COUNCIL DECISION 2011/133/CFSP

of 21 February 2011

on the signing and conclusion of the Agreement between the European Union and Montenegro establishing a framework for the participation of Montenegro in European Union crisis management operations

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, in particular Article 37 thereof, and the Treaty on the Functioning of the European Union, in particular Article 218(5) and (6) thereof,

Having regard to the proposal of the High Representative of the Union for Foreign Affairs and Security Policy (‘HR’),

Whereas:

Conditions regarding the participation of third States in European Union crisis management operations should be laid down in an agreement establishing a framework for such possible future participation, rather than defining those conditions on a case-by-case basis for each operation concerned.

Following the adoption of a Decision by the Council on 26 April 2010 authorising the opening of negotiations, the HR negotiated an agreement between the European Union and Montenegro establishing a framework for the participation of Montenegro in European Union crisis management operations (‘the Agreement’).

HAS ADOPTED THIS DECISION:

Article 1

The Agreement between the European Union and Montenegro establishing a framework for the participation of Montenegro in European Union crisis management operations (‘the Agreement’) 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

The Agreement shall be applied on a provisional basis as from the date of signature thereof, pending the completion of the procedures for its conclusion (1).

Article 4

The President of the Council shall, on behalf of the Union, give the notification provided for in Article 16(1) of the Agreement.

Article 5

This Decision shall enter into force on the date of its adoption.

(1) The date of signature of the Agreement will be published in the Official Journal of the European Union by the General Secretariat of the Council.

AGREEMENT

between the European Union and Montenegro establishing a framework for the participation of Montenegro in European Union crisis management operations

THE EUROPEAN UNION,

of the one part, and

MONTENEGRO,

of the other part,

hereinafter referred to as the ‘Parties’,

Whereas:

The European Union (EU) may decide to take action in the field of crisis management.

The EU will decide whether third States will be invited to participate in EU crisis management operations.

Conditions regarding the participation of Montenegro in EU crisis management operations should be laid down in an agreement establishing a framework for such possible future participation, rather than defining those conditions on a case-by-case basis for each operation concerned.

Such an agreement should be without prejudice to the decision-making autonomy of the EU, and should not prejudge the case-by-case nature of the decisions of Montenegro to participate in EU crisis management operations.

Such an agreement should only address future EU crisis management operations and should be without prejudice to any existing agreements regulating the participation of Montenegro in EU crisis management operations that have already been deployed,

HAVE AGREED AS FOLLOWS:

SECTION I

GENERAL PROVISIONS

Article 1

Decisions relating to the participation

1. Following the decision of the European Union (EU) to invite Montenegro to participate in an EU crisis management operation, and once Montenegro has decided to participate, Montenegro shall provide information on its proposed contribution to the EU.

2. The assessment by the EU of Montenegro’s contribution shall be conducted in consultation with Montenegro.

3. The EU shall provide Montenegro with an early indication of the latter’s likely contribution to the common costs of the operation as soon as possible with a view to assisting Montenegro in the formulation of its offer.

4. The EU shall communicate the outcome of that assessment to Montenegro by a letter with a view to securing the participation of Montenegro in accordance with the provisions of this Agreement.

Article 2

Framework

1. Montenegro shall associate itself with the Council Decision by which the Council of the European Union decides that the EU will conduct the crisis management operation, and with any other decision by which the Council of the European Union decides to extend the EU crisis management operation, in accordance with the provisions of this Agreement and any required implementing arrangements.

2. The contribution of Montenegro to an EU crisis management operation shall be without prejudice to the decision-making autonomy of the EU.

Article 3

Status of personnel and forces

1. The status of personnel seconded to an EU civilian crisis management operation and/or of the forces contributed to an EU military crisis management operation by Montenegro shall be governed by the agreement on the status of mission/forces, if concluded, between the EU and the State(s) in which the operation is conducted.

2. The status of personnel contributed to headquarters or command elements located outside the State(s) in which the EU crisis management operation is conducted, shall be governed by arrangements between the headquarters and command elements concerned and Montenegro.

3. Without prejudice to the agreement on the status of mission/forces referred to in paragraph 1, Montenegro shall exercise jurisdiction over its personnel participating in the EU crisis management operation.

4. Montenegro shall be responsible for answering any claims linked to the participation in an EU crisis management operation, from or concerning any of its personnel. Montenegro shall be responsible for bringing any action, in particular legal or disciplinary, against any of its personnel in accordance with its laws and regulations. A model for such declaration is annexed to this Agreement.

5. The Parties agree to waive any and all claims, other than contractual claims, against each other for damage to, loss, or destruction of assets owned/operated by either Party, or injury or death to personnel of either Party, arising out of the performance of their official duties in connection with activities under this Agreement, except in the case of gross negligence or wilful misconduct.

6. Montenegro undertakes to make a declaration as regards the waiver of claims against any State participating in an EU crisis management operation in which Montenegro participates, and to do so when signing this Agreement.

7. The EU undertakes to ensure that its Member States make a declaration as regards the waiver of claims, for any future participation of Montenegro in an EU crisis management operation, and to do so when signing this Agreement.

Article 4

Classified information

The Agreement between the Government of Montenegro and the EU on the security of classified information, done at Brussels on 13 September 2010, shall apply in the context of EU crisis management operations.

SECTION II

PROVISIONS ON PARTICIPATION IN CIVILIAN CRISIS MANAGEMENT OPERATIONS

Article 5

Personnel seconded to an EU civilian crisis management operation

1. Montenegro shall ensure that its personnel seconded to the EU civilian crisis management operation undertake their mission in accordance with:

(a) the Council Decision and subsequent amendments as referred to in Article 2(1);

(b) the Operation Plan;

(c) implementing measures.

2. Montenegro shall inform in due time the Head of Mission of the EU civilian crisis management operation (hereinafter ‘Head of Mission’) and the High Representative of the Union for Foreign Affairs and Security Policy (hereinafter ‘HR’) of any change to its contribution to the EU civilian crisis management operation.

3. Personnel seconded to the EU civilian crisis management operation shall undergo a medical examination, vaccination and be certified medically fit for duty by a competent authority from Montenegro. Personnel seconded to the EU civilian crisis management operation shall produce a copy of that certification.

Article 6

Chain of command

1. Personnel seconded by Montenegro shall carry out their duties and conduct themselves solely with the interests of the EU civilian crisis management operation in mind.

2. All personnel shall remain under the full command of their national authorities.

3. National authorities shall transfer operational control to the EU.

4. The Head of Mission shall assume responsibility and exercise command and control of the EU civilian crisis management operation at theatre level.

5. The Head of Mission shall lead the EU civilian crisis management operation and assume its day-to-day management.

6. Montenegro shall have the same rights and obligations in terms of day-to-day management of the operation as EU Member States taking part in the operation, in accordance with the legal instruments referred to in Article 2(1).

7. The Head of Mission shall be responsible for disciplinary control over EU civilian crisis management operation personnel. Where required, disciplinary action shall be taken by the national authority concerned.

8. A National Contingent Point of Contact (‘NPC’) shall be appointed by Montenegro to represent its national contingent in the operation. The NPC shall report to the Head of Mission on national matters and shall be responsible for day-to-day discipline of the contingent.

9. The decision to end the operation shall be taken by the EU, following consultation with Montenegro if it is still contributing to the EU civilian crisis management operation at the date of termination of the operation.

Article 7

Financial aspects

1. Without prejudice to Article 8, Montenegro shall assume all the costs associated with its participation in the operation apart from the running costs, as set out in the operational budget of the operation.

2. In case of death, injury, loss or damage to natural or legal persons from the State(s) in which the operation is conducted, Montenegro shall, when its liability has been established, pay compensation under the conditions foreseen in the applicable agreement on the status of mission referred to in Article 3(1).

Article 8

Contribution to operational budget

1. Montenegro shall contribute to the financing of the operational budget of an EU civilian crisis management operation.

2. The financial contribution of Montenegro to the operational budget shall be calculated on the basis of either of the following formulae, whichever produces the lower amount:

(a) the share of the reference amount which is in proportion to the ratio of Montenegro’s GNI to the total GNIs of all States contributing to the operational budget of the operation; or

(b) the share of the reference amount for the operational budget which is in proportion to the ratio of the number of personnel from Montenegro participating in the operation to the total number of personnel of all States participating in the operation.

3. Notwithstanding paragraphs 1 and 2, Montenegro shall not make any contribution towards the financing of per diem allowances paid to personnel of the EU Member States.

4. Notwithstanding paragraph 1, the EU shall, in principle, exempt Montenegro from financial contributions to a particular EU civilian crisis management operation when:

(a) the EU decides that Montenegro provides a significant contribution which is essential for this operation; or

(b) Montenegro has a GNI per capita which does not exceed that of any EU Member State.

5. An arrangement on the payment of the contributions of Montenegro to the operational budget of an EU civilian crisis management operation shall be signed between the Head of Mission and the relevant administrative services of Montenegro. That arrangement shall, inter alia, include the following provisions:

(a) the amount concerned;

(b) the arrangements for payment of the financial contribution;

(c) the auditing procedure.

SECTION III

PROVISIONS OF PARTICIPATION IN MILITARY CRISIS MANAGEMENT OPERATIONS

Article 9

Participation in an EU military crisis management operation

1. Montenegro shall ensure that its forces and personnel participating in an EU military crisis management operation undertake their mission in accordance with:

(a) the Council Decision and subsequent amendments as referred to in Article 2(1);

(b) the Operation Plan;

(c) implementing measures.

2. Personnel seconded by Montenegro shall carry out their duties and conduct themselves solely with the interest of the EU military crisis management operation in mind.

3. Montenegro shall inform the EU Operation Commander in due time of any change to its participation in the operation.

Article 10

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, who is entitled to delegate his authority.

3. Montenegro shall have the same rights and obligations in terms of the day-to-day management of the operation as participating EU Member States.

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

5. A Senior Military Representative (‘SMR’) shall be appointed by Montenegro 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 the day-to-day discipline of the Montenegro contingent.

Article 11

Financial aspects

1. Without prejudice to Article 12, Montenegro 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 2(1), as well as in Council Decision 2008/975/CFSP of 18 December 2008 establishing a mechanism to administer the financing of the common costs of European Union operations having military or defence implications (Athena) (1).

2. In case of death, injury, loss or damage to natural or legal persons from the State(s) in which the operation is conducted, Montenegro shall, when its liability has been established, pay compensation under the conditions foreseen in the applicable agreement on the status of forces referred to in Article 3(1).

Article 12

Contribution to the common costs

1. Montenegro shall contribute to the financing of the common costs of an EU military crisis management operation.

2. The financial contribution of Montenegro to the common costs shall be calculated on the basis of either of the following two formulae, whichever produces the lower amount:

(a) the share of the common costs which corresponds proportionally to the ratio of Montenegro’s GNI to the total GNIs of all States contributing to the common costs of the operation; or

(b) the share of the common costs which corresponds proportionally to the ratio of the number of personnel from Montenegro participating in the operation to the total number of personnel of all States participating in the operation.

Where the formula under point (b) of the first subparagraph is used and Montenegro contributes personnel only to the Operation or Force Headquarters, the ratio used shall be that of its personnel to that of the total number of the respective headquarters personnel. In other cases, the ratio shall be that of all personnel contributed by Montenegro to that of the total personnel of the operation.

3. Notwithstanding paragraph 1, the EU shall, in principle, exempt Montenegro from financial contributions to the common costs of a particular EU military crisis management operation when:

(a) the EU decides that Montenegro provides a significant contribution to assets and/or capabilities which are essential for the operation; or

(b) Montenegro has a GNI per capita which does not exceed that of any EU Member State.

An arrangement shall be concluded between the Administrator provided for in Decision 2008/975/CFSP and the competent administrative authorities in Montenegro. That arrangement shall include, inter alia, provisions on:

(a) the amount concerned;

(b) the arrangements for payment of the financial contribution;

(c) the auditing procedure.

SECTION IV

FINAL PROVISIONS

Article 13

Arrangements to implement the Agreement

Without prejudice to Articles 8(5) and 12(4), any necessary technical and administrative arrangements in pursuance of the implementation of this Agreement shall be concluded between the HR and the appropriate authorities of Montenegro.

Article 14

Non-compliance

Should one of the Parties fail to comply with its obligations under this Agreement, the other Party shall have the right to terminate this Agreement by sending written notice of 1 month.

Article 15

Dispute settlement

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

Article 16

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 legal procedures necessary for its entry into force.

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

3. This Agreement shall be subject to regular review.

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

5. This Agreement may be denounced by either Party by written notice of denunciation given to the other Party. Such denunciation shall take effect 6 months after receipt of notification by the other Party.

Done at Brussels on the twenty-second day of February in the year two thousand and eleven in two copies, each in the English language. For the European Union For Montenegro

(1) OJ L 345, 23.12.2008, p. 96.