2008E0124 — EN — 14.11.2016 — 011.001

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Amended by:









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COUNCIL JOINT ACTION 2008/124/CFSP

of 4 February 2008

on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO







Article 1

The mission

1. The EU hereby establishes an European Union Rule of Law Mission in Kosovo, EULEX KOSOVO (hereinafter EULEX KOSOVO).

2. EULEX KOSOVO shall operate in accordance with the Mission Statement set out in Article 2 and shall carry out the tasks as set out in Article 3.

Article 2

Mission Statement

EULEX KOSOVO shall assist the Kosovo institutions, judicial authorities and law enforcement agencies in their progress towards sustainability and accountability and in further developing and strengthening an independent multi-ethnic justice system and multi-ethnic police and customs service, ensuring that these institutions are free from political interference and adhering to internationally recognised standards and European best practices.

EULEX KOSOVO, in full cooperation with the European Commission Assistance Programmes, shall fulfil its mandate through monitoring, mentoring and advising, while retaining certain executive responsibilities.

Article 3

Tasks

In order to fulfil the Mission Statement set out in Article 2, EULEX KOSOVO shall:

(a) monitor, mentor and advise the competent Kosovo institutions on all areas related to the wider rule of law (including a customs service), whilst retaining certain executive responsibilities;

(b) ensure the maintenance and promotion of the rule of law, public order and security including, as necessary, in consultation with the relevant international civilian authorities in Kosovo, through reversing or annulling operational decisions taken by the competent Kosovo authorities;

(c) help to ensure that all Kosovo rule of law services, including a customs service, are free from political interference;

(d) ensure that cases of war crimes, terrorism, organised crime, corruption, inter-ethnic crimes, financial/economic crimes and other serious crimes are properly investigated, prosecuted, adjudicated and enforced, according to the applicable law, including, where appropriate, by international investigators, prosecutors and judges jointly with Kosovo investigators, prosecutors and judges or independently, and by measures including, as appropriate, the creation of cooperation and coordination structures between police and prosecution authorities;

(e) contribute to strengthening cooperation and coordination throughout the whole judicial process, particularly in the area of organised crime;

(f) contribute to the fight against corruption, fraud and financial crime;

(g) contribute to the implementation of the Kosovo Anti-Corruption Strategy and Anti-Corruption Action Plan;

(h) assume other responsibilities, independently or in support of the competent Kosovo authorities, to ensure the maintenance and promotion of the rule of law, public order and security, in consultation with the relevant Council agencies; and

(i) ensure that all its activities respect international standards concerning human rights and gender mainstreaming; and

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(j) cooperate with judicial and law enforcement authorities of Member States and third States in the execution of its mandate.

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Article 3a

Relocated judicial proceedings

1. For the purposes of fulfilling its mandate, including its executive responsibilities, as set out in Article 3(a) and (d), EULEX KOSOVO shall support re-located judicial proceedings within a Member State, in order to prosecute and adjudicate criminal charges arising from the investigation into the allegations raised in a report entitled ‘Inhuman treatment of people and illicit trafficking in human organs in Kosovo’ released on 12 December 2010 by the Special Rapporteur for the Committee on Legal Affairs and Human Rights of the Council of Europe.

2. The judges and prosecutors responsible for the proceedings shall enjoy full independence and autonomy in the discharge of their duties.

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Article 4

Planning and preparation phase

1. During the planning and preparation phase of the mission, EUPT Kosovo shall act as the main planning and preparation element for EULEX KOSOVO.

The Head of EUPT Kosovo shall act under the authority of the Head of EULEX KOSOVO (hereinafter the Head of Mission).

2. The risk assessment carried out as part of the planning process shall be updated regularly.

3. EUPT Kosovo shall be responsible for recruiting and deploying staff and procuring equipment, services and premises intended for EULEX KOSOVO, financed from the EUPT Kosovo budget.

4. EUPT Kosovo shall be responsible for drawing up the Operation Plan (OPLAN) and developing technical instruments necessary to execute the mandate of EULEX KOSOVO. The OPLAN shall take into account the risk assessment and shall include a security plan. The Council shall approve the OPLAN.

Article 5

Launching and transition period

1. The decision to launch EULEX KOSOVO shall be taken by the Council upon approval of the OPLAN. The operational phase of EULEX KOSOVO shall start upon transfer of authority from the United Nations Mission in Kosovo, UNMIK.

2. During the transition period, the Head of Mission may direct EUPT Kosovo to undertake the necessary activities in order for EULEX KOSOVO to be fully operational on the day of transfer of authority.

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Article 6

Structure of EULEX KOSOVO

1. EULEX KOSOVO shall be a unified CSDP mission across Kosovo.

2. EULEX KOSOVO shall establish:

(a) its main headquarters in Pristina;

(b) offices across Kosovo, as required;

(c) liaison offices, as required; and

(d) a Brussels support element.

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Article 7

Civilian Operation Commander

1. The Civilian Planning and Conduct Capability (CPCC) Director shall be the Civilian Operation Commander for EULEX KOSOVO.

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2. The Civilian Operation Commander, under the political control and strategic direction of the Political and Security Committee (PSC) and the overall authority of the High Representative of the Union for Foreign Affairs and Security Policy (HR), shall exercise command and control of EULEX KOSOVO at the strategic level.

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3. The Civilian Operation Commander shall ensure proper and effective implementation of the Council's decisions as well as the PSC's decisions, including by issuing instructions at strategic level as required to the Head of Mission and providing him with advice and technical support.

4. All seconded staff shall remain under the full command of the national authorities of the seconding State or EU institution concerned. National authorities shall transfer Operational Control (OPCON) of their personnel, teams and units to the Civilian Operation Commander.

5. The Civilian Operation Commander shall have overall responsibility for ensuring that the EU's duty of care is properly discharged.

6. The Civilian Operation Commander and the European Union Special Representative (EUSR) shall consult each other as required.

Article 8

Head of Mission

1. The Head of Mission shall assume responsibility and exercise command and control of EULEX KOSOVO at theatre level.

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1a. The Head of Mission shall be the representative of the Mission. The Head of Mission may delegate management tasks in staff and financial matters to staff members of the Mission, under his/her overall responsibility.

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2. The Head of Mission shall exercise command and control over personnel, teams and units from contributing States as assigned by the Civilian Operation Commander together with administrative and logistic responsibility including over assets, resources and information placed at the disposal of EULEX KOSOVO. The exercise of such command and control shall be without prejudice to the principle of the independence of the judiciary and the autonomy of prosecution when considering the discharge of judicial duties of EULEX KOSOVO judges and prosecutors. ►M9 EULEX KOSOVO Judges and Prosecutors shall meet the highest professional qualification necessary for the level or complexity of the matter before them and shall be appointed following an independent selection process. ◄

3. The Head of Mission shall issue instructions to all EULEX KOSOVO staff, including in this case the support element in Brussels, for the effective conduct of EULEX KOSOVO in theatre, assuming its coordination and day-to-day management, and following the instructions at strategic level of the Civilian Operation Commander.

4. Until the expiry of Joint Action 2006/304/CFSP, the Head of Mission shall be supported by EUPT Kosovo established thereby.

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6. The Head of Mission shall be responsible for disciplinary control over the staff. For seconded staff, disciplinary action shall be exercised by the national or EU authority concerned.

7. The Head of Mission shall represent EULEX KOSOVO in the operations area and shall ensure appropriate visibility of EULEX KOSOVO.

8. The Head of Mission shall coordinate, as appropriate, with other EU actors on the ground. The Head of Mission shall, without prejudice to the chain of command, receive local political guidance from the EUSR, including with regard to the political aspects of issues related to executive responsibilities.

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9. The Head of Mission shall ensure that EULEX KOSOVO works closely and coordinates with the competent Kosovo authorities and with relevant international actors, as appropriate, including NATO/KFOR, UNMIK, OSCE and third States involved in the rule of law in Kosovo.

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10. Under the direct responsibility of the Head of Mission, internal legal and financial control functions shall be performed by personnel independent of the staff responsible for the administration of EULEX KOSOVO.

Article 9

Staff

1. The numbers and competence of the EULEX KOSOVO staff shall be consistent with its Mission Statement set out in Article 2, the tasks set out in Article 3 and the structure of EULEX KOSOVO set out in Article 6.

2. EULEX KOSOVO shall consist primarily of staff seconded by Member States or EU institutions. Each Member State or EU institution shall bear the costs related to any of the staff seconded by it, including travel expenses to and from the place of deployment, salaries, medical coverage and allowances other than daily allowances and applicable risks and hardship allowances.

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3. International civilian staff and local staff may also be recruited by EULEX KOSOVO, as required, on a contractual basis, if the functions required are not provided by personnel seconded by Member States. Exceptionally, in duly justified cases, where no qualified applications from Member States are available, nationals from participating third States may be recruited on a contractual basis, as appropriate.

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4. All staff shall carry out their duties and act in the interest of the Mission. All staff shall respect the security principles and minimum standards established by Council Decision 2013/488/EU ( 11 ).

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Article 10

Status of EULEX KOSOVO and of its staff

1. The status of EULEX KOSOVO and its staff, including the privileges, immunities and further guarantees necessary for the completion and smooth functioning of EULEX KOSOVO, shall be agreed as appropriate.

2. The State or EU institution having seconded a member of staff shall be responsible for answering any claims linked to the secondment, from or concerning the member of staff. The State or EU institution in question shall be responsible for bringing any action against the seconded person.

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3. The conditions of employment and the rights and obligations of international and local staff shall be laid down in the contracts to be concluded between EULEX KOSOVO and the staff member concerned.

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Article 11

Chain of command

1. EULEX KOSOVO shall have a unified chain of command, as a crisis management operation.

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2. Under the responsibility of the Council and the HR, the PSC shall exercise political control and strategic direction of EULEX KOSOVO.

3. As also laid down in Article 7, the Civilian Operation Commander, under the political control and strategic direction of the PSC and the overall authority of the HR, shall be the commander of EULEX KOSOVO at strategic level and, as such, shall issue the Head of Mission with instructions and provide him with advice and technical support.

4. The Civilian Operation Commander shall report to the Council through the HR.

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5. The Head of Mission shall exercise command and control of EULEX KOSOVO at theatre level and shall be directly responsible to the Civilian Operation Commander.

Article 12

Political control and strategic direction

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1. The PSC shall exercise, under the responsibility of the Council and the HR, political control and strategic direction of EULEX KOSOVO.

2. The Council hereby authorises the PSC to take the relevant decisions for this purpose, in accordance with the third paragraph of Article 38 of the Treaty. This authorisation shall include the powers to amend the OPLAN and the chain of command. It shall also include powers to take subsequent decisions regarding the appointment of the Head of Mission. The Council, on the recommendation of the HR, shall decide on the objectives and termination of EULEX KOSOVO.

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3. The PSC shall report to the Council at regular intervals.

4. The PSC shall receive, on a regular basis and as required, reports by the Civilian Operation Commander and the Head of Mission on issues within their areas of responsibility. Planning for specific areas may be reviewed by the PSC on a regular basis.

Article 13

Participation of third States

1. Without prejudice to the decision-making autonomy of the EU and its single institutional framework, third States may be invited to contribute to EULEX KOSOVO provided that they bear the cost of the staff seconded by them, including salaries, allowances and travel expenses to and from the theatre of operation, and to contribute to the running costs of EULEX KOSOVO, as appropriate.

2. Third States making contributions to EULEX KOSOVO shall have the same rights and obligations in terms of day-to-day management of EULEX KOSOVO as Member States taking part in it.

3. The Council hereby authorises the PSC to take the relevant decisions on acceptance or otherwise of the proposed contributions and to establish a Committee of Contributors.

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4. Detailed arrangements regarding the participation of third States shall be laid down in an agreement to be concluded in accordance with Article 37 of the Treaty and Article 218 of the Treaty on the Functioning of the European Union. Where the EU and a third State conclude an agreement establishing a framework for the participation of such third State in the EU crisis management operations, the provisions of such agreement shall apply in the context of EULEX KOSOVO.

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Article 14

Security

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1. The Civilian Operation Commander shall direct the Head of Mission's planning of security measures and ensure their proper and effective implementation for EULEX KOSOVO in accordance with Article 7 and 11 and in coordination with the EEAS.

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2. The Head of Mission shall be responsible for the security of the operation and for ensuring compliance with minimum security requirements applicable to the operation, in line with the policy of the EU on the security of personnel deployed outside the EU in an operational capacity under Title V of the Treaty and its supporting instruments.

3. The Head of Mission shall be assisted by a Senior Mission Security Officer (SMSO), who will report to the Head of Mission and also maintain a close functional relationship with the Security Office mentioned in paragraph 1.

4. The Head of Mission shall appoint Area Security Officers in the regional and local EULEX KOSOVO locations, who, under the authority of the SMSO shall be responsible for the day-to-day management of all security aspects of the respective EULEX KOSOVO elements.

5. EULEX KOSOVO staff shall undergo mandatory security training before or upon taking up their duties, in accordance with the OPLAN. They also receive regular in-theatre refresher training organised by the SMSO and the Area Security Officers.

6. The Head of Mission shall ensure that the numbers of EULEX KOSOVO staff present and of authorised visitors never exceed EULEX KOSOVO's capabilities to ensure their safety and security or to manage their evacuation in an emergency situation.

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7. The Head of Mission shall ensure the protection of EU classified information in accordance with Decision 2013/488/EU.

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Article 15

Watch-keeping

The watch-keeping capability shall be activated for EULEX KOSOVO.

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Article 15a

Legal arrangements

EULEX KOSOVO shall have the capacity to procure services and supplies, to enter into contracts and administrative arrangements, to employ staff, to hold bank accounts, to acquire and dispose of assets and to discharge its liabilities, and to be a party to legal proceedings, as required in order to implement this Joint Action.

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Article 16

Financial arrangements

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1. The financial reference amount intended to cover the expenditure of EULEX KOSOVO until 14 October 2010 shall be EUR 265 000 000 .

The financial reference amount intended to cover the expenditure of EULEX KOSOVO from 15 October 2010 until 14 December 2011 shall be EUR 165 000 000 .

The financial reference amount intended to cover the expenditure of EULEX KOSOVO from 15 December 2011 until 14 June 2012 shall be EUR 72 800 000 .

The financial reference amount intended to cover the expenditure of EULEX KOSOVO from 15 June 2012 until 14 June 2013 shall be EUR 111 000 000 .

The financial reference amount intended to cover the expenditure of EULEX KOSOVO from 15 June 2013 until 14 June 2014 shall be EUR 110 000 000 .

The financial reference amount intended to cover the expenditure of EULEX KOSOVO from 15 June 2014 until 14 October 2014 shall be EUR 34 000 000 .

The financial reference amount intended to cover the expenditure of EULEX KOSOVO from 15 October 2014 until 14 June 2015 shall be EUR 55 820 000 .

The financial reference amount intended to cover the expenditure of EULEX KOSOVO from 15 June 2015 until 14 June 2016 shall be EUR 77 000 000 .

The financial reference amount intended to cover the expenditure of EULEX KOSOVO from 15 June 2016 until 14 June 2017 shall be EUR 86 850 000 .

Out of the amount referred to in the ninth subparagraph, the amount intended to cover the expenditure of EULEX KOSOVO for the implementation of its mandate in Kosovo shall be EUR 34 500 000 from 15 June until 14 December 2016 and EUR 23 250 000 from 15 December 2016 until 14 June 2017; EUR 29 100 000 shall cover the support to the relocated judicial proceedings within a Member State from 15 June 2016 until 14 June 2017 and shall also retroactively cover expenditure arising from the support to the relocated judicial proceedings as of 1 April 2016. The Commission shall sign a grant agreement with a registrar acting on behalf of a registry in charge of the administration of the relocated judicial proceedings for that amount. The rules on grants provided for in Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council ( 12 ) shall apply to this grant agreement.

The financial reference amount for the subsequent period for EULEX KOSOVO shall be decided by the Council.

2. All expenditure shall be managed in accordance with the rules and procedures applicable to the general budget of the Union. The participation of natural and legal persons in the award of procurement contracts financed out of the Mission's budget shall be open without limitations. Moreover, no rule of origin shall apply for goods purchased by EULEX KOSOVO.

3. Subject to the Commission's approval, the Head of Mission may conclude technical arrangements with EU Member States, participating third States and other international actors deployed in Kosovo regarding the provision of equipment, services and premises to EULEX KOSOVO. The position of contract holder of contracts or under arrangements concluded by EUPT Kosovo for EULEX KOSOVO during the planning and preparation phase shall be transferred to EULEX KOSOVO, as appropriate. Assets owned by EUPT Kosovo shall be transferred to EULEX KOSOVO.

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4. Except for the amount referred to in the 10th subparagraph of paragraph 1 related to the support to the relocated judicial proceedings within a Member State, EULEX Kosovo shall be responsible for the financial implementation of the Mission's budget. For this purpose, EULEX Kosovo shall sign an agreement with the Commission.

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5. EULEX KOSOVO shall be responsible for any claims and obligations arising from the implementation of the mandate starting from 15 June 2014, with the exception of any claims relating to serious misconduct by the Head of Mission, for which the Head of Mission shall bear the responsibility.

6. The implementation of the financial arrangements will be without prejudice to the chain of command as provided for in Articles 7, 8 and 11 and the operational requirements of EULEX KOSOVO, including compatibility of equipment and interoperability of its teams.

7. Expenditure shall be eligible as of the date of entry into force of this Joint Action.

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Article 16a

Project Cell

1. EULEX KOSOVO shall have a Project Cell for identifying and implementing projects. EULEX KOSOVO shall, as appropriate, coordinate, facilitate, and provide advice on projects implemented by Member States and third States under their responsibility in areas related to EULEX KOSOVO and in support of its objectives.

2. EULEX KOSOVO shall be authorised to seek recourse to financial contributions from the Member States or third States to implement projects identified as supplementing in a consistent manner EULEX KOSOVO's other actions, if the project is:

(a) provided for in the financial statement relating to this Joint Action; or

(b) integrated during the mandate by means of an amendment to the financial statement requested by the Head of Mission. EULEX KOSOVO shall conclude an arrangement with those States, covering in particular the specific procedures for dealing with any complaint from third parties concerning damage caused as a result of acts or omissions by EULEX KOSOVO in the use of the funds provided by those States. Under no circumstances may the contributing States hold the Union or the HR liable for acts or omissions by EULEX KOSOVO in the use of the funds provided by those States.

3. The PCS shall agree on the acceptance of a financial contribution from third States to the Project Cell.

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Article 18

Release of information and documents

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1. The HR shall be authorised to release to the United Nations, NATO/KFOR, other third parties associated with this Joint Action and Frontex EU classified information and documents generated for the purposes of EULEX KOSOVO up to the level of the relevant classification respectively for each of them, in accordance with Decision 2013/488/EU. Local technical arrangements shall be drawn up to facilitate this.

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2. In the event of a specific and immediate operational need, the HR shall also be authorised to release to the competent local authorities EU classified information and documents up to the level ‘RESTREINT UE/EU RESTRICTED’ generated for the purposes of EULEX KOSOVO, in accordance with Decision 2013/488/EU. In all other cases, such information and documents shall be released to the competent local authorities in accordance with the procedures appropriate to those authorities' level of cooperation with the EU.

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3. The HR shall be authorised to release to the United Nations, NATO/KFOR, to other third parties associated with this Joint Action and to the relevant local authorities, EU non-classified documents related to the deliberations of the Council with regard to EULEX KOSOVO covered by the obligation of professional secrecy pursuant to Article 6(1) of the Council's Rules of Procedure ( 13 ).

4. The HR may delegate such authorisations, as well as the ability to conclude the arrangements referred to above to persons placed under his/her authority, to the Civilian Operations Commander and/or to the Head of Mission.

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5. The authorisation given to the High Representative to release to third parties and competent local authorities EU classified information and documents generated for the purposes of EULEX KOSOVO under paragraphs 1 and 2 shall not extend to information gathered or documents generated for the purpose of the judicial proceedings carried out within the framework of EULEX KOSOVO's mandate. This does not prevent the release of non-sensitive information which relates to the administrative organisation or efficiency of the proceedings.

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Article 19

Review

The Council shall evaluate, not later than 6 months before the expiry of this Joint Action whether EULEX KOSOVO should be extended.

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Article 20

Entry into force and duration

This Joint Action shall enter into force on the day of its adoption.

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It shall expire on 14 June 2018. The Council, acting on a proposal from the High Representative, and considering complementary sources of funding as well as contributions from other partners, shall take the necessary decisions in order to ensure that EULEX Kosovo's mandate in support of the relocated judicial proceedings referred to in Article 3a and the related necessary financial means shall remain in effect until such time as these judicial proceedings have been concluded.

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Article 21

Publication

1. This Joint Action shall be published in the Official Journal of the European Union.

2. The decisions of the PSC pursuant to Article 12(1) regarding the appointment of the Head of Mission shall also be published in the Official Journal of the European Union.