02008E0851 — EN — 17.12.2018 — 009.001

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Amended by:





Corrected by:









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COUNCIL JOINT ACTION 2008/851/CFSP

of 10 November 2008

on a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast







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Article 1

Mission

1. The European Union (EU) shall conduct a military operation in support of Resolutions 1814 (2008), 1816 (2008), 1838 (2008), 1846 (2008) and 1851 (2008) of the United Nations Security Council (UNSC), in a manner consistent with action permitted with respect to piracy under Article 100 et seq. of the United Nations Convention on the Law of the Sea signed in Montego Bay on 10 December 1982 (hereinafter referred to as ‘the United Nations Convention on the Law of the Sea’) and by means, in particular, of commitments made with third States (‘Atalanta’) in order to contribute to:

— the protection of vessels of the WFP delivering food aid to displaced persons in Somalia, in accordance with the mandate laid down in UNSC Resolution 1814 (2008), and

— the protection of vulnerable vessels cruising off the Somali coast, and the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast, in accordance with the mandate laid down in UNSC Resolutions 1846 (2008) and 1851 (2008).

2. The area of operations of the forces deployed to that end shall consist of the Somali coastal territory and internal waters, and the maritime areas off the coasts of Somalia and neighbouring countries within the region of the Indian Ocean, in accordance with the political objective of an EU maritime operation, as defined in the crisis management concept approved by the Council on 5 August 2008.

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3. In addition, Atalanta may contribute, as a non–executive secondary task, within existing means and capabilities and upon request, to the EU's integrated approach to Somalia and the relevant activities of the international community, thereby helping to address the root causes of piracy and its networks.

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Article 2

Mandate

►C1 Under the conditions set by applicable international law, in particular the United Nations Convention on the Law of the Sea, and by UNSC Resolutions 1814 (2008), 1816 (2008) and 1838 (2008), Atalanta shall, as far as available capabilities allow: ◄

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(a) provide protection to vessels chartered by the WFP, including by means of the presence on board those vessels of armed units of Atalanta, including when sailing in Somalia’s territorial and internal waters;

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(b) provide protection, based on a case-by-case evaluation of needs, to merchant vessels cruising in the areas where it is deployed;

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(c) keep watch over areas off the Somali coast, including Somalia’s territorial and internal waters, in which there are dangers to maritime activities, in particular to maritime traffic;

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(d) take the necessary measures, including the use of force, to deter, prevent and intervene in order to bring to an end acts of piracy and armed robbery which may be committed in the areas where it is present;

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(e) in view of prosecutions potentially being brought by the relevant States under the conditions in Article 12, arrest, detain and transfer persons suspected of intending, as referred to in Articles 101 and 103 of the United Nations Convention on the Law of the Sea, to commit, committing or having committed acts of piracy or armed robbery in the areas where it is present and seize the vessels of the pirates or armed robbers or the vessels caught following an act of piracy or an armed robbery and which are in the hands of the pirates or armed robbers, as well as the property on board;

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(f) liaise with organisations and entities, as well as States, working in the region to combat acts of piracy and armed robbery off the Somali coast, in particular the ‘Combined Task Force 151’ maritime force which operates within the framework of ‘Operation Enduring Freedom’;

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(g) collect, in accordance with applicable law, personal data concerning persons referred to in point (e) related to characteristics likely to assist in their identification, including fingerprints, as well as the following particulars, with the exclusion of other personal data: surname, maiden name, given names and any alias or assumed name; date and place of birth, nationality, sex; place of residence, profession and whereabouts; driving licenses, identification documents and passport data;

(h) for the purpose of circulating data via the International Criminal Police Organisation's (INTERPOL) channels and checking it against INTERPOL's databases, and pending the conclusion of an agreement between the Union and INTERPOL, transmit to the National Central Bureau (‘NCB’) of INTERPOL of the Member States, in accordance with arrangements to be concluded between the EU Operation Commander and the Head of the appropriate NCBs, the following data:

— personal data referred to in point (g),

— data related to the equipment used by persons referred to in point (e).

The personal data shall not be stored after its transmission to INTERPOL;

(i) transmit the data referred to in point (h) to EUROPOL according to the provisions of an arrangement to be concluded between the High Representative of the Union for Foreign Affairs and Security Policy and EUROPOL. The personal data shall not be stored after its transmission to EUROPOL;

(j) contribute, within existing means and capabilities, to the monitoring of fishing activities off the coast of Somalia and support the licensing and registration scheme for artisanal and industrial fishing in waters under Somali jurisdiction developed by the Food and Agriculture Organization (FAO), when in place, at the exclusion of any enforcement activity;

(k) liaise, in close coordination with the European External Action Service, with Somali entities and private companies operating on their behalf, active off the coast of Somalia in the broader field of maritime security, with a view to better understanding their activities and capacities and de-conflict operations at sea;

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(l) assist through logistical support, provision of expertise or training at sea, upon their request and within means and capabilities, EUCAP Nestor, EUTM Somalia, the EU Special Representative for the Horn of Africa, the EU Delegation to Somalia with respect to their mandates and the area of operation of Atalanta and contribute to the implementation of relevant EU programmes, in particular the regional Maritime security programme (MASE) under the 10th EDF and CRIMARIO;

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(m) make data relating to fishing activities gathered by EUNAVFOR units off the coast of Somalia available, via the relevant Commission service, to the Indian Ocean Tuna Commission, its Member States and the FAO, and once sufficient progress has been made ashore in the area of maritime capacity-building, including security measures for the exchange of information, assist Somali authorities by making available data relating to fishing activities compiled in the course of the operation;

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(n) support, in a manner consistent with the United Nations Convention on the Law of the Sea and within existing means and capabilities, the activities of the Panel of Experts on Somalia pursuant to UNSC Resolution 2444 (2018) by monitoring and reporting to that Panel vessels of interest suspected of supporting the piracy networks.

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Article 3

Appointment of the EU Operation Commander

Vice Admiral Antonio MARTORELL LACAVE is hereby appointed to succeed Major General Charlie STICKLAND OBE RM as the EU Operation Commander from 29 March 2019 at 12.00 hours CET.

Article 4

Designation of the EU Operation Headquarters

1. The EU Operation Headquarters shall be located at Northwood, United Kingdom, until 29 March 2019 at 12.00 hours CET.

2. As from 29 March 2019 at 12.00 hours CET, the EU Operation Headquarters shall be located at Rota, Spain, with the exception of the Maritime Security Centre Horn of Africa (MSCHOA), which shall be located at Brest, France.

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Article 5

Planning and launch of the operation

The Decision to launch the EU military operation shall be adopted by the Council following approval of the Operation Plan and the Rules of Engagement and in the light of the notification by the TFG to the Secretary-General of the United Nations of the offer of cooperation made by the EU pursuant to point 7 of UNSC Resolution 1816 (2008).

Article 6

Political control and strategic direction

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1. Under the responsibility of the Council and of the High Representative of the Union for Foreign Affairs and Security Policy (hereinafter referred to as the ‘HR’), the Political and Security Committee (hereinafter referred to as the ‘PSC’) shall exercise the political control and strategic direction of the EU military operation. The Council hereby authorises the PSC to take the relevant decisions in accordance with Article 38 of the Treaty. This authorisation shall include the powers to amend the planning documents, including the Operation Plan, the Chain of Command and the Rules of Engagement. It shall also include the powers to take decisions on the appointment of the EU Operation Commander and/or EU Force Commander. The powers of decision with respect to the objectives and termination of the EU military operation shall remain vested in the Council, assisted by the HR.

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

3. The PSC shall receive reports from the chairman of the EU Military Committee (EUMC) regarding the conduct of the EU military operation, at regular intervals. The PSC may invite the EU Operation Commander and/or EU Force Commander to its meetings, as appropriate.

Article 7

Military direction

1. The EUMC shall monitor the proper execution of the EU military operation conducted under the responsibility of the EU Operation Commander.

2. The EUMC shall receive reports from the EU Operation Commander at regular intervals. It may invite the EU Operation Commander and/or EU Force Commander to its meetings as appropriate.

3. The chairman of the EUMC shall act as the primary point of contact with the EU Operation Commander.

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Article 8

Coherence of EU response

The HR, the EU Operation Commander and the EU Force Commander shall closely coordinate their respective activities regarding the implementation of this Joint Action.

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Article 9

Relations with the United Nations, neighbouring countries and other actors

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1. The HR shall act as the primary point of contact with the United Nations, the Somali authorities, the authorities of neighbouring countries, and other relevant actors. Within the context of his contact with the African Union, the HR shall be assisted by the EU Special Representative (EUSR) to the African Union.

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2. At operational level, the EU Operation Commander shall act as the contact point with, in particular, ship-owners' organisations, as well as with the relevant departments of the UN General Secretariat and the WFP.

Article 10

Participation by third States

1. Without prejudice to the decision-making autonomy of the EU or to the single institutional framework, and in accordance with the relevant guidelines of the European Council, third States may be invited to participate in the operation.

2. The Council hereby authorises the PSC to invite third States to offer contributions and to take the relevant decisions on acceptance of the proposed contributions, upon the recommendation of the EU Operation Commander and the EUMC.

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3. Detailed modalities for the participation by third States shall be the subject of agreements concluded in accordance with the procedure laid down in Article 37 of the Treaty. Where the EU and a third State have concluded an agreement establishing a framework for the latter’s participation in EU crisis management operations, the provisions of such an agreement shall apply in the context of this operation.

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4. Third States making significant military contributions to the EU military operation shall have the same rights and obligations in terms of day-to-day management of the operation as Member States taking part in the operation.

5. The Council hereby authorises the PSC to take relevant decisions on the setting-up of a Committee of Contributors, should third States provide significant military contributions.

6. The conditions for the transfer to a State participating in the operation of persons arrested and detained, with a view to the exercise of jurisdiction of that State, shall be established when the participation agreements referred to in paragraph 3 are concluded or implemented.

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Article 11

Status of EU-led forces

The status of the EU-led forces and their personnel, including the privileges, immunities and further guarantees necessary for the fulfilment and smooth functioning of their mission, who:

— are stationed on the land territory of third States,

— operate in the territorial or internal waters of third States,

shall be agreed in accordance with the procedure laid down in Article 37 of the Treaty.

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Article 12

Transfer of persons arrested and detained with a view to their prosecution

1. On the basis of Somalia’s acceptance of the exercise of jurisdiction by Member States or by third States, on the one hand, and Article 105 of the United Nations Convention on the Law of the Sea, on the other hand, persons suspected of intending, as referred to in Articles 101 and 103 of the United Nations Convention of the Law of the Sea, to commit, committing or having committed acts of piracy or armed robbery in Somalia’s territorial or internal waters or on the high seas, who are arrested and detained, with a view to their prosecution, and property used to carry out such acts, shall be transferred:

— to the competent authorities of the Member State or of the third State participating in the operation, of which the vessel which took them captive flies the flag, or

— if that State cannot, or does not wish to, exercise its jurisdiction, to a Member State or any third State which wishes to exercise its jurisdiction over the aforementioned persons and property.

2. Persons suspected of intending, as referred to in Articles 101 and 103 of the United Nations Convention of the Law of the Sea, to commit, committing or having committed acts of piracy or armed robbery who are arrested and detained, with a view to their prosecution, by Atalanta in the territorial waters, the internal waters or the archipelagic waters of other States in the region in agreement with these States, and property used to carry out such acts, may be transferred to the competent authorities of the State concerned, or, with the consent of the State concerned, to the competent authorities of another State.

3. No persons referred to in paragraphs 1 and 2 may be transferred to a third State unless the conditions for the transfer have been agreed with that third State in a manner consistent with relevant international law, notably international law on human rights, in order to guarantee in particular that no one shall be subjected to the death penalty, to torture or to any cruel, inhuman or degrading treatment.

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Article 13

Relations with the flag States of protected vessels

The conditions governing the presence on board merchant ships, particularly those chartered by the WFP, of units belonging to Atalanta, including privileges, immunities and other guarantees relating to the proper conduct of the operation, shall be agreed with the flag States of those vessels.

Article 14

Financial arrangements

1. The common costs of the EU military operation shall be administered by Athena.

2. The financial reference amount for the common costs of the EU military operation shall be EUR 8 300 000 . The percentage of the reference amount referred to in Article 33(3) of Athena shall be 30 %.

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3. The financial reference amount for the common costs of the EU military operation for the period from 13 December 2012 until 12 December 2014 shall be EUR 14 900 000 . The percentage of the reference amount referred to in Article 25(1) of Council Decision 2011/871/CFSP shall be 0 %.

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4. The financial reference amount for the common costs of the EU military operation for the period from 13 December 2014 until 12 December 2016 shall be EUR 14 775 000 . The percentage of the reference amount referred to in Article 25(1) of Decision 2011/871/CFSP shall be 0 %.

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5. The financial reference amount for the common costs of the EU military operation for the period from 13 December 2016 until 31 December 2018 shall be EUR 11 064 000 . The percentage of the reference amount referred to in Article 25(1) of Council Decision (CFSP) 2015/528 ( 1 ) shall be 0 %.

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6. The financial reference amount for the common costs of the EU military operation for the period from 1 January 2019 until 31 December 2020 shall be EUR 11 777 000 . The percentage of the reference amount referred to in Article 25(1) of Decision (CFSP) 2015/528 shall be 0 %.

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Transitory financial arrangements

1. From 1 September 2018, expenditure incurred by the EU Operation Commander appointed in Article 3 and the EU Operation Headquarters designated in Article 4(2) shall be financed in accordance with Decision (CFSP) 2015/528.

2. The Council hereby authorises Spain and France to pre-finance common costs incurred pursuant to paragraph 1 and to seek reimbursement thereof in accordance with Article 27 of Council Decision (CFSP) 2015/528.

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Article 15

Release of information to the United Nations and other third parties

1. The HR is hereby authorised to release to the United Nations and to other third parties associated with this Joint Action, classified EU information and documents generated for the purposes of the EU military operation up to the level of classification appropriate for each of them and in accordance with the Council’s security regulations ( 2 ).

2. The HR is hereby authorised to release to the United Nations and to other third parties associated with this Joint Action, unclassified EU documents relating to Council deliberations on the operation which are covered by the obligation of professional secrecy pursuant to Article 6(1) of the Council’s Rules of Procedure ( 3 ).

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3. The HR is hereby authorised to release to the United States-led Combined Maritime Forces (‘CMF’), through its Headquarters, as well as to third States not participating in CMF and to international organisations, which are present in the area of the EU military operation, classified EU information and documents generated for the purposes of the EU military operation at the level RESTREINT UE, on the basis of reciprocity, where such release at theatre level is necessary for operational reasons, in accordance with the Council's security regulations and subject to arrangements between the HR and the competent authorities of the third parties referred to above.

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4. Atalanta is hereby authorised to share with the Panel of Experts on Somalia and with the CMF information, other than personal data, gathered on illegal or unauthorised activities during the course of the counter-piracy operations.

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5. Atalanta is hereby authorised to release to INTERPOL, in accordance with Article 2(h), and to EUROPOL, in accordance with Article 2(i), information gathered on illegal activities other than piracy during the course of its counter-piracy operations.

6. The release of personal data pursuant to Article 2 shall be carried out in accordance with the law of the State of the vessel or aircraft processing such personal data.

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Article 16

Entry into force and termination

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

2. Joint Action 2008/749/CFSP shall be repealed as from the date of closure of the coordination cell put in place by that Joint Action. It shall be closed on the launch date of the operation referred to in Article 6 of this Joint Action.

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3. The EU operation shall terminate on 31 December 2020.

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4. This Joint Action shall be repealed following the withdrawal of the EU force, in accordance with the plans approved for the termination of the EU military operation, and without prejudice to the relevant provisions of Athena.

Article 17

Publication

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

2. The PSC's decisions on the appointment of an EU Operation Commander and/or EU Force Commander, as well as the PSC's decisions on the acceptance of contributions from third States and the setting-up of a Committee of Contributors shall likewise be published in the Official Journal of the European Union.