9 AGREEMENT ON STATUS OF EU FORCES
(24567)
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| Draft Agreement between the Member States on EU Status of Forces.
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| Legal base | —
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| Department | Foreign and Commonwealth Office
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| Basis of consideration |
EM of 29 May 2003 |
| Previous Committee Report |
None |
| To be discussed in Council
| No date set |
| Committee's assessment | Politically important
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| Committee's decision | Not cleared; further information awaited
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Background
9.1 The draft EU Agreement on the Status of Forces (EUSOFA)
concerns the legal status of military and civilian personnel on
secondment to the Military Staff of the European Union (EUMS)
or put at the disposal of the EU in the context of EU military
or civilian operations and exercises, and of the headquarters
and forces which may be made available to the EU in the same context.
It is intended that the EUSOFA will cover situations where other
Status of Forces Agreements, notably the NATO Status of Forces
Agreement (NATOSOFA), do not apply.
9.2 The Minister of State at the Foreign
and Commonwealth Office (Mr Bill Rammell) says in his Explanatory
Memorandum that the EUSOFA could also apply to operations supporting
the execution of tasks referred to in Article 17(2) EU within
the EU.[29] This is
distinct from an EU-led operation outside the territory
of the EU, which would require the EU to agree a Status of Forces
Agreement with the host government, as it did for Operation Concordia
in the former Yugoslav Republic of Macedonia.
9.3 The draft Agreement sets out the legal
provisions that will enable military and civilian personnel to
carry out their duties. It is an intergovernmental agreement,
rather than a measure under the EU Treaty. As the requirements
of headquarters forces deployed on an operation or exercise are
different from those of personnel seconded to the EUMS, which
is part of the General Secretariat of the Council, the draft Agreement
is divided into three parts to deal with the different categories
of people to which it applies:
- Part I sets out provisions
that apply to all military and civilian staff covered by
the EUSOFA;
- Part II covers the military and civilian staff
seconded to the EU institutions — principally the EUMS.
It provides for these staff, where authorised by their orders
and subject to the national regulations of the receiving State,
to have the right to possess and carry arms. Their immunities
from legal process in respect of acts undertaken in the course
of their official duties are also set out;
- Part III covers headquarters and forces, and
the personnel within them. This sets out the rights of forces
to secure their premises; inviolability of documents of headquarters;
the arrangements for taxation; jurisdiction over military and
civilian personnel; and arrangements for liabilities and claims;
- The final provisions of the Agreement are contained
in Part IV, including the procedures for ratification and entry
into force.
9.4 The Minister says that Part IV is also
intended to regulate which agreement, the EUSOFA or the NATOSOFA,
applies in a specific situation where there is ambiguity, for
example, where forces are deployed on an EU operation making use
of NATO assets and capabilities. He comments that this raises
wider considerations of subsidiarity. A number of options are
still being discussed by the Member States and these are indicated
in the draft Agreement.
9.5 Option 1 reads:
"The present Agreement shall be applicable
to persons, forces and headquarters referred to in Article 1 paragraphs
1 to 5, who or which are not covered by other applicable international
agreements concerning their status."[30]
9.6 The Minister comments that this means
that NATOSOFA would prevail whenever it applied.
9.7 The Minister says that:
"Option 2 provides that, where the
status of forces is regulated by another agreement (e.g. the NATOSOFA)
that other agreement will apply, but only in relation to Parts
I and III of the EUSOFA. Paragraph 2 of Option 2 also provides
that specific agreements may nevertheless be concluded to regulate
the status of persons working in the forces and headquarters.
This may create a lack of clarity as to which provisions actually
apply to different categories of persons.
"The UK proposal in Option 3 was
intended to make the scope of Option 2 clearer.
"The Greek proposal in Option 4 establishes
a different situation. Under this proposal, the EUSOFA would
prevail unless NATO assets are used, but this is made dependent
upon NATO's decision (i.e. consent)."
9.8 The Minister says that
"the UK continues to negotiate on the basis
that the provisions of this Agreement should reflect the NATOSOFA,
so as to avoid unnecessary complications, and that the NATOSOFA
should prevail, where applicable. However, the provisions of
this draft agreement applicable to forces and headquarters are
broadly the same as those of the NATOSOFA and so the provisions
governing the status of such personnel should in practice be very
similar, whether they are governed by this agreement or by the
NATOSOFA."
The Government's view
9.9 The Minister comments that the designation
of the EU as an international organisation for the purposes of
implementing certain sections of the EUSOFA under the International
Organisations Act 1968 would not give the EU any additional powers.
9.10 The Minister says that it is envisaged
that the Agreement will be implemented by a combination of existing
legislation and new secondary legislation. In order to implement
the provisions relating to the immunities of military and civilian
staff seconded to the EU institutions (Part II of the Agreement),
there will need to be an Order in Council under the International
Organisations Act 1968 for these purposes. This is possible
because the EU can be considered to be an international organisation
under the terms of the 1968 Act.
Conclusion
9.11 The Minister says that there is
no set timetable for the conclusion of the Agreement and that
he considers that further work on it is needed. Until there is
consensus on the technical detail it will not be presented to
the Council.
9.12 We thank
the Minister for providing us with this text at this stage and
note that he has promised to send us a supplementary Explanatory
Memorandum when a final draft is available. We support the Government
in seeking to avoid unnecessary complications and pressing in
negotiation for the Agreement to reflect the NATOSOFA. We ask
him to provide us with an update in the meantime, if work on the
draft is protracted, and in any event before a final draft is
put to the Council.
9.13 Meanwhile,
we shall hold the document under scrutiny.
29 Article 17(2) reads:"Questions referred to
in this Article shall include humanitarian and rescue tasks, peacekeeping
tasks and tasks of combat forces in crisis management, including
peacemaking". Back
30
SN 4438/7/01 REV 7: not deposited. Back
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