Council Regulation (EC) No 515/97 of 13 March 1997 on mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs and agricultural matters

Article 1

Article 2

For the purposes of this Regulation:

— ‘customs legislation’ means customs legislation as defined in point 2 of Article 5 of Regulation (EU) No 952/2013 of the European Parliament and of the Council (¹),

— ‘agricultural legislation’ means the body of provisions adopted under the common agricultural policy and the special rules adopted with regard to goods resulting from the processing of agricultural products,

— ‘applicant authority’ means the competent authority of a Member State which makes a request for assistance,

— ‘requested authority’ means the competent authority of a Member State to which a request for assistance is made,

— ‘administrative enquiry’ means all controls, checks and other action taken by the staff of the administrative authorities specified in Article 1 (1) in the performance of their duties with a view to ensuring proper application of customs and agricultural legislation and, where necessary, checking the irregular nature of operations which appear to breach that legislation, except action taken at the request of or under a direct mandate from a judicial authority; the expression ‘administrative enquiry’ also covers the Community missions referred to in Article 20,

— ‘personal data’ means all information relating to an identified or identifiable individual; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, psychological, mental, economic, cultural or social identity,

— ‘operational analysis’ means analysis of operations which constitute, or appear to constitute, breaches of customs or agricultural legislation, involving the following stages in turn: (a) the collection of information, including personal data; (b) evaluation of the reliability of the information source and the information itself; (c) research, methodical presentation and interpretation of links between these items of information or between them and other significant data; (d) the formulation of observations, hypotheses or recommendations directly usable as risk information by the competent authorities and by the Commission to prevent and detect other operations in breach of customs and agricultural legislation and/or to identify with precision the person or businesses implicated in such operations,

— ‘strategic analysis’ means research and presentation of the general trends in breaches of customs and agricultural legislation through an evaluation of the threat, scale and impact of certain types of operation in breach of customs and agricultural legislation, with a view to subsequently setting priorities, gaining a better picture of the phenomenon or threat, reorienting action to prevent and detect fraud and reviewing departmental organisation. Only data from which identifying factors have been removed may be used for strategic analysis,

— ‘regular automatic exchange’ means the systematic communication of predefined information, without prior request, at pre-established regular intervals,

— ‘occasional automatic exchange’ means the systematic communication of predefined information, without prior request, as and when that information becomes available,

— ‘customs territory of the Union’ means the customs territory of the Union as defined in Article 4 of Regulation (EU) No 952/2013,

— ‘carriers’ means the persons within the meaning of point 40 of Article 5 of Regulation (EU) No 952/2013.

For the purposes of this Regulation ‘competent authorities’ means the authorities appointed in accordance with the preceding subparagraph.

Article 2a

Without prejudice to other provisions of this Regulation, and in pursuit of the objectives thereof, in particular where no customs declaration or simplified declaration is presented or where it is incomplete or where there is a reason to believe that the data contained therein are false, the Commission or the competent authorities of each Member State may exchange with the competent authority of any other Member State or the Commission the following data:

(a) business name;

(b) trading name;

(c) address of the business;

(d) VAT identification number of the business;

(e) excise duties identification number (²);

(f) information as to whether the VAT identification number and/or the excise duties identification number is in use;

(g) names of the managers, directors and, if available, principal shareholders of the business;

(h) number and date of issue of the invoice; and

(i) amount invoiced.

This Article shall apply only to movements of goods as described in the first indent of Article 2(1).

Article 3

Where national authorities decide, in response to a request for administrative assistance or a communication based on this Regulation, to take action involving measures which may be implemented only with the authorization or at the demand of a judicial authority:

— any information thus obtained concerning the application of customs and agricultural legislation, or at least

— that part of the file required to put a stop to a fraudulent practice,

shall be communicated as part of the administrative cooperation provided for by this Regulation.

However, any such communication must have the prior authorization of the judicial authority if the necessity of such authorization derives from national law.

TITLE I

ASSISTANCE ON REQUEST

Article 4

At the request of the applicant authority, the requested authority shall transmit to it any information which may enable it to ensure compliance with the provisions of customs or agricultural legislation, and in particular those concerning:

— the application of customs duties and charges having equivalent effect together with agricultural levies and other charges provided for under the common agricultural policy or the special arrangements applicable to certain goods resulting from the processing of agricultural products,

— operations forming part of the system of financing by the European Agricultural Guidance and Guarantee Fund.

Article 5

At the request of the applicant authority, the requested authority shall supply it with any attestation, document or certified true copy of a document in its possession or obtained in the manner referred to in Article 4 (2) which relates to operations covered by customs or agricultural legislation.

Article 6

Article 7

At the request of the applicant authority, the requested authority shall as far as possible keep a special watch or arrange for a special watch to be kept within its operational area:

(a) on persons, and more particularly their movements, where there are reasonable grounds for believing that they are breaching customs or agricultural legislation;

(b) on places where goods are stored in a way that gives grounds to suspect that they are intended to supply operations contrary to customs or agricultural legislation;

(c) on the movements of goods indicated as being the object of potential breaches of customs or agricultural legislation;

(d) on means of transport, where there are reasonable grounds for believing that they are being used to carry out operations in breach of customs or agricultural legislation.

Article 8

At the request of the applicant authority, the requested authority shall make available any information in its possession or obtained in the manner referred to in Article 4 (2), and particularly reports and other documents or certified true copies or extracts thereof, concerning operations detected or planned which constitute, or appear to the applicant authority to constitute, breaches of customs or agricultural legislation or, where applicable, concerning the findings of the special watch carried out pursuant to Article 7.

However, original documents and items shall be provided only where this is not contrary to the legislation in force in the Member State in which the requested authority is based.

Article 9

The requested authority or the administrative authority to which it has recourse shall conduct administrative enquiries as though acting on its own account or at the request of another authority in its own country.

The requested authority shall communicate the results of such administrative enquiries to the applicant authority.

Administrative enquiries shall at all times be carried out by staff of the requested authority. The applicant authority's staff may not, of their own initiative, assume powers of inspection conferred on officials of the requested authority. They shall, however, have access to the same premises and the same documents as the latter, through their intermediary and for the sole purpose of the administrative enquiry being carried out.

In so far as national provisions on criminal proceedings reserve certain acts to officials specifically designated by national law, the applicant authority's staff shall not take part in such acts. In any event, they shall not participate in particular in searches of premises or the formal questioning of persons under criminal law. They shall, however, have access to the information thus obtained subject to the conditions laid down in Article 3.

Article 10

By agreement between the applicant authority and the requested authority and in accordance with the arrangements laid down by the latter, officials duly authorized by the applicant authority may obtain, from the offices where the administrative authorities of the Member State in which the requested authority is based exercise their functions, information concerning the application of the law on customs and agricultural matters which is needed by the applicant authority and which is derived from documentation to which the staff of those offices have access. These officials shall be authorized to take copies of the said documentation.

Article 11

Staff of the applicant authority present in another Member State in accordance with Articles 9 and 10 must at all times be able to produce written authority stating their identity and their official functions.

Article 12

Without prejudice to Article 51, information, including documents, certified true copies of documents, attestations, all instruments or decisions which emanate from administrative authorities, reports and any intelligence, obtained by the staff of the requested authority and communicated to the applicant authority in the course of the assistance provided for in Articles 4 to 11 may constitute admissible evidence in the same way as if they had been obtained in the Member State where the proceedings take place:

(a) in administrative proceedings of the Member State of the applicant authority, including subsequent appeal procedures;

(b) in judicial proceedings of the Member State of the applicant authority, unless otherwise explicitly stated by the requested authority at the time of communication of the information.

TITLE II

SPONTANEOUS ASSISTANCE

Article 13

The competent authorities of each Member State shall, as laid down in Articles 14 and 15, provide assistance to the competent authorities of the other Member States without prior request.

Article 14

Where they consider it useful for ensuring compliance with customs or agricultural legislation, each Member State's competent authorities shall:

(a) as far as is possible keep, or have kept, the special watch described in Article 7;

(b) communicate to the competent authorities of the other Member States concerned all information in their possession, and in particular reports and other documents or certified true copies or extracts thereof, concerning operations which constitute, or appear to them to constitute, breaches of customs or agricultural legislation.

Article 15

Article 16

Without prejudice to Article 51, information, including documents, certified true copies of documents, attestations, all instruments or decisions which emanate from administrative authorities, reports and any intelligence, obtained by the staff of the communicating authority and communicated to the receiving authority in the course of the assistance provided for in Articles 13 to 15 may constitute admissible evidence in the same way as if they had been obtained in the Member State where the proceedings take place:

(a) in administrative proceedings of the Member State of the receiving authority, including subsequent appeal procedures;

(b) in judicial proceedings of the Member State of the receiving authority, unless otherwise explicitly stated by the communicating authority at the time of communication of the information.

TITLE III

RELATIONS WITH THE COMMISSION

Article 17

The competent authorities of each Member State shall communicate to the Commission as soon as it is available to them:

(a) any information they consider relevant concerning: — goods which have been or are suspected of having been the object of breaches of customs or agricultural legislation, — methods or practices used or suspected of having been used to breach customs or agricultural legislation, — requests for assistance, action taken and information exchanged in application of Articles 4 to 16 which are capable of revealing fraudulent tendencies in the field of customs and agriculture;

(b) any information on shortcomings or gaps in customs and agricultural legislation that become apparent or may be deduced from the application of that legislation.

Article 18

Where a Member State's competent authorities become aware of operations which constitute, or appear to constitute, breaches of customs or agricultural legislation that are of particular relevance at Community level, and especially:

— when they have, or might have, ramifications in other Member States or in third countries, or

— where it appears likely to the above authorities that similar operations have also been carried out in other Member States,

they shall communicate to the Commission as soon as possible, either on their own initiative or in response to a reasoned request from the Commission, any relevant information, be it in the form of documents or copies or extracts thereof, needed to determine the facts so that the Commission may coordinate the steps taken by the Member States.

The Commission shall convey this information to the competent authorities of the other Member States.

Within six months of the receipt of the information conveyed by the Commission, the competent authorities of the Member States shall forward to the Commission a summary of the anti-fraud measures taken by them on the basis of that information. The Commission shall, on the basis of those summaries, regularly prepare and convey to the Member States reports on the results of measures taken by the Member States.

The Member State or States concerned shall, as soon as possible, communicate to the Commission the findings of the enquiry.

Article 18a

In managing the transport directory, the Commission shall be empowered:

(a) to access or extract and store the contents of the data, by any means or in any form, and to use data in compliance with legislation applicable to intellectual property rights. The Commission shall put in place adequate safeguards, including technical and organisational measures and transparency requirements relating to data subjects. Data subjects shall have the right to access and correct data;

(b) to compare and contrast data that are accessible in or extracted from the transport directory, to index them and to enrich them from other data sources and to analyse them in compliance with Regulation (EC) No 45/2001 of the European Parliament and of the Council (³);

(c) to make the data in the transport directory available to the authorities referred to in Article 29 of this Regulation, using electronic data-processing techniques.

The data referred to in this Article concern in particular movements of containers and/or means of transport and goods and persons concerned with those movements. Those shall include, where available, the following data:

(a) for movements of containers: — container number, — container loading status, — date of movement, — type of movement (loaded, unloaded, transhipped, entered, left, etc.), — name of vessel or registration of means of transport, — number of voyage/journey, — place, — freight bill or other transport document;

(b) for movements of means of transport: — name of vessel or registration of means of transport, — freight bill or other transport document, — number of containers, — weight of load, — description and/or coding of goods, — reservation number, — seal number, — place of first loading, — place of final unloading, — places of transhipment, — expected date of arrival at place of final unloading;

(c) for persons involved in the movements to which points (a) and (b) apply: the name, maiden name, forenames, former surnames, aliases, date and place of birth, nationality, sex and address;

(d) for businesses involved in the movements to which points (a) and (b) apply: the business name, trading name, address of the business, registration number, VAT identification number and excise duties identification number and address of the owners, shippers, consignees, freight forwarders, carriers and other intermediaries or persons involved in the international supply chain.

For the movement of containers referred to in paragraph 3 of this Article, the Commission shall establish and manage a directory of reported Container Status Messages (‘CSM directory’). The CSM directory shall be directly accessible to the authorities referred to in Article 29. The carriers referred to in paragraph 1 of this Article that store data on the movement and status of containers or have such data stored on their behalf shall report Container Status Messages (CSMs) to the customs authorities of Member States in either of the following situations:

(a) containers destined to be brought by maritime vessel into the customs territory of the Union from a third country, excluding: — containers destined to remain on board the same maritime vessel during its voyage and to leave the customs territory of the Union on board that maritime vessel; and — containers destined to be unloaded and reloaded onto the same maritime vessel during its voyage in order to enable the unloading or loading of other goods and to leave the customs territory of the Union on board that maritime vessel;

(b) for shipments of goods in containers leaving the customs territory of the Union to a third country by maritime vessel and falling within the scope of: — Article 2 of Council Directive 92/84/EEC (⁴); — Article 2 of Council Directive 2011/64/EU (⁵); or — Article 2(1) of Council Directive 2003/96/EC (⁶).

Data shall be transmitted by the carriers directly to the CSM directory.

CSMs shall be reported:

(a) from the moment when the container was reported empty before being brought into or before leaving the customs territory of the Union until the container is again reported empty;

(b) for at least three months prior to the physical arrival to the customs territory of the Union until one month after the entry into the customs territory of the Union, in cases where specific CSMs needed to identify the relevant empty container events are not available in the carriers' electronic records; or