Mutual Legal Assistance (European Union) Act 2005 (Gibraltar)

Mutual Legal Assistance (European Union) Act 2005

Published: 2004-01-28

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Mutual Legal Assistance (European Union)

2004-03

MUTUAL LEGAL ASSISTANCE (EUROPEAN UNION)

ACT 2005

Principal Act

Act. No. 2004-03 Commencement 28.1.2004

Assent 28.1.2004

Amending

enactments

Relevant current

provisions

Commencement

date

Act. 2005-31 s.2 23.5.2005

2005-70 Long title, ss. 1, 2, 3(1) & (2), 12(5),

14, 19(1), 22, 23, 24-40 & Sch.2

29.12.2005

2007-02 s.2 19.4.2007

2007-17 s.2 14.6.2007

LN. 2012/032 1 ss. 24-49 & Sch. 2 19.3.2012

2014/232 ss. 2, 3(1A), (2)(c), 5(2), 7(3)(b), 8,

11(2)

1.12.2014

EU Legislation/International Agreements involved:

Directive 76/308/EEC

Directive 2001/44/EC

Directive 2002/94/EC

Directive 2010/24/EU

English sources:

None cited

1 Notice of corrigenda LN. 2012/052

Mutual Legal Assistance (European Union)

2004-03

ARRANGEMENT OF SECTIONS

Section

PART I

PRELIMINARY

1. Title.

PART II

MUTUAL LEGAL ASSISTANCE IN RESPECT OF

COURT OR OTHER PROCEEDINGS

2. Interpretation.

3. Scope.

4. Judicial Authority.

5. Service of Schengen process in Gibraltar.

6. Service of Schengen process: supplementary.

7. General requirements for service of Gibraltar process in a Schengen

State.

8. Service of process otherwise than by post.

9. Requests for assistance in obtaining evidence in a Schengen State.

10. Sending requests for assistance.

11. Use of evidence obtained.

12. Requests for assistance from overseas authorities.

13. Powers to arrange for evidence to be obtained.

14. Court to receive evidence.

15. Statutory search powers.

16. Seized evidence.

17. Powers under warrants.

18. Temporary transfer of prisoners.

19. Transit through Gibraltar.

20. Immunity of witnesses.

21. Transfer of judicial records.

22. Rules of court.

23. Mutual legal assistance arrangements with the United Kingdom.

PART III

MUTUAL LEGAL ASSISTANCE IN MATTERS NOT

FALLING WITHIN THE SCOPE OF PART II

24. Interpretation.

25. Application of Part.

26. Administration of this Part.

Exchange of Information

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27. Request for information.

28. Exchange of information without prior request.

29. Presence in administrative offices and participation in administrative

enquiries.

Assistance for the Notification of Documents

30. Request for notification of certain documents relating to claims.

31. Means of notification.

Recovery or Precautionary Measures

32. Request for recovery.

33. Conditions governing a request for recovery.

34. Instrument permitting enforcement and other accompanying

documents.

35. Execution of the request for recovery.

36. Disputes.

37. Amendment or withdrawal of the request for recovery assistance.

38. Request for precautionary measures.

39. Rules governing the request for precautionary measures.

40. Limits to the obligations on the competent authority.

41. Limitation periods.

42. Costs.

General Rules Governing all types of Assistance Requests

43. Standard forms and means of communication.

44. Use of languages.

45. Disclosure of information and documents.

46. Application of other agreements on assistance.

47. Reporting.

48. Rules of Court.

49. Regulations.

SCHEDULE 1

PROCEEDINGS UNDER SECTION 14

SCHEDULE 2

Repealed.

Mutual Legal Assistance (European Union)

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Mutual Legal Assistance (European Union)

2004-03

AN ACT TO IMPLEMENT ARTICLE 48 TO 53 OF THE CONVENTION

OF 19 JUNE 1990 APPLYING THE SCHENGEN AGREEMENT OF 14

JUNE 1985 RELATING TO MUTUAL LEGAL ASSISTANCE; TO

MAKE FURTHER PROVISION FOR MUTUAL LEGAL ASSISTANCE

BETWEEN GIBRALTAR AND OTHER JURISDICTIONS; TO ENABLE

FURTHER PROVISION TO BE MADE BY REGULATION, MAKING

ARRANGEMENTS FOR MUTUAL LEGAL ASSISTANCE IN FAVOUR

OF THE UNITED KINGDOM AND OTHER MEMBER STATES; AND

OTHER PROVISIONS IN THAT RESPECT.

PART I

PRELIMINARY

Title.

1. This Act may be cited as the Mutual Legal Assistance (European Union)

Act 2005.

PART II

MUTUAL LEGAL ASSISTANCE IN RESPECT OF

COURT OR OTHER PROCEEDINGS

Interpretation.

2. In this Part and unless the context otherwise requires –

“Central Authority” means the Minister or person from time to time

appointed by the Minister by notice in the Gazette to carry out the

function of central authority under this Act;

“civil proceedings” does not include proceedings relating to fiscal

matters;

“court” includes a tribunal;

“criminal proceedings” means proceedings relating to an offence and

include criminal proceedings outside Gibraltar in which a civil

order may be made;

“evidence” includes information in any form, and articles, and giving

evidence includes answering a question or producing any

information or article;

“Minister” means the Minister responsible for justice;

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“notice” means a notice in writing;

“offence” does not include a fiscal offence, other than an offence relating

to excise duty, value added tax or customs duties;

“process” means any summons or order issued or made by a court and

includes–

(a) any other document issued or made by a court for service on

parties or witnesses;

(b) any document issued by a prosecuting authority outside

Gibraltar for the purposes of criminal proceedings;

“the Schengen Convention” means the Convention implementing the

Schengen Agreement of 14th June 1985 between the Government

of the States of the Benelux Economic Union, the Federal Republic

of Germany and the French Republic on the gradual abolition of

checks at their common borders, as the same may be amended from

time to time, and to the extent that individual provisions apply to

Gibraltar;

“State” and “Schengen State” means a State party to the Schengen

Convention not being the United Kingdom;

“territory” means the territory of a Schengen State to which articles 48 to

53 of the Schengen Convention apply.

Scope.

3.(1) Unless otherwise stated, this Part shall apply in relation to–

(a) criminal proceedings and investigations, in respect of any

criminal proceedings excluding proceedings under military

law;

(b) criminal proceedings brought by the administrative authorities

in a Schengen State or territory, including Gibraltar, in respect

of offences which are punishable either in Gibraltar or that

State;

prosecution or conviction;

(d) clemency proceedings;

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(e) communication of legal statements relating to the execution of

a sentence or measure, the imposition of a fine or the payment

of costs or proceedings;

(f) measures relating to the suspension or delivery of a sentence or

measure, conditional release or the postponement or suspension

of execution of a sentence or measure;

(g) civil proceedings joined to criminal proceedings, as long as the

criminal court has not yet given a final ruling in the criminal

proceedings.

(1A) This Part shall also apply to a request for assistance that–

(a) relates to excise duties, value added tax or customs duties; and

(b) the mutual assistance requested concerns acts punishable only

by a fine by virtue of being infringements of the rules of law in

proceedings brought by the administrative authorities.

(2) Assistance under this Part may be refused–

(a) if the request for assistance concerns a political offence or an

offence connected with a political offence;

(b) if execution of the request is likely to prejudice the sovereignty,

security, public order or other essential interests of Gibraltar;

customs duties and the alleged amount of duty underpaid or

evaded does not exceed 25,000 Euros or where the presumed

value of the goods exported or imported without authorisation

does not exceed 100,000 Euros, unless, given the

circumstances or identity of the accused the case is deemed to

be extremely serious by the requesting State.

(3) Requests for assistance under section 18, 19 or 21 shall be effected

through the Ministry of Justice of the requesting State or territory.

Judicial Authority.

4. The Central Authority is a judicial authority for purposes connected with

article 53 of the Schengen Convention.

Service of Schengen process in Gibraltar.

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5.(1) An authority in a Schengen State may directly serve persons in

Gibraltar by post with the following documents–

(a) documents initiating or relating to court proceedings, including,

but not limited to, summons, notices of hearings and

adjournments;

(b) witness summons;

(d) judicial documents relating to the enforcement of any judicial

order or judgment.

(2) Where the process is to be served inside Gibraltar and is written in a

language that the recipient may not understand, it shall–

(a) be accompanied by a translation of the process, or at least the

material parts, into English shall be translated into English; or

(b) if that authority knows that the addressee understands only

some other language the process, or at least the material parts,

must be translated into that other language.

(3) The power conferred by subsection (4) is exercisable where the Central

Authority receives any process or other document to which this section

applies from an authority in a Schengen State, together with a request for the

process or document to be served on a person in Gibraltar.

(4) The Central Authority may cause the process or document to be served

by post or, if the request is for personal service, direct the Commissioner of

Police to cause it to be personally served on the person to whom the process

or document is addressed.

(5) In respect of proceedings under section 3(1)(b), where an offence is

punishable both under the law of Gibraltar and the law of the other

Schengen State, the procedure for service of documents set out in subsection

(4) shall be used.

Service of Schengen process: supplementary.

6.(1) No obligation to comply with the process is imposed by virtue of its

service.

(2) The process shall be accompanied by a notice–

(a) stating the effect of subsection (1);

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(b) indicating that the person on whom it is served may wish to

seek advice as to the possible consequences of his failing to

comply with the process under the law of the State where it was

issued or made; and

rights and privileges as a party or as a witness as would be

accorded to him in proceedings in Gibraltar.

(3) Where the Commissioner of Police causes any process or document to

be served under section 5, he shall–

(a) inform the Central Authority when and how it was served; and

(b) (if possible) provide him with a receipt signed by the person on

whom it was served.

(4) Where the Commissioner of Police is unable to cause any process or

document to be served as directed, he shall at once inform the Central

Authority of that fact and of the reason.

General requirements for service of Gibraltar process in a Schengen

State.

7.(1) This section applies to any process issued or made by a court in

Gibraltar for the purposes set out in section 3.

(2) The process may be issued or made in spite of the fact that the person

on whom it is to be served is outside Gibraltar.

(3) Where the process is to be served outside Gibraltar and the person at

whose request it is issued or made believes that the person on whom it is to

be served does not understand English, he shall–

(a) inform the court of that fact; and

(b) provide the court with a copy of the process, or of so much of it

as is material, translated into–

(i) the official language of the State; or

(ii) if it is known that the addressee understands only some

other language, into that other language.

(4) Process served outside Gibraltar requiring a person to appear as a party

or attend as a witness–

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(a) shall not include notice of a penalty; and

(b) shall be accompanied by a notice giving any information

required to be given by rules of court.

(5) If process requiring a person to appear as a party or attend as a witness

is served outside Gibraltar, no obligation to comply with the process under

the law of Gibraltar is imposed by virtue of the service.

(6) Accordingly, failure to comply with the process does not constitute

contempt of court and is not a ground for issuing a warrant to secure the

attendance of the person in question.

(7) But the process may subsequently be served on the person in question

in Gibraltar (with the usual consequences for non-compliance).

(8) The allowances, including subsistence, to be paid and the travelling

expenses to be refunded to a witness or expert by the requesting State shall

be calculated as from his place of residence and shall be at rates at least

equal to those provided for in the scales and rules in force in proceedings

before the Supreme Court.

Service of process otherwise than by post.

8. Process to which section 7 applies shall be sent by post but may, instead

of being served by post, be served on a person outside Gibraltar in

accordance with arrangements made by the Central Authority where the

addressee's address is unknown or where the person requesting the service

of process, or a court, requires it to be served in person.

Requests for assistance in obtaining evidence in a Schengen State.

9.(1) If it appears to any judge or justice of the peace in Gibraltar–

(a) that an offence has been committed or that there are reasonable

grounds for suspecting that an offence has been committed; and

(b) that proceedings in respect of the offence have been instituted

or that the offence is being investigated; or

the judge or justice of the peace may request assistance under this section.

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(2) The assistance that may be requested under this section is assistance in

obtaining outside Gibraltar any evidence specified in the request for use in

the proceedings or investigation.

(3) The Central Authority may request assistance under this section if–

(a) it appears to it that an offence has been committed or that there

are reasonable grounds for suspecting that an offence has been

committed; and

(b) proceedings in respect of the offence in question have been

instituted or it is being investigated; or

Sending requests for assistance.

10.(1) A request for assistance under section 9 may be sent–

(a) to a court exercising jurisdiction in the place where the

evidence is situated; or

(b) to any authority recognised by the government of the State or

territory in question as the appropriate authority for receiving

requests of that kind.

(2) In cases of urgency, a request for assistance may be sent to the

International Criminal Police Organisation, for forwarding to any court or

authority mentioned in subsection (1).

Use of evidence obtained.

11.(1) This section applies to evidence obtained pursuant to a request for

assistance under section 9.

(2) The evidence may not, without the consent of the appropriate overseas

authority, be forwarded or used for any purpose other than that specified in

the request.

(3) When the evidence is no longer required for that purpose (or for any

other purpose for which such consent has been obtained), it shall be returned

to the appropriate overseas authority, unless that authority indicates that it

need not be returned.

(4) In this section, the appropriate overseas authority means the authority

recognised by the government of the State in question as the appropriate

authority for receiving requests of the kind in question.

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Requests for assistance from overseas authorities.

12.(1) Where a request for assistance in obtaining evidence in Gibraltar is

received by the Central Authority it may–

(a) if the conditions in section 13 are met, arrange for the evidence

to be obtained under section 14; or

(b) direct that a search warrant be applied for under or by virtue of

section 15.

(2) The request for assistance may be made only by–

(a) a court exercising criminal jurisdiction, or a prosecuting

authority, in a State or territory outside Gibraltar;

(b) any other authority in such a State or territory which appears to

the Central Authority to have the function of making such

requests for assistance.

(3) Requests for assistance should be made in English or accompanied by

a certified translation into English and any supporting documentation, if not

in English, shall be accompanied by a certified translation into English.

(4) Requests for assistance shall indicate as follows–

(a) the authority making the request;

(b) the object of and the reason for the request;

concerned;

(d) where necessary, the name and address of the person to be

served; and

(e) the offence or alleged offence and a summary of the facts.

(5) Requests under this Part may be sent and returned through the national

central offices of the International Criminal Police Organisation.

Powers to arrange for evidence to be obtained.

13. The Central Authority may arrange for evidence to be obtained under

section 14 if the request for assistance in obtaining the evidence is made in

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connection with proceedings or investigations covered by section 3 being

carried on in a State or territory outside Gibraltar.

Court to receive evidence.

14.(1) A court in Gibraltar shall receive any evidence to which the request

relates which appears to it to be appropriate for the purpose of giving effect

to the request.

(2) The Schedule is to have effect in relation to proceedings under this

section.

Statutory search powers.

15.(1) Sections 25, 26 and 27 of the Criminal Procedure Act shall have

effect as if references to an offence in section 25(1) included any conduct

which–

(a) constitutes an offence under the law of a State or territory

outside Gibraltar; and

(b) would, if it occurred in Gibraltar, constitute an offence

punishable by imprisonment for a period of at least six months.

(2) An application for a warrant or order by virtue of subsection (1) may

be made only in pursuance of a direction given under section 12(1)(b).

Seized evidence.

16. Any evidence seized by a police officer under or by virtue of section 15

is to be sent to the court or authority which made the request for assistance.

Powers under warrants.

17. A court may not issue a warrant under section 15 in respect of any

evidence if the court has reasonable grounds for believing that it consists of,

or includes, items subject to legal privilege.

Temporary transfer of prisoners.

18.(1) The Central Authority shall petition the court for an order that a

person in custody whose personal appearance as a witness or for purposes of

confrontation is applied for by the requesting State be temporarily

transferred to the territory where the hearing is intended to take place,

provided that -

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(a) he shall be sent back within the period stipulated by the

requested State;

(b) the person in custody consents;

in Gibraltar;

(d) the transfer is not liable to prolong his detention; and

(e) there are no other overriding grounds for not transferring him

to the territory of the requesting State.

(2) In a case within section 13 or subsection (1) of this section, the Central

Authority may arrange for the assistance to be given only if it is satisfied–

(a) that an offence under the law of the State or territory in

question has been committed or that there are reasonable

grounds for suspecting that such an offence has been

committed, and that proceedings in respect of the offence have

been instituted in that State or territory or that an investigation

into the offence is being carried on there; or

(b) that section 3 otherwise applies.

(3) For the purposes of this section and section 13, an offence includes an

act punishable in proceedings brought by the administrative authorities in a

Schengen State in respect of offences which are punishable either in

Gibraltar or that State where the decision may give rise to proceedings

before a criminal court.

(4) The Central Authority is to regard as conclusive a certificate as to the

matters mentioned in subsection (2)(a) and (b) issued by any authority in the

State or territory in question which appears to him to be the appropriate

authority to do so.

(5) Evidence or documents transmitted pursuant to this Act shall not

require any form of authentication.

(6) Where the Central Authority or the court refuses any request for

assistance, reasons shall be provided.

Transit through Gibraltar.

19.(1) Transit through Gibraltar of a person being conveyed from an

requested State to a requesting State, pursuant to a request for assistance

falling within the scope of this Part shall be permitted where the Central

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Authority receives a request in that behalf from the requesting State and

where the requesting State provides the Central Authority with the following

information–

(a) the nationality of the person and such other information as will

enable the person to be identified by the Central Authority;

(b) information showing that a request for assistance has been

issued by the requesting State in respect of the person;

of the offence to which the request relates; and

(d) the circumstances in which the offence specified was

committed or is alleged to have been committed, including the

date and place of its commission.

(2) The transit of a person through Gibraltar shall be supervised by a

police officer if the Central Authority considers it appropriate, and where a

person’s transit is so supervised the person shall be deemed to be in the

custody of a police officer who accompanies him.

(3)

(a) This subsection applies to an aircraft that has taken off from a

place (other than Gibraltar Airport) and that is scheduled to

land in a place (other than Gibraltar Airport) and on board

which there is a person who is being conveyed to a requesting

State.

(b) Where an aircraft to which this subsection applies lands (for

whatever reason) in Gibraltar, the requesting State shall, upon

its landing or as soon as may be after it lands, provide the

Central Authority with the information referred to in subsection

(1).

Gibraltar, a person referred to in paragraph (a) who is on board

that aircraft shall be deemed to be in transit through Gibraltar

and subsection (2) shall apply accordingly.

Immunity of witnesses.

20.(1) A witness or expert, whatever his nationality, may make his

appearance before the judicial authorities of the requesting State conditional

on a prior assurance being given to him that he will not be prosecuted,

detained or subjected to any other restriction of his personal liberty in the

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territory of that State in respect of acts or convictions prior to his departure

from Gibraltar.

(2) An accused person, whatever his nationality, may make his appearance

before the judicial authorities of the requesting State conditional on a prior

assurance being given to him that he will not be prosecuted, detained or

subjected to any other restriction of his personal liberty in the territory of

that State in respect of acts or convictions prior to his departure from

Gibraltar and not specified in the summons.

(3) This section shall not apply when the witness or expert or accused

person having had for a period of fifteen consecutive days from the date

when his presence is no longer required by the judicial authorities an

opportunity of leaving, has nevertheless remained in the territory, or having

left it, has returned.

Transfer of judicial records.

21.(1) The Registrar of the Supreme Court shall communicate extracts from

and information relating to judicial records, requested by the judicial

authorities of a Schengen State and needed in a criminal matter, to the same

extent that these may be made available to a court in Gibraltar in a like case.

(2) In any case other than that provided for in subsection (1), the request

shall be complied with subject to such conditions as the Chief Justice may

deem appropriate.

(3) The Registrar of the Supreme Court shall inform any other Schengen

States of all criminal convictions and subsequent measures in respect of

nationals of those States, entered in the judicial records at least once a year.

Where the person concerned is considered a national of two or more other

Schengen States, the information shall be given to each of these States,

unless the person is a British national.

Rules of court.

22. The Chief Justice may make provision by rules of court as to the

practice and procedure to be followed in connection with proceedings under

this Part.

Mutual legal assistance arrangements with the United Kingdom.

23. The Minister may, by regulations, make provision extending to the

United Kingdom in whole or in part the provisions of this Part either with or

without modifications.

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PART III

MUTUAL LEGAL ASSISTANCE IN MATTERS NOT

FALLING WITHIN THE SCOPE OF PART II

Interpretation.

24. In this Part and unless the context otherwise requires

“applicant authority” means a central liaison office, a liaison office or a

liaison department of a Member State which makes a request for

assistance to the competent authority concerning a claim referred to

in section 25 and which is authorised to make such a request

pursuant to the Directive;

“by electronic means” means using electronic equipment for the

processing, including digital compression, and storage of data, and

employing wires, radio transmission, optical technologies or other

electromagnetic means;

“competent authority” means such person as the Minister may, from time

to time, designate by notice in the Gazette being such person as is

authorised to make or receive a request for assistance in respect of

a claim to which section 25 applies;

“CCN network” means the common platform based on the common

communication network (CCN) developed by the European Union

for all transmissions by electronic means between competent

authorities in the area of customs and taxation;

“Directive” means Council Directive 2010/24/EU of 16 March 2010

concerning mutual assistance for the recovery of claims relating to

taxes, duties and other measures, as amended from time to time;

“Minister” means the Minster with responsibility for public finance;

“person” means

(a) a natural person;

(b) a legal person;

persons recognised as having the capacity to perform legal acts

but lacking the legal status of a legal person; or

(d) any other legal arrangement of whatever nature and form,

which has legal personality or not, owning or managing assets

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which, including income derived therefrom, are subject to any

of the taxes covered by this Part;

“requested authority” means a central liaison office, a liaison office or a

liaison department of a Member State to which a request for

assistance is made by the competent authority in respect of a claim

referred to in section 25 and which is authorised to receive such a

request pursuant to the Directive.

Application of Part.

25.(1) This Part applies to claims relating to the following

(a) taxes and duties of any kind levied by or on behalf of the

Government, a Member State or its territorial or administrative

subdivisions, including local authorities, or on behalf of the

European Union;

(b) refunds, interventions and other measures forming part of the

system of total or partial financing of the European

Agricultural Guarantee Fund (EAGF) and the European

Agricultural Fund for Rural Development (EAFRD), including

sums to be collected in connection with these actions;

organisation of the market for the sugar sector;

(d) administrative penalties, fines, fees and surcharges relating to

the claims for which mutual assistance may be requested in

accordance with paragraphs (a) to (c), imposed by the

administrative authorities that are competent to levy the taxes

or duties concerned or carry out administrative enquiries with

regard to them, or confirmed by administrative or judicial

bodies at the request of those administrative authorities;

(e) fees for certificates and similar documents issued in connection

with administrative procedures related to taxes and duties;

(f) interest and costs relating to the claims for which mutual

assistance may be requested in accordance with this subsection.

(2) This Part does not apply to

(a) compulsory social security contributions payable to the

Government, a Member State, a subdivision of a Member State

or to social security institutions established under public law;

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(b) fees not referred to in subsection (1);

utilities;

(d) criminal penalties imposed on the basis of a public prosecution

or other criminal penalties not covered by subsection (1)(d).

Administration of this Part.

26.(1) Upon the coming into operation of these Regulations, the Minister

shall appoint a competent authority for Gibraltar for the purposes of this Part

and of the Directive.

(2) The Minister shall ensure that the European Commission is informed

of the appointment and of any changes made thereto.

(3) The competent authority shall perform all the functions set out in

Article 4 of the Directive within Gibraltar.

Exchange of Information

Request for information.

27.(1) At the request of an applicant authority the competent authority

shall–

(a) provide any information which is foreseeably relevant to the

applicant authority in the recovery of its claims as referred to in

section 25; and

(b) arrange for the carrying-out of any administrative enquiries

necessary to obtain such information.

(2) The competent authority shall not be obliged to supply information

(a) which it would not be able to obtain for the purpose of

recovering similar claims arising in Gibraltar;

(b) which would disclose any commercial, industrial or

professional secrets; or

security of, or be contrary to the public policy of, Gibraltar.

(3) Subsection (2) shall not be construed as permitting the competent

authority to decline to supply information solely because this information is

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held by a bank, other financial institution, nominee or person acting in an

agency or a fiduciary capacity or because it relates to ownership interests in

a person.

(4) Where the competent authority refuses a request for information it

shall inform the applicant authority of the reasons for doing so.

Exchange of information without prior request.

28. Where a refund of taxes or duties, other than value-added tax, relates to

a person established or resident in a Member State and not Gibraltar, the

competent authority may inform the Member State of establishment or

residence of such person of the upcoming refund.

Presence in administrative offices and participation in administrative

enquiries.

29.(1) By agreement between an applicant authority and the competent

authority, and in accordance with arrangements laid down by the competent

authority, officials authorised by an applicant authority may, with a view to

promoting mutual assistance under this Part

(a) be present in the offices where the competent authority carries

out its duties;

(b) be present during administrative enquiries carried out in

Gibraltar;

(2) In so far as it is permitted under Gibraltar law, the agreement

referred to in subsection (1), in so far as it concerns the matters set out in

subsection (1)(b), may provide that officials authorised by an applicant

authority may interview individuals and examine records.

(3) Officials authorised by an applicant authority who make use of the

rights accorded under this section shall at all times be able to produce

written authority stating their identity and their official capacity.

Assistance for the Notification of Documents

Request for notification of certain documents relating to claims.

30.(1) This section applies only where an applicant authority is unable to

notify, in accordance with the rules in its Member State governing the

notification of such documents, or when such notification would give rise to

disproportionate difficulties.

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(2) The following provisions apply

(a) at the request of an applicant authority, the competent authority

shall notify to the addressee all documents, including those of a

judicial nature, which emanate from the applicant authority’s

Member State and which relate to a claim, as referred to in

section 25, or to its recovery; and

(b) a request for notification shall be accompanied by a standard

form containing at least the following information

(i) name, address and other data relevant to the

identification of the addressee;

(ii) the purpose of the notification and the period within

which notification should be effected;

(iii) a description of the attached document and the nature

and amount of the claim concerned;

(iv) name, address and other contact details regarding the

office responsible with regard to the attached document,

and, if different, the office where further information can

be obtained concerning the notified document or

concerning the possibilities to contest the payment

obligation.

(3) The competent authority shall forthwith inform the applicant

authority of any action taken on its request for notification including the date

of notification of the document to the addressee.

(4) The competent authority shall, when seeking the assistance of a

requested authority, invoke the provisions of Article 8 of the Directive only

where it is unable to notify the addressee in accordance with other statutory

provisions in force in Gibraltar governing the notification of such

documents or when such notification would give rise to disproportionate

difficulties.

Means of notification.

31.(1) The competent authority shall ensure that all notifications in

Gibraltar are effected in accordance with the laws, regulations and

administrative practices in force in Gibraltar.

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(2) Subsection (1) is without prejudice to any other form of notification

made by the applicant authority in accordance with the rules in force in its

Member State.

(3) The applicant authority may notify any document directly by

registered mail or electronically to an addressee in Gibraltar.

Recovery or Precautionary Measures

Request for recovery.

32.(1) At the request of an applicant authority, the competent authority

shall recover claims which are the subject of an instrument permitting

enforcement in the applicant authority’s Member State.

(2) The competent authority, when seeking the assistance of a requested

authority to recover a claim, shall immediately forward to the requested

authority any relevant information of which it is made aware relating to the

matter which gave rise to the request for recovery.

Conditions governing a request for recovery.

33.(1) Save in cases where section 36(4)(d) applies, the competent

authority–

(a) shall not make a request for recovery to a requested authority

if, and as long as, the claim or the instrument permitting its

enforcement is contested in Gibraltar; and

(b) shall not accept a request for recovery from an applicant

authority if, and as long as, the claim or the instrument

permitting its enforcement in the applicant authority’s Member

State is contested in that Member State.

(2) Except in the situations set out in subsection (3), before the

competent authority makes a request for recovery, appropriate recovery

procedures available in Gibraltar shall be applied.

(3) The situations set out in this subsection are

(a) where it is obvious that there are no assets for recovery in

Gibraltar or that such procedures will not result in the payment

in full of the claim, and the competent authority has specific

information indicating that the person concerned has assets in

the requested Member State;

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(b) where recourse to such procedures in Gibraltar would give rise

to disproportionate difficulty.

(4) When it receives a request for recovery from an applicant authority,

the competent authority shall ask the applicant authority to confirm that it

has complied with Article 11 (2) of the Directive.

Instrument permitting enforcement and other accompanying

documents.

34.(1) Any request for recovery in Gibraltar shall be accompanied by a

uniform instrument permitting enforcement which–

(a) shall reflect the substantial contents of the initial instrument

permitting enforcement;

(b) shall constitute the sole basis for the recovery and

precautionary measures taken in Gibraltar; and

replacement in Gibraltar.

(2) The uniform instrument permitting enforcement shall contain at least

the following information

(a) information relevant to the identification of the initial

instrument permitting enforcement, a description of the claim,

including its nature, the period covered by the claim, any dates

of relevance to the enforcement process, and the amount of the

claim and its different components such as principal, interest

accrued, etc.;

(b) the name and other data relevant to the identification of the

debtor;

responsible for the assessment of the claim, and, if different,

the office where further information can be obtained

concerning the claim or the possibilities for contesting the

payment obligation.

(3) A request for recovery of a claim may be accompanied by other

documents relating to the claim issued in the applicant authority’s Member

State.

Execution of the request for recovery.

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35.(1) Any claim in respect of which a request for recovery in Gibraltar has

been made shall be treated as if it was a claim by the Crown and the

competent authority shall make use of all powers and procedures under

Gibraltar law applying to such claims or, in the absence of such claims in

Gibraltar, claims in relation to a similar tax or duty or to claims concerning

the tax levied on personal income.

Provided that–

(a) the obligation to grant other Member States’ claims the

preferences accorded to similar claims arising in Gibraltar shall

apply only where agreement is reached between Gibraltar and

that Member State to that effect or is otherwise provided for

under the laws of Gibraltar ;

(b) where agreement exists with one Member State as stated in

paragraph (a), the same agreement shall be reached in respect

of similar claims by other Member States on the same

conditions;

(2) The competent authority shall promptly inform the applicant

authority of any action it has taken on the request for recovery.

(3) From the date on which the recovery request is received, the

competent authority shall charge interest for late payment in accordance

with the provisions of the Supreme Court Act.

(4) The competent authority may allow the debtor time to pay or

authorise payment by instalments and it may charge interest in that respect.

It shall subsequently inform the applicant authority of any such decision.

(5) Without prejudice to the provisions of this Part, the competent

authority shall remit to the applicant authority the amounts recovered with

respect to the claim and the interest referred to in subsections (3) and (4).

Disputes.

36.(1) Any dispute concerning

(a) a claim or the validity of any instrument permitting

enforcement, including the uniform instrument;

(b) the validity of a notification made by the jurisdiction in which

the authority requesting the recovery is situate,

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shall fall within the competence of the competent bodies of the jurisdiction

in which the authority requesting the recovery is situate.

(2) Where, in the course of a recovery procedure in Gibraltar, the claim,

the initial instrument permitting enforcement in the applicant authority’s

Member State or the uniform instrument permitting enforcement in

Gibraltar is contested by an interested party, the competent authority shall

inform that party that he must bring such an action before the competent

body of the applicant authority’s Member State in accordance with the laws

in force there.

(3) Any dispute concerning the enforcement measures taken in Gibraltar

or concerning the validity of a notification made by the competent authority

shall be brought before the Supreme Court.

(4) Where the competent authority has requested the recovery a claim to

a requested authority and an action as referred to in subsections (1) and (2)

has been brought in Gibraltar, the competent authority shall inform the

requested authority thereof and shall indicate the extent to which the claim

is not contested.

(5) Subject to subsection (7), where the competent authority has been

informed by the applicant authority or by the interested party−

(a) that an action as referred to in subsections (1) and (2) has been

brought in its Member State; and

(b) of the extent of the contested part of the claim,

the competent authority shall, upon receipt of that information, suspend the

enforcement procedure in Gibraltar relating to the contested part of the

claim, pending the decision of the body competent in the matter.

(6) At the request of an applicant authority, or where it otherwise deems

it to be necessary, the competent authority may apply for an injunction or

other precautionary measure to guarantee recovery in accordance with the

laws of Gibraltar.

(7) The applicant authority may send a reasoned request to the

competent authority asking it to recover a contested claim or the contested

part of a claim, in so far as the relevant laws, regulations and administrative

practices in force in Gibraltar allow such action.

(8) The competent authority may send a reasoned request to a requested

authority of the nature described in subsection (7) and where the result of

contestation is subsequently favourable to the debtor, the competent

authority shall be liable for reimbursing any sums recovered, together with

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any compensation due, in accordance with the laws in force in the requested

authority’s Member State.

(9) Where a mutual agreement procedure has been initiated by any of the

competent authorities representing the jurisdictions involved in a claim and

the outcome of the procedure may affect the claim in respect of which

assistance has been requested, then, unless it concerns a case of immediate

urgency because of fraud or insolvency, the recovery measures shall be

suspended or stopped until that procedure has been terminated.

(10) Where the recovery measures are suspended or stopped, subsection

(6) applies.

Amendment or withdrawal of the request for recovery assistance.

37.(1) The competent authority shall forthwith inform the requested

authority of any subsequent amendment to its request for recovery or of the

withdrawal of its request, indicating the reasons for amendment or

withdrawal.

(2) Where an amendment of a request is caused by a decision of the

competent body referred to in section 36(1), the competent authority shall

communicate this decision together with a revised uniform instrument

permitting enforcement in the requested Member State.

(3) Where Article 15(2) of the Directive applies, and a request for

recovery has been made to the competent authority, the competent authority

shall proceed with further recovery measures on the basis of the revised

instrument.

(4) Where recovery or precautionary measures have already been taken

in Gibraltar on the basis of the original uniform instrument permitting

enforcement, those measures may be continued on the basis of the revised

instrument, unless the amendment of the request is due to invalidity of the

initial instrument permitting enforcement in the applicant authority’s

Member State or of the original uniform instrument permitting enforcement

in Gibraltar.

(5) Sections 34 and 36 apply in relation to a revised instrument under

this section.

Request for precautionary measures.

38.(1) Subject to subsection (2), the competent authority shall, at the

request of an applicant authority, apply for an injunction or such other

precautionary measures as are necessary to ensure recovery in circumstances

where–

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(a) a claim or the instrument permitting enforcement in the

applicant authority’s Member State is contested at the time

when the request is made; or

(b) a claim is not yet the subject of an instrument permitting

enforcement in the applicant authority’s Member State,

(2) The competent authority shall act in accordance with subsection (1)

only in so far as the injunction or other precautionary measure is also

possible, in a similar situation, under the national law and administrative

practices of the applicant authority’s Member State.

(3) The document drawn up for permitting an injunction or other

precautionary measures in the applicant authority’s Member State and

relating to the claim for which mutual assistance is requested, if any, shall

be attached to the request for precautionary measures in Gibraltar.

(4) The document referred to in subsection (3) shall not be subject to

any act of recognition, supplementing or replacement in Gibraltar.

(5) A request for an injunction or other precautionary measures may be

accompanied by other documents relating to the claim issued in the

applicant authority’s Member State.

Rules governing the request for precautionary measures.

39. Sections 32(2), 35(1) and (2), 36, and 37 apply mutatis mutandis for the

purpose of giving effect to section 38.

Limits to the obligations on the competent authority.

40.(1) The competent authority is not obliged to grant the assistance

referred to in sections 32 to 38 where recovery of the claim would, because

of the situation of the debtor, create serious economic or social difficulties

in Gibraltar.

(2) The following provisions apply–

(a) the competent authority is not obliged to grant the assistance

referred to in sections 27 and 29 to 38 where the initial request

for assistance pursuant to sections 27, 29, 30, 32 or 38 is made

in respect of claims which are more than 5 years old, starting

from the due date of the claim in the applicant authority’s

Member State to the date of the initial request for assistance;

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(b) where a claim or initial instrument permitting enforcement in

the applicant authority’s Member State is contested, the 5-year

period referred to in paragraph (a) is deemed to begin from the

moment when it is established in the applicant authority’s

Member State that the claim or the instrument permitting

enforcement may no longer be contested;

granted by the competent bodies of the applicant authority’s

Member State, the 5-year period referred to in paragraph (a) is

deemed to begin from the moment when the entire payment

period has come to its end,

but the competent authority is not obliged, in any event, to grant assistance

in respect of claims which are more than 10 years old, counting from the due

date of the claim in the applicant authority’s Member State.

(3) Assistance need not be granted where the total amount of the claims

covered by this Part, for which assistance is requested, is less than

EUR1500.

(4) The competent authority shall inform the applicant authority of the

grounds for refusing a request for assistance.

Limitation periods.

41.(1) Questions concerning periods of limitation are governed solely by

the laws in force in the jurisdiction in which the authority requesting the

recovery is situate.

(2) The following provisions apply in relation to the suspension,

interruption or prolongation of the period of limitation–

(a) any steps taken in the recovery of claims by the competent

authority in pursuance of a request for assistance which have

the effect of suspending, interrupting or prolonging the period

of limitation according to the laws of Gibraltar shall be deemed

to have the same effect in the applicant authority’s Member

State, provided the corresponding effect is provided for under

the laws in force in the applicant authority’s Member State; and

(b) where suspension, interruption or prolongation of the period of

limitation is not possible under the laws in force in the

requested jurisdiction, any steps taken in the recovery of claims

pursuant to a request for assistance which, if they had been

carried out in the applicant jurisdiction, would have had the

effect of suspending, interrupting or prolonging the period of

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limitation according to the laws in force in the applicant

jurisdiction, shall be deemed to have been taken in the latter

jurisdiction, in so far as that effect is concerned.

(3) Subsection (2) does not affect the right of the competent authority in

the applicant jurisdiction to take measures to suspend, interrupt or prolong

the period of limitation.

(4) The authorities in the applicant and requested jurisdictions shall

inform each other of any action which interrupts, suspends or prolongs the

limitation period of the claim for which the recovery or precautionary

measures were requested, or which may have this effect.

(5) For the avoidance of doubt, in this section the references to applicant

jurisdiction and requested jurisdiction are references respectively to the

jurisdiction in which the authority requesting recovery and the authority to

which a request for recovery is situate.

Costs.

42.(1) In addition to the amounts referred to in section 35(5), the competent

authority shall seek to recover from the person concerned, and retain, the

costs linked to the recovery that it has incurred.

(2) No costs shall be claimed from the applicant authority’s Member

State for the reimbursement of expenses arising from assistance granted

pursuant to this Part, save that where, in any particular case, recovery creates

a specific problem, concerns a very large amount in costs or relates to

organised crime, the competent authority and the applicant authority may

agree reimbursement arrangements specific to that case.

(3) Notwithstanding subsection (2), the applicant authority remains

liable to the competent authority for any costs and any losses incurred as a

result of actions held to be unfounded, as far as either the substance of the

claim or the validity of the instrument permitting enforcement or

precautionary measures issued by the applicant authority are concerned.

General Rules Governing all types of Assistance Requests

Standard forms and means of communication.

43.(1) Unless impracticable for technical reasons, requests for information

pursuant to section 27(1), for notification pursuant to section 30(1), for

recovery pursuant to section 32(1) or for an injunction or other

precautionary measures pursuant to section 38(1) shall be sent by electronic

means, using a standard form.

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(2) The forms referred to in subsection (1) shall also be used, as far as

possible, for any further communication with the regard to the requests

referred to in that subsection.

(3) Unless impracticable for technical reasons, the uniform instrument

permitting enforcement in the requested jurisdiction, the document

permitting an injunction or other precautionary measure in the applicant

jurisdiction and the other documents referred to in sections 34 and 38 shall

also be sent by electronic means.

(4) Where appropriate, the standard forms may be accompanied by

reports, statements and any other documents, or certified true copies or

extracts thereof, which shall also be sent by electronic means, unless this is

impracticable for technical reasons.

(5) The standard forms and communication by electronic means may

also be used for the exchange of information pursuant to section 28 and

Article 6 of the Directive.

(6) Subsections (1) to (5) do not apply to information and

documentation obtained through the presence in administrative offices in a

place other than Gibraltar or through the participation in administrative

enquiries in a place other than Gibraltar, in accordance with section 29.

(7) Where communication is not made by electronic means or with use

of standard forms, this shall not affect the validity of the information

obtained or of the measures taken in the execution of a request for

assistance.

Use of languages.

44.(1) All requests for assistance, standard forms for notification and

uniform instruments permitting enforcement shall be sent in, or shall be

accompanied by a translation into, English, but the fact that certain parts

thereof are written in a language other than English, shall not affect their

validity or the validity of the procedure, in so far as that other language is

one agreed between the competent authority and the authority in the

Member State concerned.

(2) The documents in respect of which notification is requested pursuant

to section 30 may be sent to the competent authority in an official language

of the applicant authority’s Member State.

(3) Where a request is accompanied by documents other than those

referred to in subsections (1) and (2), the competent authority may, where

necessary, require from the applicant authority a translation of such

documents into English, or into any other language agreed between them.

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Disclosure of information and documents.

45.(1) Information communicated in any form pursuant to this Part is

covered by the obligation of official secrecy and section 3 of the Income Tax

Act 2010.

(2) Such information may be used for the purpose of applying

enforcement or other precautionary measures with regard to claims covered

by this Part and for the assessment and enforcement of compulsory social

security contributions.

(3) Persons duly accredited by the Security Accreditation Authority of

the European Commission may have access to this information only in so

far as it is necessary for care, maintenance and development of the CCN

network.

(4) The authority providing the information shall permit the use of such

information in the jurisdiction receiving the information for purposes other

than those referred to in subsection (2) where, under the law of the

jurisdiction providing the information, the information may be used for

similar purposes.

(5) Subject to subsection (6), where the competent authority considers

that information obtained pursuant to this Part is likely to be useful for the

purposes referred to in subsection (2) to a Member State other than the one

which provided the information, the information may be transmitted to that

other Member State, provided–

(a) the transmission is in accordance with the rules and procedures

laid down in this Part; and

(b) the Member State of origin of the information is notified of the

intention to share that information with another Member State.

(6) The competent authority shall not transmit information pursuant to

subsection (5) if the Member State of origin of the information opposes the

transmission within ten working days of receiving the notification referred

to in subsection (5)(b).

(7) Permission to use information pursuant to subsection (4) which has

been transmitted pursuant to subsections (5) and (6) may be granted only by

the jurisdiction from which the information originates.

(8) Information communicated in any form pursuant to this Part or the

Directive may be invoked or used as evidence by all authorities in Gibraltar

on the same basis as similar information obtained within Gibraltar.

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Application of other agreements on assistance.

46.(1) This Part is without prejudice to the fulfilment of any obligation to

provide wider assistance ensuing from bilateral or multilateral agreements or

arrangements, including for the notification of legal or extra-legal acts.

(2) The Minister shall ensure that, where bilateral or multilateral

agreements or arrangements on matters covered by this Part, other than to

deal with individual cases, become applicable to Gibraltar after the coming

into operation of these Regulations, the European Commission is informed

thereof without delay.

Reporting.

47.(1) The Minister shall ensure that the European Commission is informed

annually, by 31 March, of the following

(a) the number of requests for information, notification and

recovery or for precautionary measures which the competent

authority sends to each Member State and which the competent

authority receives from each Member State each year;

(b) the amount of the claims for which recovery assistance is

requested and the amounts recovered.

(2) The Minister may also ensure that there is provided any other

information that may be useful for evaluating the provision of mutual

assistance under this Part.

Rules of Court.

48. The Chief Justice may make rules of court in relation to any matter

arising under this Part.

Regulations.

49.(1) The Minister may make regulations making provision for anything

that may be provided for under this Part and generally to give effect to the

provisions of this Part.

(2) Regulations made under subsection (1) may give effect to any

agreement or arrangement that may be entered into by the Government with

any country or in relation to any matter falling within the scope of this Part.

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(3) Regulations made under subsection (1) may provide for the levying

of such fees and the creation of such offences as the minister may deem

appropriate.

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SCHEDULE 1

PROCEEDINGS UNDER SECTION 14

Section 14

Power to administer oaths.

1. The court may take evidence on oath.

Proceedings.

2. Rules of court under section 22 may, in particular, make provision in

respect of the persons entitled to appear or take part in the proceedings and

for excluding the public from the proceedings.

Privilege of witnesses.

3.(1) A person cannot be compelled to give any evidence which he could

not be compelled to give–

(a) in criminal proceedings in Gibraltar; or

(b) subject to sub-paragraph (2), in criminal proceedings in the

State from which the request for the evidence has come.

(2) Sub-paragraph (1)(b) does not apply unless the claim of the person

questioned to be exempt from giving the evidence is conceded by the court

or authority which made the request.

(3) Where the person’s claim is not conceded, he may be required to give

the evidence to which the claim relates (subject to the other provisions of

this paragraph); but the evidence may not be forwarded to the court or

authority which requested it if a court in the State in question, on the matter

being referred to it, upholds the claim.

(4) A person cannot be compelled to give any evidence if his doing so

would be prejudicial to the security of Gibraltar. A certificate signed by or

on behalf of the Governor to the effect that it would be so prejudicial for

that person to do so is conclusive evidence of that fact.

(5) A person cannot be compelled to give any evidence in his capacity as

an officer or servant of the Crown.

(6) Sub-paragraphs (4) and (5) are without prejudice to the generality of

sub-paragraph (1).

Forwarding evidence.

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4.(1) The evidence received by the court is to be given to the Central

Authority for forwarding to the court or authority that made the request.

(2) So far as may be necessary in order to comply with the request–

(a) where the evidence consists of a document, the original or a

copy is to be provided;

(b) where it consists of any other article, the article itself, or a

description, photograph or other representation of it, is to be

provided.

(3) The court may delay the forwarding of any property, records or

documents requested, if it requires the said property, records or documents

in connection with pending criminal proceedings in Gibraltar.

(4) Any property, as well as original records or documents, shall be

handed over in execution of a request on condition that it shall be returned

as soon as reasonably possible unless the court waives the return thereof.

5. On the express request of the requesting State the Central Authority shall

petition the court to state the date and place of execution of the request.

Officials and interested persons may be present at such execution if the

court deems it appropriate.

Supplementary.

6. The Bankers’ Books Evidence Act 1879 applies to the proceedings as it

applies to other proceedings before the court.

7. No order for costs may be made.

_____________________

SCHEDULE 2

Repealed.