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Agreement between the Government of Canada and the Government of the Federal Republic of Germany regarding Mutual Assistance and Co-operation between their Customs Administrations [1986] CATSer 7 (23 January 1986)

E100805 - CTS 1986 No. 13

AGREEMENT BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY REGARDING MUTUAL ASSISTANCE AND CO-OPERATION BETWEEN THEIR CUSTOMS ADMINISTRATIONS

Canada and the Federal Republic of Germany,

CONSIDERING that offences against customs laws are prejudicial to their economic, fiscal, commercial, social and cultural interests,

ANXIOUS to ensure the correct collection of customs duties and other export and import levies and the observance of customs laws,

CONVINCED that the enforcement of customs laws and action against the afore­said offences can be made more effective by co-operation between their Customs Administrations,

HAVING REGARD to the Recommendation of the Customs Co-operation Council on Mutual Assistance of December 5, 1953,

HAVE AGREED as follows:

ARTICLE 1

Definitions

For the purposes of this Agreement,

(a) "customs laws" means the laws relating to the importation, exportation and transportation of goods across national boundaries, and all other laws enforced or administered by the respective Customs Administrations;

(b) "Customs administration" means, in the Federal Republic of Germany the "Bundeszollverwaltung", and, in Canada, the "Department of National Revenue, Customs and Excise";

(c) "offence" means any violation or attempted violation of customs laws.

ARTICLE 2

Scope of the Agreement

1. The Contracting Parties agree to assist each other through their Customs Administrations, in accordance with the provisions of this Agreement and subject to the laws of the assisting Contracting Party,

(a) in the prevention, investigation and suppression of offences;

(b) in co-operating in the development and testing of new surveillance and control procedures, in the training of personnel, in the harmonization of customs documents and in other matters of common interest.

2. This Agreement shall not affect co-operation between the Parties under the Convention of December 15, 1950 establishing the Customs Co-operation Council.

ARTICLE 3

Surveillance of conveyances and other means of transport, goods and persons

Upon the request of the Customs Administration of either Contracting Party, the Customs Administration of the other Contracting Party shall, to the extent of its ability, exercise special surveillance within its jurisdiction of:

(a) the means of transportation suspected of being used to commit offences against the customs laws of the other Contracting Party;

(b) movements of specified goods designated by the requesting Customs Administration as the object of an extensive clandestine trade the destina­tion of which is the country of the requesting Customs Administration;

(c) localities where unusual deposits of goods have been established that are suspected of being used for the purpose of a trade that is in violation of the customs laws of the other Contracting Party;

(d) persons known to be or suspected of being engaged in violating the customs laws of the other Contracting Party.

ARTICLE 4

Exchange of Information

The Customs Administrations of the Contracting Parties shall communicate to each other without delay:

(a) upon request:

(i) any information that can be extracted from customs documents or other documents in their possession relating to goods in respect of which the requesting Party has reason to believe that offences have been committed;

(ii) copies of the documents described in sub-paragraph (i) above;

(iii) any other information pertinent to the request that can be obtained from other sources.

(b) at their own initiative any available information concerning:

(i) committed or planned actions that contravene or appear to contravene the customs laws of the other Contracting Party;

(ii) new means and methods of committing offences;

(iii) categories of goods known to be the subject of offences;

(iv) persons suspected of committing offences and any means of transportation suspected of being used to commit offences.

ARTICLE 5

Investigations

Upon the request of the Customs Administration of either Contracting Party, the Customs Administration of the other Contracting Party shall undertake to verify facts and make inspections or investigations in connection with an offence, and shall communicate its findings to the requesting Customs Administration.

ARTICLE 6

Obligation to observe confidentiality

1. Any information, communications and documents received may be used only for the purposes of this Agreement. They may be made available to persons other than those charged with using them for the purposes of this Agreement only with the express approval of the authority providing them.

2. Requests, information, expert opinions and other documents received by the Customs Administration of a Contracting Party to this Agreement shall be treated as confidential and shall be granted the protection from disclosure provided by the laws of that Contracting Party for such information.

ARTICLE 7

Exemption from the obligation to provide assistance

1. Where a Customs Administration whose assistance is requested is of the view that compliance with a request is likely to be detrimental to its national sovereignty or security, public policy or other important interests of its country, it may decline to provide its assistance in whole or in part, or may stipulate that its provision of assistance shall be dependent upon the fulfillment of certain conditions or requirements.

2. Where a request is made for assistance that the requesting Customs Adminis­tration itself would be unable to provide, the requesting Customs Administration shall draw attention to this fact in its request. Compliance with such a request shall be within the discretion of the Customs Administration whose assistance is requested.

ARTICLE 8

Form and substance of the request for assistance

1. Subject to paragraph 3, a request shall be made in writing, and shall be accompanied by all documents necessary for its execution, including any order or decision underlying the request. Either the original documents or certified copies thereof may be provided.

2. A request made pursuant to paragraph 1 shall include the following information:

(a) the identity of the authority making the request;

(b) the nature of the proceedings in respect of which the request is made;

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

(d) the names and addresses of the parties to whom the request relates;

(e) a brief description of the subject of the request and the legal issues involved.

3. Urgent requests may be made by telecommunication. Such requests shall be confirmed in writing without delay if desired by the assisting Contracting Party.

ARTICLE 9

Channel and competence

1. Correspondence shall be carried on directly between the Customs Administrations, as determined by the supreme customs authority of the Federal Republic of Germany and the Deputy Minister of National Revenue for Customs and Excise for Canada.

2. In the event that the Customs Administration whose assistance is requested is not the appropriate agency to respond to a request, it shall transmit the request to the appropriate authority and notify the requesting Customs Administration of its action.

ARTICLE 10

Execution of requests

1. The laws of the assisting Contracting Party shall be applicable in the execution of requests. The assisting Customs Administration shall carry out any official measures necessary to respond to the request. A request by a Customs Administration that a certain procedure be followed by the assisting Contracting Party in ob­taining evidence concerning an offence under investigation in the country of the requesting Contracting Party, or that its representative be present when the action to be taken is carried out, may be complied with, except where compliance would be contrary to the usual practice of the assisting Contracting Party.

2. The requesting Customs Administration shall, if it so desires, be advised of the time and the place of the execution of the action to be taken in response to a request.

3. Where a request cannot be fully complied with, the requesting Customs Administration shall be promptly notified, with a statement giving the reasons therefor and any other facts that have come to light and may be of importance for the further pursuit of the matter.

ARTICLE 11

Costs of assistance

The assisting Customs Administration shall be reimbursed for expenditures incurred in responding to a request under this Agreement, for witnesses, the fees of experts and the cost of obtaining the services of interpreters and translators who are not government employees.

ARTICLE 12

Direct communication

Decisions, rulings and other documents relating to the application of the customs laws may be sent directly by mail by the Customs Administration of either Contracting Party to persons in the country of the other Contracting Party, in such circum­stances and subject to such conditions as will be agreed upon by the supreme customs authority of the Federal Republic of Germany and the Deputy Minister of National Revenue for Customs and Excise for Canada.

ARTICLE 13

Implementation of the Agreement

The supreme customs authority of the Federal Republic of Germany shall issue any administrative regulations, and the Deputy Minister of National Revenue for Customs and Excise for Canada shall issue any administrative directives necessary for the implementation of this Agreement.

ARTICLE 14

Berlin clause

This Agreement shall also apply to Land Berlin, provided that the Government of the Federal Republic of Germany does not make a contrary declaration to the Government of Canada within three months of the date of entry into force of this Agreement.

ARTICLE 15

Entry into force and termination

1. This Agreement shall enter into force one month from the date on which the Contracting Parties shall have informed each other in an exchange of diplomatic notes that any constitutional requirements for such entry into force have been fulfilled.

2. This Agreement shall be concluded for an unlimited period. It may be termi­nated subject to a period of notice of not less than six months before the end of any calendar year, in which case the Agreement shall expire at the end of such calendar year.

DONE at Bonn, this 10th day of September 1984, in two copies, in the English, French and German languages, the three texts being equally authentic.

Donald S. McPhail

FOR THE GOVERNMENT OF CANADA

Hans Hutter

FOR THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY