, export, special surveillance of persons, places where goods are stored, transported goods, means of transport) Spontaneous Assistance (activities, new fraud methods and means, goods, persons, means of transport)

EC-Model Agreement Delivery, Notification (documents, decisions) Form and substance of requests (in writing, neccessary informations, language, correction or completition) Execution of requests (like acting on own account, inquiries, other authorities)

EC-Model Agreement Execution of requests continued (in accordance with national law, presence of officials) Form of communication (writing, computerized, original documents) Exceptions from Assistance (souvereignty, public policy, commercial secret)

EC-Model Agreement Exceptions from assistance continued (postponement, reciprocity of powers) Information exchange and confidentiality (official secrecy, protection of personal data, use of information before court, consent for other purposes) Experts and witnesses (appearance)

EC-Model Agreement Assistance expenses (no sharing) Implementation (customs) Other Agreements (not affecting other obligations of the MS, complementarity, not affecting EC provisions (Reg 515/97) concerning EC-relevant information, precedence over bilateral Agreements)

EC-Agreements and Protocols In force (examples): Andorra, Azerbaijan, Chile, Hongkong, Israel, Jordania, Moldova, Russia, South Africa, Ukraine Initialled (examples): Belarus, Malta, Mexiko, Mercosur no Agreement: Albania, Bosnia- Hercegowina, FYROM, Kosovo(?)

EC-Agreements and Protocols full list: see OLAF document 4858/2001-REV 3 look at the OLAF homepage Contact points within EU are included in the OLAF document 4859/2001-REV 3 European Economic Area Protocol 11: Norway, Iceland and Liechtenstein applicable for drugs also

Opportunities and Benefits of EC-Agreements many co-operation partners standard form common approach use of information in penal procedures should be possible (when authorised) correct application of customs law as a nearly worldwide effect

Opportunities and Benefits of bilateral Agreements exact knowledge of the contracting partner full use of information larger scope possible (penal matters) provisions can be adapted according to the national laws of the Contracting Parties drugs, controlled deliveries included

Bilateral Agreements between EU Member States Overruled by 515/97 (first pillar) Overruled by Naples II Convention (when ratified by all MS) Exeption: Austrian-German Agreement concering recovery of customs duties going beyond the EC Directive 76/308

Problems with third Countries 1. Switzerland: restricted application of EC-Agreement no legal obligation by the Swiss law for enterprises to cooperate with customs legal assistance only in cases of serious tax fraud (more than 6 month imprisonment) EU-negotiation of an anti-fraud Agreement

Problems with third Countries 2. Ex-Jugoslavia and other countries: Bosnia - more than one customs Kosovo - UN-mandate Albania still unclear situation of customs Moldovia - Transnistria Hongkong: documents only stored 1 year Taiwan: no subject of international law

Other EC-Instruments Origin and Preference Agreements (nearly worldwide verification procedures) OLAF-Missions to third countries: final instrument, problems to use it as evidence especially in penal procedures MIS-mutual information System with Russia: Regulation 44/2003 (for beaf and meet export)

Special Bilateral Agreements Information exchange between common customs offices and neighbouring offices (common pass slip = Laufzettel, automatical import-export comparison) Information exchange by a common border office for police and customs

International Customs Co- operation WCO - Recommendation 1953 WCO - Nairobi Convention SECI - cross border crime, Center in Bucharest with liaison officers SECI-Members: Romania, Bulgaria, Greece, Turkey, Moldava, Hungary, Croatia, Slovenia, Bosnia-Herzegovina, Serbia and Montenegro, FYROM, Albania

Special Questions Channel of Assistance (administrative - legal) Responsibility for legal assistance - it can be an administrative authority if so chosen (partly Austria, Finland for customs)

Special Questions Schengen Channel: allows police-- police-customs and opposite Naples II Channel: allows customs-- customs -police and opposite But look to the scope of these Conventions concerning the forms of fraud/crime covered by them

Naples II - Schengen Illegal traffic (drugs, narcitics, weapons, explosives, dangerous and toxic waste) Illegal cross-border commercial trade in taxable goods Any other trade in prohibited goods Preventing and detecting criminal offences Forgery of money, illicit traficking of narcotics, weapons, explosives, toxic and hazardous waste

Special Questions Interpol Channel - what to do with it? This channel is often requested by Justice, but see again Naples II Article 3 para 2 No legal base for customs to answer police either customs assistance or legal assistance Austrian solution: foreign police request should be sent by foreign customs

Special Questions Liaison Officers - legal bases: Naples II, Schengen and Council Decison of 27 February on common use of liaison officers of the enforcement authorities posted at third countries, OJ L 67/27 of

Basic principles of L.O. national laws and powers are not affected Officer of an enforcement authority collection and exchange of information serious cross-border crime list of L.O. (General Secretariate) network of liaison officers sharing of L.O., assistance, seminars