NAPLES II: Customs officials given extensive new EU powers
01 November 1997
Another issue not on the agenda of the Council of Justice and Home Affairs Ministers was the Draft Convention on mutual assistance and cooperation between customs administrations (Naples II) which greatly extends the powers of customs officials and bodies. It is expected to be adopted without debate at the last Council of Ministers meeting before Christmas - the Fisheries Council on 18 December.
"Customs" are an issue covering both the "first" and "third" pillars of the EU. In the "third pillar" it is covered by Steering Group 2 on police cooperation and customs. Moreover, as a political issue it does not attract much attention. It is therefore ironic that the more contentious new policies - the interception of telecommunications and controlled deliveries - in the draft Convention on mutual assistance on criminal matters (see above) have been set aside so as not to endanger the main Convention and are to be the subject of a separate Protocol. The Convention includes several new powers drawn from the Schengen Agreement and puts them into Community law.
Article 4 includes a definition of "personal data" as including "specific elements which are characteristic of his or her physical, physiological, psychological, economic, cultural or social identity."
Articles 8 and 9 cover the exchange of information between the "requested authority" and the "applicant authority". Article 11 covers "Requests for surveillance" for keeping a "special watch" on persons where there are "serious grounds for believing" they have infringed Community law or national provisions or "they are committing or have carried out preparatory acts with a view to the commission of such infringements". Article 16 covers "surveillance" and Article 17 "spontaneous information".
Title IV (Articles 19-24) deals with "Special forms of cooperation". Article 19 allows customs officials to operate on the territory of another Member State of the EU. Article 19.8 says that customs officers will be treated as coming under the laws of the state they are operating in "as regards infringements committed against them or by them". Quite different to the "immunities" being given to Europol officers (see next feature).
Article 20 introduces "Hot pursuit" into the territory of another Member State "without prior authorisation". The "pursuing officers shall not have the right to apprehend" but may "apprehend the person pursued until the officers of the Member State in the territory arrive" where the latter are unable to intervene "quickly enough" (Article 20.2). Article 19.4.c says the "pursuing officers" must be easily identifiable and the "use of civilian clothes combined with the use of unmarked means of transport.. is prohibited".
Article 19.4.d says "pursuing officers may carry their service weapons" except where the requested Member State has "made a general declaration". The use of their weapons "shall be prohibited save in cases of legitimate self-defence".
Once apprehended the officers can search a person, use handcuffs and seize objects. If the person arrested is not a national of the Member State where they are apprehended they must be "released no later than six hours after arrest" (not including the hours between midnight and 9.00am in the morning) unless a request for "provisional arrest for the purposes of extradition" has been received "in any form".
Article 21 covers "Cross-border surveillance" and these officers too will be allowed to carry their "service weapons". Article 22 is on "Controlled deliveries". In the most bland and general terms the use of "controlled deliveries" (where the authorities know in advance and have under surveillance the transport or unlawful goods) are introduced. No definition is provided. It is simply stated that each Member State should ensure that "controlled deliveries may be permitted on its territory in the framework of criminal investigations into extraditable offences" (22.1). Article 22 should be viewed to