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Convention on mutual assistance and cooperation between customs administrations (Naples II)
To regulate particular forms of cooperation involving cross-border actions for the prevention, investigation and prosecution of certain infringements of both the national legislation of Member States and Community customs regulations.
Council Act 98/C 24/01 of 18 December 1997 drawing up, on the basis of Article K3 of the Treaty on European Union, the Convention on mutual assistance and cooperation between customs administrations [Official Journal C 24 of 23.01.1998].
The Member States of the European Union will provide each other with mutual assistance and will cooperate with one another through their customs administrations, with a view to (Art.1):
- preventing and detecting infringements of national customs provisions, and
- prosecuting and punishing infringements of Community and national customs provisions.
The Convention does not affect the provisions applicable regarding mutual assistance in criminal matters between judicial authorities, or more favourable provisions in bilateral or multilateral agreements between Member States governing customs cooperation.
The customs authorities will apply the Convention within the limits of the powers conferred upon them under national provisions (Art. 2).
Definitions (Art. 4)
- national customs provisions;
- Community customs provisions;
- mutual assistance;
- applicant authority;
- requested authority;
- customs administrations;
- personal data;
- cross-border cooperation.
Member States will appoint in their customs authorities a central unit (coordinating unit). It will be responsible for receiving all applications for mutual assistance under the Convention and for coordinating mutual assistance (Art. 5).
Member States may make agreements between themselves on the exchange of liaison officers for limited or unlimited periods, and on mutually-agreed conditions (Art. 6).
In order to provide the assistance required under this Agreement, the requested authority or the competent authority which it has addressed will proceed as though it were acting on its own account or at the request of another authority in its own Member State.
The requested authority will extend this assistance to all circumstances of the infringement which have any recognisable bearing on the subject of the request for assistance without this requiring any additional request (Art. 8).
Requests for assistance must always be made in writing and include the following information:
- the applicant authority making the request;
- the measure requested;
- the object of, and the reason for, the request;
- the laws, rules and other legal provisions involved;
- indications as exact and comprehensive as possible on the natural or legal persons being the target of the investigations;
- a summary of the relevant facts (Art. 9).
At the request of the applicant authority, the requested authority will communicate to it all information which may enable it to prevent, detect and prosecute infringements (Art. 10).
The requested authority will at the request of the applicant authority carry out, or arrange to have carried out, appropriate enquiries concerning operations which constitute, or appear to the applicant authority to constitute, infringements (Art. 12).
The competent authorities of each Member State will, as laid down in the Convention, subject to any limitations imposed by national law, provide assistance to the competent authorities of the other Member States without prior request (Art. 15).
Customs administrations will engage in cross-border cooperation in accordance with the Convention. They will provide each other with the necessary assistance in terms of staff and organisational support. Requests for cooperation will, as a rule, take the form of requests for assistance in accordance with paragraph 7 (Art. 19).
Cross-border cooperation may be permitted for the prevention, investigation and prosecution of infringements in the following cases (Art. 19):
- illicit traffic in drugs and psychotropic substances (external aspects, internal aspects), weapons, munitions, explosive materials, cultural goods, dangerous and toxic waste, nuclear material or materials or equipment intended for the manufacture of atomic, biological and/or chemical weapons (prohibited goods);
- trade in substances listed in Tables I and II of the United Nations Convention against illicit traffic in narcotic drugs and psychotropic substances and intended for the illegal manufacture of drugs (precursor substances);
- illegal cross-border commercial trade in taxable goods to evade tax or to obtain unauthorised State payments in connection with the import or export of goods, where the extent of the trade and the related risk to taxes and subsidies is such that the potential financial cost to the budget of the European Communities or the Member States is considerable (combating fraud);
- any other trade in goods prohibited by Community or national rules.
Officers of the customs administration of one of the Member States pursuing in their country an individual observed in the act of committing one of the infringements referred to in Article 19(2) which could give rise to extradition, or participating in such an infringement, will be authorised to continue pursuit in the territory of another Member State without prior authorisation where, given the particular urgency of the situation, it was not possible to notify the competent authorities of the other Member State prior to entry into that territory or where these authorities have been unable to reach the scene in time to take the pursuit.
The pursuing officers will, not later than when they cross the border, contact the competent authorities of the Member State in whose territory the pursuit is to take place. The pursuit will cease as soon as the Member State in whose territory the pursuit is taking place so requests.
The pursuit will be carried out in accordance with the procedures defined in the Convention (Art. 20).
Officers of the customs administration of one of the Member States who are keeping under observation in their country persons in respect of whom there are serious grounds for believing that they are involved in one of the infringements referred to in paragraph 11 (Article 19(2) of the Convention) will be authorised to continue their observation in the territory of another Member State where the latter has authorised cross-border observation in response to a request for assistance which has previously been submitted. Conditions may be attached to the authorisation (Art. 21).
Each Member State will undertake to ensure that, at the request of another Member State, controlled deliveries may be permitted on its territory in the framework of criminal investigations into extraditable offences (Art. 22).
By mutual agreement, the authorities of several Member States may set up a joint special investigation team based in a Member State and comprising officers with the relevant specialisations who will have the following tasks (Art. 24):
- implementation of difficult and demanding investigations;
- coordination of joint activities.
Joint special investigation teams will operate under the general conditions laid down in the Convention (Art. 24).
When information is exchanged, the customs administrations will take into account in each specific case the requirements for the protection of personal data. They will respect the relevant provisions of the Convention of the Council of Europe of 28 January 1981 for the protection of individuals with regard to automatic processing of personal data and the provisions of the Convention concerning the use of information technology for customs purposes (Art. 25).
The Court of Justice of the European Communities will have jurisdiction:
- to rule on any dispute between Member States regarding the interpretation or the application of the Convention whenever it has proved impossible for the dispute to be settled by the Council within six months of its being referred to the Council by one of its members;
- to rule on any dispute between Member States and the Commission concerning the interpretation or application of the Convention which it has proved impossible to settle through negotiation;
- to give preliminary rulings on the interpretation of the Convention (Art. 26).
The customs administrations will take account, in each specific case of exchange of information, of the requirements of investigation secrecy (Art. 27).
The Convention will apply to the territories of the Member States as referred to in Article 3(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code and Regulation (EC) No 82/97 amending Regulation (EEC) 2913/92 (Art. 31).
The Convention will be open to accession by any State that becomes a Member State of the European Union.
The Secretary-General of the Council of the European Union will act as depository of the Convention (Art. 35).
The Convention will enter into force 90 days after the notification of the completion of the constitutional procedures for its adoption by all the Member States of the European Union. Any Member State may declare that this Convention will apply to its relations with Member States that have made the same declaration (Art. 32). From its entry into force, the Naples II Convention repeals the Naples Convention of 1967.
4) IMPLEMENTING MEASURES
To date, the following Member States have ratified the Naples II Convention: Denmark, France, Germany, Ireland, Luxembourg, the Netherlands, Spain, Sweden and the United Kingdom.
France, Germany, the Netherlands, Spain, Sweden and the United Kingdom have already decided to implement the Convention in their relations with Member States that have made the same declaration.
5) FOLLOW-UP WORK
Explanatory Report on the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on mutual assistance and cooperation between customs administrations [Official Journal C 189 of 17.06.1998].
On 28 May 1998 the Council approved an Explanatory Report on the Convention drawn up with comment on every article.