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RS 0.632.401.02 Agreement in the form of an exchange of letters of 9 June 1997 between the Swiss Confederation and the European Community adding to the Agreement of 22 July 1972 between the Swiss Confederation and the European Economic Community a Protoc

Original Language Title: RS 0.632.401.02 Accord sous la forme d’un échange de lettres du 9 juin 1997 entre la Confédération suisse et la Communauté européenne ajoutant à l’Accord du 22 juillet 1972 entre la Confédération suisse et la Communauté économique européenne un protocole

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0.632.401.02

Original text

Agreement in the form of an exchange of letters

Between the Swiss Confederation and the European Community
Adding to the Agreement of July 22, 1972 1 Between the Swiss Confederation
And the European Economic Community an additional protocol
On mutual administrative assistance in customs matters

Signed in Luxembourg on 9 June 1997
Approved by the Federal Assembly on March 10, 1998 2
Entered into force by exchange of notes on 1 Er July 1998

(State 20 July 1999)

Federal Office for External Economic Affairs of the Swiss Confederation

Bern, 9 June 1997

To the Council of the European Union

Brussels

Gentlemen,

I have the honour to acknowledge receipt of your letter of this day with the following contents:

" I have the honour to refer to the negotiations between representatives of the European Community and the Swiss Confederation with a view to concluding an agreement on mutual administrative assistance in customs matters, adding an additional protocol thereto On the agreement of 22 July 1972 3 .

This additional protocol, the text of which is attached to this letter, shall form an integral part of the Agreement of 22 July 1972 and shall enter into force on the first day of the second month following the date on which the completion of the procedures necessary for This effect will have been notified. Pending completion of these procedures, it will be applied provisionally from 1 Er July 1997.

I would be grateful if you would confirm the agreement of the Swiss Confederation on the above."

I can confirm the agreement of the Swiss Confederation on the above.

Please accept, gentlemen, the assurance of my highest consideration.

Additional Protocol on Mutual Administrative Assistance in Customs Matters

Art. 1 Definition

For the purposes of this Protocol:

A.
"Goods" means any goods covered by the chap. 1 to 97 of the Harmonized System, irrespective of the scope of the Agreement of 22 July 1972;
B.
"Customs legislation" means any legal or regulatory provision adopted by the European Community or the Swiss Confederation governing the import, export, transit of goods and their placement under any customs procedure, Including prohibition, restriction and control measures;
C.
"Applicant authority" means a competent administrative authority which has been designated for this purpose by a Contracting Party and which formulates a request for assistance in customs matters;
D.
"Required authority" means a competent administrative authority which has been designated for this purpose by a Contracting Party and receives a request for assistance in customs matters;
E.
"Operations contrary to customs legislation", any violation of customs legislation or any attempt to breach this legislation.
Art. 2 Scope

1. The Contracting Parties shall assist each other, in matters falling within their competence, in accordance with the terms and conditions laid down in this Protocol, to ensure that the customs legislation is properly Applied, in particular by preventing and detecting operations contrary to this legislation and conducting investigations into them.

2. Assistance in customs matters provided for in this Protocol shall apply to any administrative authority of the Contracting Parties competent for the application of this Protocol. It does not prejudge provisions governing mutual assistance in criminal matters. Similarly, it does not apply to information collected under the powers exercised at the request of the judicial authorities, unless the authorities agree.

Art. 3 Assistance on request

1. At the request of the requesting authority, the requested authority shall communicate to the requesting authority any useful information enabling it to ensure that the customs legislation is properly applied, in particular the information concerning operations Identified or projected to be contrary to or likely to be contrary to this legislation.

2. At the request of the requesting authority, the requested authority shall inform the requesting authority as to whether goods exported from the territory of one of the Contracting Parties have been regularly imported into the territory of the other Party, in Specifying, where appropriate, the customs procedure under which the goods have been placed.

3. At the request of the requesting authority, the requested authority shall take the necessary measures, within the framework of its legislation, to ensure that monitoring is carried out on:

A.
Natural or legal persons reasonably believed to commit or have committed operations contrary to customs legislation;
B.
Places where the deposits of goods are made under such conditions as to reasonably assume that they are intended to provide for operations contrary to customs legislation;
C.
Movements of goods reported to be subject to operations contrary to customs legislation;
D.
The means of transport which are reasonably believed to have been, are or may be used to carry out operations contrary to customs legislation.
Art. 4 Instant assistance

The Contracting Parties shall assist each other, on their own initiative, in accordance with their laws, rules and other legal instruments, if they consider that this is necessary for the correct application of the legislation Customs, in particular when they obtain information relating to:

-
Operations which are contrary to or appear to be contrary to that legislation and which may be of interest to the other Contracting Party,
-
The new means or methods used to carry out these operations,
-
Goods known to be subject to operations contrary to customs legislation,
-
Natural or legal persons who are reasonably expected to commit or have committed operations contrary to customs legislation,
-
The means of transport which are reasonably believed to have been, are or may be used to carry out operations contrary to customs legislation.
Art. 5 Communication/Notification

At the request of the requesting authority, the requested authority shall, in accordance with its legislation, take all necessary measures to:

-
Communicate any document,
-
Notify any decision, as well as any other relevant act which is part of the procedure in question

In the field of application of this Protocol to a consignee residing or established in its territory. In this case, art. 6 para. 3 shall apply to the request for communication or notification.

Art. 6 Form and substance of requests for assistance

1. Applications under this Protocol shall be submitted in writing. They shall be accompanied by the documents deemed necessary to enable them to be answered. When the urgency of the situation requires, verbal requests may be accepted, but must be immediately confirmed in writing.

2. Applications submitted in accordance with s. 1 includes the following information:

A.
The requesting authority submitting the application;
B.
The measure requested;
C.
The purpose and reason for the request;
D.
The relevant legislation, rules and other legal elements;
E.
As precise and complete indications as possible about the natural or legal persons who are the subject of investigations;
F.
A summary of the relevant facts and investigations, except in the cases provided for in s. 5.

3. Applications shall be made in an official language of the requested authority or in a language acceptable to that authority.

4. If an application does not meet the formal requirements, it is possible to request that it be corrected or completed; however, provisional measures may be ordered.

Art. 7 Executing requests

1. In response to a request for assistance, the requested authority shall, within the limits of its competence and resources, act as if it acted on its own behalf or at the request of other authorities of the same Contracting Party, in Providing the information that it already has and by proceeding or conducting the appropriate investigations. This provision shall also apply to the administrative service to which the request has been made by the requested authority when the requested authority cannot act alone.

(2) Requests for assistance shall be complied with in accordance with the law, rules and other legal instruments of the required Contracting Party.

(3) The duly authorized officials of a Contracting Party may, with the agreement of the other Contracting Party concerned and under the conditions laid down by that Contracting Party, collect, in the offices of the requested authority or other authority of which That it is liable, information relating to operations contrary to or liable to be contrary to the customs legislation which the requesting authority needs, in the course of an investigation, for the purposes of this Protocol.

4. Officials of a Contracting Party may, with the agreement of the other Contracting Party concerned and under the conditions laid down by that Contracting Party, be present in the investigations carried out in the territory of that Contracting Party.

Art. 8 Form under which information must be disclosed

The requested authority shall communicate the results of investigations to the requesting authority in the form of documents, certified copies of documents, reports and similar texts.

2. The provision of documents provided for in s. 1 may be replaced by that of information produced, in any form and for the same purposes, by means of computing.

Art. Derogations from the obligation to provide assistance

(1) Contracting Parties may refuse to provide assistance under this Protocol if such assistance is:

A.
Is liable to impair the sovereignty of the Swiss Confederation or of a Member State of the Community called to assist under this Protocol or
B.
Is liable to prejudice public order, their security or other essential interests, in particular in the cases referred to in Art. 10 para. 2 or
C.
Involves any tax or exchange regulation other than customs legislation or
D.
Involves a breach of an industrial, commercial or professional secret.

2. If the requesting authority requests assistance that it could not itself provide if requested, it draws attention to that fact in its application. It is then up to the requested authority to decide how it should respond to this request.

3. If assistance is refused, the decision and the reasons for it must be notified without delay to the requesting authority.

Art. 10 Confidentiality

(1) Any information communicated, in any form, in application of this Protocol shall be confidential or restricted, in accordance with the rules applicable in each Contracting Party. It is covered by the obligation of professional secrecy and benefits from the protection afforded to similar information by the laws applicable in the matter in the territory of the Contracting Party that received it, as well as Corresponding provisions applying to Community bodies.

2. Personal data, that is, all information relating to an identified or identifiable natural person, may be exchanged only if the receiving Contracting Party undertakes to protect the data in a manner At least equivalent to that applicable to the particular case in the Contracting Party that may provide them.

Art. 11 Working with information

1. The information collected shall be used solely for the purposes of this Protocol. Where a Contracting Party requests the use of such information for other purposes, it shall request the prior written consent of the authority which provided it. This use is then subject to the restrictions imposed by that authority.

2. Le par. 1 does not preclude the use of information in the course of judicial or administrative actions taken for non-compliance with customs legislation. The competent authority which has provided such information shall be notified without delay of such use.

3. Contracting Parties may report, as evidence, in their minutes, reports and testimony, as well as in court proceedings and prosecutions, information collected and documents consulted In accordance with the provisions of this Protocol.

Art. 12 Experts and witnesses

An officer of a required authority may be entitled to appear, within the limits set by the authorization granted to him, as an expert or witness in the course of judicial or administrative action in the fields covered by the Protocol, in the jurisdiction of the other Contracting Party, and to produce the objects, documents or certified copies thereof which may be necessary for the proceedings. The request for an appearance must clearly indicate in which case, and in what capacity, and in what capacity the officer will be questioned.

Art. 13 Assistance fee

The Contracting Parties shall waive any claim for reimbursement of costs resulting from the application of this Protocol, except as regards, where appropriate, the allowances paid to the experts, witnesses, Interpreters and translators who do not depend on public services.

Art. 14 Application

The application of this Protocol shall be entrusted to the customs authorities of the Swiss Confederation of a part and to the competent services of the Commission of the European Communities and, where appropriate, to the customs authorities of the Member States of the European Community on the other. They shall decide on all the measures and practical arrangements necessary for its application, taking into account the rules in force in the field of data protection.

2. The Contracting Parties shall consult each other and inform each other of the implementing rules which are adopted in accordance with the provisions of this Protocol. In particular, they shall exchange the list of competent authorities entitled to intervene under this Protocol.

Joint Statement

The parties agree that a working group should be set up by the Joint Committee in order to assist it in the management of the Protocol on Mutual Administrative Assistance.


RO 1999 1820 ; FF 1998 605



Status on 20 July 1999