EN Official Journal of the European Union L 256/57

COUNCIL DECISION 2005/680/CFSP

of 12 August 2005

concerning the conclusion of the Agreement between the European Union and the Democratic Republic of the Congo on the status and activities of the European Union Police Mission in the Democratic Republic of the Congo (EUPOL Kinshasa)

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 9 December 2004, the Council adopted Joint Action 2004/847/CFSP on the European Union Police Mission in the Democratic Republic of the Congo (EUPOL Kinshasa) (1).

(2) Article 13 of the Joint Action provides that the status of EUPOL Kinshasa staff in the Democratic Republic of the Congo, including where appropriate the privileges, immunities and further guarantees necessary for the completion and smooth functioning of EUPOL Kinshasa shall be agreed in accordance with the procedure laid down in Article 24 of the Treaty.

(3) Following the authorisation of 24 January 2005 given by the Council to the Secretary-General/High Representative for the Common Foreign and Security Policy, assisting the Presidency, to open negotiations on its behalf, the Secretary-General/High Representative for the Common Foreign and Security Policy, negotiated an Agreement with the Government of the Democratic Republic of the Congo on the status and activities of EUPOL Kinshasa.

(4) Notwithstanding Article 11(4) of the Agreement, procurement of goods and services should comply with the principles of transparency, proportionality, equal treatment and non-discrimination.

(5) The Agreement should be approved,

HAS DECIDED AS FOLLOWS:

Article 1

The Agreement between the European Union and the Democratic Republic of the Congo on the status and activities of the European Union Police Mission in the Democratic Republic of the Congo (EUPOL Kinshasa) is hereby approved on behalf of the 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(s) empowered to sign the Agreement in order to bind the Union.

Article 3

This Decision shall be published in the Official Journal of the European Union (2).

Article 4

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

Done at Brussels, 12 August 2005. For the Council The President J. STRAW

(1) OJ L 367, 14.12.2004, p. 30.

(2) The date of entry into force of the Agreement will be published in the Official Journal of the European Communities by the General Secretariat of the Council.

TRANSLATION

AGREEMENT

between the European Union and the Democratic Republic of the Congo on the status and activities of the European Union police mission in the Democratic Republic of the Congo (EUPOL Kinshasa)

THE EUROPEAN UNION, hereinafter referred to as the ‘EU’,

on the one hand, and

THE GOVERNMENT OF THE DEMOCRATIC REPUBLIC OF THE CONGO, hereinafter referred to as the ‘Host Party’,

on the other hand,

Together hereinafter referred to as the ‘Parties’,

TAKING INTO ACCOUNT:

(a) the letter from the Minister of Foreign Affairs and International Cooperation of the Host Party to the Secretary General/High Representative for the Common Foreign and Security Policy (SG/HR) dated 20 October 2003, requesting the EU to assist in setting up the Integrated Police Unit (IPU), which should contribute to ensuring the protection of the State institutions and reinforce the internal security apparatus of the Democratic Republic of the Congo,

(b) the letter of the President of the Democratic Republic of the Congo to the SG/HR of 16 February 2004 inviting the European Union to deploy a Police Mission to Kinshasa, to monitor, mentor and advise the IPU, under certain conditions, and the response of the SG/HR of 4 April 2004 accepting the invitation under the mentioned conditions,

(c) the adoption by the Council of the European Union on 9 December 2004 of Joint Action 2004/847/CFSP on the European Union Police Mission in Kinshasa (CDR) regarding the integrated Police Unit (EUPOL ‘Kinshasa’) (1) to the Host Party,

(d) the duration of the EUPOL Kinshasa, expected to last until the end of the year 2005,

(e) that the purpose of the privileges and immunities as provided for in this Agreement are not to benefit individuals but to ensure the efficient performance of the EU Mission; and

(f) wishing to settle, by means of this Agreement, the Statute of the EU Police Mission in the Democratic Republic of the Congo and to define in consequence its privileges and immunities,

HAVE AGREED AS FOLLOWS:

Article 1

Scope of application and definitions

1. The provisions of this Agreement and any obligation undertaken by the Host Party or any privilege, immunity, facility or concession granted to EUPOL Kinshasa or to EUPOL Kinshasa personnel shall apply in the territory of the Host Party only.

2. For the purpose of this Agreement, the following definitions shall apply:

(a) ‘EUPOL Kinshasa’ means the EU Police Mission in the Host Party established by Joint Action 2004/847/CFSP, including its components, forces, units, headquarters and personnel deployed in the territory of the Host Party and assigned to EUPOL Kinshasa.

(b) ‘Head of Mission/Police Commissioner’ means the Head of Mission/Police Commissioner of EUPOL Kinshasa, appointed by the Council of the European Union.

(c) ‘EUPOL Kinshasa personnel’ means the Head of Mission/Police Commissioner, personnel seconded by EU Member States and EU institutions and third States invited by the EU to participate in EUPOL Kinshasa, and international staff recruited on a contractual basis by EUPOL Kinshasa deployed for the preparation, support and implementation of the Mission, and shall not include commercial contractors or local personnel.

(d) ‘Headquarters’ means the EUPOL Kinshasa main headquarters in Kinshasa and the training centre at Kasangulu.

(e) ‘Sending State’ means any EU Member State or third States that has seconded personnel to EUPOL Kinshasa.

(f) ‘Premises’ means all buildings, facilities and land required for the conduct of the activities of EUPOL Kinshasa, as well as for the accommodation of EUPOL Kinshasa personnel.

Article 2

General provisions

1. EUPOL Kinshasa and EUPOL Kinshasa personnel shall respect the laws and regulations of the Host Party and shall refrain from any action or activity incompatible with the impartial and international nature of their duties or inconsistent with the provisions of this Agreement.

2. EUPOL Kinshasa shall be autonomous with regard to the execution of its functions under this Agreement. The Host Party shall respect the unitary and international nature of EUPOL Kinshasa.

3. The Head of Mission/Police Commissioner shall notify the Government of the Host Party of the location of its Headquarters.

4. The Head of Mission/Police Commissioner shall regularly, and in a timely manner, inform the Government of the Host Party of the number, names and nationalities of EUPOL Kinshasa personnel stationed in the territory of the Host Party, through the submission of a notification list to the Ministry of Foreign Affairs of the Host Party.

Article 3

Identification

1. EUPOL Kinshasa personnel shall be provided with and identified by an EUPOL Kinshasa identification card, which they shall be obliged to carry with them at all times.

2. The Ministry of Foreign Affairs and of International Cooperation of the Host Party shall provide identity cards to EUPOL Kinshasa personnel in accordance with their status as set down in Article 6.

3. Vehicles and other means of transport of EUPOL Kinshasa shall bear distinctive EUPOL Kinshasa identification markings, an example of which shall be provided to the relevant authorities of the Host Party.

4. EUPOL Kinshasa shall be permitted to display the flag of the EU at its main headquarters and elsewhere, alone or together with the flag of the Host Party, as decided by the Head of Mission/Police Commissioner. National flags or insignia of the constituent national elements of EUPOL Kinshasa may be displayed on EUPOL Kinshasa premises, vehicles and uniforms, as decided by the Head of Mission/Police Commissioner.

Article 4

Border Crossing, movement, and presence on the territory of the Host Party

1. EUPOL Kinshasa personnel and EUPOL Kinshasa assets and means of transport shall cross the border of the Host Party at official border crossings, sea ports and via the international air corridors.

2. The Host Party shall facilitate the entry into and the departure from the territory of the Host Party for EUPOL Kinshasa and EUPOL Kinshasa personnel. Except for passport control on entry into and departure from the territory of the Host Party, EUPOL Kinshasa personnel, with proof of membership of the Mission, shall be exempt from passport, visa and immigration regulations and any form of immigration inspection.

3. EUPOL Kinshasa personnel shall be exempt from the regulations of the Host Party governing the registration and control of aliens, but shall not be considered as acquiring any right to permanent residence or domicile in the territory of the Host Party.

4. For EUPOL Kinshasa assets, including sidearms for EUPOL Kinshasa personnel, and means of transport entering, transiting or exiting the Host Party territory in support of the Mission, EUPOL Kinshasa shall provide a certificate of exemption accompanied by an inventory. They shall be exempt from any other customs documentation. A copy of the certificate shall be transmitted to the competent authorities when entering or exiting the Host Party. The format of the certificate shall be agreed between EUPOL Kinshasa and the competent authorities of the Host Party.

5. Vehicles and aircraft used in support of the Mission shall not be subject to local licensing or registration requirements. Relevant international standards and regulations shall continue to apply.

6. EUPOL Kinshasa personnel may drive motor vehicles in the territory of the Host Party provided they have a valid national driving licence. The Host Party shall accept as valid, without tax or fee, driving licences or permits issued to EUPOL Kinshasa personnel.

7. EUPOL Kinshasa and EUPOL Kinshasa personnel together with their vehicles, aircraft or any other means of transport, equipment and supplies shall enjoy free and unrestricted movement throughout the territory of the Host Party, including its airspace. If necessary, technical arrangements may be concluded in accordance with Article 17.

8. For the purpose of the Mission, EUPOL Kinshasa personnel, and local personnel employed by EUPOL Kinshasa when travelling on official duties, may use roads, bridges and airports without payment of duties, fees, tolls, taxes or other charges.

Article 5

Immunities and privileges of EUPOL Kinshasa

1. EUPOL Kinshasa shall be granted the status equivalent to that of a diplomatic mission under the Vienna Convention on Diplomatic Relations dated 18 April 1961, hereinafter referred to as ‘the Vienna Convention’.

2. EUPOL Kinshasa, its property, funds and assets shall enjoy immunity from the criminal, civil, and administrative jurisdiction of the Host Party, in accordance with the Vienna Convention.

3. The premises of EUPOL Kinshasa shall be inviolable. At no time shall the agents of the Host Party enter them, except with the consent of the Head of Mission/Police Commissioner.

4. The premises of EUPOL Kinshasa, their furnishings and other assets thereon as well as their means of transport shall be immune from search, requisition, attachment or execution.

5. The archives and documents of EUPOL Kinshasa shall be inviolable at all times.

6. Correspondence of EUPOL Kinshasa shall be granted a status equivalent to that of official correspondence granted under the Vienna Convention.

7. For imported goods and services and in respect of its premises, provided these are intended for the purpose of the Mission, EUPOL Kinshasa shall be exempt from all national and communal dues, taxes or charges of similar nature.

8. For goods purchased and services contracted on the domestic market, provided these are intended for the purpose of the Mission, EUPOL Kinshasa shall be either exempt from or reimbursed by the Host Party for all national and communal dues and taxes, including VAT, and charges of similar nature according to the laws of the Host Party.

9. The Host Party shall permit entry of articles for the Mission and grant exemption from all custom duties, taxes and related charges other than charges for storage, cartage and similar services.

Article 6

Immunities and privileges of EUPOL Kinshasa personnel

1. EUPOL Kinshasa personnel shall be granted all privileges and immunities equivalent to that of diplomatic agents granted under the Vienna Convention, subject to which the EU Member States and other Sending States shall have priority of jurisdiction. These privileges and immunities shall be granted to EUPOL Kinshasa personnel during their mission, and thereafter, with respect to official acts previously performed in the exercise of their mission.

2. The Secretary General/High Representative shall, with the explicit consent of the competent authority of the Sending State or the sending EU institution, waive the immunity enjoyed by EUPOL Kinshasa personnel where such immunity would impede the course of justice and it can be waived without prejudice to the interests of the EU.

3. EUPOL Kinshasa personnel shall have the right to import free of duty or other restrictions items required for their personal use, and to export such items. EUPOL Kinshasa personnel shall have the right to purchase free of duty or other restrictions items required for their personal use, and to export such items; for goods and services purchased on the domestic market, EUPOL Kinshasa personnel shall be exempt from VAT and taxes according to the laws of the Host Party.

4. EUPOL Kinshasa personnel shall be exempt from dues and taxes in the Host Party on the emoluments and salaries they receive by reason of their employment. Where the incidence of any form of taxation depends upon residence, periods during which personnel seconded to EUPOL Kinshasa and international staff recruited on a contractual basis by EUPOL Kinshasa are present in the Host Party for the discharge of their duties shall not be considered as periods of residence.

Article 7

Local personnel employed by EUPOL Kinshasa

Local personnel employed by EUPOL Kinshasa who are nationals of or permanently resident in the Host Party shall enjoy a status equivalent to that enjoyed, in accordance with the Vienna Convention, by locally employed staff in diplomatic missions in the Host Party.

Article 8

Security

1. The Host Party, through its own capabilities, shall assume full responsibility for the security of EUPOL Kinshasa personnel.

2. To that end, the Host Party shall take all necessary measures for the protection, safety and security of EUPOL Kinshasa and EUPOL Kinshasa personnel. Any specific provisions, proposed by the Host Party, shall be agreed with the Head of Mission/Police Commissioner before implementation. The Host Party shall permit and support free of any charge activities relating to the medical evacuation of EUPOL Kinshasa personnel. If required, supplementary arrangements as referred to in Article 17 shall be concluded.

3. EUPOL Kinshasa personnel shall have the right to carry sidearms for self defence, subject to a decision by the Head of Mission/Police Commissioner.

4. EUPOL Kinshasa shall not have an executive policing role.

Article 9

Uniform and arms

1. EUPOL Kinshasa personnel shall wear national uniform or civilian dress with distinctive EUPOL Kinshasa identification.

2. The wearing of uniform shall be subject to rules issued by the Head of Mission/Police Commissioner.

3. In accordance with Article 8.3, EUPOL Kinshasa personnel may carry sidearms and ammunition.

Article 10

Cooperation and Access to Information

1. The Host Party shall provide full cooperation and support to EU Kinshasa and EU Kinshasa personnel.

2. If requested and necessary for the accomplishment of the EUPOL Kinshasa mission, the Host Party shall provide:

(a) EUPOL Kinshasa personnel with effective access to buildings, facilities, locations and official vehicles within the control of the Host Party;

(b) EUPOL Kinshasa personnel with effective access to documents, materials and information within its control relevant to the mandate of EUPOL Kinshasa.

3. The Head of Mission/Police Commissioner and the Government of the Host Party shall consult regularly and take appropriate measures to ensure close and reciprocal liaison at every appropriate level. The Host Party may appoint a liaison officer to EUPOL Kinshasa.

Article 11

Host Party Support and Contracting

1. The Host party agrees, if requested by EUPOL Kinshasa, to assist in finding suitable premises.

2. If required and available, premises owned by the Host Party shall be provided free of charge.

3. Within its means and capabilities, the Host Party shall assist and support the preparation, establishment, execution and support of EUPOL Kinshasa. The assistance and the support from the Host Party to EUPOL Kinshasa shall be provided under the same conditions as those provided to the IPU.

4. EUPOL Kinshasa will endeavour, to the maximum extent possible, to contract locally for services, goods and personnel, subject to the requirements of the Mission.

Article 12

Deceased EUPOL Kinshasa personnel

1. The Head of Mission/Police Commissioner shall have the right to take charge of and make suitable arrangements for the repatriation of any deceased EUPOL Kinshasa personnel, as well as any personal property belonging to the deceased.

2. Autopsies shall not be performed on deceased members of the EUPOL Kinshasa without the agreement of the Sending State or, in the case of international staff, the State of his/her nationality, and the presence of a representative of EUPOL Kinshasa and/or the State concerned.

Article 13

Communications

1. EUPOL Kinshasa shall have the right to install and operate radio sending and receiving stations, as well as satellite systems, using appropriate frequencies, subject to arrangements to be concluded in accordance with Article 17.

2. EUPOL Kinshasa shall enjoy the right to unrestricted communication by radio (including satellite, mobile or hand-held radio), telephone, telegraph, facsimile and other means, as well as the right to install, for the purpose of the Mission, the necessary means for maintaining such communications within and between EUPOL Kinshasa facilities, including the laying of cables and ground lines, in accordance with the regulations of the Host Party.

Article 14

Claims for death, injury, damage or loss

1. The Member States, other States participating in EUPOL Kinshasa, or EU Institutions, shall not be obliged to reimburse claims arising out of activities in connection with civil disturbances, protection of the EUPOL Kinshasa or its personnel, or which are incidental to operational necessities.

2. Any other claim of a civil law character, including claims of personnel locally employed by EUPOL Kinshasa, to which EUPOL Kinshasa or any member thereof is a party and over which the courts of the Host Party do not have jurisdiction because of any provision of the present Agreement, shall be submitted through the authorities of the Host Party to the Head of Mission/Police Commissioner and shall be dealt with by separate arrangements, as referred to in Article 17, whereby procedures for settling claims and for addressing claims shall be established. Settlement of claims will occur after previous consent of the State concerned.

Article 15

Disputes

1. All issues arising in connection with the application of this agreement shall be discussed by a Joint Coordination Group. This Group shall be composed of representatives of EUPOL Kinshasa and the competent authorities of the Host Party.

2. Failing any prior settlement, disputes with regard to the interpretation or application of this Agreement shall be settled between the Host Party and EU representatives by diplomatic means.

Article 16

Other provisions

1. Whenever this Agreement refers to the immunities, privileges and rights of EUPOL Kinshasa and EUPOL Kinshasa personnel, the Government of the Host Party shall be responsible for the implementation and fulfilment of such immunities, privileges and rights through the appropriate local authorities of the Host Party.

2. Nothing in this Agreement is intended or shall be construed to derogate from any rights that may attach with respect to an EU Member State or any other State contributing to EUPOL Kinshasa or their personnel under other agreements.

Article 17

Supplementary arrangements

The Head of Mission/Police Commissioner and the administrative authorities of the Host Party shall conclude such supplementary arrangements as may be necessary to implement this Agreement.

Article 18

Entry into force and termination

1. This Agreement shall enter into force on the date of signature by both Parties.

2. This Agreement may be amended on the basis of mutual written agreement between the Parties.

3. This Agreement shall remain in force until the final departure of EUPOL Kinshasa or all personnel thereof.

4. This Agreement may be denounced by written notification to the other Party. The denunciation shall take effect 60 days after receipt by the other Party of the notification of denunciation.

5. Termination or denunciation of this Agreement shall not affect any rights or obligations arising from the execution of the present Agreement prior to its termination or denunciation.

Done at Kinshasa, on 1 September 2005 in two originals in French. For the European Union For the Government of the Democratic Republic of the Congo

(1) OJ L 367, 14.12.2004, p. 30.