PARTICIPATION AGREEMENT

between the European Union and the Swiss Confederation on the participation of the Swiss Confederation in the European Union Integrated Border Management Assistance Mission in Libya (EUBAM Libya)

THE EUROPEAN UNION (EU or Union),

of the one part, and

THE SWISS CONFEDERATION,

of the other part,

hereinafter jointly referred to as the ‘Parties’,

TAKING INTO ACCOUNT:

Council Decision 2013/233/CFSP of 22 May 2013 on the European Union Integrated Border Management Assistance Mission in Libya (EUBAM Libya)(1),

The letter dated 6 November 2013 from the Head of the Federal Department of Foreign Affairs (FDFA), offering a contribution to EUBAM Libya,

Political and Security Committee Decision EUBAM Libya/2/2014(2) of 14 January 2014 on the acceptance of the Swiss Confederation's contribution to the European Union mission in Libya,

Political and Security Committee Decision EUBAM Libya/1/2014 of 14 January 2014 on the establishment of the Committee of Contributors for the European Union Integrated Border Management Assistance Mission in Libya (EUBAM Libya)(3),

HAVE AGREED AS FOLLOWS:

Article 1

Participation in the mission

1. The Swiss Confederation shall associate itself with Council Decision 2013/233/CFSP and with any other Decision by which the Council of the European Union decides to extend EUBAM Libya, in accordance with the provisions of this Agreement and any required implementing arrangements.

2. The contribution of the Swiss Confederation to EUBAM Libya is without prejudice to the decision-making autonomy of the Union.

3. The Swiss Confederation shall ensure that Swiss personnel participating in EUBAM Libya undertake their mission in conformity with:

— Council Decision 2013/233/CFSP and any subsequent amendments;

— the Mission Plan;

— implementing measures.

4. Personnel seconded to the mission by the Swiss Confederation shall carry out their duties and conduct themselves solely with the interest of EUBAM Libya in mind.

5. The Swiss Confederation shall inform the Head of Mission and the High Representative of the Union for Foreign Affairs and Security Policy in due time of any change to its participation in the operation.

Article 2

Status of personnel

1. The status of personnel contributed to EUBAM Libya by the Swiss Confederation shall be governed by the Agreement between the European Union and Libya on the status of EUBAM Libya in Libya.

2. Without prejudice to the agreement on the status of mission referred to in paragraph 1, the Swiss Confederation shall exercise jurisdiction over its personnel participating in EUBAM Libya.

3. The Swiss Confederation shall be responsible for answering any claims linked to the participation in EUBAM Libya in Libya, from or concerning any of its personnel. The Swiss Confederation shall be responsible for bringing any action, in particular legal or disciplinary, against any of its personnel, in accordance with its laws and regulations.

4. The parties agree to waive any and all claims, other than contractual claims, against each other for damage to, loss of, or destruction of assets owned/operated by either Party, arising out of the performance of their duties in connection with activities under this Agreement, except in the case of gross negligence or wilful misconduct.

5. The Swiss Confederation undertakes to make a declaration as regards the waiver of claims against any State participating in EUBAM Libya, and to do so when signing this Agreement.

6. The Union undertakes to ensure that EU Member States make a declaration as regards the waiver of claims, for the participation of the Swiss Confederation in EUBAM Libya, and to do so when signing this Agreement.

Article 3

Classified information

The Agreement between Swiss Confederation and the European Union on the security procedures for the exchange of classified information(4), done at Brussels on 28 April 2008, shall apply in the context of EUBAM Libya.

Article 4

Chain of command

1. Swiss personnel participating in EUBAM Libya shall remain under the full command of their national authorities.

2. National authorities shall transfer the operational control of their personnel to the Civilian Operation Commander of the Union.

3. The Civilian Operation Commander shall assume responsibility and exercise command and control of EUBAM Libya at strategic level.

4. The Head of Mission shall assume responsibility and exercise command and control of EUBAM Libya.

5. The Head of Mission shall lead EUBAM Libya and assume its day-to-day management.

6. The Swiss Confederation shall have the same rights and obligations in terms of the day-to-day management of the operation as participating EU Member States.

7. The Head of Mission shall be responsible for disciplinary control over EUBAM Libya personnel. Where required, disciplinary action shall be taken by the Swiss national authorities.

8. A National Contingent Point of Contact (‘NCP’) shall be appointed by the Swiss Confederation to represent its national contingent in EUBAM Libya. The NCP shall report to the Head of Mission on national matters and shall be responsible for day-to-day contingent discipline.

9. The decision to end the mission shall be taken by the Union, following consultation with the Swiss Confederation if it is still contributing to EUBAM Libya at the date of the termination of the mission.

Article 5

Financial aspects

1. The Swiss Confederation shall assume all the costs associated with its participation in EUBAM Libya, without prejudice to paragraph 3.

2. In case of death, injury, loss or damage to natural or legal persons from the State(s) in which the mission is conducted, the Swiss Confederation shall, when its liability has been established, pay compensation under the conditions foreseen in the provisions on the status of forces, if available, as referred to in Article 2(1).

3. The Union shall exempt the Swiss Confederation from any financial contribution to the common costs of EUBAM Libya.

Article 6

Arrangements to implement the Agreement

Any necessary technical and administrative arrangements in pursuance of the implementation of this Agreement shall be concluded between the appropriate authorities of the Union and the appropriate authorities of the Swiss Confederation.

Article 7

Non-compliance

Should one of the Parties fail to comply with its obligations under this Agreement, the other Party shall have the right to terminate this Agreement by serving a notice of one month.

Article 8

Dispute settlement

Disputes concerning the interpretation or application of this Agreement shall be settled by diplomatic means between the Parties.

Article 9

Entry into force and termination

1. This Agreement shall enter into force on the first day of the first month after the Parties have notified each other of the completion of the internal procedures necessary for this purpose.

2. This Agreement shall be provisionally applied from the date of signature.

3. This Agreement shall remain in force for the duration of the Swiss Confederation's contribution to the mission.

4. Each Party can terminate this Agreement by written notification to the other Party. The termination becomes effective three months after the date of such notification.

Done at Brussels, on the fourth day of July in the year two thousand and fourteen, in the English language, in two copies.

For the European Union

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For the Swiss Confederation

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(1)

OJ L 138, 24.5.2013. p. 15.

(2)

OJ L 14, 18.1.2014. p. 15

(3)

OJ L 14, 18.1.2014. p. 13

(4)

OJ L 181, 10.7.2008, p. 58

Declaration by the EU Member States

‘The EU Member States applying Council Decision 2013/233/CFSP of 22 May 2013 on a European Union Integrated Border Management Assistance Mission in Libya (EUBAM Libya) will endeavour, in so far as their internal legal systems so permit, to waive, as far as possible, claims against the Swiss Confederation for injury to or death of their personnel, or damage to or loss of any assets owned by themselves and used by EUBAM Libya if such injury, death, damage or loss:

— was caused by personnel from the Swiss Confederation in the execution of their duties in connection with EUBAM Libya, except in case of gross negligence or wilful misconduct; or

— arose from the use of any assets owned by the Swiss Confederation, provided that the assets were used in connection with the mission and except in the case of gross negligence or wilful misconduct of EU mission personnel from the Swiss Confederation using those assets.’.

Declaration by the Swiss Confederation

‘The Swiss Confederation applying Council Decision 2013/233/CFSP of 22 May 2013 on the European Union Integrated Border Management Assistance Mission in Libya (EUBAM Libya) will endeavour, in so far as its internal legal system so permits, to waive, as far as possible, claims against any other State participating in EUBAM Libya for injury to or death of its personnel, or damage to or loss of any assets owned by itself and used by the EU mission if such injury, death, damage or loss:

— was caused by personnel in the execution of their duties in connection with EUBAM Libya, except in case of gross negligence or wilful misconduct; or

— arose from the use of any assets owned by States participating in the EU mission, provided that the assets were used in connection with the mission and except in case of gross negligence or wilful misconduct of EU mission personnel using those assets.’.