Initiative of the Federal Republic of Germany, the Kingdom of Belgium and the French Republic in view of the adoption of a Council Act drawing up a Protocol amending the Convention on the use of information technology for customs purposes as regards the creation of a customs files identification database

(2001/C 328/12)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Article 30(1)(a) and Article 34(2)(d) thereof,

Having regard to the initiative of the Federal Republic of Germany, the Kingdom of Belgium and the French Republic(1),

Having regard to the opinion of the European Parliament(2),

Whereas:

(1) ...

(2) ...

HAS DECIDED that the Protocol, the text of which is given in the Annex and which has been signed today by the Representatives of the Governments of the Member States of the European Union, is hereby established,

RECOMMENDS that it be adopted by the Member States in accordance with their respective constitutional requirements(3).

Done at Brussels, ...

For the Council

The President

...

(1) OJ C ...

(2) Opinion delivered on ...

(3) The date of entry into force of the Protocol will be published in the Official Journal of the European Communities by the General-Secretariat of the Council.

ANNEX

PROTOCOL

established on the basis of Article 34 of the Treaty on European Union, amending the Convention on the use of information technology for customs purposes as regards the creation of a customs files identification database

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

HAVING REGARD to the Treaty on European Union, and in particular Article 34 thereof,

CONSIDERING THAT:

(1) the Convention on the use of information technology for customs purposes(1), hereinafter referred to as "the Convention", ...

(2) ...

HAVE AGREED ON THE FOLLOWING PROVISIONS:

Article 1

In the Convention after Chapter V, the following three chapters shall be inserted: "CHAPTER V A

CREATION OF A CUSTOMS FILES IDENTIFICATION DATABASE (FIDE)

Article 12 A

1. The customs information system referred to in Article 2(1) shall also contain a database known as the 'customs files identification database' and, without prejudice to the special provisions of this chapter and of Chapters V B and V C, the other provisions of this Convention relating to the customs information system shall also apply to the customs files identification database and any reference to the customs information system shall also be taken to refer to that database.

2. The aim of the customs files identification database shall be to enable Member States' services competent to carry out customs investigations opening a file on or investigating one or more persons or undertakings to identify the competent services of the other Member States which are investigating or have investigated those persons or undertakings, in order to help prevent and to facilitate and expedite the detection, prosecution and suppression of serious infringements of national laws and of regulations relating to non-harmonised excise duties.

3. If the Member State retrieving data from the database requires further information on the natural or legal data subject, it shall request the assistance of the supplying Member State on the basis of the instruments in force relating to mutual assistance.

CHAPTER V B

OPERATION AND USE OF THE CUSTOMS FILES IDENTIFICATION DATABASE

Article 12 B

1. The customs files identification database shall consist of a central database which can be directly accessed by all the Member States. It shall contain exclusively data necessary to achieve its aim as stated in Article 12 A(2).

The only data which may be entered in the database are those relating to:

(i) natural and legal persons who are or have been the subject of an investigation file opened by the competent service of a Member State, and who:

- are suspected of committing or having committed, or participating or having participated in the commission of a serious infringement of national laws and of regulations relating to non-harmonised excise duties, or

- have been the subject of a report relating to such an infringement, or

- have been the subject of an administrative or legal sanction for such an infringement;

(ii) the field covered by the investigation file;

(iii) the name, nationality and contact information of the Member State service handling the case and the file number.

2. The personal data referred to in paragraph 1(i) may only consist of:

(i) for natural persons: name, maiden name, given names and any alias or assumed name, date and place of birth, nationality and sex;

(ii) for legal persons: business name and registered office of the undertaking and VAT identifier.

3. Data shall be entered for a limited period in accordance with Article 12 I.

4. The Commission shall ensure the technical management of the infrastructure of the customs files identification database in accordance with the rules laid down in the implementing provisions adopted by the high contracting parties within the Council in accordance with the last sentence of Article 34(2)(d) of the Treaty on European Union.

Article 12 C

1. Member States shall enter in the customs files identification database data referred to in Article 12 B, taken from investigation files, which justify the presumption or provide proof of the existence of serious infringements of national laws or of regulation relating to non-harmonised excise duties and which are likely to further the investigations of the competent services of the other Member States.

2. A Member State shall not be obliged in any particular case to record the information referred to in paragraph 1 if and for such time as such a record would:

(i) harm the public policy or other essential interests, particularly as regards data protection, of the Member State concerned; or

(ii) jeopardise the success of current investigations or the safety of individuals.

Article 12 D

1. Direct access to data included in the customs files identification database shall be reserved exclusively for the services competent to carry out customs investigations designated by each Member State. Each Member State shall send the other Member States and the committee referred to in Article 16 a list of the services competent to carry out customs investigations designated by it in accordance with this paragraph.

2. Such access to the customs files identification database shall be possible only by means of a query which must necessarily contain the following personal data:

(i) for natural persons: name and/or maiden name and/or alias or assumed name;

(ii) for legal persons: business name and/or VAT identifier.

Article 12 E

The customs files identification database must enable services competent to carry out customs investigations which enter or consult data in the database to be identified.

Article 12 F

1. Member States may use data obtained from the customs files identification database only for the aim stated in Article 12 A(2), in compliance with the arrangements laid down in Article 12 A(3). However, they may use them for administrative or other purposes with the prior authorisation of and subject to any conditions imposed by the Member State which entered them in the system.

2. Data obtained from the customs files identification database may be communicated to national authorities or services other than those designated under Article 12 D(1), third countries, or international or regional organisations wishing to make use of them, only with the prior authorisation of and subject to any conditions imposed by the Member State which entered them in the system. Each Member State shall take the measures necessary to ensure the security of such data when they are being transmitted or supplied to authorities located outside its territory. Details of such measures must be communicated to the Joint Supervisory Authority referred to in Article 18.

Article 12 G

1. The entry of data in the customs files identification database shall be governed by the laws, regulations and procedures of the supplying Member State unless this Convention lays down more stringent provisions.

2. The use of data obtained from the customs files identification database shall be governed by the laws, regulations and procedures of the Member State using such data, unless this Convention lays down more stringent provisions.

Article 12 H

1. Each of the Member States shall designate a competent customs administration which shall have national responsibility for the customs files identification database.

2. This administration shall be responsible for the correct operation of the customs files identification database in the Member State and shall take the practical measures necessary to ensure compliance with the provisions of this Convention.

3. The Member States shall notify the depositary of the competent administration referred to in paragraph 1.

CHAPTER V C

RETENTION OF DATA IN THE CUSTOMS FILES IDENTIFICATION DATABASE

Article 12 I

Subject to more restrictive national provisions:

(i) data relating to current investigation files may not be retained beyond a period of one year after the last investigative act is completed, that period starting on the date on which the data were entered in the file. The retention period for data relating to current investigation files may under no circumstances exceed three years if no infringement has been established in that time;

(ii) data relating to investigation files which have resulted in the establishment of an infringement, but which have not yet led to a conviction or the imposition of an administrative penalty, may not be retained beyond a period of six years, that period starting on the date on which the data were entered in the file;

(iii) data relating to investigation files which have led to a conviction or an administrative penalty may not be retained beyond a period of 10 years, that period starting on the date on which the data were entered in the file;

(iv) at all stages of an investigation as referred to in points (i), (ii) and (iii), as soon as a person is eliminated from an investigation, all data relating to the corresponding investigation file must be deleted immediately".

Article 2

In Article 20 of the Convention, the words "Article 10(1)" shall be replaced by "Articles 10(1) and 12 H(1)", and the words "Article 12(1) and (2)" shall be replaced by "Articles 12(1) and (2) and 12 I".

Article 3

1. This Protocol shall be subject to adoption by the Member States in accordance with their respective constitutional requirements.

2. Member States shall notify the depositary of the completion of their constitutional procedures for the adoption of this Protocol.

3. This Protocol shall enter into force 90 days after the notification referred to in paragraph 2 by the State, a member of the European Union at the time of signing, which is the last to complete that formality.

Article 4

1. This Protocol shall be open to accession by any State which becomes a member of the European Union and which accedes to the Convention.

2. The text of this Protocol in the language of the acceding State, drawn up by the Council of the European Union, shall be authentic.

3. The instruments of accession shall be deposited with the depositary.

4. This Protocol shall enter into force with respect to any State that accedes to it 90 days after the date of deposit of its instrument of accession or on the date of entry into force of this Protocol if it has not already entered into force at the time of expiry of the said period of 90 days, provided the Convention is in force for it.

Article 5

Any State that becomes a member of the European Union and accedes to the Convention in accordance with Article 25 thereof after the entry into force of this Protocol shall be deemed to have accede to the Convention as amended by this Protocol.

Article 6

The Secretary-General of the Council of the European Union shall act as depositary of this Protocol.

The depositary shall publish in the Official Journal of the European Communities information on the progress of adoptions and accessions, declarations and also any other notification concerning this Protocol.

In witness whereof, the undersigned plenipotentiaries have hereunto set their hands.

Done at ... on ... in a single original in the Danish, Dutch, English, Finnish, French, German, Greek, Irish, Italian, Portuguese, Spanish and Swedish languages, each text being equally authentic, the original being deposited in the archives of the General Secretariat of the Council of the European Union.

For the Government ...

(1) OJ C 316, 27.11.1995, p. 34.