2. Assistance, in customs matters, as provided for in this Protocol, applies to any administrative authority of the Parties which is competent for the application of this Protocol. It shall not prejudice the rules governing mutual assistance in criminal matters. Nor shall it cover information obtained under powers exercised at the request of the judicial authority, unless those authorities so agree.
3. Assistance on Request
1. At the request of the applicant authority, the requested authority shall furnish it with all relevant information to enable it to ensure that customs legislation is correctly applied, including information regarding operations noted or planned which contravene or would contravene such legislation.
2. At the request of the applicant authority, the requested authority shall inform it whether goods exported from the territory of one of the Parties have been properly imported into the territory of the other Party, specifying, where appropriate, the customs procedure applied to the goods.
3. At the request of the applicant authority, the requested authority shall take the necessary steps to ensure that a surveillance is kept on:
- Natural or legal persons of whom there are reasonable grounds for believing that they are contravening or have contravened customs legislation;
- Place where stocks of goods have been assembled in such a way that there are reasonable grounds for supposing that they are intended as supplies for operations contrary to the legislation of the other Party;
- Movements of goods notified as possibly giving rise to substantial contraventions of customs legislation;
- Means of transport for which there are reasonable grounds for believing that they have been, are or may be used in the contravening of customs legislation.
4. Spontaneous Assistance
The Parties shall provide each other, in accordance with their laws, rules and other legal instruments, with assistance without prior request if they consider that to be necessary for the correct application of customs legislation, particularly when they obtain information pertaining to:
- Operations which have contravened, contravene or would contravene such legislation and which may be of interest to other Parties;
- New means or methods employed in realizing such operations;
- Goods known to be subject to substantial contravention of customs legislation.
5. Delivery/notification
At the request of the applicant authority, the requested authority shall in accordance with its legislation take all necessary measures
- In order to deliver all documents,
- To notify all decisions,
Falling within the scope of this Protocol to an addressee, residing or established in its territory. In such a case Article 6, point 3 is applicable.
6. Form and Substance of Requests for Assistance
1. Requests pursuant to this Protocol shall be made in writing. Documents necessary for the execution of such requests shall accompany the request. When required because of the urgency of the situation, oral requests may be accepted, but must be confirmed in writing immediately.
2. Requests pursuant to paragraph 1 of this Article shall include the following information:
(a) the applicant authority making the request;
(b) the measure requested;
(c) the object of and the reason for the request;
(d) the laws, rules and other legal elements involved;
(e) indications as exact and comprehensive as possible on the natural or legal persons being the target of the investigations;
(f) a summary of the relevant facts and of the enquiries already carried out, except in cases provided for in Article 5.
3. Requests shall be submitted in an official language of the requested authority or in a language acceptable to such authority.
4. If a request does not meet the formal requirements, its correction or completion may be demanded; the ordering of precautionary measures may, however, take place.
7. Execution of Requests
1. In order to comply with a request for assistance, the requested authority or, when the latter cannot act on its own, the administrative department to which the request has been addressed by this authority, shall proceed, within its competence and available resources, as though it were acting on its own account or at the request of other authorities of that same Party, by supplying information already possessed, by carrying out appropriate enquiries or by arranging for them to be carried out.
2. Requests for assistance will be executed in accordance with the laws, rules and other legal instruments of the requested Party.
3. Duly authorized officials of a Party may, with the agreement of the other Party involved and within the conditions laid down by the latter, obtain from the offices of the requested authority or other authority for which the requested authority is responsible, information relating to the contravention of customs legislation which the applicant authority needs for the purposes of this Protocol.
4. Officials of a Party may, with the agreement of the other Party involved and within the conditions laid down by the latter, be present at enquiries carried out in the latter's territory.
8. Form In Which Information Is to Be Communicated
1. The requested authority shall communicate results of enquiries to the applicant authority in the form of documents, certified copies of documents, reports and the like.
2. The documents provided for in paragraph 1 may be replaced by computerized information produced in any form for the same purpose.
9. Exceptions to the Obligation to Provide Assistance
1. The Parties may refuse to give assistance as provided for in this Protocol, where to do so would:
(a) be likely to prejudice sovereignty, public policy, security or other essential interests;
Or
(b) involve currency or tax regulations other than regulations concerning customs duties;
Or
(c) violate an industrial, commercial or professional secret.
2. Where the applicant authority asks for assistance which it would itself be unable to provide if so asked, it shall draw attention to that fact in its request. It shall then be left to the requested authority to decide how to respond to such a request.
3. If assistance is withheld or denied, the decision and the reasons therefore must be notified to the applicant authority without delay.
10 . Obligation to Observe Confidentiality
1. Any information communicated in whatsoever form pursuant to this Protocol shall be of a confidential nature. It shall be covered by the obligation of official secrecy and shall enjoy the protection extended to like information under the relevant laws of the Party which received it and the corresponding provisions applying to the Community authorities.
2. Nominative data shall not be transmitted whenever there are reasonable grounds to believe that the transfer or the use made of the data transmitted would be contrary to the basic legal principles of one of the Parties, and, in particular, if the person concerned would suffer undue disadvantages. Upon request, the receiving Party shall inform the furnishing Party of the use made of the information supplied and of the results achieved.
3. Nominative data may only be transmitted to customs authorities and, in the case of need for prosecution purposes, to public prosecution and judicial authorities. Other persons or authorities may obtain such information only upon previous authorization by the furnishing authority.
4. The furnishing Party shall verify the accuracy of the information to be transferred. Whenever it appears that the information supplied was inaccurate or to be deleted, the receiving Party shall be notified without delay. The latter shall be obliged to carry out the correction or deletion.
5. Without prejudice to cases of prevailing public interest, the person concerned may obtain, upon request, information on the data stores and the purpose of this storage.
11. Use of Information
1. Information obtained shall be used solely for the purposes of this Protocol and may be used within each Party for other purposes only with the prior written consent of the administrative authority which furnished the information and shall be subject to any restrictions laid down by that authority.
2. Paragraph 1 shall not impede the use of information in any judicial or administrative proceedings subsequently instituted for failure to comply with customs legislation.
3. The Parties may, in their records of evidence, reports and testimonies and in proceedings and charges brought before the courts, use as evidence information obtained and documents consulted in accordance with the provisions of this Protocol.
12. Experts and Witnesses
An official of a requested authority may be authorized to appear, within the limitations of the authorization granted, as expert or witness in judicial or administrative proceedings regarding the matters covered by this Protocol in the jurisdiction of another Party, and produce such objects, documents or authenticated copies thereof, as may be needed for the proceedings. The request for an appearance must indicate specifically on what matters and by virtue of what title or qualification the official will be questioned.
13. Assistance Expenses
The Parties shall waive all claims on each other for the reimbursement of expenses incurred pursuant to this Protocol, except, as appropriate, for expenses to experts and witnesses and to interpreters and translators who are not dependent upon public services.
14. Implementation
1. The management of this Protocol shall be entrusted to the central customs authorities of the Republic of Kazakhstan on the one hand and the competent services of the Commission of the European Communities and, where appropriate, the customs authorities of the Member States of the European Union on the other. They shall decide on all practical measures and arrangements necessary for its application, taking into consideration rules in the field of data protection. They may recommend to the competent bodies amendments which they consider be made to this Protocol.
2. The Parties shall consult each other and subsequently keep each other informed of the detailed rules of implementation which are adopted in accordance with the provisions of this Protocol.
15. Complementarity
1. This Protocol shall complement and not impede the application of any agreements on mutual assistance which have been concluded or may be concluded between individual or several Member States of the European Union and the Republic of Kazakhstan. Nor shall it preclude more extensive mutual assistance granted under such agreements.
2. Without prejudice to Article 11, these agreements do not prejudice Community provisions governing the communication between the competent services of the Commission and the customs authorities of the Member States of any information obtained in customs matters which could be of Community interest.
Final Act
The plenipotentiaries of:
THE KINGDOM OF BELGIUM,
THE KINGDOM OF DENMARK,
THE FEDERAL REPUBLIC OF GERMANY,
THE HELLENIC REPUBLIC,
THE KINGDOM OF SPAIN,
THE FRENCH REPUBLIC,
IRELAND,
THE ITALIAN REPUBLIC,
THE GRAND DUCHY OF LUXEMBOURG,
THE KINGDOM OF THE NETHERLANDS,
THE REPUBLIC OF AUSTRIA,
THE PORTUGUESE REPUBLIC,
THE REPUBLIC OF FINLAND,
THE KINGDOM OF SWEDEN,
THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND,
Contracting Parties to the Treaty establishing the EUROPEAN COMMUNITY, the Treaty
Establishing the EUROPEAN COAL AND STEEL COMMUNITY, and the Treaty establishing the EUROPEAN ATOMIC ENERGY COMMUNITY,
Hereinafter referred to as "the Member States", and of
The EUROPEAN COMMUNITY, the EUROPEAN COAL AND STEEL COMMUNITY, and the EUROPEAN ATOMIC ENERGY COMMUNITY, hereinafter referred to as "the Community",
Of the one part, and
The plenipotentiary of the REPUBLIC OF KAZAKHSTAN, of the other part,
Meeting at Brussels on 23 January in the year one thousand nine hundred and ninety-five for the signature of the Partnership and Cooperation Agreement establishing a partnership between the European Communities and their Member States, of the one part, and the Republic of Kazakhstan, of the other part, hereinafter referred to as the "Agreement", have adopted the following texts:
The Agreement including its Annexes and the following Protocol:
Protocol on mutual assistance between administrative authorities in customs matters
The plenipotentiaries of the Member States and of the Community and the plenipotentiaries of the Republic of Kazakhstan have adopted the texts of the Joint Declarations listed below and annexed to this Final Act:
Joint Declaration concerning Article 13 of the Agreement Joint Declaration concerning Article 23 of the Agreement
Joint Declaration concerning the notion of "control" in Article 25(b) and Article 36 of the Agreement
Joint Declaration concerning Article 42 of the Agreement Joint Declaration concerning Article 93 of the Agreement
The plenipotentiaries of the Member States of the Community and the plenipotentiaries of the Republic of Kazakhstan have further taken note of the Declaration by the French Government annexed to this Final Act:
Declaration by the French Government on its overseas countries and territories.
Joint declaration concerning Article 13
The Community and the Republic of Kazakhstan declare that the text of the safeguard clause does not grant GATT safeguard treatment.
Joint declaration concerning Article 23
Without prejudice to the provisions of Articles 37 and 40, the Parties agree that the words "in conformity with their legislation and regulations" mentioned in paragraphs 1 and 2 of Article 23 mean that each Party may regulate the establishment and operation of companies on its territory, provided that these regulations do not create for the establishment and operation of companies of the other Party any new reservations resulting in a less favourable treatment than that accorded to their own companies or to companies, branches or subsidiaries of companies of any third country.
Joint declaration concerning the notion of control in Article 25 (b) and Article 36
1. The Parties confirm their mutual understanding that the question of control shall depend on the factual circumstances of the particular case.
2. A company shall, for example, be considered as being "controlled" by another company, and thus a subsidiary of such other company if:
- The other company holds directly or indirectly a majority of the voting rights, or
- The other company has the right to appoint or dismiss a majority of the administrative organ, of the management organ or of the supervisory organ and is at the same time a shareholder or member of the subsidiary.
3. Both Parties consider the criteria in paragraph 2 to be non-exhaustive.
Joint declaration concerning Article 42
The Parties agree that for the purpose of the Agreement, intellectual, industrial and commercial property includes in particular copyright, including the copyright in computer programs, and neighbouring rights, the rights relating to patents, industrial designs, geographical indications, including appellations of origin, trademarks and service marks, topographies of integrated circuits as well as protection against unfair competition as referred to in Article 10 bis of the Paris Convention for the protection of Industrial Property and protection of undisclosed information on know-how.
Joint declaration concerning Article 93
The Parties agree, for the purpose of its correct interpretation and its practical application, that the term "cases of special urgency" included in Article 93 of the Agreement means cases of material breach of the Agreement by one of the Parties. A material breach of the Agreement consists in
(a) repudiation of the Agreement not sanctioned by the general rules of international law or
(b) violation of the essential elements of the Agreement set out in Article 2.
Declaration by the French government
The French Republic notes that the Partnership and Cooperation Agreement with the Republic of Kazakhstan does not apply to the overseas countries and territories associated with the European Community pursuant to the Treaty establishing the European Community.