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Agreement Between the Government of Canada and the Government of the Kingdom of the Netherlands on Mutual Administrative Assistance in Customs Matters

E105098

The Government of Canada and the Government of the Kingdom of the Netherlands, hereafter referred to as the Contracting Parties,

CONSIDERING that offences against Customs law are prejudicial to the economic, fiscal, social, cultural, public health, security and commercial interests of their States;

CONSIDERING the importance of accurate assessment of customs duties and taxes collected at importation or exportation and of ensuring proper enforcement of measures of prohibition, restriction and control;

RECOGNIZING the need for international cooperation in matters related to the application and enforcement of the Customs laws of their States;

CONSIDERING that illegal cross-border trafficking in weapons, explosives, chemical, biological and nuclear substances as well as in narcotic drugs, psychotropic substances, endangered species, hazardous goods and other prohibited, regulated or controlled goods constitutes a particular danger to society;

CONVINCED that action against Customs offences can be made more effective by close cooperation between their Customs Administrations;

HAVING REGARD TO the Recommendation on Mutual Administrative Assistance, the Declaration on the Improvement of Customs Co-operation and Mutual Administrative Assistance (the Cyprus Declaration) and the Resolution on Security and Facilitation of the International Trade Supply Chain, adopted in December 1953, July 2000 and June 2002, respectively, by the Customs Co-operation Council, now known as the World Customs Organization;

HAVING REGARD ALSO TO international conventions containing prohibitions, restrictions and special measures of control in respect of specific goods;

HAVE AGREED as follows:

Chapter I - Definitions

Article 1

For the purposes of this Agreement:

  1. the term "Customs Administration" shall mean:
    1. for Canada, the Canada Border Services Agency;
    2. for the Kingdom of the Netherlands, the central administration responsible for the implementation of Customs law;
  2. the term "Customs law" shall mean: the statutory and regulatory provisions concerning the importation and exportation of goods, the administration and enforcement of which are specifically charged to the Customs Administrations, and any regulations made by the Customs Administrations under their statutory powers;
  3. the term "Customs offence" shall mean: any contravention of Customs law of either Contracting Party as well as any such attempted contravention;
  4. the term "person" shall mean: either a human being or a legal entity;
  5. the term "personal data" shall mean: data concerning an identified or identifiable human being;
  6. the term "information" shall mean: any data, documents, reports, certified or authenticated copies thereof, or other communications in any format, including electronic;
  7. the term "intelligence" shall mean: information which has been processed or analysed to provide an indication relevant to a Customs offence;
  8. the term "international trade supply chain" shall mean: all processes involved in the cross-border movement of goods from the place of origin to the place of final destination;
  9. the term "requesting Administration" shall mean: the Customs Administration which requests assistance;
  10. the term "requested Administration" shall mean: the Customs Administration from which assistance is requested.

Chapter II - Scope of the Agreement

Article 2

  1. The Contracting Parties, through their Customs Administrations, shall afford each other administrative assistance, under the terms set out in this Agreement, for the proper application of Customs law, for the prevention, investigation and combating of Customs offences and to ensure the security of the international trade supply chain.
  2. The Contracting Parties shall provide assistance under this Agreement in accordance with their national legislation and within the limits of their Customs Administrations’ competence and available resources.
  3. This Agreement is without prejudice to the obligations of the Kingdom of the Netherlands under the legislation of the European Union concerning its present and future obligations as a Member State of the European Union and any legislation enacted to implement those obligations, as well as its present and future obligations resulting from international agreements between the Member States of the European Union.
  4. The Customs Administration of the Kingdom of the Netherlands shall inform the Customs Administration of Canada of any obligations referred to in paragraph 3, arising after the date of signing this Agreement, which would affect the obligations arising in this Agreement.
  5. This Agreement is intended solely for the mutual administrative assistance between the Contracting Parties; the provisions of this Agreement shall not give rise to a right on the part of any private person to obtain information, suppress or exclude any evidence or to impede the execution of a request.
  6. If assistance on matters dealt with in this Agreement should be afforded in accordance with another cooperation agreement in force between the Contracting Parties, the requested Administration shall indicate which relevant authorities are concerned.

Chapter III - Scope of Assistance

Article 3

The Customs Administrations shall provide each other, either on request or on their own initiative, with information and intelligence which is intended to ensure proper application of Customs law, the prevention, investigation and combating of Customs offences and the security of the international trade supply chain. Such information may relate to:

  1. law enforcement techniques that have proven effective;
  2. new trends, means or methods of committing Customs offences; and
  3. any other data that may assist the Customs Administrations with risk assessment.

Chapter IV - Special Types of Assistance

Article 4

On request, the requested Administration shall provide the requesting Administration with the following information:

  1. whether goods which are imported into the territory of the requesting Contracting Party have been lawfully exported from the territory of the requested Contracting Party;
  2. whether goods which are exported from the territory of the requesting Contracting Party have been lawfully imported into the territory of the requested Contracting Party and the customs procedure, if any, under which the goods have been placed.

Article 5

On request, the requested Administration shall, to the extent possible, maintain surveillance over and provide the requesting Administration with information and intelligence on:

  1. goods, either in transport or in storage, known to have been used or suspected of being used to commit a Customs offence in the territory of the requesting Contracting Party;
  2. means of transport known to have been used or suspected of being used to commit a Customs offence in the territory of the requesting Contracting Party.

Article 6

  1. The Customs Administrations shall provide each other, either on request or on their own initiative, with information and intelligence on activities, whether planned, ongoing, or completed, which constitute or appear to constitute a Customs offence in the territory of the other Contracting Party.
  2. In cases that could involve substantial damage to the economy, public health, public security, including the security of the international trade supply chain, or any other vital interest of one Contracting Party, the Customs Administration of the other Contracting Party shall, wherever possible, supply information and intelligence on its own initiative without delay.

Article 7

The Customs Administrations may, by mutual arrangement in accordance with paragraph 2 of Article 21, transmit to one another any information and intelligence covered by this Agreement on an automatic basis.

Article 8

The Customs Administrations may, by mutual arrangement in accordance with paragraph 2 of Article 21, transmit specific information and intelligence to one another in advance of the arrival of consignments in the territory of the other Contracting Party.

Article 9

The Customs Administrations may permit, according to their national legislation, by mutual consensus, under their control, the importation into, exportation from or transit via the territory of their respective States of goods involved in illicit traffic in order to suppress such illicit traffic. If granting such permission is not within the competence of the Customs Administration, that Administration shall endeavour to initiate cooperation with the national authorities that have such competence or it shall transfer the case to those authorities.

Chapter V - Experts and Witnesses

Article 10

  1. One Customs Administration may authorize its officials, upon the request of the other Customs Administration, to appear as witnesses or experts in judicial or administrative proceedings in the territory of the other Contracting Party and to produce such files, documents or other materials, or authenticated copies thereof, as may be considered essential for the proceedings.
  2. When appearing in judicial or administrative proceedings under the circumstances of paragraph 1, such witnesses or experts shall be afforded the full protection of the law of the requesting Contracting Party pertaining to testimony of a privileged or confidential nature which may be protected from disclosure under that law.

Chapter VI - Communication of Requests

Article 11

  1. Requests for assistance under this Agreement shall be addressed directly to the Customs Administration of the other Contracting Party, either in writing or electronically, and shall be accompanied by any information deemed useful for compliance with the request. The requested Administration may require written confirmation of electronic requests. Where the circumstances so require, requests may be made verbally, to be confirmed as soon as possible in writing or, if acceptable to both Customs Administrations, electronically.
  2. Requests made pursuant to paragraph 1 shall include the following details:
    1. the identity of the official making the request;
    2. the matter at issue, the type of assistance requested, and reasons for the request;
    3. the names and addresses of the persons to whom the request relates, if known; and
    4. a brief description of the case under review and the applicable legal provisions.
  3. The Customs Administration of the requested Contracting Party shall comply with a request to follow a certain method or technique in responding to a request, unless that method or technique would conflict with the laws and regulations, policies or normal practice of the requested Contracting Party.

Chapter VII - Information and Intelligence

Article 12

A Customs Administration shall only request original information in cases where copies would be insufficient and shall return any such information at the earliest opportunity. The rights of the requested Administration or of third parties relating to such original information shall remain unaffected.

Chapter VIII - Execution of Requests

Article 13

  1. If the requested Administration is the appropriate authority and does not have the information requested, it shall, in accordance with its national legislation, initiate inquiries to obtain that information.
  2. If the requested Administration is not the appropriate authority under the circumstances, it shall, in accordance with its national legislation, either:
    1. promptly transmit the request to the appropriate authority; or
    2. indicate which relevant authorities are concerned.

Article 14

For the purpose of investigating a Customs offence, officials specially designated by the requesting Administration may, on written request, with the authorization of the requested Administration and subject to conditions the latter may impose:

  1. be present during an inquiry conducted by the requested Administration in the territory of the requested Contracting Party that is relevant to the requesting Administration;
  2. examine in the offices of the requested Administration documents and any other information in respect of that Customs offence, and be supplied with copies thereof.

Article 15

Where the requested Administration considers it appropriate for officials of the requesting Administration to be present when measures of assistance are carried out pursuant to a request, the requested Administration may invite the participation of officials of the requesting Administration subject to any terms and conditions that it may specify.

Article 16

When officials of either Customs Administration are present in the territory of the other Contracting Party under the terms of this Agreement, they must at all times be able to furnish proof of their identity and official capacity.

Chapter IX - Confidentiality of Information

Article 17

  1. Any information or intelligence received under this Agreement shall be used solely for the purposes of this Agreement and by the Customs Administrations, except in cases where the Customs Administration which has provided such information or intelligence has expressly approved its use for other purposes or by other authorities; such use shall then be subject to any restrictions imposed by the Customs Administration which has provided the information or intelligence.
  2. Any information or intelligence received under this Agreement may only be used in criminal prosecutions after the public prosecution or judicial authorities in the territory of the providing Contracting Party have agreed to such use.
  3. Any information or intelligence received under this Agreement shall be treated as confidential and shall be subject to the same protection as is applicable to similar kinds of information or intelligence under the national legislation of the receiving Contracting Party.
  4. The disclosure of information or intelligence to the European Commission or any of the Customs Administrations of the European Union’s Member States under the obligations of the Kingdom of the Netherlands referred to in Article 2 of this Agreement shall occur only on a need-to-know basis. Where information or intelligence is shared pursuant to this paragraph, Canada shall be so informed in advance of sharing the information.

Article 18

  1. Personal data exchanged under this Agreement shall be subject to a level of protection equivalent to the level of protection maintained by the Contracting Party providing the data.
  2. Contracting Parties shall provide each other with all legislation and administrative provisions relevant to this Article, concerning the personal data protection of their respective States.
  3. Personal data exchange shall not occur until the Contracting Parties have agreed in accordance with paragraph 2 of Article 21 of this Agreement, that the level of protection in their territories is equivalent.

Chapter X - Exemptions

Article 19

  1. In cases where assistance under this Agreement would infringe upon the sovereignty, security, public policy or other substantial national interest of a Contracting Party, or would involve a violation of industrial, commercial or professional secrecy or would be inconsistent with its national legislation, a Contracting Party may refuse assistance.
  2. If the requesting Administration would be unable to comply if a similar request were made by the requested Administration, it shall draw attention to that fact in its request. Compliance with such a request shall be at the discretion of the requested Administration.
  3. Assistance may be postponed by the requested Administration on the grounds that it will interfere with an ongoing investigation, prosecution or proceeding. In such a case, the requested Administration shall consult with the requesting Administration to determine if assistance can be given subject to such terms or conditions as the requested Administration may require.
  4. Where assistance is denied or postponed, reasons for the denial or postponement shall be given.

Chapter XI - Costs

Article 20

  1. Subject to paragraph 2, the Customs Administrations shall waive all claims for reimbursement of costs incurred in the execution of this Agreement.
  2. If expenses of a substantial or extraordinary nature are or will be required to execute the request, the Contracting Parties shall consult to determine the terms and conditions under which the request will be executed as well as the manner in which the costs shall be borne.

Chapter XII - Implementation of the Agreement

Article 21

  1. The Customs Administrations shall take measures so that their officials responsible for the investigation or combating of Customs offences maintain personal and direct relations with each other.
  2. The Customs Administrations shall decide on detailed arrangements to facilitate the implementation of this Agreement.
  3. The Customs Administrations shall endeavour to resolve any problem or doubt arising from the interpretation or application of this Agreement.

Chapter XIII - Application

Article 22

  1. As far as Canada is concerned, this Agreement shall apply to the territory to which Canadian Customs law applies.
  2. As far as the Kingdom of the Netherlands is concerned, this Agreement shall apply to its territory in Europe. It may, however, be extended either in its entirety or with any necessary modifications to the Netherlands Antilles or to Aruba.
  3. The extension referred to in paragraph 2 shall take effect by mutual consent between the Contracting Parties from such date and be subject to such modifications and conditions, including conditions as to termination, as may be specified and agreed in notes to be exchanged through diplomatic channels.

Chapter XIV - Final Provisions

Article 23

This Agreement shall enter into force on the first day of the second month after the Contracting Parties have notified each other in writing through diplomatic channels that the constitutional or internal requirements for the entry into force of this Agreement have been met.

Article 24

  1. This Agreement is intended to be of unlimited duration but either Contracting Party may terminate it at any time by notification through diplomatic channels.
  2. Termination shall take effect one month from the date of the notification of denunciation to the other Contracting Party. Ongoing proceedings at the time of termination may nonetheless be completed in accordance with the provisions of this Agreement.

Article 25

The Contracting Parties shall meet in order to review this Agreement on request.

IN WITNESS whereof the undersigned, being duly authorized thereto, have signed this Agreement.

DONE at Ottawa, on the 14 day of August, 2007, in duplicate, in the English, French and Dutch languages, each version being equally authentic.

Alain Jolicoeur
For the Government of Canada

Karel P.M. de Beer
For the Government of the Kingdom of the Netherlands


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