Council Joint Action 2008/851/CFSP of 10 November 2008 on a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast
Date: 2008-11-10
Institutions: Council of the European Union
Subjects: EU military mission, Indian Ocean, Somalia, deterrent, exchange of information, littoral, maritime transport, piracy, terrorism, theft

12.11.2008

EN

Official Journal of the European Union

L 301/33

III

(Acts adopted under the EU Treaty)

ACTS ADOPTED UNDER TITLE V OF THE EU TREATY

COUNCIL JOINT ACTION 2008/851/CFSP

of 10 November 2008

on a European Union military operation to contribute to the deterrence, prevention and repression
of acts of piracy and armed robbery off the Somali coast

THE COUNCIL OF THE EUROPEAN UNION,

international law, all necessary means to repress acts of
piracy and armed robbery at sea.

Having regard to the Treaty on European Union, and in
particular Article 14, the third subparagraph of Article 25 and
Article 28(3) thereof,

(3)

Whereas:

(1)

(2)

In its Resolution 1814 (2008) on the situation in
Somalia, adopted on 15 May 2008, the United Nations
(UNSC) has called on States and
Security Council
in close coordination with one
regional organisations,
another, to take action to protect shipping involved in
the transport and delivery of humanitarian aid to Somalia
and in activities authorised by the United Nations.

and

navigation.

international

In its Resolution 1816 (2008) on the situation in
Somalia, adopted on 2 June 2008, the UNSC expressed
its concern at the threat that acts of piracy and armed
robbery against vessels pose to the delivery of humani­
tarian aid to Somalia, the safety of commercial maritime
routes
The UNSC
encouraged, in particular, States interested in the use of
commercial maritime routes off the coast of Somalia to
increase and coordinate their efforts, in cooperation with
the Transitional Federal Government of Somalia (TFG), to
It
deter acts of piracy and armed robbery at
authorised, for a period of six months from the date of
the resolution, States cooperating with the TFG, of which
advance notification had been given by the TFG to the
UN Secretary-General, to enter the territorial waters of
Somalia and to use, in a manner consistent with relevant

sea.

In its Resolution 1838 (2008) on the situation in
Somalia, adopted on 7 October 2008,
the UNSC
commended the ongoing planning process towards a
possible European Union (EU) naval operation, as well
as other international or national initiatives taken with a
view to implementing Resolutions 1814 (2008) and
1816 (2008), and urged States that have the capacity
to cooperate with the TFG in the fight
to do so,
against piracy and armed robbery at sea in conformity
with the provisions of Resolution 1816 (2008). The
UNSC also urged States and regional organisations,
in
conformity with the provisions of Resolution 1814
the
(2008),
World Food Programme
convoys,
which is vital to bring humanitarian assistance to the
affected populations in Somalia.

to continue to take action to protect

(WFP) maritime

(4)

the Council
In its conclusions of 26 May 2008,
expressed its concern at the upsurge of piracy attacks
off the Somali coast, which affect humanitarian efforts
and international maritime traffic in the region and
contribute to continued violations of
the UN arms
embargo. The Council also commended the sequenced
initiatives of some Member States to provide protection
to WFP vessels. It stressed the need for wider partici­
pation by the international community in these escorts
in order to secure the delivery of humanitarian aid to the
Somali population.

(5)

the Council approved a crisis
On 5 August 2008,
management concept
for action by the EU to help
implement UNSC Resolution 1816 (2008) and for
peace and international security in the region.

L 301/34

EN

Official Journal of the European Union

12.11.2008

(6)

(7)

(8)

(9)

the Council

in Brussels with the

reaffirmed its
On 15 September 2008,
the acts of piracy and armed
serious
concern at
robbery off the Somali coast, deploring,
in particular,
their recent resurgence. As regards the EU's contribution
to the implementation of UNSC Resolution 1816 (2008)
on combating piracy off the Somali coast and to the
protection, under Resolutions 1814 (2008) and 1816
(2008), of vessels chartered by the WFP and bound for
Somalia, the Council decided to establish a coordination
supporting the
cell
surveillance and protection activities carried out by
some Member States off the Somali coast. On the same
day, it approved, on the one hand, a plan for the im­
plementation of
this military coordination action (EU
NAVCO) and, on the other, a strategic military option
for a possible EU naval operation for which those
Member States wishing to cooperate with the TFG
under Resolution 1816 (2008) would make available
military resources for the deterrence and repression of
acts of piracy and armed robbery off the Somali coast.

task of

the Council adopted Joint
On 19 September 2008,
Action 2008/749/CFSP on the European Union military
coordination action in support of UN Security Council
Resolution 1816 (2008) (EU NAVCO) (1).

On the launch of the Atalanta military operation, the
tasks of the military coordination cell will be exercised
under this Joint Action. The coordination cell should
then be closed.

The Political and Security Committee (PSC)
should
exercise political control over the EU military operation
in order to help deter acts of piracy off the Somali coast,
provide it with strategic direction and take the relevant
decisions
in accordance with third subparagraph of
Article 25 of the Treaty.

in

(10) Under Article 28(3) of the Treaty, the operational expen­
diture, arising from this Joint Action, which has military
or defence implications, should be borne by the Member
Decision
States
2007/384/CFSP of 14 May 2007 establishing
a
mechanism to administer the financing of the common
costs of European Union operations having military or
defence implications (Athena) (2) (hereinafter referred to
as ‘Athena’).

accordance

Council

with

(11) Article 14(1) of the Treaty calls for Joint Actions to lay
down the means to be made available to the European
for a twelve-
Union. The financial reference amount,
the EU
month period,
military operation constitutes the best current estimate
figures to be
and is without prejudice to the final

the common costs of

for

(1) OJ L 252, 20.9.2008, p. 39.
(2) OJ L 152, 13.6.2007, p. 14.

(12)

(13)

to be approved in accordance
included in a budget
with the rules laid down in the decision regarding
Athena.

By letter dated 30 October 2008, the EU made an offer
to the TFG, pursuant to point 7 of Resolution 1816
(2008), which contains proposals for States other than
Somalia to exercise jurisdiction over persons captured in
Somali territorial waters who have committed, or are
suspected of having committed, acts of piracy or armed
robbery.

In accordance with Article 6 of the Protocol on the
position of Denmark annexed to the Treaty on
European Union and to the Treaty establishing the
European Community, Denmark does not participate in
the elaboration and implementation of decisions and
actions of the European Union which have defence impli­
cations. Denmark does not participate in the implemen­
tation of this Joint Action and therefore does not parti­
cipate in the financing of the operation,

HAS ADOPTED THIS JOINT ACTION:

Article 1

Mission

The European Union (EU)

1.
shall conduct a military
operation in support of Resolutions 1814 (2008), 1816
the United Nations Security
(2008) and 1838 (2008) of
Council (UNSC), in a manner consistent with action permitted
with respect to piracy under Article 100 et seq. of the United
Nations Convention on the Law of the Sea signed in Montego
Bay on 10 December 1982 (hereinafter referred to as ‘the
United Nations Convention on the Law of the Sea’) and by
means, in particular, of commitments made with third States,
hereinafter called ‘Atalanta’ in order to contribute to:

— the protection of vessels of the WFP delivering food aid to
in accordance with the

displaced persons
mandate laid down in UNSC Resolution 1814 (2008),

in Somalia,

— the protection of vulnerable vessels cruising off the Somali
coast, and the deterrence, prevention and repression of acts
in
of piracy and armed robbery off
accordance with the mandate laid down in UNSC Resolution
1816 (2008),

the Somali coast,

2.
The forces deployed to that end shall operate, up to 500
nautical miles off the Somali coast and neighbouring countries,
in accordance with the political objective of an EU maritime
operation,
concept
as defined in the
approved by the Council on 5 August 2008.

crisis management

12.11.2008

EN

Official Journal of the European Union

L 301/35

Article 2

Mandate

Under the conditions set by the relevant international law and
by UNSC Resolutions 1814 (2008), 1816 (2008) and 1838
(2008), Atalanta shall, as far as available capabilities allow:

(a) provide protection to vessels

including by means of
vessels of armed units of Atalanta,
cruising in Somali territorial waters;

chartered by the WFP,
the presence on board those
in particular when

(b) provide protection, based on a case-by-case evaluation of
needs, to merchant vessels cruising in the areas where it
is deployed;

(c) keep watch over areas off
Somalia's territorial waters,
maritime activities, in particular to maritime traffic;

including
in which there are dangers to

the Somali coast,

(d) take the necessary measures, including the use of force, to
deter, prevent and intervene in order to bring to an end acts
of piracy and armed robbery which may be committed in
the areas where it is present;

(e)

in view of prosecutions potentially being brought by the
relevant States under the conditions in Article 12, arrest,
detain and transfer persons who have committed, or are
suspected of having committed, acts of piracy or armed
robbery in the areas where it
is present and seize the
the pirates or armed robbers or the vessels
vessels of
caught following an act of piracy or an armed robbery
and which are in the hands of the pirates, as well as the
goods on board;

(f)

liaise with organisations and entities, as well as States,
working in the region to combat acts of piracy and
armed robbery off
the
the Somali coast,
‘Combined Task Force 150’ maritime force which operates
within the framework of ‘Operation Enduring Freedom’.

in particular

Article 3

Article 6

Political control and strategic direction

1.
Under the responsibility of the Council, the Political and
Security Committee (hereinafter referred to as the ‘PSC’) shall
exercise the political control and strategic direction of the EU
military operation. The Council hereby authorises the PSC to
take the relevant decisions in accordance with Article 25 of the
EU Treaty. This authorisation shall include the powers to amend
the
the planning documents,
Chain of Command and the Rules of Engagement.
It shall
also include the powers to take decisions on the appointment
of the EU Operation Commander and/or EU Force Commander.
The powers of decision with respect to the objectives and termi­
nation of the EU military operation shall remain vested in the
Council, assisted by the Secretary-General/High Representative
(hereinafter referred to as the ‘SG/HR’).

including the Operation Plan,

2.

The PSC shall report to the Council at regular intervals.

3.
The PSC shall receive reports from the chairman of the EU
Military Committee (EUMC) regarding the conduct of the EU
military operation, at regular intervals. The PSC may invite the
EU Operation Commander and/or EU Force Commander to its
meetings, as appropriate.

Article 7

Military direction

1.
The EUMC shall monitor the proper execution of the EU
military operation conducted under the responsibility of the EU
Operation Commander.

2.
The EUMC shall receive reports from the EU Operation
Commander at regular intervals. It may invite the EU Operation
Commander and/or EU Force Commander to its meetings as
appropriate.

The chairman of the EUMC shall act as the primary point

3.
of contact with the EU Operation Commander.

Appointment of the EU Operation Commander

Rear admiral Phillip Jones is hereby appointed EU Operation
Commander.

Article 8

Coherence of EU response

Article 4

Designation of the EU Operational Headquarters

EU Operational Headquarters

The
Northwood, United Kingdom.

shall be

located

at

The Presidency, the SG/HR, the EU Operation Commander and
the EU Force Commander
their
respective activities regarding the implementation of this Joint
Action.

closely coordinate

shall

Article 9

Article 5

Planning and launch of the operation

The Decision to launch the EU military operation shall be
adopted by the Council following approval of the Operation
Plan and the Rules of Engagement and in the light of the
notification by the TFG to the Secretary-General of the United
Nations of the offer of cooperation made by the EU pursuant to
point 7 of UNSC Resolution 1816 (2008).

Relations with the United Nations, neighbouring countries
and other actors

The SG/HR,

1.
in close coordination with the Presidency,
shall act as the primary point of contact with the United
Nations, the Somali authorities, the authorities of neighbouring
countries, and other relevant actors. Within the context of his
contact with the African Union, the SG/HR shall be assisted by
the EU Special Representative (EUSR) to the African Union, in
close coordination with the presidency.

L 301/36

EN

Official Journal of the European Union

12.11.2008

At operational level, the EU Operation Commander shall
2.
act as the contact point with, in particular, ship-owners' orga-
nisations, as well as with the relevant departments of the UN
General Secretariat and the WFP.

shall be agreed in accordance with the procedure laid down in
Article 24 of
the
Presidency, may negotiate such arrangements on behalf of the
Presidency.

the Treaty. The SG/HR, who shall assist

Article 10

Participation by third States

to the single institutional

1. Without prejudice to the decision-making autonomy of
framework, and in
the EU or
accordance with the relevant guidelines of
the European
Council,
third States may be invited to participate in the
operation.

2.
The Council hereby authorises the PSC to invite third
States to offer contributions and to take the relevant decisions
on acceptance of the proposed contributions, upon the recom­
mendation of the EU Operation Commander and the EUMC.

Detailed modalities for the participation by third States
3.
shall be the subject of agreements concluded in accordance
with the procedure laid down in Article 24 of the Treaty. The
SG/HR, who shall assist the Presidency, may negotiate such
agreements on behalf of the Presidency. Where the EU and a
establishing a
third State have
framework for the latter's participation in EU crisis management
operations, the provisions of such an agreement shall apply in
the context of this operation.

concluded an agreement

4.
Third States making significant military contributions to
the EU military operation shall have the same rights and obli­
gations in terms of day-to-day management of the operation as
Member States taking part in the operation.

5.
The Council hereby authorises the PSC to take relevant
decisions on the setting-up of a Committee of Contributors,
should third States provide significant military contributions.

The conditions for the transfer to a State participating in
6.
the operation of persons arrested and detained, with a view to
the exercise of jurisdiction of that State, shall be established
when the participation agreements referred to in paragraph 3
are concluded or implemented.

Article 11

Status of EU-led forces

The status of the EU-led forces and their personnel, including
the privileges, immunities and further guarantees necessary for
the fulfilment and smooth functioning of their mission, who:

— are stationed on the land territory of third States,

— operate in the territorial or internal waters of third States,

Article 12

Transfer of persons arrested and detained with a view to
their prosecution

1.
On the basis of Somalia's acceptance of the exercise of
jurisdiction by Member States or by third States, on the one
hand, and Article 105 of the United Nations Convention on the
Law of the Sea, on the other hand, persons having committed,
or suspected of having committed, acts of piracy or armed
robbery in Somali territorial waters or on the high seas, who
are arrested and detained, with a view to their prosecution, and
property used to carry out such acts, shall be transferred:

— to the competent authorities of the flag Member State or of
the third State participating in the operation, of the vessel
which took them captive, or

— if this State cannot, or does not wish to, exercise its juris­
diction, to a Member States or any third State which wishes
to exercise its jurisdiction over the aforementioned persons
and property.

No persons referred to in paragraphs 1 and 2 may be
2.
transferred to a third State unless the conditions for
the
transfer have been agreed with that third State in a manner
consistent with relevant international law, notably international
law on human rights, in order to guarantee in particular that no
one shall be subjected to the death penalty, to torture or to any
cruel, inhuman or degrading treatment.

Article 13

Relations with the flag States of protected vessels

The conditions governing the presence on board merchant
ships, particularly those chartered by the WFP, of units
immunities and
including privileges,
belonging to Atalanta,
other guarantees
the
conduct of
relating to the proper
operation, shall be agreed with the flag States of those vessels.

Article 14

Financial arrangements

The common costs of the EU military operation shall be

1.
administered by Athena.

2.
The financial reference amount for the common costs of
the EU military operation shall be EUR 8 300 000. The
percentage
in
the
Article 33(3) of Athena shall be 30 %.

reference

amount

referred

to

of

12.11.2008

EN

Official Journal of the European Union

L 301/37

Article 15

Release of information to the United Nations and other
third parties

The SG/HR is hereby authorised to release to the United
1.
Nations and to other third parties associated with this Joint
Action, classified EU information and documents generated
for the purposes of the EU military operation up to the level
of classification appropriate for each of them and in accordance
with the Council's security regulations (1).

2.
The SG/HR is hereby authorised to release to the United
Nations and to other third parties associated with this Joint
Action, unclassified EU documents relating to Council delib­
erations on the operation which are covered by the obligation
of professional secrecy pursuant to Article 6(1) of the Council's
Rules of Procedure (2).

Article 16

Entry into force and termination

The EU military operation shall terminate 12 months after
3.
the initial operating capability is declared, subject to the prolon­
gation of UNSC Resolutions 1814 (2008) and 1816 (2008).

This Joint Action shall be repealed following the with­
in accordance with the plans
the EU military operation,

4.
drawal of
approved for the termination of
and without prejudice to the relevant provisions of Athena.

the EU force,

Article 17

Publication

This Joint Action shall be published in the Official Journal

1.
of the European Union.

2.
The PSC's decisions on the appointment of an EU
Operation Commander and/or EU Force Commander, as well
as the PSC's decisions on the acceptance of contributions from
third States and the setting-up of a Committee of Contributors
shall likewise be published in the Official Journal of the European
Union.

This Joint Action shall enter into force on the date of its

1.
adoption.

Done at Brussels, 10 November 2008.

2.
Joint Action 2008/749/CFSP shall be repealed as from the
date of closure of the coordination cell put in place by that
Joint Action.
the
operation referred to in Article 6 of this Joint Action.

It shall be closed on the launch date of

For the Council
The President

B. KOUCHNER

(1) Council Decision 2001/264/EC of 19 March 2001 adopting the

Council's security regulations (OJ L 101, 11.4.2001, p. 1).

(2) Council Decision 2004/338/EC, Euratom of 22 March 2004
adopting the Council's Rules of Procedure (OJ L 106, 15.4.2004,
p. 22).