Source: EURLEX
Language: en
Format: md

**Council of the**
**European Union**

**Interinstitutional File:**

**2023/0101(NLE)**

**PROPOSAL**

**Brussels, 5 April 2023**
**(OR. en)**

**8169/23**
**ADD 1**

**FRONT 113**
**COWEB 39**
**MIGR 120**

From: Secretary-General of the European Commission, signed by Ms Martine
DEPREZ, Director

date of receipt: 5 April 2023

To: Ms Thérèse BLANCHET, Secretary-General of the Council of the
European Union

No. Cion doc.: COM(2023) 260 final ANNEX

Subject: ANNEX to the Proposal for a COUNCIL DECISION on the signing, on
behalf of the Union, and provisional application of the Agreement
between the European Union and Montenegro on operational activities
carried out by the European Border and Coast Guard Agency in
Montenegro

Delegations will find attached document COM(2023) 260 final ANNEX.

Encl.: COM(2023) 260 final ANNEX

8169/23 ADD 1 BS/lm

## JAI.1 EN

EUROPEAN

COMMISSION

**ANNEX**

_**to the**_

Brussels, 5.4.2023
COM(2023) 260 final

ANNEX

**Proposal for a**

**COUNCIL DECISION**

**on the signing, on behalf of the Union, and provisional application of the Agreement**
**between the European Union and Montenegro on operational activities carried out by**

**the European Border and Coast Guard Agency in Montenegro**

# **EN EN**

### **Agreement between the European Union and Montenegro on** **operational activities carried out by the European Border and** **Coast Guard Agency in Montenegro**

#### T HE E UROPEAN U NION, and M ONTENEGRO,

hereinafter referred to individually as a ‘Party’ and collectively as the ‘Parties’,

WHEREAS situations may arise where the European Border and Coast Guard Agency (‘the
Agency’) coordinates operational cooperation between the Member States of the European
Union and Montenegro, including on the territory of Montenegro,

WHEREAS a legal framework in the form of a status agreement should be established for the
situations where the team members deployed by the Agency will have executive powers on
the territory of Montenegro,

WHEREAS the status agreement may provide for the establishment by the Agency of
antenna offices on the territory of Montenegro to facilitate and improve coordination of
operational activities and to ensure the effective management of the human and technical
resources of the Agency,

CONSIDERING the high level of protection of personal data in Montenegro and the
European Union; and

CONSIDERING that Montenegro has ratified Council of Europe Convention No. 108 of 28
January 1981 for the Protection of Individuals with regard to Automatic Processing of
Personal Data and the additional Protocol thereto;

BEARING IN MIND that respect for human rights and democratic principles are
fundamental principles governing the cooperation between the Parties;

CONSIDERING that Montenegro has ratified the Convention for the Protection of Human
Rights and Fundamental Freedoms of 4 November 1950, the rights enumerated in which
correspond to those in the Charter of Fundamental Rights of the European Union;

CONSIDERING that all operational activities of the Agency on the territory of Montenegro
should fully respect fundamental rights and the international agreements to which the
European Union, its Member States and/or Montenegro are party,

CONSIDERING that all persons participating in an operational activity are obliged to
maintain the highest standards of integrity, ethical conduct, and professionalism as well as
respect for fundamental rights and to meet obligations imposed upon them by the provisions
of the operational plan and the Agency’s code of conduct,

HAVE DECIDED TO CONCLUDE THIS AGREEMENT:

1

_Article 1_

**Scope**

1. This Agreement governs all matters necessary for the deployment of border

management teams from the European Border and Coast Guard standing corps to
Montenegro where the team members may exercise executive powers.

2. The deployment referred to in paragraph 1 may take place on the territory of

Montenegro.

Subject to the parties’ obligations under the law of the sea, in particular the United
Nations Convention on the Law of the Sea, operational activities may also take place
in Montenegro’s exclusive economic zone. Operational activities implemented under
this agreement shall not affect search and rescue obligations deriving from the law of
the sea, in particular the United Nations Convention on the Law of the Sea, the
International Convention for the Safety of Life at Sea and the International
Convention on Maritime Search and Rescue.

3. The status and delimitation under international law of the respective territories of the

Member States of the European Union and Montenegro is in no way affected neither
by this Agreement nor by any act accomplished in its implementation by the Parties
or on their behalf, including the establishment of operational plans or the participation
in cross-border operations.

_Article 2_

**Definitions**

For the purposes of this Agreement, the following definitions apply:

(1) ‘Agency’ means the European Border and Coast Guard Agency established by

Regulation (EU) 2019/1896 of the European Parliament and of the Council [1] or any
amendment thereto;
(2) ‘operational activity’ means a joint operation or a rapid border intervention;
(3) ‘Executive powers’ means powers necessary to perform the tasks required for border

control which are conducted on the territory of Montenegro during an operational
activity as provided for in the operational plan;
(4) ‘border control’ means the activity carried out at a border, in accordance with and

for the purposes of this Agreement, in response exclusively to an intention to cross
or the act of crossing that border, regardless of any other consideration, consisting of
border checks, border surveillance and assessment of threats to the internal security
of the state border;
(5) ‘Operational plan’ means plan on the basis of which operational activities are carried

out as provided for under Articles 38 and 74 of EU Regulation 2019/1896;
(6) ‘border management teams’ means teams formed from the European Border and

Coast Guard standing corps to be deployed during joint operations and rapid border
interventions at the external borders in Member States and in third countries;

1 Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border
and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624 (OJ L 295, 14.11.2019, p. 1).

2

(7) ‘consultative forum’ means the advisory body established by the Agency pursuant to

Article 108 of Regulation (EU) 2019/1896;
(8) ‘European Border and Coast Guard standing corps’ means European Border and

Coast Guard standing corps provided for in Article 54 of Regulation (EU)
2019/1896;
(9) ‘EUROSUR’ means the framework for information exchange and cooperation

between the Member States and the European Border and Coast Guard Agency;
(10) ‘fundamental rights monitor’ means fundamental rights monitor as provided for in

Article 110 of Regulation (EU) 2019/1896;
(11) ‘home Member State’ means the Member State from which a staff member is

deployed or seconded to the European Border and Coast Guard standing corps;
(12) ‘incident’ means a situation relating to illegal immigration, cross-border crime, or a

risk to the lives of migrants at, along or in proximity to, the external borders of the
European Union or Montenegro;
(13) ‘joint operation’ means an action coordinated or organised by the Agency to support

the national authorities of Montenegro responsible for border control aimed at
addressing challenges such as irregular migration, present or future threats at the
borders of Montenegro or cross-border crime or aimed at providing increased
technical and operational assistance for the control of those borders;
(14) ‘team member’ means a member of the European Border and Coast Guard standing

corps deployed through a border management team to participate in an operational
activity;
(15) ‘Member State’ means a Member State of the European Union;
(16) ‘operational area’ means the geographical area wherein an operational activity is to

take place;
(17) ‘participating Member State’ means a Member State which participates in an

operational activity, by providing technical equipment or staff of the European
Border and Coast Guard standing corps;
(18) ‘personal data’ means any information relating to an identified or identifiable natural

person (‘data subject’); an identifiable natural person is one who can be identified,
directly or indirectly, in particular by reference to an identifier such as a name, an
identification number, location data, an online identifier or to one or more factors
specific to the physical, physiological, genetic, mental, economic, cultural or social
identity of that natural person;
(19) ‘rapid border intervention’ means an action aimed at responding to a situation of

specific and disproportionate challenge at the borders of Montenegro by deploying
border management teams in the territory of Montenegro for a limited period of time
to conduct border control together with the national authorities of Montenegro
responsible for border control;
(20) ‘Statutory staff’ means staff employed by the European Border and Coast Guard

Agency in accordance with the Staff Regulations of Officials of the European Union
and the Conditions of Employment of Other Servants of the Union laid down in
Council Regulation (EEC, Euratom, ECSC) No 259/68 [2] .

_Article 3_

**Launching Operational Activities**

2 OJ EU L 56, 4.3.1968, p. 1.

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1. An operational activity under this Agreement shall be launched by a written decision

of the executive director of the Agency (‘the executive director’) upon a written
request of the competent authorities of Montenegro. Such request shall include a
description of the situation, possible aims and envisaged needs, and the profiles of
staff needed, including those staff having executive powers, as applicable.

2. If the executive director considers that the requested operational activity would likely

entail or lead to serious and/or persistent violations of fundamental rights or
international protection obligations, then the executive director shall not launch the
operational activity.

3. If, following the receipt of a request under paragraph 1, the Agency’s executive

director considers that further information is necessary in order to decide whether to
launch an operational activity, he or she may request further information or authorise
Agency experts to travel to Montenegro to assess the situation there. Montenegro
shall facilitate such travel.

4. The executive director shall decide not to launch an operational activity if he or she

considers there to be justified cause to suspend or terminate it pursuant to Article 18.

_Article 4_

**Operational Plan**

1. An operational plan shall be agreed upon for each operational activity between the

Agency and Montenegro in accordance with Articles 38 and 74 of Regulation (EU)
2019/1896. The operational plan shall be binding on the Agency, Montenegro and the
participating Member States.

2. The operational plan shall set out in detail the organisational and procedural aspects

of the operational activity, including:

(a) a description of the situation, with _modus operandi_ and objectives of the

deployment, including the operational aim;

(b) the estimated time that the operational activity is expected to last in order to

achieve its objectives;

(c) the operational area;

(d) a detailed description of the tasks to be performed in the exercise of official

function, including those requiring executive powers, responsibilities, including
with regard to the respect for fundamental rights and data protection
requirements, and special instructions for the teams, including on permissible
consultation of databases and permissible service weapons, ammunition and
equipment in Montenegro;

(e) the composition of the border management team as well as the deployment of

other relevant staff/ presence of other members of the Agency’s statutory staff,
including fundamental rights monitors;

(f) command and control provisions, including the names and ranks of the border

police officers or other relevant staff of Montenegro responsible for cooperating
with the team members and the Agency, in particular the names and ranks of
those border police officers or other relevant staff who are in command during the

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period of deployment, and the place of the team members in the chain of
command;

(g) the technical equipment to be deployed during the operational activity, including

specific requirements such as conditions for use, requested crew, transport and
other logistics, and financial provisions;

(h) detailed provisions on immediate incident reporting by the Agency to the

management board and to relevant authorities of the participating Member States
and of Montenegro of any incident encountered in the course of an operational
activity performed under this Agreement;

(i) a reporting and evaluation scheme containing benchmarks for the evaluation

report, including with regard to the protection of fundamental rights, and final
date of submission of the final evaluation report;

(j) regarding sea operations, specific information on the application of the relevant

jurisdiction and applicable law in the operational area, including references to
national, international and Union law regarding interception, rescue at sea and
disembarkation;

(k) the terms of cooperation with Union bodies, offices and agencies other than the

Agency, other third countries or international organisations;

(l) general instructions on how to ensure the safeguarding of fundamental rights

during the operational activity including personal data protection and obligations
deriving from applicable international human rights instruments;

(m) procedures whereby persons in need of international protection, victims of

trafficking in human beings, unaccompanied minors and other persons in
vulnerable situations are directed to the competent national authorities for
appropriate assistance;

(n) procedures setting out a mechanism to receive and transmit to the Agency and

Montenegro complaints (including those lodged under Article 8(5) hereunder)
against any person participating in an operational activity, including border police
officers or other relevant staff of Montenegro and team members, alleging
breaches of fundamental rights in the context of their participation in an
operational activity of the Agency;

(o) logistical arrangements, including information on working conditions and the

environment of the areas in which the operational activity is to take place; and

(p) provisions concerning an antenna office, as established in accordance with Article

6.

3. The operational plan and any amendments thereto or adaptations thereof shall be

subject to the agreement of the Agency, Montenegro and any Member States
neighbouring Montenegro or bordering the operational area, after consultation of the
participating Member States. The Agency shall coordinate such agreement with the
relevant Member States.

4. Exchange of information and operational cooperation for the purposes of EUROSUR

shall take place in accordance with the rules for establishing and sharing the specific
situational pictures to be set out in the operational plan for the operational activity
concerned.

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5. The evaluation of the operational activity in accordance with paragraph 2 point (i)

shall be conducted jointly by Montenegro and the Agency.

6. The terms of cooperation with the bodies, offices and agencies of the European Union

in accordance with paragraph 2 point (k) shall be conducted in line with their
respective mandates and within available resources.

_Article 5_

**Incident Reporting**

The Agency and the Ministry of the Interior - Police Directorate of Montenegro shall each
have an incident reporting mechanism to allow timely reporting of any incident encountered
in the course of an operational activity performed under this Agreement.

The Agency and Montenegro shall assist each other in carrying out all necessary inquiries
and investigations into any incident reported via such mechanism such as identifying
witnesses and collecting and producing evidence, including requests to obtain and, if
appropriate, hand over items connected with a reported incident. The handing over of any
such items may be made subject to their return within the terms specified by the competent
authority delivering them.

_Article 6_

**Antenna Offices**

1. The Agency may establish antenna offices on the territory of Montenegro to facilitate

and improve coordination of operational activities and to ensure the effective
management of the human and technical resources of the Agency. The location of the
antenna office shall be established by the Agency, in consultation with the relevant
authorities of Montenegro.

2. The antenna offices shall be established in accordance with operational needs and

remain operational for the period of time necessary for the Agency to carry out
operational activities in Montenegro and the neighbouring region. Subject to the
agreement of Montenegro, that period of time may be prolonged by the Agency.

3. Each antenna office shall be managed by a representative of the Agency appointed by

the executive director as head of the antenna office who shall oversee the overall

work of the office.

4. The antenna offices shall, where applicable:

(a) provide operational and logistical support and ensure the coordination of Agency's

activities in the operational areas concerned;

(b) provide operational support to Montenegro in the operational areas concerned;

(c) monitor the activities of the teams and regularly report to the Agency's headquarters;

(d) cooperate with Montenegro on all issues related to the practical implementation of the

operational activities organised by the Agency in Montenegro, including any
additional issues that might have occurred in the course of those activities;

(e) support the coordinating officer in his or her cooperation with Montenegro on all issues

related to their contribution to operational activities organised by the Agency and,
where necessary, liaise with the Agency's headquarters;

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(f) support the coordinating officer and fundamental rights monitor(s) assigned to monitor

an operational activity in facilitating, where necessary, the coordination and
communication between the Agency's teams and the relevant authorities of
Montenegro as well as any relevant tasks;

(g) organise logistical support relating to the deployment of the team members and the

deployment and use of technical equipment;

(h) provide all other logistical support regarding the operational area for which a given

antenna office is responsible, with a view to facilitating the smooth running of the
operational activities organised by the Agency;

(i) ensure the effective management of the Agency's own equipment in the areas covered

by its activities, including the possible registration and long-term maintenance of that
equipment and any logistical support needed; and

(j) support other staff and/or activities of the Agency in Montenegro as agreed between the

Agency and Montenegro.

5. The Agency and Montenegro shall make the arrangements for the fulfilment of the

tasks assigned to the antenna office(s).

6. Montenegro shall provide the Agency with assistance to ensure the operational

capacity of the antenna office(s). Further details shall be set out in a separate
arrangement between Montenegro and the Agency.

_Article 7_

**Coordinating Officer**

1. Without prejudice to the role of antenna offices as described in Article 6, the

executive director shall appoint one or more experts from the statutory staff to be
deployed as coordinating officer(s) for each operational activity. The executive
director shall notify Montenegro of such appointment.

2. The role of the coordinating officer shall be to:

(a) act as an interface between the Agency, Montenegro and the team members,

providing assistance, on behalf of the Agency, on all issues relating to the conditions
of the deployment to teams;

(b) monitor the correct implementation of the operational plan, including, in

cooperation with the fundamental rights monitor(s), as regards the protection of
fundamental rights, and report to the executive director thereon;

(c) act on behalf of the Agency in all aspects of the deployment of the teams and report

to the Agency on all those aspects; and

(d) foster cooperation and coordination among Montenegro and participating Member

States.

3. In the context of operational activities, the executive director may authorise the

coordinating officer to assist in resolving any disagreement on the execution of the
operational plan and deployment of the teams.

4. Montenegro shall issue only instructions that are in compliance with the operational

plan to the team members. If the coordinating officer considers instructions issued to
team members not to be in compliance with the operational plan or with applicable

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legal obligations, he or she shall immediately communicate this to the Montenegro
officers carrying out a coordinating role and to the executive director. The executive
director may take appropriate measures, including the suspension or the termination
of the operational activity, in accordance with Article 18.

_Article 8_

**Fundamental Rights**

1. In performing their obligations under this Agreement, the Parties undertake to act in

compliance with all applicable human rights law instruments, including the 1950
Council of Europe Convention for the Protection of Human Rights and Fundamental
Freedoms, the 1951 United Nations Convention Relating to the Status of Refugees
and the 1967 Protocol thereto, the 1965 United Nations International Convention on
the Elimination of All Forms of Racial Discrimination, the 1966 United Nations
International Covenant on Civil and Political Rights, the 1979 United Nations
Convention on the Elimination of All Forms of Discrimination against Women, the
1984 United Nations Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, the 1989 United Nations Convention on the
Rights of the Child and the 2006 United Nations Convention on the Rights of Persons
with Disabilities and the Charter of Fundamental Rights of the European Union.

2. Team members shall, in the performance of their tasks and in the exercise of their

powers, fully respect fundamental rights, including access to asylum procedures and
human dignity, and shall pay particular attention to vulnerable persons. Any measures
taken in the performance of their tasks and in the exercise of their powers shall be
proportionate to the objectives pursued by such measures. While performing their
tasks and exercising their powers, they shall not discriminate against persons on the
basis of any grounds such as sex, race, colour, ethnic or social origin, genetic features,
language, religion or belief, political or any other opinion, membership of a national
minority, property, birth, disability, age or sexual orientation in line with Article 21 of
the Charter of Fundamental Rights of the European Union.

Measures interfering with fundamental rights and freedoms may be taken by team
members in the performance of their tasks or in the exercise of their powers only
when necessary and proportionate to the objectives pursued by such measures and
must respect the essence of those fundamental rights and freedoms in accordance with
applicable international, European Union and national law.

This provision shall apply _mutatis mutandis_ to all staff of national authorities of
Montenegro participating in an operational activity.

3. The Agency’s fundamental rights officer shall monitor each operational activity’s

compliance with applicable fundamental rights standards. The fundamental rights
officer, or his or her deputy, may carry out on-the-spot visits to Montenegro; he or she
shall also provide opinions on the operational plans and inform the executive director
about possible violations of fundamental rights relating to an operational activity.
Montenegro shall support the fundamental rights officer’s monitoring efforts, as
requested.

4. The Agency and Montenegro agree to provide the consultative forum with timely and

effective access to all information concerning the respect for fundamental rights in

8

relation to any operational activity performed under this Agreement, including
through on-the-spot visits to the operational area.

5. The Agency and Montenegro shall each have a complaints mechanism to process

allegations of breaches of fundamental rights committed by their staff in the exercise
of their official functions in the course of an operational activity performed under this
Agreement. The mechanism shall be set out in the operational plan.

_Article 9_

**Fundamental Rights Monitors**

1. The Agency’s fundamental rights officer shall assign at least one fundamental rights

monitor to each operational activity to, _inter alia_, assist and advise the coordinating
officer.

2. The fundamental rights monitor shall monitor compliance with fundamental rights

and provide advice and assistance on fundamental rights in the preparation, conduct
and evaluation of the relevant operational activity. This shall include, in particular:

(a) following the preparation of operational plans and reporting to the fundamental

rights officer to enable him or her to fulfil his or her tasks as provided for in
Regulation (EU) 2019/1896;

(b) conducting visits, including long-term visits, where operational activities take

place;

(c) cooperating and liaising with the coordinating officer and providing advice and

assistance to him or her;

(d) informing the coordinating officer of and reporting to the fundamental rights

officer on any concerns regarding possible violations of fundamental rights
relating to the operational activity; and

(e) contributing to the evaluation of the operational activity as referred to in Article

4(2) point (i).

3. Fundamental rights monitors, independent in the performance of their tasks, shall

have access to all areas in which the operational activity takes place and to all
documents relevant for the implementation of that activity.

4. While present in the operational area, fundamental rights monitors shall wear insignia

that clearly allow for their identification as fundamental rights monitors.

5. The Agency’s fundamental rights officer may cooperate with the Institution of the

Protector of Human Rights and Freedoms of Montenegro (Ombudsman).

_Article 10_

**Team Members**

1. Team members shall have the authority to perform the tasks, including those requiring

executive powers, described in the operational plan.

2. While performing their tasks and exercising their powers, team members shall comply

with the laws and regulations of Montenegro as well as applicable Union and
international law.

9

3. Team members may perform tasks and exercise powers in the territory of Montenegro

only under instructions from, and in the presence of, border management authorities
of Montenegro. Montenegro may authorise team members to perform specific tasks
and to exercise specific powers on its territory in the absence of its border
management authorities subject to the consent of the Agency or the home Member
State, as appropriate.

4. Team members who are statutory staff shall wear the uniform of the European Border

and Coast Guard standing corps while performing their tasks and exercising their
powers unless specified otherwise in the operational plan.

Team members who are not statutory staff shall wear their national uniform while
performing their tasks and exercising their powers unless specified otherwise in the
operational plan.

While on duty, all team members shall also wear visible personal identification and a
blue brassard with the insignias of the European Union and of the Agency on their
uniforms.

5. Montenegro shall authorise relevant team members to perform tasks during an
operational activity that require the use of force, including the carrying and use of
service weapons, ammunition and other equipment, in accordance with the relevant
provisions of the operational plan, taking into account that:

     Team members who are statutory staff may carry and use service weapons,
ammunition and other coercive means subject to the consent of the Agency.

     Team members who are not statutory staff may carry and use service weapons,
ammunition and other coercive means subject to the consent of the relevant
home Member State.

6. The use of force, including the carrying and use of service weapons, ammunition and

other equipment, shall be exercised in accordance with the national law of
Montenegro and in the presence of border management authorities of Montenegro.
Montenegro may authorise team members to use force in the absence of relevant
border management authorities of Montenegro, taking into account that:

     For team members who are statutory staff, such authorisation to use force in
the absence of border management authorities of Montenegro shall be subject
to the consent of the Agency.

     For team members who are not statutory staff, such authorisation to use force
in the absence of border management authorities of Montenegro shall be
subject to the consent of the relevant home Member State.

Without prejudice to the requirements of the national law of Montenegro, any use of
force by team members must be necessary and proportionate and comply fully with
applicable Union, international and national law, including, in particular, the
requirements laid down in Annex V to Regulation (EU) 2019/1896.

7. The Agency shall, in advance of the deployment of the team members, inform

Montenegro of the service weapons, ammunition and other equipment team members
may carry under paragraph 5 of this article. Montenegro may prohibit the carrying of
certain service weapons, ammunition and other equipment, provided that its own law
applies the same prohibition to its own border management authorities. Montenegro
shall, in advance of the deployment of the team members, inform the Agency of the

10

permissible service weapons, ammunition and equipment and of the conditions for
their use. The Agency shall make this information available to Member States.

Montenegro shall make the necessary arrangements for the issuance of any necessary
weapon permits and facilitate the import, export, transport and storage of weapons,
ammunition and other equipment at the disposal of the team members as requested by
the Agency. The procedure to issue the weapon permits will be set out in the
operational plan.

8. Service weapons, ammunition and equipment may be used in legitimate self-defence

and in legitimate defence of team members or of other persons in accordance with the
national law of Montenegro in line with relevant principles of international and Union
law.

9. Montenegro may authorise team members to consult its national databases if

necessary for fulfilling operational aims specified in the operational plan. Montenegro
shall ensure that it provides such database access in an efficient and effective manner.

Montenegro shall, in advance of the deployment of the team members, inform the
Agency of the national databases which may be consulted.

Team members shall only consult data necessary for performing their tasks and
exercising their powers. That consultation shall be carried out in accordance with the
national data protection law of Montenegro and this Agreement.

10. For the implementation of operational activities, Montenegro shall deploy officers of

the Ministry of the Interior - Police Directorate of Montenegro who are able and
willing to communicate in English to carry out a coordinating role on behalf of
Montenegro in accordance with the operational plan.

_Article 11_

**Privileges and Immunities of the Property, Funds, Assets and Operations of the**

**Agency**

1. Any premises and buildings of the Agency in Montenegro shall be inviolable. They

shall be exempt from search, requisition, confiscation or expropriation.

2. The Agency’s property and assets, including means of transport, communications,

archives, any correspondence, documents, identity papers and financial assets shall be
inviolable.

3. The Agency’s assets include assets owned, co-owned, chartered or leased by a

Member State and offered to the Agency. Upon the embarkation of representative(s)
of competent national authorities, those shall be treated as assets being on government
service and authorised to that effect.

4. No measures of execution may be taken in respect of the Agency. The Agency’s

property and assets shall not be the subject of any administrative or legal measure of
constraint. Property of the Agency shall be free from seizure for the satisfaction of a
judgment, decision or order.

5. Upon a request by the relevant judicial authorities of Montenegro, the executive

director may give consent for relevant national authorities of Montenegro to enter the
premises and buildings and/or access to the property and assets of the Agency in cases
of serious suspicion of criminal offences.

11

The consent of the executive director may be assumed in case of fire or other disaster
requiring prompt protective action.

6. Montenegro shall permit the entry and removal of articles and equipment deployed by

the Agency to Montenegro for operational purposes.

_7._ The Agency shall be exempt from all duties (including customs duties) and taxes as

well as any prohibitions and restrictions on imports and exports in respect of articles
and equipment intended for its official use, including articles and equipment imported
or exported by a third party on behalf of the Agency.

_Article 12_

**Privileges and Immunities of the Team Members**

1. The subsequent privileges and immunities granted to the members of the team aim at

ensuring the exercise of their official functions in the course of the actions carried out
in accordance with the operational plan on the territory of Montenegro.

2. Team members shall not be subject to any form of inquiry or legal proceedings in

Montenegro or by authorities of Montenegro, except under the circumstances as
referred to in paragraph 3.

3. Team members shall enjoy immunity from the criminal, civil and administrative

jurisdiction of Montenegro in respect of all acts performed by them in the exercise of
their official functions.

Where the authorities of Montenegro intend to institute criminal, civil or
administrative proceedings against a team member, the competent authorities of
Montenegro shall immediately notify the executive director thereof. The notification
procedure shall be in line with the applicable Agency decision thereon, which shall be
set out in the operational plan.

Following receipt of such notification, the executive director shall, without undue
delay, inform the relevant authorities of Montenegro whether the act in question was
performed by the team member in the exercise of his or her official functions. If the
act was stated as performed in the exercise of official functions, the proceedings shall
not be initiated. If the act was stated as not performed in the exercise of official
functions, the proceeding may be instituted. The qualification by the executive
director shall be binding upon Montenegro, which may not contest it.

Pending this qualification, the Agency shall refrain from taking any measure intended
to jeopardise possible subsequent criminal prosecution of the team member by the
competent authorities of Montenegro, including facilitating the departure of the
concerned team member from Montenegro.

Privileges granted to members of the team and immunity from the criminal
jurisdiction of Montenegro do not exempt them from the jurisdiction of the home
Member State.

4. The initiation of proceedings by team members shall preclude them from invoking

immunity from jurisdiction in respect of any counter-claim directly connected with the
principal claim.

5. The premises, dwellings, means of transport and communications, and possessions,

including any correspondence, documents, identity papers and assets of team

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members shall be inviolable, except in the case of measures of execution as permitted
pursuant to paragraph 10.

6. Montenegro shall be liable for any damage caused by team members to third parties

in the exercise of their official functions.

7. In case of damage caused by gross negligence or wilful misconduct or not in the

exercise of official functions by a team member who is a member of the statutory
staff, Montenegro may request, via the executive director, that compensation be paid
by the Agency.

In case of damage caused by gross negligence or wilful misconduct or not in the
exercise of official functions by a team member who is not a member of the statutory
staff of the Agency, Montenegro may request, via the executive director, that
compensation be paid by the home Member State concerned.

8. Neither Party nor any participating Member State nor the Agency shall be liable for

damage caused in Montenegro due to a force majeure event beyond its control.

9. Team members shall not be obliged to give evidence as witnesses in legal proceedings

in Montenegro. Team members may give evidence through a statement submitted in
accordance with the procedural law of Montenegro. Such submission shall not affect the
immunity provided for under paragraph 3.

10. No measures of execution may be taken in respect of team members, except in the

case where a criminal, civil or administrative proceeding not related to their official
functions is instituted against them. Property of team members, which is certified by
the Agency’s executive director to be necessary for the fulfilment of their official
functions, shall be free from seizure for the satisfaction of a judgment, decision or
order. In criminal, civil or administrative proceedings, team members shall not be
subject to any restrictions on their personal liberty or to any other measures of
constraint.

11. Team members shall, with respect to services rendered for the Agency, be exempt

from social security provisions which may be in force in Montenegro.

12. The salary and emoluments paid to team members by the Agency and/or the home

Member States, as well as any income team members receive from outside
Montenegro, shall not be taxed in any form in Montenegro.

13. Montenegro shall permit the entry of articles for the personal use of team members

and shall grant exemption from all customs duties, taxes, and related charges other
than charges for storage, transport and similar services, in respect of such articles.
Montenegro shall also allow the export of such articles.

14. Team members’ personal baggage shall be exempt from inspection, unless there are

serious grounds for considering that it contains articles that are not for the personal
use of team members, or articles whose import or export is prohibited by the law or
subject to quarantine regulations of Montenegro. Inspection of such personal baggage
shall be conducted only in the presence of team members concerned or an authorised
representative of the Agency.

15. The Agency and Montenegro shall appoint contact points that are available at all

times who shall be responsible for the exchange of information and immediate actions
to be taken in case an act performed by a team member may be in violation of

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criminal law as well as for the exchange of information and the operational activities
in relation to any civil and administrative proceedings against a team member.

Until action is taken by the competent authorities of the home Member State, the
Agency and Montenegro shall assist each other in carrying out all necessary inquiries
and investigations into any alleged criminal offence in respect of which either the
Agency or Montenegro or both have an interest, in the identification of witnesses and
in the collection and production of evidence, including the request to obtain and, if
appropriate, the handing over of items connected with a purported criminal offence.
The handing over of any such items may be made subject to their return within the
terms specified by the competent authority delivering them.

_Article 13_

**Injured or Deceased Team Members**

1. Without prejudice to Article 12, the executive director shall have the right to take

charge of, and make suitable arrangements for, the repatriation of any injured or
deceased team members, as well as of their personal property.

2. An autopsy shall be performed on a deceased team member only with the express

consent of the home Member State concerned and in the presence of a representative
of the Agency or of the home Member State concerned.

3. Montenegro and the Agency shall cooperate to the fullest extent possible to enable the

prompt repatriation of injured or deceased team members.

_Article 14_

**Accreditation Document**

1. The Agency shall issue a document in Montenegrin and in English to each team

member for the purposes of identification vis-à-vis the national authorities of
Montenegro and as proof of the holder’s rights to perform the tasks and exercise the
powers referred to in Article 10 of this Agreement and in the operational plan (the
‘accreditation document’).

2. The accreditation document shall include the following information on the staff

member: name and nationality; rank or job title; a recent digitised photograph, and
tasks authorised to be performed during the deployment. The accreditation document
shall include an expiry date.

3. For the purposes of identification vis-à-vis the national authorities of Montenegro,

team members shall be obliged to carry the accreditation document on their person at
all times.

4. Montenegro shall recognise the accreditation document, in combination with a valid

travel document, as granting the relevant team member entry and stay in Montenegro
without the need for a visa, residence permit, prior authorisation or any other
document up to the day of its expiration.

5. The accreditation document shall be returned to the Agency at the end of the

deployment. The competent authorities of Montenegro shall be informed thereof.

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_Article 15_

**Application to Staff Not Deployed as Team Members**

Articles 12, 13 and 14 shall apply _mutatis mutandis_ to all staff deployed to Montenegro under
this agreement or an operational plan thereunder who are not team members, including
fundamental rights monitors and the statutory staff deployed to antenna offices.

_Article 16_

**Protection of Personal Data**

1. The communication of personal data shall take place only if such communication is

necessary for the implementation of this Agreement by the competent authorities of
Montenegro or the Agency. The processing of personal data by an authority in a
particular case, including the transfer of such personal data to the other Party, shall be
subject to the data protection rules applicable to that authority. The Parties shall
ensure the following minimum safeguards as a precondition for any data transfer:
(a) personal data must be processed lawfully, fairly, and in a transparent manner in

relation to the data subject;

(b) personal data must be collected for the specified, explicit and legitimate purpose

of implementing this Agreement and not further processed by the communicating
authority nor receiving authority in a way incompatible with that purpose;

(c) personal data must be adequate, relevant and limited to what is necessary in

relation to the purpose for which they are collected or further processed; in
particular, personal data communicated in accordance with the law applicable to
the communicating authority may concern only one or more of the following:

–
First name;

–
Last name;

–
Date of birth;

–
Nationality;

–
Rank;

–
Travel document bio page;

–
Accreditation document;

–
ID/passport/accreditation document picture;

–
E-mail address;

–
Mobile phone number;

–
Weapon details;

–
Duration of the deployment;

–
Location of the deployment;

–
Aircraft or vessel identification numbers;

–
Arrival date;

–
Arrival airport/border crossing point;

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–
Arrival flight number;

–
Departure date;

–
Departure airport/border crossing point;

–
Departure flight number;

–
Home Member State/third country;

–
Deploying authority;

–
Tasks/operational profile;

–
Means of transportation;

– Route

of team members, Agency staff, relevant observers, or members of staff exchange

programmes;

(d) personal data must be accurate and, where necessary, kept up to date;

(e) personal data must be kept in a form which permits identification of data subjects

for no longer than is necessary for the purpose for which the data were collected or
for which they are further processed;

(f) personal data must be processed in a manner that ensures appropriate security of

the personal data, taking into account the specific risks of processing, including
protection against unauthorised or unlawful processing and against accidental loss,
destruction or damage, using appropriate technical or organisational measures
(‘data breach’); the receiving Party shall take appropriate measures to address any
data breach, and shall notify the communicating Party of such breach without
undue delay and within 72 hours;

(g) both the communicating authority and the receiving authority shall take every

reasonable step to ensure without delay the rectification or erasure, as appropriate,
of personal data where the processing does not comply with this Article, in
particular because those data are not adequate, relevant, accurate, or they are
excessive in relation to the purpose of processing; this includes the notification of
any rectification or erasure to the other Party;

(h) upon request, the receiving authority shall inform the communicating authority of

the use of the communicated data;

(i) personal data may be communicated only to the following competent authorities:

   The Agency

   - –
Ministry of the Interior Police Directorate of Montenegro

Further communication to other bodies requires the prior authorisation of the
communicating authority;
(j) the communicating and the receiving authorities are under an obligation to make a

written record of the communication and receipt of personal data;
(k) independent oversight shall be in place to oversee data protection compliance,

including to inspect such records; data subjects shall have the right to bring
complaints to the oversight body, and to receive a response without undue delay;

(l) data subjects shall have the right to receive information on the processing of their

personal data, access such data and the rectification or erasure of inaccurate or

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unlawfully processed data, subject to necessary and proportionate limitations on
important grounds of public interest; and

(m) data subjects shall have the right to effective administrative and judicial redress for

violation of the aforementioned safeguards.

2. Each Party shall conduct periodic reviews of its own policies and procedures that

implement this Article. Upon request by the other Party, the Party that received the
request shall review its personal data processing policies and procedures to ascertain
and confirm that the safeguards in this Article are implemented effectively. The
results of the review shall be communicated to the Party that requested the review
within a reasonable time.

3. The data protection safeguards under this Agreement shall be subject to oversight by

the European Data Protection Supervisor and the Agency for Personal Data Protection
and Free Access to Information of Montenegro.

4. The Parties shall cooperate with the European Data Protection Supervisor, as the

supervisory authority of the Agency.

5. The Agency and Montenegro shall draw up a common report on the application of

this article at the end of each operational activity. This report shall be sent to the
Agency's fundamental rights officer and data protection officer as well as to the
Agency for Personal Data Protection and Free Access to Information of Montenegro.

6. The Agency and Montenegro shall set out detailed rules on the communication and

processing of personal data for the purposes of operational activities under this
Agreement in specific provisions of the relevant operational plans. Those provisions
shall comply with the relevant requirements of European Union law and the law of
Montenegro. They shall describe, _inter alia_, the intended purpose of the
communication, the controller(s) and all roles and responsibilities, the categories of
data communicated, the specific data retention periods, and all minimum safeguards.
In the interest of transparency and foreseeability, those provisions shall be made
publicly available in accordance with the relevant guidance of the European Data
Protection Board.

_Article 17_

**Exchange of Classified and Sensitive Non-Classified Information**

1. Any exchange, sharing or dissemination of classified information in the framework of

this Agreement shall be covered by a separate administrative arrangement concluded
between the Agency and the relevant authorities of Montenegro that shall be subject
to the prior approval of the European Commission.

2. Any exchange of sensitive non-classified information in the framework of this

Agreement:

(a) shall be handled by the Agency in accordance with Article 9(5) of Commission

Decision (EU, Euratom) 2015/443 [3] and by Montenegro in accordance with its
national legislation.

3 Commission Decision (EU, Euratom) 2015/443 of 13 March 2015 on Security in the Commission, (OJ L 72,
17.3.2015, p. 41).

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(b) shall receive a level of protection by the receiving Party that is equivalent to the

level of protection offered by the measures applied to that information by the
communicating Party in terms of confidentiality, integrity and availability; and
(c) shall be conducted via an information exchange system that fulfils the criteria of

availability, confidentiality and integrity for sensitive non-classified information,
such as the communication network referred to in Article 14 of Regulation (EU)
2019/1896.

3. The Parties shall comply with intellectual property rights related to any data

processed in the framework of this Agreement.

_Article 18_

**Decision to Suspend, Terminate and/or Withdraw Financing for an Operational**

**Activity**

1. If the conditions to conduct an operational activity are no longer fulfilled, including as

notified by Montenegro, the executive director shall terminate that operational activity
after informing Montenegro. Such information shall be made in writing and shall
include the reasons therefor.

2. If this Agreement or an operational plan has not been respected by Montenegro, the

executive director may withdraw financing of the relevant operational activity, and/or
suspend or terminate it, after informing Montenegro in writing.

3. If the security of any participant of an operational activity deployed in Montenegro

cannot be guaranteed, the executive director may suspend or terminate the relevant
operational activity or aspects thereof.

4. If the executive director considers that violations of fundamental rights or

international protection obligations that are of a serious nature or are likely to persist
have taken place or are likely to take place in relation to an operational activity
performed under this Agreement, he or she shall withdraw the financing of the
relevant operational activity, and/or suspend or terminate it, after informing
Montenegro.

5. Montenegro may request the executive director to suspend or terminate an operational

activity. Such request shall be made in writing and shall include the reasons therefor.

6. A suspension, termination or withdrawal of financing under this Article shall take

effect from the date of notification to Montenegro. It shall not affect any rights or
obligations arising out of the application of this Agreement or the operational plan
before such suspension, termination or withdrawal of financing.

7. Montenegro may request the termination of deployment of any team member, or other

relevant staff, who does not respect this Agreement or an operational plan thereunder
who commits serious violations of Montenegrin legislation. The decision for the
termination of the deployment shall be made by the executive director or the
respective home Member State as relevant and notified to the relevant authorities of
Montenegro.

_Article 19_

**Combating Fraud**

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1. Montenegro shall notify the Agency, the European Public Prosecutor’s Office and/or

the European Anti-Fraud Office forthwith if it becomes aware of the existence of
credible allegations of fraud, corruption or any other illegal activities connected to the
implementation of this Agreement that may affect the interests of the European
Union.

2. Where such allegations relate to European Union funds disbursed in relation to this

Agreement, Montenegro shall provide all necessary assistance to the European AntiFraud Office and/or the European Public Prosecutor’s Office in relation to
investigative activities on its territory, including facilitating interviews, on-the-spot
checks and inspections (including access to information systems and databases in
Montenegro); and facilitating access to any relevant information concerning the
technical and financial management of matters financed partly or wholly by the
European Union.

_Article 20_

**Implementation of this Agreement**

1. For Montenegro, this Agreement shall be implemented by the Ministry of the

Interior– Police Directorate of Montenegro.

2. For the European Union, this Agreement shall be implemented by the Agency.

_Article 21_

**Dispute Settlement**

1. Any disputes arising in connection with the application of this Agreement shall be

examined jointly by representatives of the Agency and the competent authorities
Montenegro.

2. Failing any prior settlement, disputes concerning the interpretation or application of

this Agreement shall be settled exclusively by negotiation between the Parties.

_Article 22_

**Entry into Force, Provisional application, Amendment, Duration, Suspension**
**and Termination of the Agreement and Termination of Predecessor Agreement**

1. This Agreement shall be subject to ratification, acceptance or approval by the Parties

in accordance with their own internal legal procedures. The Parties shall notify one
another of the completion of the procedures necessary for that purpose.

2. This Agreement shall enter into force on the first day of the second month following

the date on which the Parties have notified each other of the completion of the internal
legal procedures in accordance with paragraph 1.

Pending the completion of the procedures necessary for its entry into force, this
Agreement may be applied on a provisional basis as from the first day of the second
month following the date of its signature by the Parties.

3. This Agreement may be amended only in writing by mutual consent of the Parties.

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4. This Agreement is concluded for an indefinite period. It may be suspended or

terminated by written agreement between the Parties or unilaterally by either Party.

In case of a unilateral suspension or termination, the Party wishing to suspend or
terminate shall notify the other Party thereof in writing. A unilateral termination or
suspension of this Agreement shall take effect on the first day of the second month
following the month during which the notification was given.

5. The Status Agreement of 7 October 2019 between the European Union and

Montenegro on Actions Carried Out by the European Border and Coast Guard
Agency in Montenegro, signed in Luxembourg, is hereby repealed and replaced by
this Agreement.

During the period when this Agreement is applied on a provisional basis, the
application of the Status Agreement of 7 October 2019 between the European Union
and Montenegro on Actions Carried Out by the European Border and Coast Guard
Agency in Montenegro, signed in Luxembourg, shall be suspended.

Any operational activity launched on the basis of the Status Agreement of 7 October
2019 between the European Union and Montenegro on Actions Carried Out by the
European Border and Coast Guard Agency in Montenegro, signed in Luxembourg,
that are ongoing at the time of the provisional application or entry into force of this
agreement may continue, subject to the amendment or adaptation of the respective
operational plan in line with this agreement.

6. Notifications made in accordance with this Article shall be sent, in the case of the

European Union, to the Secretary General of the Council of the European Union and,
in the case of Montenegro, to the Ministry of Foreign Affairs of Montenegro.

Done in duplicate in the Bulgarian, Croatian, Czech, Danish, Dutch, English, Estonian,
Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese,
Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish, Swedish and Montenegrin
languages, each of those texts being equally authentic.

IN WITNESS WHEREOF, the undersigned Plenipotentiaries, duly authorised to this effect,
have signed this Agreement.

Done at _XX_, date, _DD/MM/YYYY_

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