STATUS AGREEMENT

between the European Union and the Republic of Serbia on actions carried out by the European Border and Coast Guard Agency in the Republic of Serbia

THE EUROPEAN UNION,

of the one part, and

THE REPUBLIC OF SERBIA,

of the other part,

hereinafter jointly referred to as ‘the Parties’,

WHEREAS situations may arise where the European Border and Coast Guard Agency coordinates operational cooperation between Member States of the European Union and the Republic of Serbia, including on the territory of the Republic of Serbia,

WHEREAS a legal framework in the form of a status agreement should be established for the situations where the team members of the European Border and Coast Guard Agency will have executive powers on the territory of the Republic of Serbia,

WHEREAS the Parties will take due account of the declarations annexed to this Agreement,

CONSIDERING that all actions of the European Border and Coast Guard Agency on the territory of the Republic of Serbia should fully respect fundamental rights,

HAVE DECIDED TO CONCLUDE THIS AGREEMENT:

2. This Agreement does not extend the scope of the Agreement between the European Community and the Republic of Serbia on the readmission of persons residing without authorisation (1) (the ‘EC-Serbia Readmission Agreement’). With regard to return operations as defined in point (d) of Article 2, this Agreement only concerns the provision of operational support for return operations which are carried out in accordance with the EC-Serbia Readmission Agreement.

1. This Agreement shall cover all aspects of cooperation between the Republic of Serbia and the Agency necessary for carrying out actions by the Agency that may take place on the territory of the Republic of Serbia whereby team members of the Agency may have executive powers.

‘participating Member State’ means a Member State which participates in an action in the Republic of Serbia by providing technical equipment, border guards and other relevant staff deployed as part of the team;

‘personal data’ means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number i.e. unique citizen’s identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;

‘member of a team’ means a member either of the Agency staff or a member of a team of border guards and other relevant staff from participating Member States, including border guards and other relevant staff that are seconded by Member States to the Agency to be deployed during an action;

‘border control’ means the control of persons, travel documents, means of transport and items carried out when crossing a state border, consisting of border checks at border crossing points and border surveillance between border crossing points;

‘return operation’ means an operation that is coordinated by the Agency and involves technical and operational reinforcement being provided by one or more Member States under which returnees from one or more Member States are returned from one or more Member States either on a forced or voluntary basis to the Republic of Serbia in line with the EC-Serbia Readmission Agreement;

‘rapid border intervention’ means an action aimed at rapidly responding to a situation of specific and disproportionate challenges at the borders of the Republic of Serbia neighbouring a Member State and deployed on the territory of the Republic of Serbia for a limited period of time;

‘joint operation’ means an action aimed at tackling illegal immigration or cross-border crime or aimed at providing increased technical and operational assistance at the external borders of a Member State neighbouring the Republic of Serbia and deployed on the territory of the Republic of Serbia;

2. Carrying out an action requires the consent of competent authorities of both the Republic of Serbia and the Agency.

1. The initiative to launch an action can be proposed to the competent authorities of the Republic of Serbia by the Agency. The competent authorities of the Republic of Serbia may request the Agency to consider launching an action.

2. The joint operational plan shall set out in detail the organisation and procedural aspects of the joint operation or rapid border intervention, including a description and an assessment of the situation, the operational aim and objectives, type of technical equipment to be deployed, the implementation plan, the cooperation with other third countries, other Agencies and bodies of the European Union or international organisations, the provisions in respect of fundamental rights including personal data protection, the coordination, command, control, communication and reporting structure, the organisational arrangements and logistics, the evaluation and the financial aspects of the joint operation or rapid border intervention. The evaluation of the joint operation or of the rapid border intervention shall be conducted jointly by the competent authority of the Republic of Serbia and by the Agency.

1. A joint operational plan shall be agreed between the Agency and the Republic of Serbia for each joint operation or rapid border intervention. The European Commission shall ensure that the Article 54(3) of the Regulation (EU) 2016/1624 of the European Parliament and of the Council (3) is respected.

9. The members of the team referred to in paragraphs 1 and 3 to 6 do not include the Agency staff.

8. For the purposes of fulfilling operational aims specified in the operational plan and implementing actions, the competent authority of the Republic of Serbia and members of the team may exchange other information and findings.

7. The competent authority of the Republic of Serbia may, upon request, communicate relevant information contained in its national databases to members of the team if necessary for fulfilling operational aims specified in the operational plan and for implementing actions. The members of the team may be communicated only information concerning relevant facts which is necessary for performing their tasks and exercising their powers. The Agency may communicate to the competent authorities of the Republic of Serbia relevant information which is necessary for fulfilling operational aims specified in the operational plan and for implementing actions.

6. While performing their tasks and exercising their powers, members of the team shall be authorised to use force, including service weapons, ammunition and equipment, with the consent of the home Member State and the Republic of Serbia, in the presence of border guards or other police officers of the Republic of Serbia and in accordance with the national law of the Republic of Serbia. The Republic of Serbia may authorise members of the team to use force in the absence of border or other police officers of the Republic of Serbia. Members of the team may use weapons only when it is absolutely necessary in self-defence to repel an immediate life-threatening attack against themselves or another person, in accordance with the national legislation of the Republic of Serbia.

5. While performing their tasks and exercising their powers, members of the team may carry service weapons, ammunition and equipment as authorised according to the home Member State’s national law. The Republic of Serbia shall, in advance of the deployment of the members of the team, inform the Agency of the permissible service weapons, ammunition and equipment and of the relevant legal framework and conditions for their use. The Agency shall submit in advance to the competent authority of the Republic of Serbia the list of service weapons of the members of the team, namely information concerning the type and serial number of the weapons and the type and quantity of ammunitions.

4. Members of the team shall wear their own uniform while performing their tasks and exercising their powers. They shall at least wear visible personal identification and a blue armband with the insignias of the European Union and of the Agency. For the purposes of identification vis-à-vis the competent authorities of the Republic of Serbia, members of the team shall at all times carry the accreditation document referred to in Article 8.

In cases where the instructions issued to the team are not in compliance with the operational plan, the coordinating officer shall immediately report to the executive director of the Agency. The executive director may take appropriate measures, including the suspension or the termination of an action.

The Agency, through its coordinating officer, may communicate its views to the competent authority of the Republic of Serbia on the instructions given to the team. In that case, the competent authority of the Republic of Serbia shall take those views into consideration and follow them to the extent possible.

3. Members of the team may only perform tasks and exercise powers on the territory of the Republic of Serbia under instructions from and in the presence of border guards or other police officers of the Republic of Serbia. The competent authority of the Republic of Serbia shall issue, where appropriate, instructions to the team in accordance with the operational plan. The competent authority of the Republic of Serbia may authorise members of the teams to act on its behalf as long as the overall responsibility and command and control functions remain with the border guards or other police officers of the Republic of Serbia present at all times.

1. Members of the team shall have the authority to perform the tasks and exercise the executive powers required for border control and return operations.

4. Termination of an action shall not affect any rights or obligations arising out of the application of this Agreement or the operational plan before such termination.

3. In particular, the executive director of the Agency or the Republic of Serbia may suspend or terminate an action in cases of breach of fundamental rights or violations of the principle of non-refoulement or of data protection rules.

2. The Republic of Serbia may suspend or terminate an action, after informing the Agency in writing, if this Agreement or the operational plan is not properly implemented by the Agency or by any participating Member State. The competent authority of the Republic of Serbia shall notify the Agency the reasons for such suspension or termination.

1. The executive director of the Agency may suspend or terminate an action, after informing the competent authority of the Republic of Serbia in writing, if this Agreement or the operational plan are not properly implemented by the Republic of Serbia. The executive director shall notify the competent authority of the Republic of Serbia of the reasons for such suspension or termination.

Article 7

Privileges and immunities of the members of the team

1. Papers, correspondence and property of members of the team shall be inviolable, except in the case of measures of execution which are permitted pursuant to paragraph 6.

2. Members of the team shall enjoy immunity from the criminal jurisdiction of the Republic of Serbia in respect of the acts performed during and for the purpose of the exercise of the official functions in the course of the actions carried out in accordance with the operational plan. In the event of an allegation of a criminal offence being committed by a member of the team, the competent authority referred to in Article 13(1), shall immediately notify the executive director of the Agency and the competent authority of the home Member State. After careful consideration of any representation of the home Member State and of the Republic of Serbia, and based upon information provided by the Parties, the executive director of the Agency shall certify whether the act in question was performed in the exercise of the official functions of the member of the team in the course of the actions carried out in accordance with the operational plan. In case the executive director of the Agency certifies that the act was performed in the exercise of the official functions of the member of the team in the course of the actions carried out in accordance with the operational plan, the member of the team shall benefit from immunity of the criminal jurisdiction of the Republic of Serbia for the acts performed during and for the purpose of the exercise of the official functions in the course of the actions carried out in accordance with the operational plan.

3. Members of the team shall enjoy immunity from the civil and administrative jurisdiction of the Republic of Serbia in respect of all acts performed during and for the purpose of the exercise of the official functions in the course of the actions carried out in accordance with the operational plan. If any civil proceeding is instituted against members of the team before any court, the competent authority referred to in Article 13(1), shall immediately notify the Executive Director of the Agency and the competent authority of the home Member State. After careful consideration of any representation of the home Member State and of the Republic of Serbia, and based upon information provided by the Parties, the executive director of the Agency shall certify whether the act in question was performed in the exercise of the official functions of the member of the team in the course of the actions carried out in accordance with the operational plan. In case the executive director of the Agency certifies that the act was performed in the exercise of the official functions of the member of the team in the course of the actions carried out in accordance with the operational plan, the member of the team shall benefit from immunity of the civil and administrative jurisdiction of the Republic of Serbia for the acts performed during and for the purpose of the exercise of the official functions in the course of the actions carried out in accordance with the operational plan.

4. The immunity of members of the teams from the criminal, civil and administrative jurisdiction of the Republic of Serbia in accordance with paragraphs 2 and 3 may be waived by the home Member State as the case may be. Such a waiver must always be an express waiver.

5. Members of the team shall not be obliged to give evidence as witnesses.

6. In case of damage caused by a member of the team in the exercise of official functions in the course of the actions carried out in accordance with the operational plan, the Republic of Serbia shall be liable for any damage. In case of damage caused by gross negligence or wilful misconduct or if the act was not committed in the exercise of official functions by a member of the team from a participating Member State, the Republic of Serbia may request, via the executive director, that compensation be paid by the participating Member State concerned. In case of damage caused by gross negligence or wilful misconduct or if the act was not committed in the exercise of official functions by a member of the team who is a staff member of the Agency, the Republic of Serbia may request that compensation be paid by the Agency. In case of damage caused in the Republic of Serbia, due to force majeure, neither the Republic of Serbia, nor the participating Member State, nor the Agency, shall hold any responsibility.

7. No measures of execution may be taken in respect of members of the team, except in the case where a criminal or civil proceeding not related to their official functions is instituted against them. Property of members of the team, which is certified by the executive director of the Agency to be necessary for the fulfilment of their official functions, shall be free from seizure for the satisfaction of a judgment, decision or order. In civil proceedings, members of the team shall not be subject to any restrictions on their personal liberty or to any other measures of constraint.

8. The immunity of members of the team from the jurisdiction of the Republic of Serbia shall not exempt them from the jurisdictions of the respective home Member States.

9. Members of the team shall, with respect to services rendered for the Agency, be exempt from social security provisions which may be in force in the Republic of Serbia.

10. Members of the team shall be exempt from any form of taxation in the Republic of Serbia on the salary and emoluments paid to them by the Agency or the home Member States, as well as on any income received from outside the Republic of Serbia.

11. The Republic of Serbia shall, in accordance with such laws and regulations as it may adopt, permit the entry of articles for the personal use of members of the team, and shall grant exemption from all customs duties, taxes, and related charges other than charges for storage, transport and similar services, in respect of such articles. The Republic of Serbia shall also permit the export of such articles.