Facilitación del Comercio
- Aduanas y Facilitación de Comercio (Disponible)
- Protocolo sobre Asistencia Administrativa Mutua en Materia Aduanera (Disponible)
CHAPTER
CUSTOMS AND TRADE FACILITATION
Article 1
Objectives and scope
1. The Parties recognize the importance of customs and trade facilitation in the evolving global trading environment.
2. The Parties recognize that international trade and customs instruments and standards are the basis for import, export and transit requirements and procedures.
3. The Parties recognize that legislation should be non-discriminatory and customs and other trade related procedures should be based upon the use of modern methods and effective controls to combat fraud, protect consumer health and safety and promote legitimate trade. Each Party should periodically review its legislation and customs procedures. The Parties also recognize that their customs and other trade related procedures should be no more administratively burdensome or trade restrictive than necessary to achieve legitimate objectives and that they should be applied in a manner that is predictable, consistent and transparent.
4. The Parties agree to reinforce their cooperation with a view to ensuring that the relevant legislation and procedures, as well as the administrative capacity of the relevant administrations, fulfill the objectives of promoting trade facilitation while ensuring effective control of import, export and transit at the border.
5. The Parties agree to work together towards supporting the development of regional integration within both Parties.
Article 2
Customs cooperation
1. The Parties shall cooperate on customs and other trade related matters between their respective authorities, in order to ensure that the objectives set out in Article 1(Objectives and scope) are attained.
2. Cooperation may include in particular:
(a) exchanging information concerning customs and other trade related legislation, its implementation, and customs procedures; particularly in the following areas:
- simplification and modernisation of customs procedures;
- enforcement of intellectual property rights by the customs authorities;
- international instruments and standards applicable in the area of customs and trade;
- free circulation of goods and regional integration;
- facilitation of transit movements and transhipment;
- interagency coordination at borders;
- relations with the business community;
- supply chain security and risk management; and
- exchanges on the use of information technology, data and documentation requirements and single window systems, including work towards their future interoperability.
(b) working together on the customs-related aspects of securing and facilitating the international trade supply chain in accordance with the Framework of Standards to Secure and Facilitate Global Trade (SAFE Framework) of the World Customs Organization (WCO);
(c) considering developing joint initiatives related to import and export procedures including technical assistance, capacity building, and measures aiming at providing an effective service to the business community;
(d) strengthening their cooperation in the fields of customs and trade facilitation in international organizations such as the World Trade Organization (WTO), the World Customs Organization (WCO) and the United Nations Conference on Trade and Development (UNCTAD);
(e) establishing, where relevant and appropriate, mutual recognition of trade partnership programmes and customs controls, including equivalent trade facilitation measures;
(f) fostering cooperation between customs and other government authorities or agencies in relation to authorized economic operator programmes. This collaboration may be achieved, inter alia, by aligning requirements, facilitating access to benefits and minimising unnecessary duplication;
(g) working together with a view to reaching a common approach to issues relating to customs valuation; and
(h) working together to further reduce release times and to release goods without undue delay, in particular perishable goods.
3. The Parties shall provide each other with mutual administrative assistance in customs matters in accordance with the provisions of [Protocol X].
Article 3
Customs and other trade related provisions and procedures
1. The Parties agree that their respective customs provisions and procedures shall be based upon:
(a) international instruments and standards applicable in the area of customs and trade, including the WTO Trade Facilitation Agreement; the International Convention on the Harmonized Commodity Description and Coding System, the Framework of Standards to Secure and Facilitate Global Trade and the Customs Data Model of the WCO; and to the extent possible the substantive elements of the Revised Kyoto Convention on the Simplification and Harmonisation of Customs Procedures;
(b) the facilitation of legitimate trade through effective enforcement of and compliance with legislative requirements;
(c) legislation that is proportionate and non-discriminatory, avoids unnecessary burdens on economic operators, provides for further facilitation for operators with high levels of compliance, including favourable treatment with respect to customs controls prior to the release of goods, and ensures safeguards against fraud and illicit or damageable activities.
2. In order to improve working methods, as well as to ensure non-discrimination, transparency, efficiency, integrity and accountability of operations, the Parties shall:
(a) simplify and review requirements and formalities wherever possible with a view to the rapid release and clearance of goods;
(b) work towards the further simplification and standardisation of data and documentation required by customs and other agencies;
(c) ensure that the highest standards of integrity be maintained, through the application of measures reflecting the principles of the relevant international conventions and instruments in this field.
Article 4
Release of Goods
Each Party shall adopt or maintain requirements and procedures that:
(a) provide for the prompt release of goods within a period no greater than that required to ensure compliance with its customs and other trade-related laws and formalities. Each party shall work to further reduce release times and release the goods without undue delay;
(b) provide for advance electronic submission and processing of documentation and any other required information prior to the arrival of the goods, to enable the release of goods on arrival[1];
(c) allow for the release of goods prior to the final determination of customs duties, taxes, fees and charges, if such a determination is not done prior to, or upon arrival, or as rapidly as possible after arrival and provided that all other regulatory requirements have been met. As a condition for such release, each Party may require a guarantee for any amount not yet determined in the form of a surety, a deposit or another appropriate instrument provided for in its laws and regulations. Such guarantee shall not be greater than the amount the Party requires to ensure payment of customs duties, taxes, fees and charges ultimately due for the goods covered by the guarantee. The guarantee shall be discharged when it is no longer required[2].
Article 5
Perishable Goods[3]
1. Each Party shall give appropriate priority to perishable goods when scheduling and performing any examinations that may be required.
2. At the request of an economic operator, each Party shall, where practicable and consistent with domestic legislation:
(a) provide for the clearance of a consignment of perishable goods outside the business hours of Customs and other relevant authorities; and
(b) allow consignments of perishable goods to be cleared at the premises of the economic operator.
Article 6
Advance Rulings
1. Each Party shall issue, through its customs authorities, an advance ruling that sets forth the treatment to be provided to the goods concerned. That ruling shall be issued in a reasonable, time bound manner to the applicant that has submitted a written request, including in electronic format, containing all necessary information in accordance with the laws and regulations of the issuing Party.
2. The advance ruling shall be valid for at least a three-year period of time after its issuance unless the law, facts or circumstances supporting the original advance ruling have changed.
3. A Party may decline to issue an advance ruling where the question raised is the subject of administrative or judicial review, or where the application does not relate to any intended use of the advance ruling. If a Party declines to issue an advance ruling, it shall promptly notify the applicant in writing, setting out the relevant facts and the basis for its decision
4. Each Party shall publish, at least:
(a) the requirements for the application for an advance ruling, including the information to be provided and the format;
(b) the time period by which it will issue an advance ruling; and
(c) the length of time for which the advance ruling is valid.
5. Where a Party revokes or modifies or invalidates an advance ruling, it shall provide written notice to the applicant setting out the relevant facts and the basis for its decision. Where the Party revokes or modifies or invalidates an advance ruling with retroactive effect, it may only do so where the ruling was based on incomplete, incorrect, false or misleading information.
6. An advance ruling issued by a Party shall be binding on that Party in respect of the applicant that sought it. The Party may provide that the advance ruling be binding on the applicant.
7. Each Party shall provide, upon written request of an applicant, a review of the advance ruling or of the decision to revoke, modify or invalidate it.[4]
8. Subject to any confidentiality requirements substantive elements of these rulings shall be published, e.g. on the Internet.
9. An advance ruling is a written decision provided to an applicant prior to the importation of a good covered by the application that sets forth the treatment that the Party shall provide to the good at the time of importation with regard to:
(a) the good's tariff classification; and
(b) the origin of the good.
10. To facilitate trade, the Parties shall include in their bilateral dialogue regular updates on changes in their respective legislation on the matters listed above.
11. The Parties may agree upon advance rulings on any other matter.
Article 7
Transit and Transhipment
1. The Parties shall ensure freedom of transit through their territories via the route most convenient for transit.
2. Without prejudice to legitimate control, the Parties shall accord to traffic in transit to or from the territory of any party, treatment not less favourable than that accorded to domestic goods, exports and imports, and their movement. This principle refers to like products being transported on the same route under like conditions.
3. The Parties shall, to the extent possible, adopt less burdensome customs procedures to transhipped goods than to those applied to traffic in transit.
4. The Parties shall operate bonded transport regimes that allow the transit of goods without payment of customs duties or other charges subject to the provision of an appropriate guarantee.
5. The Parties shall promote and implement regional transit arrangements with a view to facilitating traffic in transit and reducing trade barriers.
6. The Parties shall draw upon and use international standards and instruments relevant to transit.
7. The Parties agree that the customs transit procedures may be used also when the transit of goods begins or ends in the territory of a party (inland transit).
8. The Parties shall ensure cooperation and coordination between all concerned authorities and agencies in their respective customs territories to facilitate traffic in transit.
Article 8
Authorized Economic Operator – AEO
1. Each Party shall establish or maintain a trade facilitation partnership programme for operators who meet specified criteria, hereinafter, called authorized economic operators.
2. The specified criteria to qualify as authorized economic operators shall be related to compliance, or the risk of non-compliance, with requirements specified in the Parties' laws, regulations or procedures. The specified criteria, which shall be published, may include:
(a) the absence of any serious infringement or repeated infringements of customs legislation and taxation rules, including no record of serious criminal offences relating to the economic activity of the applicant;
(b) the demonstration by the applicant of a high level of control of his or her operations and of the flow of goods, by means of a system of managing commercial and, where appropriate, transport records, which allows appropriate customs controls;
(c) financial solvency, which shall be deemed to be proven where the applicant has good financial standing, which enables him or her to fulfill his or her commitments, with due regard to the characteristics of the type of business activity concerned;
(d) proven competences or professional qualifications directly related to the activity carried out; and
(e) appropriate security and safety standards.
3. The specified criteria to qualify as an authorized economic operator shall not be designed or applied so as to afford or create arbitrary or unjustifiable discrimination between operators where the same conditions prevail and shall allow the participation of small and medium-sized enterprises.
4. The trade facilitation partnership programme shall include at least four of the following benefits:
(a) low documentary and data requirements, as appropriate;
(b) low rate of physical inspections and examinations as appropriate;
(c) rapid release time as appropriate;
(d) deferred payment of duties, taxes, fees and charges;
(e) use of comprehensive guarantees or reduced guarantees;
(f) a single customs declaration for all imports or exports in a given period; and
(g) clearance of goods at the premises of the authorized economic operator or another place authorized by customs.5. The Parties are encouraged to ensure coordination between Customs and other border agencies in the development of their AEO programmes through means such as the alignment of requirements, the minimization of unnecessary duplication and the access of benefits related to controls and requirements administered by agencies other than customs.
Article 9
Single Window
The Parties shall endeavour to establish single window systems, enabling traders to submit documentation and/or data requirements for importation, exportation, or transit of goods through a single entry point to the participating authorities or agencies.
Article 10
Transparency
1. The Parties agree:
(a) on the importance of timely consultations with trade representatives on legislative proposals and general procedures related to customs and trade issues. To that end, appropriate consultations between administrations and the business community, shall take place in each Party.
(b) to ensure that their respective customs and other trade related requirements and procedures continue to meet the needs of the trading community, follow best practices, and remain as little trade-restrictive as possible.
2. Each Member shall, as appropriate, provide for regular consultations between border agencies and traders or other stakeholders within its territory.
3. Each Party shall promptly publish, in a non-discriminatory and easily accessible manner, and as far as possible through electronic means, new legislation and general procedures related to customs and trade facilitation issues prior to the application of any such legislation and procedures, as well as changes to and interpretations of such legislation and procedures. This shall include:
(a) importation, exportation and transit procedures (including port, airport, and other entry-point procedures and hours of operation) and required forms and documents;
(b) applied rates of duties and taxes of any kind imposed on or in connection with importation or exportation;
(c) fees and charges imposed by or for governmental agencies on or in connection with importation, exportation or transit;
(d) rules for the classification or valuation of products for customs purposes;
(e) laws, regulations and administrative rulings of general application relating to rules of origin;
(f) import, export or transit restrictions or prohibitions;
(g) penalty provisions against breaches of import, export or transit formalities;
(h) appeal procedures;
(i) agreements or parts thereof with any country or countries relating to importation, exportation or transit;
(j) procedures relating to the administration of tariff quotas;
(k) points of contact for information enquiries; and
(l) other relevant notices of an administrative nature in relation to the above.
4. Each Party shall ensure there is a reasonable time period between the publication of new or amended legislation, procedures and fees or charges and their entry into force.
5. Each Party shall make available, and update as appropriate, the following through the internet:
(a) a description of its importation, exportation and transit procedures, including appeal procedures, informing of the practical steps needed to import and export, and for transit;
(b) the forms and documents required for importation into, exportation from, or transit through the territory of that Party;
(c) contact information on enquiry points.
6. Each Party shall establish or maintain one or more enquiry points to answer within a reasonable time enquiries of governments, traders and other interested parties on customs and other trade-related matters. The Parties shall not require the payment of a fee for answering enquiries.
7. A Party shall not require the payment of a fee for answering enquiries or providing required forms and documents.
8. The enquiry points shall answer enquiries and provide the forms and documents within a reasonable time period set by each Party, which may vary depending on the nature or complexity of the request.
Article 11
Customs valuation
The Agreement on the Implementation of Article VII of the GATT (1994) shall govern customs valuation rules applied to reciprocal trade between the Parties. Its provisions are hereby incorporated into and made part of this Agreement.
Article 12
Risk Management
1. Each Party shall adopt or maintain a risk management system for customs control.
2. Each Party shall design and apply risk management in a manner as to avoid arbitrary or unjustifiable discrimination, or disguised restrictions to international trade.
3. Each Party shall concentrate customs control and other relevant border controls on high-risk consignments and expedite the release of low-risk consignments. Each Party may also select, on a random basis, consignments for such controls as part of its risk management.
4. Each Party shall base risk management on assessment of risk through appropriate selectivity criteria.
5. The provisions of this article are, whenever possible, applicable to procedures administered by other border agencies.
Article 13
Post-clearance audit
1. With a view to expediting the release of goods, each Party shall adopt or maintain post-clearance audit to ensure compliance with customs and other related laws and regulations.
2. Each Party shall conduct post-clearance audits in a risk-based manner.
3. Each Party shall conduct post-clearance audits in a transparent manner. Where an audit is performed and conclusive results have been achieved the Party shall, without delay, notify the person whose record is audited of the results, the person's rights and obligations and the reasons for the results.
4. The Parties acknowledge that the information obtained in a post-clearance audit may be used in further administrative or judicial proceedings.
5. The Parties shall, wherever practicable, use the result of post-clearance audit in applying risk management.
Article 14
Customs Brokers
Each Party shall publish its measures on the use of customs brokers. The Parties shall apply transparent, non-discriminatory and proportionate rules if and when licensing customs brokers. From the entry into force of this Agreement, the Parties shall not adopt new measures introducing the mandatory use of customs brokers.
Article 15
Pre-shipment Inspections
The Parties shall not require the mandatory use of pre-shipment inspections as defined in the WTO Agreement on Pre-shipment Inspection, or any other inspection activity performed at destination, before customs clearance, by private companies.
Article 16
Appeals
1. Each Party shall provide effective, prompt, non-discriminatory and easily accessible procedures to guarantee the right of appeal against the administrative actions, rulings and decisions of customs or other competent authorities affecting import or export of goods or goods in transit.
2. Appeal procedures may include administrative review by the supervising authority and judicial review of decisions taken at the administrative level according to the legislation of the Parties.
3. Any person who has applied to the customs authorities for a decision and has not obtained a decision on that application within the relevant time-limits shall also be entitled to exercise the right of appeal.
4. Each Party shall provide a person to whom it issues an administrative decision with the reasons for the administrative decision, so as to enable such a person to have recourse to appeal procedures where necessary.
Article 17
Data and documentation requirements
1. Each Party shall ensure that import, export and transit formalities, data and documentation requirements:
a) are adopted and/or applied with a view to a rapid release of goods, particularly perishable goods, provided the conditions for the release are fulfilled;
b) are adopted and/or applied in a manner that aims to reduce the time and cost of compliance for traders and operators;
c) are the least trade-restrictive measure chosen, where two or more alternative measures are reasonably available for fulfilling the policy objective or objectives in question; and
d) are not maintained, including parts thereof, if no longer required.
2. Mercosur shall work towards applying common customs procedures and uniform customs data requirements for the release of goods.
Article 18
Use of information technology
1. Each Party shall use information technologies that expedite procedures for the release of goods in order to facilitate trade between the Parties.
2. Each Party shall:
a) make available by electronic means customs declarations and, whenever possible, other documents required for the import, transit or export of goods;
b) allow a customs declaration and, whenever possible, any other data requirements for the import and export of goods to be submitted in electronic format;
c) establish a means of providing for the electronic exchange of Customs information with its trading community;
d) promote the electronic exchange of data between their respective traders, customs administrations, and other trade related agencies;
e) use electronic risk management systems for assessment and targeting that enable its customs authorities and, whenever possible, other border agencies to focus their inspections on high-risk goods and that facilitate the release and movement of low-risk goods.
3. Each Party shall adopt or maintain procedures allowing the option of electronic payment for duties, taxes, fees and charges incurred upon importation and exportation collected by customs authorities and, whenever possible and applicable, by other border agencies.
Article 19
Penalties
1. Each Party shall ensure that its respective customs laws and regulations provide that any penalties imposed for breaches of customs regulations or procedural requirements be proportionate and non-discriminatory.
2. Penalties for a breach of a customs law, regulation, or procedural requirement are imposed only on the person(s) responsible for the breach under its laws.
3. Penalties imposed shall depend on the facts and circumstances of the case and shall be commensurate with the degree and severity of the breach. Each Party shall avoid incentives for the assessment or collection of a penalty, or conflicts of interest in the assessment and collection of penalties.
4. In case of voluntary prior disclosure to a customs administration of the circumstances of a breach of a customs law, regulation, or procedural requirement, each Party is encouraged to consider this as a potential mitigating factor when establishing a penalty.
5. When a penalty is imposed for a breach of a customs laws, regulations, or procedural requirements, an explanation in writing is provided to the person(s) upon whom the penalty is imposed specifying the nature of the breach and the applicable law, regulation or procedure under which the amount or range of penalty for the breach has been prescribed.
Article 20
Temporary Admission
1. For the purposes of this Article, the term "temporary admission" means the customs procedure under which certain goods (including means of transport) can be brought into a customs territory conditionally relieved, from payment of import duties and taxes and without application of import prohibitions or restrictions of economic character. Such goods must be imported for a specific purpose and must be intended for re-exportation within a specified period and without having undergone any change except normal depreciation due to the use made of them. Nothing in this Article should be construed as to relieve imported goods from meeting trade related requirements of non – economic character, in particular sanitary and phytosanitary measures.
2. Each Party undertakes to grant temporary admission, with total conditional relief from import duties and taxes and without application of import restrictions or prohibitions of economic character, as provided for in its laws and regulations, to the following goods:
(a) Goods for display or use at exhibitions, fairs, meetings or similar events;
(b) Professional equipment for the press or for sound or television broadcasting; cinematographic equipment; any other equipment necessary for the exercise of the calling, trade or profession of a person visiting the territory of another country to perform a specified task;
(c) Goods imported in connection with a commercial operation but whose importation does not in itself constitute a commercial operation;
(d) Goods imported in connection with a manufacturing operation (such as plates, drawings, moulds, plans and models, for use during a manufacturing process); replacement means of production;
(e) Goods imported exclusively for educational, scientific or cultural purposes;
(f) Personal effects of passengers and goods imported for sports purposes;
(g) Tourist publicity material;
(h) Goods imported for humanitarian purposes;
(i) Animals imported for specific purposes.
3. Each Party shall, for the temporary admission of the goods referred to in paragraph 2 and regardless of their origin, accept A.T.A. carnets issued in the other Party, endorsed there and guaranteed by an association forming part of the international guarantee chain, certified by the competent authorities and valid in the customs territory of the importing Party[5].
Article 21
Special Committee on Customs, Trade Facilitation and Rules of Origin
1. The Parties hereby establish a Special Committee on Customs, Trade Facilitation and Rules of Origin, composed of representatives of the Parties. The Committee shall meet on a date and with an agenda agreed in advance by the Parties. The office of chairperson of the Committee shall be held alternately by each of the Parties and rotate annually. The Committee shall report to the [Association Committee].
2. The Committee shall ensure the proper functioning of this Chapter, , the [Protocol xx on Rules of Origin], and the [Protocol xx on MAA] and any additional customs and trade facilitation]-related provisions agreed between the Parties, and examine all issues arising from their application.
3. The functions of the Committee shall include:
(a) monitoring the implementation and administration of this Chapter and of the Annex/Protocol on rules of origin;
(b) providing a forum to consult and discuss all issues concerning customs, including in particular customs procedures, customs valuation, tariff regimes, customs nomenclature, customs cooperation and mutual administrative assistance in customs matters;
(c) providing a forum to consult and discuss issues relating to rules of origin and administrative cooperation;
(d) enhancing cooperation on the development, application and enforcement of customs [MRS: and trade related] procedures, mutual administrative assistance in customs matters, rules of origin and administrative cooperation.
4. With a view to implementing the relevant provisions in this Chapter, the Joint Council shall have the power to adopt decisions relating to AEO programmes and their mutual recognition as well as to joint initiatives relating to customs procedures and trade facilitation.
5. The Parties may agree to hold ad hoc meetings for customs cooperation or for rules of origin or mutual administrative assistance.
[1] Mercosur countries shall comply with this paragraph in accordance with article 16 (Notification of definitive dates for implementation of Category B and Category C) commitments of the WTO Trade Facilitation Agreement.
[2] Mercosur countries shall comply with this paragraph in accordance with article 16 (Notification of definitive dates for implementation of Category B and Category C) commitments of the WTO Trade Facilitation Agreement.
[3] For the purposes of this provision, perishable goods are goods that rapidly decay due to their natural characteristics, in particular in the absence of appropriate storage conditions.
[4] Under this paragraph, a review may, either before or after the ruling has been acted upon, be provided by the official, office, or authority that issued the ruling, a higher or independent administrative authority, or a judicial authority.
[5] This provision shall apply only in respect of the EU and of those Mercosur States being contracting Parties to the Convention on Temporary Admission done at Istanbul on 26 June 1990 (Istanbul Convention) and according to the commitments undertaken by those Parties in this Convention.
PROTOCOL ON MUTUAL ADMINISTRATIVE ASSISTANCE IN CUSTOMS MATTERS
Article 1
Definitions
For the purposes of this Protocol:
(a) "customs legislation" means any legal or regulatory provision applicable in the territory of either Party, governing the import, export and transit of goods and their placing under any other customs regime or procedure, including measures of prohibition, restriction and control;
(b) "applicant authority" means a competent administrative authority which has been designated by a Party for this purpose and which makes a request for assistance on the basis of this Protocol;
(c) "requested authority" means a competent administrative authority which has been designated by a Party for this purpose and which receives a request for assistance on the basis of this Protocol;
(d) “information” means any data, document, image, report, communication or authenticated copy, in any format, including electronic, whether or not processed or analysed;
(e) “person” means any natural or legal person;
(f) "personal data" means all information relating to any natural or, where the legislation of the Parties so provides, legal person;
(g) "operation in breach of customs legislation" means any violation or attempted violation of customs legislation.
Article 2
Scope
1. The Parties shall assist each other, in the areas within their competence, in the manner and under the conditions laid down in this Protocol, to ensure the correct application of the customs legislation, in particular by preventing, investigating and combating operations in breach of that legislation.
2. Assistance in customs matters, as provided for in this Protocol, applies to any administrative authority of either Party which is competent for the application of this Protocol. That assistance shall neither prejudice the provisions governing mutual assistance in criminal matters nor shall it cover information obtained under powers exercised at the request of a judicial authority, except where communication of such information is authorised by that authority.
3. Assistance to recover duties, taxes or fines is not covered by this Protocol.
Article 3
Assistance on request
1. At the request of the applicant authority, the requested authority shall provide it with all relevant information which may enable it to ensure that customs legislation is correctly applied, including information related to activities noted or planned which are or could be operations in breach of customs legislation.
2. At the request of the applicant authority, the requested authority shall inform it whether:
(a) 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;
(b) goods imported into the territory of one of the Parties have been properly exported from 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, within the framework of its legal or regulatory provisions, take the necessary steps to ensure special surveillance of:
(a) natural or legal persons in respect of whom there are reasonable grounds for believing that they are or have been involved in operations in breach of customs legislation;
(b) goods that are or may be transported in such a way that there are reasonable grounds for believing that they are intended to be used in operations in breach of customs legislation;
(c) places where stocks of goods have been or may be assembled in such a way that there are reasonable grounds for believing that these goods are intended to be used in operations in breach of customs legislation; and
(d) means of transport that are or may be used in such a way that there are reasonable grounds for believing that they are intended to be used in operations in breach of customs legislation.
Article 4
Spontaneous assistance
The Parties shall assist each other, at their own initiative and in accordance with their legal or regulatory provisions, if they consider that to be necessary for the correct application of customs legislation, by providing information obtained pertaining to concluded, planned or ongoing activities which constitute or appear to constitute operations in breach of customs legislation and which may be of interest to the other Party. The information shall focus in particular on:
(a) persons, goods and means of transportation; and
(b) new means or methods employed in carrying out operations in breach of customs legislation.
Article 5
Form and substance of requests for assistance
1. Requests pursuant to this Protocol shall be made in writing either in print or electronic format. They shall be accompanied by the documents necessary to enable compliance with the request. When required because of the urgency of the situation, the requested authority may accept oral requests, but such oral requests shall be confirmed by the applicant authority in writing immediately.
2. Requests pursuant to paragraph 1 shall include the following information:
(a) the applicant authority and requesting official;
(b) the information and/or type of assistance requested;
(c) the object of and the reason for the request;
(d) the legal or regulatory provisions and other legal elements involved;
(e) indications as exact and comprehensive as possible on the natural or legal persons who are the target of the investigations;
(f) a summary of the relevant facts and of the enquiries already carried out; and
(g) any additional available details to enable the requested authority to comply with the request.
3. Requests shall be submitted in an official language of the requested authority or in a language acceptable to that authority, English always being an acceptable language. This requirement does not apply to any documents that accompany the request under paragraph 1.
4. If a request does not meet the formal requirements set out in paragraphs 1 to 3, the requested authority may require the correction or completion of the request; in the meantime, precautionary measures may be ordered.
Article 6
Execution of requests
1. In order to comply with a request for assistance, the requested authority shall proceed, within the limits of its competence and available resources, as though it was acting on its own account or at the request of other authority of that same Party, by supplying information already in its possession, by carrying out appropriate enquiries or by arranging for them to be carried out. This provision shall also apply to any other authority to which the request has been addressed by the requested authority when the latter cannot act on its own.
2. Requests for assistance shall be executed in accordance with the legal or regulatory provisions of the requested Party.
Article 7
Form in which information is to be communicated
1. The requested authority shall communicate results of enquiries to the applicant authority in writing together with relevant documents, certified true copies or other items. This information may be provided in electronic format.
2. Original documents shall be transmitted according to each Party’s legal constraints, only upon request of the applicant authority, in cases where certified true copies would be insufficient. The applicant authority shall return these originals at the earliest opportunity.
3. The requested authority shall, under the provisions referred to in Paragraph 2, deliver to the applicant authority, any information related to the authenticity of the documents issued or certified by official agencies within its territory in support of a goods declaration.
Article 8
Presence of officials of one Party in the territory of another
1. Duly authorised officials of a Party may, with the agreement of the other Party and subject to the conditions laid down by the latter, be present in the offices of the requested authority or any other concerned authority referred to in paragraph 1 of Article 6, to obtain information relating to activities that are or could be operations in breach of customs legislation, which the applicant authority needs for the purposes of this Protocol.
2. Duly authorised officials of a Party may, with the agreement of the other Party concerned and subject to the conditions laid down by the latter, be present at enquiries carried out in the latter's territory.
3. The presence of officials of a Party in the territory of the other Party shall solely be in an advisory capacity, during which time those authorised officials:
(a) must at all times be able to furnish proof of their official capacity;
(b) shall not wear uniform, nor carry weapons; and
(c) shall enjoy the same protection as that afforded to officials of the other Party, in accordance with the legal and administrative provisions in force there.
Article 9
Delivery and Notification
1. At the request of the applicant authority, the requested authority shall, in accordance with legal or regulatory provisions applicable to that authority, take all necessary measures in order to deliver any documents or to notify any decisions of the applicant authority and falling within the scope of this Protocol, to an addressee residing or established in the territory of the requested authority.
2. Such requests for delivery of documents or notification of decisions shall be made in writing in an official language of the requested authority or in a language acceptable to that authority.
Article 10
Automatic exchange of information
1. The Parties may, by mutual arrangement in accordance with Article 15 of this Protocol:
(a) exchange any information covered by this Protocol on an automatic basis;
(b) exchange specific information in advance of the arrival of consignments in the territory of the other Party.
2. The Parties will establish arrangements on the type of information they wish to exchange, the format and the frequency of transmission, to implement the exchanges under letters (a) and (b) of paragraph 1.
Article 11
Exceptions to the obligation to provide assistance
1. Assistance may be refused or may be subject to the satisfaction of certain conditions or requirements in cases where a Party is of the opinion that assistance under this Protocol would:
(a) be likely to prejudice the sovereignty of a Member State of Mercosur or of the European Union which has been requested to provide assistance under this Protocol;
(b) be likely to prejudice public policy, security or other essential interests, in particular in the cases referred to in paragraph 5 of Article 12of this Protocol; or
(c) violate an industrial, commercial or professional secret.
2. The requested authority may postpone the assistance on the grounds that such assistance will interfere with ongoing investigations, prosecutions or proceedings. In such a case, the requested authority shall consult with the applicant authority to determine if assistance can be given subject to such terms or conditions as the requested authority may require.
3. Where the applicant authority seeks assistance which it would itself be unable to provide if so requested, it shall draw attention to that fact in its request. It shall then be for the requested authority to decide how to respond to such a request.
4. In the cases referred to in paragraphs 1 and 2, the requested authority shall communicate its decision and the reasons therefor to the applicant authority without delay.
Article 12
Information exchange and confidentiality
1. The information received under this Protocol shall be used solely for the purposes established herein.
2. The use of information obtained under this Protocol in judicial or administrative proceedings instituted in respect of operations in breach of customs legislation, is considered to be for the purposes of this Protocol. Therefore, 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. The requested authority may subject the supply of information or the granting of access to documents to the condition that it is notified of such use.
3. Where one of the Parties wishes to use such information for other purposes, it shall obtain the prior written consent of the authority which provided the information. Such use shall then be subject to any restrictions laid down by that authority.
4. Any information communicated in whatsoever form pursuant to this Protocol shall be of a confidential or restricted nature, in accordance with the laws and regulations applicable in each Party. That information shall be covered by the obligation of official secrecy and shall enjoy the protection granted to similar information under the relevant laws and regulations of the receiving Party. The Parties shall communicate to each other information on their applicable laws and regulations.
5. Personal data may be exchanged only where the Party which may receive them undertakes to protect such data in a manner that is considered adequate by the other Party. Where a specific degree of protection is required for the supplied information, this shall be specified by the supplying authority. The Party which uses personal data shall communicate in writing, at the request of the Party which supplied them, the purpose for which such information was used and the results obtained.
6. Under no circumstances may personal data related to racial origin, political opinions, religious convictions, health and sexual orientation be supplied.
Article 13
Experts and witnesses
The requested authority may authorise its officials to appear, within the limitations of the authorisation granted, as experts or witnesses in judicial or administrative proceedings regarding the matters covered by this Protocol, and produce such objects, documents or certified true copies thereof, as may be needed for the proceedings. The request for appearance must indicate specifically before which judicial or administrative authority the official will have to appear, on what matters and by virtue of what title or qualification the official will be questioned.
Article 14
Assistance expenses
1. The Parties shall waive any claims for reimbursements of expenses incurred in the execution of this Protocol, except for allowance paid to experts, witnesses, interpreters and translators, when applicable.
2. The payment of allowances will not apply to public service employees.
3. If expenses of an extraordinary nature are required to execute the request, the Parties shall determine the terms and conditions under which the request shall be executed, as well as the manner in which such costs shall be borne.
Article 15
Implementation
1. The implementation of this Protocol shall be entrusted on the one hand to the customs authorities of Mercosur Member States and on the other hand to the competent services of the European Commission and the customs authorities of the Member States of the European Union, as appropriate. They shall decide on all practical measures and arrangements necessary for the implementation of this Protocol, taking into consideration their respective applicable laws and regulations in particular for the protection of personal data.
2. The Parties shall keep each other informed of the detailed implementation measures which are adopted by each Party in accordance with the provisions of this Protocol, in particular with respect to the duly authorised services and officials designated as competent to send and receive the communications laid out in this Protocol.
3. In the Union, the provisions of this Protocol shall not affect the communication of any information obtained under this Protocol between the competent services of the European Commission and the customs authorities of the Member States.
Article 16
Other agreements
The provisions of this Protocol shall take precedence over the provisions of any bilateral Agreement on mutual administrative assistance in customs matters which has been or may be concluded between individual Member States and the other Party or its Member States, insofar as the provisions of the latter are incompatible with those of this Protocol.
Article 17
Consultations
In respect to the applicability and implementation of this Protocol, the Parties shall consult each other to resolve the matter in the framework of the [Committee on Customs, Rules of Origin and Trade Facilitation, set up under Article XXX of this Agreement].