The Sixth Meeting of the ASEAN Directors-General of Customs held on 26-27 February 1998 in Jakarta has endorsed the Guidelines for Mutual Assistance to Combat Customs Fraud and Smuggling. These were mandated at the First ASEAN Finance Ministers Meeting held on 1 March 1997 in Phuket, Thailand.

These Guidelines are meant to enhance customs cooperation in combating customs fraud and smuggling. These Guidelines provide a framework for more cooperation in combating customs fraud and smuggling in ASEAN and could be a basis for bilateral or trilateral arrangements among Member Countries.

The Guidelines are based on the Nairobi Convention on Mutual Administrative Assistance for the Prevention, Investigation and Repression of Customs Offences signed in Nairobi, Kenya, in June 1977. Provisions for mutual assistance were provided in the ASEAN Agreement on Customs Article 7 (Other Areas of Cooperation) signed on 1 March 1997 in Phuket.

Guidelines for Mutual Assistance to Combat Custom Fraud and Smuggling

I. Obligation

Members agree to afford each other mutual assistance with a view to preventing, investigating and repressing customs fraud. The extent of assistance to be given should be within the competence of the customs administration and subject to its national laws.

II. Scope of Mutual Assistance

The scope of mutual assistance shall cover the following areas.

1. Assessment of import or export duties and taxes

   At the request of the customs administration of an ASEAN Member which has good reason to believe that a serious customs offence has been committed in its territory, the customs administration of the requested ASEAN Member shall communicate all available information which may help to ensure the proper assessment of import or export duties and taxes.

   An ASEAN Member shall be taken to have fulfilled its obligations if, for example, it communicates as appropriate in response to a request the following information or documents available to it:

   1. in respect of the value of goods for customs purposes: the commercial invoices presented to the customs of the country of exportation or importation or copies of such invoices, certified or not by the customs, as the circumstances may require; documentation showing current export or import prices; a copy of the declaration of value made on exportation or importation of the goods; trade catalogues, price lists, etc. published in the country of exportation or in the country of importation;

   2. in respect of the tariff classification of goods: analyses carried out by laboratory services to determine the tariff classification of the goods; the tariff description declared on importation or exportation; and

   3. in respect of the origin of goods: the declaration of origin made on exportation, when such declaration is required; the customs status of the goods in the country of exportation (Customs transit, customs warehouse, temporary admission, free zone, free circulation, exported under drawback, etc.).

2. Controls

   At the request of the customs administration of another ASEAN Member, the customs administration of another Member shall communicate information concerning the following:

   1. the authenticity of official documents produced in support of a Goods declaration made to the customs authorities of the requesting ASEAN Member;

   2. whether goods imported into the territory of the requesting ASEAN Member have been lawfully exported into the territory of the other ASEAN Member; and

   3. whether goods exported from the territory of the requesting ASEAN Member have been lawfully imported into the territory of the requested ASEAN Member.

3. Information on persons, their methods and vessels involved in smuggling

   At the request of the customs administration of another ASEAN Member, the customs administration of another Member shall communicate information concerning:

   1. persons finally convicted of smuggling;

   2. where appropriate, persons suspected of smuggling or apprehended in the act of smuggling in the territory of the AEAN Member making the notification, even though legal proceedings have not been completed;

   3. methods of smuggling and other fraud; and

   4. vessels involved in smuggling.

4. Providing assistance to combat smuggling of narcotic drugs and psychotropic substances

   Customs administrations of Member Countries shall, on their own initiative, exchange information relating to the smuggling of narcotic drugs and psychotropic substances.

   The customs administration of a Member Country shall provide assistance on request relating to surveillance and shall communicate a report thereon to the Customs administration of the requesting Member Country.

   At the request of the Customs administration of a Member Country, the Customs administration of another Member Country shall, subject to the laws and regulations in force in its territory, make enquiries to obtain evidence concerning any smuggling of narcotic drugs or psychotropic substances under investigation in the territory of the requesting Member and communicate the results of the enquiry, as well as any documents or other evidence, to the Customs administration of the requesting Member Country.

5. Providing assistance against the smuggling of works of art, antiques and other cultural property.

   Customs administrations of Member Countries shall, on their own initiative, exchange information relating to the smuggling of works of art, antiques or other cultural property.

   The customs administration of a Member Country shall provide assistance on request relating to surveillance and shall communicate a report thereon to the Customs administration of the requesting Member Country.

   At the request of the Customs administration of a Member Country, the Customs administration of another Member Country shall, subject to the laws and regulations in force in its territory, make enquiries to obtain evidence concerning any smuggling of works of art, antiques and other cultural property under investigation in the territory of the requesting Member and communicate the results of the enquiry, as well as any documents or other evidence, to the Customs administration of the requesting Member Country.

III. Flexibility

If a Member considers that the provision of assistance would infringe upon its sovereignty, security or other substantial national interests or prejudice the legitimate commercial interests of any enterprise, public or private, it may decline to provide that assistance or give it subject to certain conditions.

Mutual assistance does not extend to requests for the arrest of persons, the recovery of duties, taxes, charges, fines or any other monies.

In the course of a judicial or administrative proceeding, a customs administration can request assistance from another customs administration. But if the proceedings are not being conducted by the customs administration, its request for assistance is limited within the limits of its competence.

If a customs administration requests a form of assistance, which it itself would be unable to give, then compliance with the request shall be at the discretion of the other customs administration.

IV. Bilateral or Trilateral Arrangements on Mutual Assistance

Recognising that a more meaningful and effective arrangement would be among neighbouring countries and addressing specific interests, Members are encouraged to enter into bilateral or trilateral arrangements on mutual assistance. These bilateral or trilateral arrangements can include elements beyond those contained in Part II of these Guidelines.