AGREEMENT

between the European Union and the Islamic Republic of Afghanistan on the Status of the European Union Police Mission in Afghanistan, EUPOL AFGHANISTAN

THE EUROPEAN UNION, hereinafter referred to as ‘the EU’,

of the one part, and

THE ISLAMIC REPUBLIC OF AFGHANISTAN, hereinafter referred to as ‘the Host State’,

of the other part of the agreement,

Together hereinafter referred to as ‘the Parties’,

TAKING INTO ACCOUNT:

The letter from Minister of Foreign Affairs Rangin Dadfar Spanta of the Islamic Republic of Afghanistan (Afghanistan), dated 16 May 2007, inviting the EU to launch a Police Mission in Afghanistan,

The adoption by the Council on 30 May 2007 of Joint Action 2007/369/CFSP on the establishment of a European Union Police Mission in Afghanistan, EUPOL AFGHANISTAN,

Recital 9 of that Joint Action which indicates that EUPOL AFGHANISTAN is set in the wider context of the international community’s effort to support the Government of Afghanistan in taking responsibility for strengthening the rule of law, and in particular, in improving its civil police and law enforcement capacity,

The adoption by the Council on 18 May 2010 of Decision 2010/279/CFSP on the extension of EUPOL AFGHANISTAN,

Article 3(2) of that Decision which provides that EUPOL AFGHANISTAN is a non-executive mission, carrying out its tasks through, amongst other means, monitoring, mentoring, advising and training,

Article 8(1) of that Decision which provides that the status of EUPOL AFGHANISTAN staff in Afghanistan, including, where appropriate the privileges, immunities and further guarantees necessary for the completion and smooth functioning of EUPOL AFGHANISTAN shall be laid down in an Agreement to be concluded in accordance with Article 37 of the Treaty on European Union,

That this Agreement will not affect the Parties’ rights and obligations under international agreements and other instruments establishing international courts and tribunals, including the Statute of the International Criminal Court,

HAVE AGREED AS FOLLOWS:

Article 1

Scope and definitions

1.   This Agreement shall apply to the European Union Police Mission to the Islamic Republic of Afghanistan and its personnel.

2.   This Agreement shall apply only within the territory of the Host State.

3.   For the purposes of this Agreement:

(a)

‘EUPOL AFGHANISTAN’ shall mean the EU Police Mission in Afghanistan, established by the Council of the European Union by Joint Action 2007/369/CFSP, dated 30 May 2007, including its components, forces, units, headquarters and personnel deployed in the territory of the Host State and assigned to EUPOL AFGHANISTAN;

(b)	‘Head of Mission’ shall mean the Head of Mission of EUPOL AFGHANISTAN, appointed by the Council of the European Union;

(c)

‘EUPOL AFGHANISTAN personnel’ shall mean the Head of Mission, personnel seconded by EU Member States and EU institutions and non-EU States invited by the EU to participate in EUPOL AFGHANISTAN, international staff recruited on a contractual basis by EUPOL AFGHANISTAN, and any other international staff temporarily attached to the EUPOL AFGHANISTAN as additional expertise, deployed for the preparation, support and implementation of the mission, and international personnel on mission for a Sending State or an EU institution within the framework of the mission. All EUPOL AFGHANISTAN personnel, even in the case they are issued Ordinary Passports by their country of citizenship will be granted all the privileges and immunities set forth in this Agreement. EUPOL AFGHANISTAN personnel shall not include commercial contractors or personnel employed locally;

(d)	‘Headquarters’ shall mean the EUPOL AFGHANISTAN main headquarters in Afghanistan being in Kabul;

(e)	‘Sending State’ shall mean any EU Member State or non-EU State that has seconded personnel to EUPOL AFGHANISTAN;

(f)	‘Facilities’ shall mean all buildings, premises, installations and land required for the conduct of the activities of EUPOL AFGHANISTAN as well as for the accommodation of EUPOL AFGHANISTAN personnel in accordance with the laws and regulations of the Host State;

(g)	‘Personnel employed locally’ shall mean personnel who are nationals of, or permanently resident in, the Host State;

(h)	‘Official correspondence’ shall mean all correspondence relating to EUPOL AFGHANISTAN and its functions;

(i)	‘Diplomatic principles’ shall mean the relevant principles contained in the Vienna Convention on Diplomatic Relations of 18 April 1961 to be reciprocally adhered to by both Parties in accordance with the provisions of this Agreement;

(j)	‘Host State’ shall mean the Islamic Republic of Afghanistan.

Article 2

General provisions

1.   EUPOL AFGHANISTAN and EUPOL AFGHANISTAN personnel shall respect and observe the laws and regulations of the Host State and shall refrain from any action or activity incompatible with the objectives of EUPOL AFGHANISTAN.

2.   EUPOL AFGHANISTAN shall be autonomous with regard to the execution of its functions under this Agreement. The Host State shall respect the unitary and international nature of EUPOL AFGHANISTAN.

3.   The Head of Mission shall regularly inform the Government of the Host State of the number of EUPOL AFGHANISTAN personnel permanently stationed within the Host State’s territory.

Article 3

Identification

1.   EUPOL AFGHANISTAN personnel shall be provided with, and identified by, a EUPOL AFGHANISTAN identification card, which they shall be obliged to carry with them at all times. The relevant authorities dealing with security, taxation, immigration and customs issues in the Host State shall be provided with a specimen of a EUPOL AFGHANISTAN identification card.

2.   EUPOL AFGHANISTAN shall have the right to display the flag of the EU at its Headquarters and elsewhere, alone or together with the flag of the Host State with the consent of the Host State depending on the security situation in the respective location, as decided by the Head of Mission. National flags or insignia of the constituent national contingents of EUPOL AFGHANISTAN may be displayed on EUPOL AFGHANISTAN facilities, vehicles and any other means of transport and uniforms, as decided by the Head of Mission.

Article 4

Border crossing and movement within the Host State’s territory

1.   EUPOL AFGHANISTAN personnel, assets, vehicles and any other civilian means of transportation shall cross the border of the Host State at official border crossings, and via the international air corridors.

2.   The Host State shall facilitate the entry into and the exit from the territory of the Host State for EUPOL AFGHANISTAN personnel and EUPOL AFGHANISTAN assets, vehicles and any other civilian means of transport. Except for passport control on entry into and departure from the territory of the Host State, EUPOL AFGHANISTAN personnel holding a EUPOL AFGHANISTAN identification card or a provisional proof of participation in the EUPOL AFGHANISTAN shall be exempt from passport regulations, regulations on customs controls and procedures, visa and immigration regulations, and any form of immigration inspection within the territory of the Host State.

3.   EUPOL AFGHANISTAN personnel applying for a visa shall be exempt from the regulations of the Host State governing the registration and control of aliens, but shall not acquire any right to permanent residence or domicile within the Host State’s territory. For this purpose, the Ministry of Foreign Affairs of Afghanistan shall take actions in accordance with the law.

4.   EUPOL AFGHANISTAN assets, vehicles and any other civilian means of transport entering, transiting or exiting the Host State’s territory in support of the EUPOL AFGHANISTAN shall be exempt from any inspection and any requirement to produce inventories or other customs documentation. EUPOL AFGHANISTAN shall provide the relevant Host State authorities with a list of such assets, vehicles and any other civilian means of transport.

5.   Vehicles and any other civilian means of transport used in support of EUPOL AFGHANISTAN shall not be subject to local licensing or registration requirements. Relevant international standards and regulations shall continue to apply. Upon request of the Head of Mission, the Host State shall provide all EUPOL AFGHANISTAN vehicles with diplomatic plates free of charge. If required, supplementary arrangements as referred to in Article 19 shall be concluded.

6.   EUPOL AFGHANISTAN personnel may drive vehicles, navigate vessels, ships and ferries and operate aircrafts and any other civilian means of transport within the territory of the Host State provided they have valid national or international driving licences, shipmaster’s certificates or pilot licences, as appropriate. The Host State shall accept as valid, without tax or fee, driving licences or permits carried by EUPOL AFGHANISTAN personnel.

7.   EUPOL AFGHANISTAN personnel together with their vehicles and any other civilian means of transport, equipment and supplies shall enjoy free and unrestricted movement throughout the territory of the Host State, including its territorial airspace, taking into account the security situation jointly assessed by the Head of Mission and the respective Host State authorities. Any necessary supplementary arrangements may be concluded in accordance with Article 19 of this Agreement.

8.   For the purpose of travel on official duties, EUPOL AFGHANISTAN personnel and personnel employed locally shall be entitled to use public roads, bridges, vessels, ships and ferries, and airports without the payment of duties, fees, tolls, taxes or other charges. For the purpose of external travel, international laws shall be observed. EUPOL AFGHANISTAN and its personnel shall not be exempt from reasonable charges for services requested and received under the conditions that apply to those provided to the Host State’s nationals.

Article 5

Privileges and immunities of EUPOL AFGHANISTAN granted by the Host State

1.   EUPOL AFGHANISTAN’s facilities shall be inviolable. The Host State’s agents shall not enter them without the consent of the Head of Mission.

2.   EUPOL AFGHANISTAN’s facilities, their furnishings and other assets therein as well as its authorised means of transport shall be immune from search, requisition, attachment or execution in accordance with diplomatic principles.

3.   EUPOL AFGHANISTAN, its property and assets, wherever located and by whomsoever held, shall enjoy immunity from every form of legal process.

4.   EUPOL AFGHANISTAN’s archives and documents, wherever they may be located, shall be inviolable at any time in accordance with diplomatic principles. EUPOL AFGHANISTAN shall officially inform the authorities of the Host State of the location of the said archives and documents.

5.   EUPOL AFGHANISTAN’s official correspondence shall be inviolable.

6.   EUPOL AFGHANISTAN, as well as its providers or contractors, shall be exempt from all national, regional and communal dues, taxes and charges of a similar nature in respect of purchased and imported goods, services provided and facilities used by EUPOL AFGHANISTAN for the purposes of EUPOL AFGHANISTAN. EUPOL AFGHANISTAN, in accordance with diplomatic principles, shall not be exempt from dues, taxes or charges that represent payment for services rendered.

7.   In accordance with diplomatic principles, the Host State shall permit the entry of all legal items required for the purpose of EUPOL AFGHANISTAN and shall grant those items exemption from all customs duties, fees, tolls, taxes and similar charges other than charges for storage, transport and other services rendered.

Article 6

Privileges and immunities of EUPOL AFGHANISTAN personnel granted by the Host State

1.   EUPOL AFGHANISTAN personnel shall not be subject to any form of arrest or detention in accordance with diplomatic principles.

2.   Papers, correspondence and assets of EUPOL AFGHANISTAN personnel shall be inviolable, except in case of measures of execution which are permitted pursuant to paragraph 7 below.

3.   The Host State shall provide, in accordance with its applicable laws and regulations, EUPOL AFGHANISTAN personnel with a diplomatic identity card free of charge.

4.   EUPOL AFGHANISTAN personnel shall enjoy immunity from the criminal jurisdiction of the Host State under all circumstances. The immunity from criminal jurisdiction of EUPOL AFGHANISTAN personnel may be waived by the Sending State or EU institution concerned, as the case may be. Such waiver must always be an express waiver.

5.   EUPOL AFGHANISTAN personnel shall enjoy immunity from the civil and administrative jurisdiction of the Host State in respect of words spoken or written and all acts performed by them in the exercise of their official functions. If any civil proceeding is instituted against EUPOL AFGHANISTAN personnel before any Host State court, the Head of Mission and the competent authority of the Sending State or EU institution shall be notified immediately. Prior to initiation of the proceeding before the court, the Head of Mission and the competent authority of the Sending State or EU institution shall certify to the court whether the act in question was performed by EUPOL AFGHANISTAN personnel in the exercise of their official functions. If the act was performed in the exercise of official functions, the proceeding shall not be initiated and the provisions of Article 16 shall apply. If the act was not performed in the exercise of official functions, the proceeding may continue. The certification by the Head of Mission and the competent authority of the Sending State or EU institution shall be binding upon the jurisdiction of the Host State which may not contest it. The initiation of proceedings by EUPOL AFGHANISTAN personnel shall preclude them from invoking immunity from jurisdiction in respect of any counter-claim directly connected with the principal claim.

6.   EUPOL AFGHANISTAN personnel shall not be obliged to give evidence as witnesses.

7.   No measures of execution may be taken in respect of EUPOL AFGHANISTAN personnel, except in the case where a civil proceeding not related to their official functions is instituted against them. Property of EUPOL AFGHANISTAN personnel, certified by the Head of Mission to be necessary for the fulfilment of their official functions, shall be free from seizure for the satisfaction of a judgement, decision or order. In civil proceedings, EUPOL AFGHANISTAN personnel shall not be subject to any restrictions on their personal liberty or to any other measures of constraint.

8.   The immunity of EUPOL AFGHANISTAN personnel from the jurisdiction of the Host State shall not exempt them from the jurisdictions of the respective Sending States.

9.   EUPOL AFGHANISTAN personnel shall, in accordance with diplomatic principles, with respect to services rendered for EUPOL AFGHANISTAN, be exempt from social security provisions which may be in force in the Host State.

10.   EUPOL AFGHANISTAN personnel shall be exempt from any form of taxation in the Host State on the salary and emoluments paid to them by EUPOL AFGHANISTAN or the Sending States, as well as on any income received from outside the Host State. Personnel employed locally shall not be exempt from existing laws.

11.   The Host State shall, in accordance with such laws and regulations as it may adopt, permit the entry of articles for the personal use of EUPOL AFGHANISTAN personnel, 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. The Host State shall also allow the export of such articles. The purchase of goods and services on the domestic market by EUPOL AFGHANISTAN personnel shall be exempt from VAT and taxes in accordance with the laws of the Host State.

12.   The personal baggage of EUPOL AFGHANISTAN personnel shall be exempt from inspection, unless there are serious grounds for considering that it contains articles that are not for the personal use of EUPOL AFGHANISTAN personnel, or articles whose import or export is prohibited by the law or subject to quarantine regulations of the Host State. Inspection of such personal baggage shall be conducted only in the presence of representatives of the respective Host State organs and the EUPOL AFGHANISTAN international staff member concerned or, on the latter’s behalf, of an authorised representative of EUPOL AFGHANISTAN.

Article 7

Personnel employed locally

Personnel employed locally shall enjoy privileges and immunities in accordance with international categories only to the extent allowed by the Host State. However, the Host State shall exercise its jurisdiction over such personnel in such a manner as not to interfere unduly with the performance of the functions of EUPOL AFGHANISTAN.

Article 8

Criminal jurisdiction

The competent authorities of a Sending State shall have the right to exercise on the territory of the Host State all the criminal jurisdiction and disciplinary powers conferred on them by the law of the Sending State with regard to EUPOL AFGHANISTAN personnel.

Article 9

Security

1.   The Host State, by its own means, and taking into account its capacity, shall assume full responsibility for the security of EUPOL AFGHANISTAN personnel.

2.   For the purposes of paragraph 1 above the Host State shall take all necessary measures for the protection, safety and security of EUPOL AFGHANISTAN and EUPOL AFGHANISTAN personnel. Any specific provisions proposed by the Host State shall be agreed with the Head of Mission before their implementation. The Host State shall permit, and support free of any charge, activities relating to the medical evacuation of EUPOL AFGHANISTAN personnel.

If required, supplementary arrangements as referred to in Article 19 shall be concluded.

3.   EUPOL AFGHANISTAN personnel, subject to a decision by the Head of Mission, and in compliance with the respective laws of the Host State on explosive materials and small weapons, shall have the right to carry personal weapons and ammunition solely for self-defence. For this purpose, EUPOL AFGHANISTAN shall, on a regular basis, provide the respective Afghan authorities with a list of firearms carried by its personnel.

Article 10

Uniform

1.   EUPOL AFGHANISTAN personnel shall wear national uniform or civilian dress with distinctive EUPOL AFGHANISTAN identification.

2.   The wearing of uniform shall be subject to rules issued by the Head of Mission.

Article 11

Cooperation and access to information

1.   The Host State shall provide full cooperation and support to EUPOL AFGHANISTAN and EUPOL AFGHANISTAN personnel.

2.   If requested and necessary for the accomplishment of EUPOL AFGHANISTAN’s mandate the Host State shall provide EUPOL AFGHANISTAN personnel with effective access to:

—	facilities, locations and official vehicles within the control of the Host State, which are relevant for the fulfilment of EUPOL AFGHANISTAN’s mandate,

—	documents, materials and information with the consent of national security authorities within the control of the Host State, in so far as necessary for the fulfilment of EUPOL AFGHANISTAN’s mandate.

If required for the purposes of the first indent above, supplementary arrangements as referred to in Article 19 shall be concluded.

3.   The Head of Mission and the Host State shall consult regularly and take appropriate measures to ensure close and reciprocal liaison at every appropriate level. The Host State may appoint a liaison officer to EUPOL AFGHANISTAN.

Article 12

Host State support and contracting

1.   The Host State shall assist, if requested, EUPOL AFGHANISTAN in finding suitable facilities.

2.   The Host State shall provide EUPOL AFGHANISTAN free of charge, if required and available, with facilities that belong to the Government of the Host State in so far as such facilities are requested for the conduct of EUPOL AFGHANISTAN’s administrative and operational activities. Facilities owned by private entities can be used by EUPOL AFGHANISTAN only with the consent of the owner of the facilities and in full compliance with the respective lease or other contract.

3.   Within its means and capabilities, the Host State shall assist in the preparation, establishment, execution of, and support for EUPOL AFGHANISTAN, including co-location facilities and equipment for EUPOL AFGHANISTAN experts.

4.   The Host State’s assistance and support to EUPOL AFGHANISTAN shall be provided under at least the same conditions as the assistance and support that it gives to its own nationals.

5.   EUPOL AFGHANISTAN shall have the necessary legal capacity under the laws and regulations of the Host State in order to fulfil its mission, and in particular for the purpose of opening bank accounts and to acquire or dispose of assets and to be party to legal proceedings.

6.   The law applicable to contracts concluded by EUPOL AFGHANISTAN in the Host State shall be determined by the relevant provisions in those contracts.

7.   The contracts concluded by EUPOL AFGHANISTAN may stipulate that the dispute settlement procedure referred to in Article 16(3) and (4) shall be applicable to disputes arising from the implementation of the contract.

8.   The Host State shall facilitate the implementation of contracts concluded by EUPOL AFGHANISTAN with commercial entities for the purpose of the mission.

Article 13

Alteration of facilities

1.   EUPOL AFGHANISTAN shall be authorised to construct, alter or otherwise modify those facilities in its possession or at its disposal that belong to the Government of the Host State as required for its operational requirements.

2.   The Host State shall not claim any compensation from EUPOL AFGHANISTAN for any constructions, alterations or modifications of the aforementioned facilities belonging to the Government of the Host State.

Article 14

Deceased EUPOL AFGHANISTAN personnel

1.   The Head of Mission shall have the right to take charge of and make suitable arrangements for the repatriation of any deceased EUPOL AFGHANISTAN personnel, as well as of their personal property.

2.   No autopsy shall be performed on any deceased members of EUPOL AFGHANISTAN personnel without the agreement of the State concerned, and the presence of a representative of EUPOL AFGHANISTAN and/or a representative of the State concerned.

3.   The Host State and EUPOL AFGHANISTAN shall cooperate to the fullest extent possible with a view to the early repatriation of deceased EUPOL AFGHANISTAN personnel.

Article 15

Communications

1.   EUPOL AFGHANISTAN, in liaison with the Ministry of Telecommunication and Information Technology of the Host State, may install and operate radio sending and receiving stations, as well as satellite systems. It shall cooperate with the Host State’s competent authorities with a view to avoiding conflicts in the use of appropriate frequencies. The Host State shall grant access to the frequency spectrum free of charge.

2.   EUPOL AFGHANISTAN shall enjoy the right to unrestricted communication by radio (including satellite, mobile and hand-held radio), telephone, telegraph, facsimile and other means, as well as the right to install the equipment necessary for the maintenance of such communications within and between EUPOL AFGHANISTAN facilities, including the laying of cables and landlines, for the purpose of EUPOL AFGHANISTAN.

3.   Within its facilities EUPOL AFGHANISTAN may make the necessary arrangements for the conveyance of mail addressed to and from EUPOL AFGHANISTAN and/or EUPOL AFGHANISTAN personnel.

Article 16

Claims for death, injury, damage or loss

1.   EUPOL AFGHANISTAN and EUPOL AFGHANISTAN personnel shall not be liable for any duty-related damage to, or loss of, civilian or governmental property which is related to its operational necessities or caused by activities in connection with civil disturbances or the protection of EUPOL AFGHANISTAN. In the case of an incident related to any such damage or loss, the parties will carry out a joint inquiry in order to settle the incident accordingly.

2.   With a view to reaching an amicable settlement, claims for damage to, or loss of, civilian or government property not covered by paragraph 1, as well as claims for death of, or injury to, persons and claims for damage to, or loss of EUPOL AFGHANISTAN property, shall be forwarded to EUPOL AFGHANISTAN via the competent authorities of the Host State, with regard to claims brought by a legal or natural person from the Host State, and to the competent authorities of the Host State, with regard to claims brought by EUPOL AFGHANISTAN.

3.   Where no amicable settlement can be found, the claim shall be submitted to a claims commission composed on an equal basis of representatives of EUPOL AFGHANISTAN and representatives of the Host State. Settlement of claims shall be reached by common agreement.

4.   Where no settlement can be reached within the claims commission, the dispute shall be settled by diplomatic means between the Host State and EU representatives for claims up to and including EUR 40 000. For claims exceeding that amount, the dispute shall be submitted to an arbitration tribunal, whose decisions shall be binding.

5.   The arbitration tribunal referred to in paragraph 4 shall be composed of three arbitrators, one being appointed by the Host State, one being appointed by EUPOL AFGHANISTAN and the third being appointed jointly by the Host State and EUPOL AFGHANISTAN. Where one of the parties does not appoint an arbitrator within two months or where no agreement can be found between the Host State and EUPOL AFGHANISTAN on the appointment of the third arbitrator, the arbitrator in question shall be appointed by the Head of the UN Mission in Afghanistan.

6.   An administrative arrangement shall be concluded between EUPOL AFGHANISTAN and the administrative authorities of the Host State in order to determine the terms of reference of the claims commission and the arbitration tribunal, the procedure applicable within these bodies and the conditions under which claims are to be lodged.

Article 17

Liaison and disputes

1.   All issues arising in connection with the application of this Agreement shall be examined jointly by representatives of EUPOL AFGHANISTAN and the Host State’s competent authorities.

2.   Failing any prior settlement, disputes concerning the interpretation or application of this Agreement shall be settled exclusively by diplomatic means between the Host State and EU representatives.

Article 18

Other provisions

1.   The Government of the Host State, in accordance with the relevant law, shall be responsible for the implementation and for the observance by the appropriate local authorities of the Host State of the privileges, immunities and rights of EUPOL AFGHANISTAN and of EUPOL AFGHANISTAN personnel as provided for in this Agreement.

2.   Nothing in this Agreement is intended or may be construed so as to derogate from any rights that may attach to an EU Member State or to any other State contributing to EUPOL AFGHANISTAN under other agreements.

Article 19

Implementing arrangements

For the purpose of the application of this Agreement, operational, administrative and technical matters may be the subject of separate arrangements to be concluded between the Head of Mission and the Host State’s administrative authorities.

Article 20

Entry into force and termination

1.   This Agreement shall enter into force in accordance with the applicable laws and procedures of the Host State on the day on which it is signed. If not expired earlier due to the departure of the last EUPOL AFGHANISTAN personnel from the Host State as notified by EUPOL AFGHANISTAN, the Agreement shall remain effective for 3 (three) years from the date on which it is signed.

2.   If not expired earlier due to the departure of the last EUPOL AFGHANISTAN personnel from the Host State as notified by EUPOL AFGHANISTAN, the Agreement, after 3 (three) years of the date on which it was originally signed, shall be automatically renewed for another term of 3 (three) years unless terminated by one of the Parties with advanced written notice of 6 (six) months.

3.   Notwithstanding paragraph 1, the provisions contained in Article 4(8), Article 5(1) to (3), (6) and (7), Article 6(1), (3), (4), (6) and (8) to (10), and Articles 13 and 16 shall be deemed to have applied from the date on which the first EUPOL AFGHANISTAN personnel were deployed if that date was earlier than the date of entry into force of this Agreement.

4.   This Agreement may be amended by written agreement between the Parties.

5.   Termination of this Agreement shall not affect any rights or obligations arising out of the execution of this Agreement before such termination.