Customs and Excise (Mutual Assistance) Act 2001

1 Interpretation.

1.—(1) In this Act—

“the Agreement” means the Agreement on provisional application between certain Member States of the European Union of the Convention drawn up on the basis of Article K.3 of the Treaty on European Union on the use of information technology for customs purposes done at Brussels on the 26th day of July, 1995;

“the CIS Convention” means the Convention, drawn up on the basis of Article K.3 of the Treaty on European Union, on the use of information technology for customs purposes, done at Brussels on the 26th day of July, 1995, as amended by the 1999 Protocol;

“Customs Information System” has the same meaning as it has in the CIS Convention;

“the Customs Co-operation Convention” means the Convention, drawn up on the basis of Article K.3 of the Treaty on European Union, on mutual assistance and co-operation between customs administrations, done at Brussels on the 18th day of December, 1997;

“the Minister” means the Minister for Finance;

“the 1996 Protocol” means the Protocol, drawn up on the basis of Article K.3 of the Treaty on European Union, on the interpretation, by way of preliminary rulings, by the Court of Justice of the European Communities of the CIS Convention, done at Brussels on the 29th day of November, 1996;

“the 1999 Protocol” means the Protocol, drawn up on the basis of Article K.3 of the Treaty on European Union, on the scope of the laundering of proceeds in the Convention on the use of information technology for customs purposes and the inclusion of the registration number of the means of transport in the Convention, done at Brussels on the 12th day of March, 1999.

(2) In this Act—

(a) a reference to a section or a Schedule is a reference to a section of or Schedule to this Act unless it is indicated that reference to some other enactment is intended;

(b) a reference to a subsection or paragraph is a reference to a subsection or paragraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended; and

(c) a reference to any enactment shall be construed as a reference to that enactment as amended, adapted or extended by or under any enactment including this Act.

2 Conventions, Agreement and Protocols to have force of law.

2.—(1) Subject to the provisions of this Act, the Agreement, the CIS Convention, the 1996 Protocol, the 1999 Protocol and the Customs Co-operation Convention shall have the force of law in the State and judicial notice shall be taken of them.

(2) For convenience of reference there are set out in the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Schedules, respectively, to this Act—

(a) the text in the English language of the CIS Convention,

(b) the text in the English language of the Agreement,

(c) the text in the English language of the 1996 Protocol,

(d) the text in the English language of the Customs Co-operation Convention,

(e) the text in the English language of the 1999 Protocol,

(f) the text in the Irish language of the CIS Convention,

(g) the text in the Irish language of the Agreement,

(h) the text in the Irish language of the 1996 Protocol,

(i) the text in the Irish language of the Customs Co-operation Convention,

(j) the text in the Irish language of the 1999 Protocol.

3 Designation of national authority.

3.—The Revenue Commissioners are hereby designated as the national authority for the purposes of Articles 7(1) and 8(2) of the CIS Convention.

4 Designation of competent customs administration.

4.—The Revenue Commissioners are hereby designated as the competent customs administration for the purposes of Article 10 of the CIS Convention.

5 Application of Data Protection Act, 1988.

5.—(1) For the purposes of this Act, the CIS Convention and the Customs Co-operation Convention, the Data Protection Act, 1988, shall apply and have effect, with any necessary modifications, to the collection, processing, keeping, use or disclosure of personal data included in or received from the Customs Information System.

(2) Without prejudice to the generality of subsection (1), for the purposes of Article 21 of the CIS Convention, section 7 of the Data Protection Act, 1988, shall apply as regards the liability of the State for injury caused to a person through the use of the Customs Information System in the State.

(3) Without prejudice to the generality of subsection (1), for the purposes of Article 25 of the Customs Co-operation Convention, section 7 of the Data Protection Act, 1988, shall apply as regards the liability of the State for injury caused to a person through the processing of data communicated in the State.

6 Designation of national supervisory authority.

6.—The Data Protection Commissioner is hereby designated as the national supervisory authority for the purposes of the CIS Convention and the Customs Co-operation Convention.

7 Special forms of co-operation.

7.—(1) Subject to subsection (2), the State shall not be bound by Articles 20, 21 and 23 of the Customs Co-operation Convention or any part of those Articles.

(2) The Government may, by order, provide that the State shall be bound by Articles 20, 21 or 23 or any part of those Articles.

8 Regulations.

8.—(1) The Minister may make regulations for the purpose of enabling this Act and the Customs Co-operation Convention to have full effect.

(2) Without prejudice to the generality of subsection (1), regulations under this section may—

(a) specify that processing of personal data by the authority in the State receiving the data shall be authorised only for the purpose of preventing and detecting infringements of national customs provisions and prosecuting and punishing infringements of Community and national customs provisions,

(b) provide that personal data may be forwarded by the authority in the State receiving the data without the consent of the authority supplying them to its customs administrations, its investigative authorities and its judicial bodies to enable them to prosecute and punish infringements of national and Community customs provisions; in all other cases consent to forward such data being necessary,

(c) provide for an individual's right to have personal data which have been communicated and found to be inaccurate, corrected or erased,

(d) provide for the recording by the communicating and recipient authorities of any personal data forwarded or received pursuant to the application of the Customs Co-operation Convention,

(e) specify that the person in respect of whom personal data have been communicated may establish what data have been communicated and the use to which they have been put as well as setting out the circumstances under which this right may be restricted,

(f) provide that personal data communicated shall be kept only for the period necessary for the purposes for which they were communicated.

(3) In this section references to personal data shall be construed as references to non-automated personal data.

(4) Regulations under this Act may contain such incidental, supplementary and consequential provisions as appear to be necessary or expedient for the purposes of the regulations.

(5) Where the Minister proposes to make regulations under this section he or she shall, before doing so, consult with such other (if any) Minister of the Government as the Minister considers appropriate having regard to the function of that other Minister of the Government in relation to the proposed regulations.

9 Offences.

9.—Without prejudice to the generality of section 5(1), any person who uses personal data from the Customs Information System other than for the purpose of the aim specified in Article 2(2) of the CIS Convention shall, save where such use is in accordance with and is subject to the conditions specified in Article 8(1) of that Convention, be guilty of an offence under the Data Protection Act, 1988.

10 Interpretation of Conventions.

10.—(1) For the purposes of Article 2 of the 1996 Protocol, paragraph (2)(a) of that Article shall apply in the State.

(2) (a)Where a declaration is made pursuant to Article 2 of the 1996 Protocol specifying that paragraph (2)(b) of that Article shall apply in the State, the Minister may by order declare that the declaration (the text of which shall be set out in the order) has been made.

(b)On the commencement of an order under paragraph (a), subsection (1) shall cease to have effect.

(3) For the purposes of Article 26 of the Customs Co-operation Convention, paragraph (5)(a) of that Article shall apply in the State.

(4) (a)Where a declaration is made pursuant to Article 26(4) of the Customs Co-operation Convention specifying that paragraph (5)(b) of that Article shall apply in the State, the Minister may by order declare that the declaration (the text of which shall be set out in the order) has been made.

(b)On the commencement of an order under paragraph (a), subsection (3) shall cease to have effect.

(5) Judicial notice shall be taken of any ruling or decision of, or expression of opinion by, the Court of Justice of the European Communities on any question as to the meaning or effect of any provision of the CIS Convention or the Customs Co-operation Convention.

11 Laying of orders and regulations before Houses of the Oireachtas.

11.—A draft of every order or regulation proposed to be made under this Act shall be laid before each House of the Oireachtas and the order or, as the case may be, regulation shall not be made unless a resolution approving of the draft has been passed by each such House.

12 Short title and commencement.

12.—(1) This Act may be cited as the Customs and Excise (Mutual Assistance) Act, 2001.

(2) This Act shall come into operation on such day or days as the Minister may fix by order either generally or with reference to any particular purpose or provision and different days may be so fixed for different purposes and different provisions.

FIRST SCHEDULE

THE TEXT IN THE ENGLISH LANGUAGE OF THE CIS CONVENTION

CONVENTION DRAWN UP ON THE BASIS OF ARTICLE K.3 OF THE TREATY ON EUROPEAN UNION, ON THE USE OF INFORMATION TECHNOLOGY FOR CUSTOMS PURPOSES

THE HIGH CONTRACTING PARTIES to this Convention, Member States of the European Union,

REFERRING to the Act of the Council of the European Union of 26 July 1995,

RECALLING the commitments contained in the Convention on Mutual Assistance between Customs Administrations, signed in Rome on 7 September 1967,

CONSIDERING that customs administrations are responsible, together with other competent authorities, at the external frontiers of the Community and within the territorial limit thereof, for the prevention, investigation and suppression of offences against not only Community rules, but also against national laws, in particular those laws covered by Articles 36 and 223 of the Treaty establishing the European Community,

CONSIDERING that a serious threat to public health, morality and security is constituted by the developing trend towards illicit trafficking of all kinds,

CONVINCED that it is necessary to reinforce co-operation between customs administrations, by laying down procedures under which customs administrations may act jointly and exchange personal and other data concerned with illicit trafficking activities, using new technology for the management and transmission of such information, subject to the provisions of the Council of Europe Convention on the Protection of Individuals with Regard to Automatic Processing of Personal Data, done at Strasbourg on 28 January 1981,

BEARING IN MIND that the customs administrations in their day-to-day work have to implement both Community and non-Community provisions, and that there is consequently an obvious need to ensure that the provisions of mutual assistance and administrative co-operation in both sectors evolve as far as possible in parallel,

HAVE AGREED ON THE FOLLOWING PROVISIONS:

SECOND SCHEDULE

THE TEXT IN THE ENGLISH LANGUAGE OF THE AGREEMENT

AGREEMENT ON PROVISIONAL APPLICATION BETWEEN CERTAIN MEMBER STATES OF THE EUROPEAN UNION OF THE CONVENTION DRAWN UP ON THE BASIS OF ARTICLE K.3 OF THE TREATY ON EUROPEAN UNION ON THE USE OF INFORMATION TECHNOLOGY FOR CUSTOMS PURPOSES

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,

Member States of the European Union and signatories of the Convention drawn up on the basis of Article K.3 of the Treaty on European Union on the use of information technology for customs purposes, of 26 July 1995, hereinafter referred to as the ‘Convention’,

HAVING REGARD to the importance of early application of the Convention;

WHEREAS, pursuant to Article K.7 of the Treaty on European Union, the provisions of Title VI of that Treaty do not prevent the establishment or development of closer cooperation between two or more Member States insofar as such cooperation does not conflict with, or impede, that provided for in Title VI of the said Treaty;

WHEREAS provisional application between certain Member States of the European Union of the Convention would not conflict with, or impede, the cooperation provided for in Title VI of the Treaty on European Union,

HAVE AGREED AS FOLLOWS:

THIRD SCHEDULE

THE TEXT IN THE ENGLISH LANGUAGE OF THE 1996 PROTOCOL

PROTOCOL DRAWN UP ON THE BASIS OF ARTICLE K.3 OF THE TREATY ON EUROPEAN UNION, ON THE INTERPRETATION, BY WAY OF PRELIMINARY RULINGS, BY THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES OF THE CONVENTION ON THE USE OF INFORMATION TECHNOLOGY FOR CUSTOMS PURPOSES

THE HIGH CONTRACTING PARTIES,

HAVE AGREED on the following provisions, which shall be annexed to the Convention:

FOURTH SCHEDULE

THE TEXT IN THE ENGLISH LANGUAGE OF THE CUSTOMS COOPERATION CONVENTION

CONVENTION DRAWN UP ON THE BASIS OF ARTICLE K.3 OF THE TREATY ON EUROPEAN UNION, ON MUTUAL ASSISTANCE AND COOPERATION BETWEEN CUSTOMS ADMINISTRATIONS

THE HIGH CONTRACTING PARTIES to this Convention, Member States of the European Union,

REFERRING to the Act of the Council of the European Union of 18 December 1997;

RECALLING the need to strengthen the commitments contained in the Convention on Mutual Assistance between Customs Administrations, signed in Rome on 7 September 1967;

CONSIDERING that customs administrations are responsible on the customs territory of the Community and, in particular at its points of entry and exit, for the prevention, investigation and suppression of offences not only against Community rules, but also against national laws, in particular the cases covered by Articles 36 and 223 of the Treaty establishing the European Community;

CONSIDERING that a serious threat to public health, morality and security is constituted by the developing trend towards illicit trafficking of all kinds;

CONSIDERING that particular forms of cooperation involving cross-border actions for the prevention, investigation and prosecution of certain infringements of both the national legislation of the Member States and Community customs regulations should be regulated, and that such cross-border actions must always be carried out in compliance with the principles of legality (conforming with the relevant law applicable in the requested Member State and with the directives of the competent authorities of that Member State), subsidiarity (such actions to be launched only if it is clear that other less significant actions are not appropriate) and proportionality (the scale and duration of the action to be determined in the light of the seriousness of the presumed infringement);

CONVINCED that it is necessary to reinforce cooperation between customs administrations, by laying down procedures under which customs administrations may act jointly and exchange data concerned with illicit trafficking activities;

BEARING IN MIND that the customs administrations in their day-to-day work have to implement both Community and national provisions, and that there is consequently an obvious need to ensure that the provisions of mutual assistance and cooperation in both sectors evolve as far as possible in parallel,

HAVE AGREED ON THE FOLLOWING PROVISIONS:

FIFTH SCHEDULE

THE TEXT IN THE ENGLISH LANGUAGE OF THE 1999 PROTOCOL

PROTOCOL DRAWN UP ON THE BASIS OF ARTICLE K.3 OF THE TREATY ON EUROPEAN UNION, ON THE SCOPE OF THE LAUNDERING OF PROCEEDS IN THE CONVENTION ON THE USE OF INFORMATION TECHNOLOGY FOR CUSTOMS PURPOSES AND THE INCLUSION OF THE REGISTRATION NUMBER OF THE MEANS OF TRANSPORT IN THE CONVENTION

THE HIGH CONTRACTING PARTIES to this Protocol, Member States of the European Union,

REFERRING to the Act of the Council of the European Union of 12 March 1999,

HAVING REGARD to the Convention drawn up on the basis of Article K.3 of the Treaty on European Union on the use of information technology for customs purposes, hereinafter referred to as ‘the Convention’;

HAVE AGREED ON THE FOLLOWING PROVISIONS:

SIXTH SCHEDULE

COINBHINSIÚN ARNA DHRÉACHTÚ AR BHONN AIRTEAGAL K.3 DEN CHONRADH AR AN AONTAS EORPACH MAIDIR LE hÚSÁID THEICNEOLAÍOCHT AN EOLAIS CHUN CRÍOCHA CUSTAIM

TÁ NA hARDPHÁIRTITHE CONARTHACHA sa Choinbhinsiún seo, Ballstáit an Aontais Eorpaigh,

AG TAGAIRT do Ghníomh ó Chomhairle an Aontais Eorpaigh an 26/07/95,

AG MEABHRÚ DÓIBH na ngealltanas atá sa Choinbhinsiú n maidir le Riaracháin Chustaim do Sholáthar Cúnamh Frithpháirteach, arna dhéanamh sa Róimh ar an 7 Meán Fómhair 1967,

DE BHRÍ go bhfuil na riaracháin chustaim, mar aon le húdaráis inniúla eile, freagrach, ag teorainneacha seachtracha an Chomhphobail agus laistigh dá theorainneacha críochacha, as cionta ní hamháin in aghaidh rialacháin Chomhphobail ach in aghaidh dlíthe náisiúnta freisin, go háirithe na dlíthe sin atá folaithe ag Airteagail 36 agus 223 den Chonradh ag bunú an Chomhphobail Eorpaigh, a chosc, a imscrúdú agus a chur faoi chois,

DE BHRÍ gur bagairt thromchúiseach do shláinte, moráltacht agus slándáil an phobail an treocht atá ag teacht chun cinn ionsar gháinneáil aindleathach de gach saghas,