Download mutual assistance

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 48-52 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
• Bilateral Agreements
between EU-Members
and third Countries
• (legal) Assistance
• EC-Protocols on
based on the
mutual Assistance as
respective
part of Agreements
Convention of the
on Association, Trade
Council of Europe or
Policy and others
within the WCOframework
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, BosniaHercegowina, 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 Cooperation
• 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 12.3.2003
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