COUNCIL DECISION

of 17 November 2009

concerning the conclusion of the Agreement between the Government of the Russian Federation and the European Union on the protection of classified information

(2010/348/EC)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Articles 24 and 38 thereof,

Having regard to the recommendation from the Presidency,

Whereas:

At its meeting on 27 and 28 November 2003, the Council decided to authorise the Presidency, assisted by the Secretary-General/High Representative (‘SG/HR’), to open negotiations in accordance with Articles 24 and 38 of the Treaty on European Union with certain third States in order for the European Union to conclude with each of them an Agreement on security procedures for the exchange of classified information.

Following this authorisation to open negotiations the Presidency, assisted by the SG/HR, negotiated an Agreement with the Government of the Russian Federation on the protection of classified information.

HAS DECIDED AS FOLLOWS:

Article 1

The Agreement between the Government of the Russian Federation and the European Union on the protection of classified information 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(s) empowered to sign the Agreement in order to bind the European Union (1).

Article 3

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

Article 4

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

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

AGREEMENT

between the Government of the Russian Federation and the European Union on the protection of classified information

THE GOVERNMENT OF THE RUSSIAN FEDERATION,

and

THE EUROPEAN UNION, hereafter ‘the EU’, represented by the Presidency of the Council of the European Union,

hereafter ‘the Parties’,

CONSIDERING THAT the EU and the Russian Federation agree on the need to develop cooperation between them on matters of common interest, especially in the sphere of security;

RECOGNISING THAT cooperation between the Parties may require access to classified information of the EU or the Russian Federation, as well as exchange of such information between the Parties;

CONSCIOUS THAT access to classified information as well as its exchange require that appropriate protection measures be taken;

HAVE AGREED AS FOLLOWS:

Article 1

This Agreement shall apply to the protection of classified information which is provided, exchanged or produced between the Parties in the course of their cooperation.

Article 2

For the purposes of this Agreement:

1. ‘Classified information’ shall mean any information and material protected in accordance with the laws and regulations of either Party, provided, exchanged or produced between the Parties in the course of their cooperation, the unauthorised disclosure of which could cause varying degrees of prejudice to the security interests of the Russian Federation or of the EU or one or more of its Member States, and which has been designated by a security classification.

2. ‘Carriers of classified information’ shall mean material, including physical fields containing classified information in the form of symbols, images, signals, technical solutions and processes.

3. ‘Security classification’ shall mean a designation indicating: — the degree of prejudice to the interests of the Russian Federation or of the EU or one or more of its Member States which may be caused in the event of unauthorised disclosure of classified information, and — the degree of protection therefore required in accordance with the laws or regulations of the Russian Federation or the EU.

4. ‘Classification marking’ shall mean the designation affixed on carriers of classified information and/or any accompanying documentation, indicating the security classification of the information contained therein.

5. ‘Security clearance’ shall mean an administrative decision taken in accordance with the laws or regulations of the Russian Federation or the EU certifying that an individual may be allowed access to classified information up to a specified level.

Article 3

1. For the purposes of this Agreement, ‘EU’ shall mean the Council of the European Union (hereafter: ‘Council’), the Secretary-General/High Representative and the General Secretariat of the Council and the European Commission.

2. For the purposes of this Agreement, for the Russian Federation, the bodies authorised to implement this Agreement shall be federal governmental authorities of the Russian Federation.

Article 4

1. Classified information may be released, in accordance with paragraphs 2 to 5, by one Party, ‘the providing Party’, to the other Party, ‘the receiving Party’.

2. Each Party shall decide on the release of classified information to the other Party on a case-by-case basis according to its own security interests and in accordance with its own laws or regulations. Nothing in this agreement shall be regarded as a basis for mandatory or generic release of classified information or certain categories of information between the Parties.

3. Each Party shall, in accordance with its laws or regulations:

(a) protect classified information provided, exchanged or produced between the Parties in the course of their cooperation;

(b) ensure that neither the security classification nor the classification marking nor markings restricting the distribution of information assigned by the providing Party to classified information provided or exchanged under this Agreement are changed without the prior written consent of that Party, and that classified information provided or exchanged under this Agreement is registered, safeguarded and protected according to the provisions set out in its own laws or regulations for information holding an equivalent security classification and classification marking in accordance with Article 6;

(c) use classified information provided or exchanged under this Agreement only for the purposes established by the providing Party;

(d) return or destroy carriers of classified information received from the other Party when required to do so in writing by the competent authority of the providing Party;

(e) not disclose classified information provided or exchanged under this Agreement to recipients other than those referred to in Article 3 without the prior written consent of the providing Party.

4. Classified information shall be forwarded via diplomatic channels, by courier service or by any other means agreed between the competent authorities referred to in Article 10. For the purposes of this Agreement:

(a) as regards the EU, all correspondence shall be sent to the Chief Registry Officer of the Council of the European Union. Correspondence shall be forwarded by the Chief Registry Officer of the Council to the Member States and to the European Commission, subject to paragraph 5;

(b) as regards the Russian Federation, all correspondence shall be addressed to the Permanent Mission of the Russian Federation to the European Union and European Atomic Energy Community.

5. The providing Party may, for operational reasons, address correspondence only to specific competent officials, organs or services of the receiving Party specifically designated as recipients, taking into account their competences and according to the need-to-know principle. Such correspondence shall be accessible only to the aforesaid officials, organs or services. As far as the European Union is concerned, this correspondence shall be transmitted through the Chief Registry Officer of the Council, or the Chief Registry Officer of the European Commission when such information is addressed to the European Commission.

Article 5

Each of the Parties shall respectively ensure that the Russian Federation and the European Union each have a security system and security measures in place based on the basic principles and minimum standards of security laid down in their respective laws or regulations, in order to ensure that an equivalent level of protection is applied to classified information subject to this Agreement.

Article 6

1. In order to establish an equivalent level of protection for classified information provided, exchanged or produced between the Russian Federation and the European Union in the course of their cooperation in accordance with their respective laws or regulations, the security classifications shall correspond as follows:

EU RUSSIAN FEDERATION CONFIDENTIEL UE СЕКРЕТНО SECRET UE СОВЕРШЕННО СЕКРЕТНО

2. The Russian Federation restriction marking ‘ДЛЯ СЛУЖЕБНОГО ПОЛЬЗОВАНИЯ’ shall correspond to the EU security classification RESTREINT UE.

3. The cooperating entities of both Parties shall agree on the respective equivalent security classification to be given to any classified information produced in the course of their cooperation and on the declassification or downgrading of such information.

Article 7

1. Access to classified information will be granted only to persons for whom knowledge of the said information is necessary in order to perform their official duties, consistent with the purposes specified when the information is provided.

2. All persons who, in the conduct of their official duties require access, or whose duties or functions may afford access, to classified information of the level CONFIDENTIEL UE/СЕКРЕТНО or higher provided, exchanged or produced between the Parties in the course of their cooperation shall be appropriately security-cleared before they are granted access to such information.

3. Each Party shall ensure that security clearance procedures are conducted in accordance with its respective laws or regulations with a view to determining whether the circumstances and character of an individual are such that he or she may have access to classified information up to a specified level.

Article 8

The competent authorities referred to in Article 10 may exchange the relevant regulations governing the protection of classified information and, by mutual consent, visit each other to conduct reciprocal consultations on the basis of which a conclusion can be made regarding the effectiveness of the measures taken under this Agreement and the technical arrangement referred to in Article 10.

Article 9

The receiving Party shall affix its own corresponding classification marking as set out in Article 6, in addition to that already affixed by the providing Party, on carriers of classified information provided, exchanged or produced in the course of cooperation between the Parties, or as a result of translation, copying or duplication.

Article 10

1. In order to implement this Agreement and to ensure that the required conditions for protecting and safeguarding classified information have been established by the receiving Party, the authorities referred to in paragraphs 2 to 4 shall establish a technical arrangement as follows:

— they shall inform each other in writing on the technical measures (including practical measures for the handling, storage, reproduction, transmission and destruction of classified information) to protect and safeguard classified information provided, exchanged or produced between the Parties in the course of their cooperation, and

— shall confirm in writing that the technical measures ensure a mutually acceptable level of protection for classified information provided, exchanged or produced between the Parties in the course of their cooperation.

2. For the Russian Federation, the Federal Security Service of the Russian Federation shall coordinate the activities to implement this Agreement and be responsible for providing information on and confirming the technical measures for the protection and safeguarding of classified information provided to or exchanged with the Russian Federation under this Agreement.

3. For the Council, the Security Office of the General Secretariat of the Council, under the direction and on behalf of the Secretary-General of the Council, acting in the name of the Council and under its authority, shall coordinate the activities to implement this Agreement and be responsible for providing information on and confirming the technical measures for the protection and safeguarding of classified information provided to or exchanged with the Council or the General Secretariat of the Council under this Agreement.

4. For the European Commission, the European Commission Security Directorate, acting under the authority of the Member of the Commission responsible for security matters, shall coordinate the activities to implement this Agreement and be responsible for providing information on and confirming the technical measures for the protection of classified information provided or exchanged under this Agreement with the European Commission.

Article 11

1. The competent authority of either Party referred to in Article 10 shall immediately inform the competent authority of the other Party of any proven or suspected cases of unauthorised disclosure or loss of classified information provided by that Party, and shall conduct an investigation and shall report the results of this investigation to the other Party.

2. The competent authorities of the Parties referred to in Article 10 shall establish, on a case-by-case basis, a procedure with a view to determining, in accordance with the laws and regulations of either Party, proportionate corrective action or measures to be taken in the light of consequences or damage caused.

3. Each Party shall take all appropriate measures, in accordance with the applicable laws and regulations, in cases where an individual is responsible for compromising classified information. Measures taken in this context may result in legal action, including possible criminal proceedings, against the individual concerned in accordance with the applicable laws and regulations.

Article 12

Each Party shall bear the costs it incurs arising from the measures to protect classified information under this Agreement.

Article 13

This Agreement shall not preclude the Parties from concluding other Agreements relating to the provision or exchange of classified information subject to this Agreement provided that they do not conflict with the provisions of this Agreement.

Article 14

Any differences between the Parties arising out of the interpretation or application of this Agreement shall be dealt with by negotiation between them. During such negotiations, the Parties shall continue to carry out their obligations in accordance with this Agreement.

Article 15

1. This Agreement shall enter into force on the first day of the month following notification by the Parties of the completion of the internal procedures necessary for its entry into force.

2. Either Party may request consultations for consideration of possible amendments to this Agreement.

3. Any amendment to this Agreement shall be made in writing only and by common agreement of the Parties. It shall enter into force under the conditions provided for in paragraph 1.

Article 16

This Agreement may be denounced by either Party by written notice of denunciation given to the other Party. Such denunciation shall take effect six months after receipt of notification by the other Party. Notwithstanding such denunciation, obligations regarding the protection of all classified information provided or exchanged pursuant to the present Agreement in accordance with the provisions set forth herein shall continue to apply.