EN Official Journal of the European Union L 20/41

COUNCIL DECISION 2005/44/CFSP

of 20 December 2004

concerning the conclusion of the Agreement between the European Union and the Swiss Confederation on the participation of the Swiss Confederation in the European Union military crisis management operation in Bosnia and Herzegovina (operation ALTHEA)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Article 24 thereof,

Having regard to the recommendation from the Presidency,

Whereas:

(1) On 12 July 2004, the Council adopted Joint Action 2004/570/CFSP on the European Union military operation in Bosnia and Herzegovina (1).

(2) Article 11(3) of that Joint Action provides that detailed arrangements regarding the participation of third states shall be the subject of an agreement in accordance with Article 24 of the Treaty on European Union.

(3) Following authorisation by the Council on 13 September 2004, the Presidency, assisted by the Secretary-General/High Representative, negotiated an Agreement between the European Union and the Swiss Confederation on the participation of the Swiss Confederation in the European Union military crisis management operation in Bosnia and Herzegovina.

(4) The Agreement should be approved,

HAS DECIDED AS FOLLOWS:

Article 1

The Agreement between the European Union and the Swiss Confederation on the participation of the Swiss Confederation in the European Union military crisis management operation in Bosnia and Herzegovina (Operation ALTHEA) is hereby approved on behalf of the European Union.

The text of the Agreement is attached to this Decision.

Article 2

The President of the Council is hereby authorised to designate the person empowered to sign the Agreement in order to bind the European Union.

Article 3

This Decision shall take effect on the day of its adoption.

Article 4

This Decision shall be published in the Official Journal of the European Union.

Done at Brussels, 20 December 2004. For the Council The President P. VAN GEEL

(1) OJ L 252, 28.7.2004, p. 10.

AGREEMENT

between the European Union and the Swiss Confederation on the participation of the Swiss Confederation in the European Union military crisis management operation in Bosnia and Herzegovina (operation ALTHEA)

THE EUROPEAN UNION (EU),

of the one part, and

THE SWISS CONFEDERATION,

of the other part,

hereinafter referred to as the ‘Parties’,

TAKING INTO ACCOUNT:

— the adoption of United Nations Security Council Resolution 1575 (2004) of 22 November 2004 concerning the establishment of EUFOR,

— the adoption by the Council of the European Union of Decision 2004/803/CFSP of 25 November 2004 on the launching of the European Union military operation in Bosnia and Herzegovina (1),

— the adoption by the Council of the European Union of Joint Action 2004/570/CFSP of 12 July 2004 on the European Union military operation in Bosnia and Herzegovina (2),

— the invitation to the Swiss Confederation to participate in the EU-led operation,

— the successful completion of the Force Generation process and the recommendation by the EU Operation Commander and the EU Military Committee to agree on the participation of Swiss Confederation forces in the EU-led operation,

— Political and Security Committee Decision BiH/1/2004 of 21 September 2004 (3) on the acceptance of the Swiss Confederation’s contribution to the European Union military operation in Bosnia and Herzegovina,

— Political and Security Committee Decision BiH/3/2004 of 29 September 2004 on the setting-up of the Committee of Contributors for the European Union military operation in Bosnia and Herzegovina (4),

HAVE AGREED AS FOLLOWS:

Article 1

Participation in the operation

1. The Swiss Confederation shall associate itself with Joint Action 2004/570/CFSP of 12 July 2004 on the European Union military operation in Bosnia and Herzegovina and with any Joint Action or Decision by which the Council of the European Union decides to extend the EU military crisis management operation, in accordance with the provisions of this Agreement and any required implementing arrangements.

2. The contribution of the Swiss Confederation to the EU military crisis management operation is without prejudice to the decision-making autonomy of the European Union.

3. The Swiss Confederation shall ensure that its forces and personnel participating in the EU military crisis management operation undertake their mission in conformity with:

— Joint Action 2004/570/CFSP and possible subsequent amendments;

— the Operation Plan;

— implementing measures.

4. Forces and personnel seconded to the operation by the Swiss Confederation shall carry out their duties and conduct themselves solely with the interest of the EU military crisis management operation in mind.

5. The Swiss Confederation shall inform the EU Operation Commander in due time of any change to its participation in the operation, including of the withdrawal of its contribution.

Article 2

Status of forces

1. The status of the forces and personnel contributed to the EU military crisis management operation by the Swiss Confederation shall be governed by the provisions on the status of forces, if available, agreed between the European Union and the host country.

2. The status of the forces and personnel contributed to headquarters or command elements located outside Bosnia and Herzegovina shall be governed by arrangements between the headquarters and command elements concerned and the Swiss Confederation.

3. Without prejudice to the provisions on the status of forces referred to in paragraph 1 of this Article, the Swiss Confederation shall exercise jurisdiction over its forces and personnel participating in the EU military crisis management operation.

4. The Swiss Confederation shall be responsible for answering any claims linked to participation in the EU military crisis management operation, from or concerning any of its forces and personnel. The Swiss Confederation shall be responsible for bringing any action, in particular legal or disciplinary, against any of its forces and personnel, in accordance with its laws and regulations.

5. The Swiss Confederation undertakes to make a declaration as regards the waiver of claims against any State participating in the EU military crisis management operation, and to do so when signing this Agreement.

6. The European Union undertakes to ensure that Member States make a declaration as regards the waiver of claims, for the participation of the Swiss Confederation in the EU military crisis management operation, and to do so when signing this Agreement.

Article 3

Classified information

1. The Swiss Confederation shall take appropriate measures to ensure that EU classified information is protected in accordance with the European Union Council’s security regulations, contained in Council Decision 2001/264/EC of 19 March 2001 (5), and in accordance with further guidance issued by competent authorities, including the EU Operation Commander.

2. Where the EU and the Swiss Confederation have concluded an agreement on security procedures for the exchange of classified information, the provisions of such an agreement shall apply in the context of the EU military crisis management operation.

Article 4

Chain of command

1. All forces and personnel participating in the EU military crisis management operation shall remain under the full command of their national authorities.

2. National authorities shall transfer the Operational and Tactical command and/or control of their forces and personnel to the EU Operation Commander. The EU Operation Commander is entitled to delegate his authority.

3. The Swiss Confederation shall have the same rights and obligations in terms of the day-to-day management of the operation as participating European Union Member States.

4. The EU Operation Commander may, following consultations with the Swiss Confederation, at any time request the withdrawal of the Swiss Confederation’s contribution.

5. A Senior Military Representative (SMR) shall be appointed by the Swiss Confederation to represent its national contingent in the EU military crisis management operation. The SMR shall consult with the EU Force Commander on all matters affecting the operation and shall be responsible for day-to-day contingent discipline.

Article 5

Financial aspects

1. The Swiss Confederation shall assume all the costs associated with its participation in the operation unless the costs are subject to common funding as provided for in the legal instruments referred to in Article 1(1) of this Agreement, as well as in Council Decision 2004/197/CFSP of 23 February 2004 establishing a mechanism to administer the financing of the common costs of EU operations having military or defence implications (6).

2. In case of death, injury, loss or damage to natural or legal persons from the State(s) in which the operation is conducted, the Swiss Confederation shall, when its liability has been established, pay compensation under the conditions foreseen in the provisions on the status of forces, if available, as referred to in Article 2(1) of this Agreement.

Article 6

Arrangements to implement the Agreement

Any necessary technical and administrative arrangements in pursuance of the implementation of this Agreement shall be concluded between the Secretary-General of the Council of the European Union/High Representative for the Common Foreign and Security Policy and the appropriate authority of the Swiss Confederation.

Article 7

Non-compliance

Should one of the Parties fail to comply with its obligations laid down in the previous Articles, the other Party shall have the right to terminate this Agreement by serving a notice of one month.

Article 8

Dispute settlement

Disputes concerning the interpretation or application of this Agreement shall be settled by diplomatic means between the Parties.

Article 9

Entry into force

1. This Agreement shall enter into force on the first day of the first month after the Parties have notified each other of the completion of the internal procedures necessary for this purpose.

2. This Agreement shall be provisionally applied from the date of signature.

3. This Agreement shall remain in force for the duration of the Swiss Confederation’s contribution to the operation.

Done at Brussels, on 22 December 2004 in the English language in four copies. For the European Union For the Swiss Confederation

(1) OJ L 353, 27.11.2004, p. 21.

(2) OJ L 252, 28.7.2004, p. 10.

(3) OJ L 324, 27.10.2004, p. 20.

(4) OJ L 325, 28.10.2004, p. 64.

(5) OJ L 101, 11.4.2001, p. 1.

(6) OJ L 63, 28.2.2004, p. 68.

DECLARATIONS

referred to in Article 2(5) and (6) of the Agreement

Declaration by the EU Member States:

The EU Member States applying EU Joint Action 2004/570/CFSP of 12 July 2004 on the European Union military operation in Bosnia and Herzegovina will endeavour, insofar as their internal legal systems so permit, to waive as far as possible claims against the Swiss Confederation for injury, death of their personnel, or damage to, or loss of, any assets owned by themselves and used by the EU crisis management operation if such injury, death, damage or loss:

— was caused by personnel from the Swiss Confederation in the execution of their duties in connection with the EU crisis management operation, except in case of gross negligence or wilful misconduct, or

— arose from the use of any assets owned by the Swiss Confederation, provided that the assets were used in connection with the operation and except in the case of gross negligence or wilful misconduct of EU crisis management operation personnel from the Swiss Confederation using those assets.

Declaration by the Swiss Confederation:

The Swiss Confederation applying EU Joint Action 2004/570/CFSP of 12 July 2004 on the European Union military operation in Bosnia and Herzegovina will endeavour, insofar as its internal legal system so permits, to waive as far as possible claims against any other State participating in the EU crisis management operation for injury, death of its personnel, or damage to, or loss of, any assets owned by itself and used by the EU crisis management operation if such injury, death, damage or loss:

— was caused by personnel in the execution of their duties in connection with the EU crisis management operation, except in case of gross negligence or wilful misconduct, or