COUNCIL DECISION 2009/558/CFSP

of 16 March 2009

concerning the conclusion of the Agreement on security procedures for exchanging classified information between the European Union and Israel

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Article 24 thereof,

Having regard to the recommendation from the Presidency,

Whereas:

(1) At its meeting on 18 February 2008, the Council decided to authorise the Presidency, assisted by the Secretary/General/High Representative (SG/HR) and fully associating the Commission, to open negotiations pursuant to Article 24 of the Treaty on European Union with the State of Israel in order to conclude a security of information Agreement.

(2) Following this authorisation to open negotiations, the Presidency, assisted by the SG/HR, negotiated an Agreement on security procedures for exchanging classified information between the European Union and Israel.

(3) The Agreement should be approved,

HAS DECIDED AS FOLLOWS:

Article 1

The Agreement on security procedures for exchanging classified information between the European Union and Israel is hereby approved on behalf of the European Union.

The text of the Agreement is attached to this Decision.

Article 2

The President of the Council is hereby authorised to designate the person(s) empowered to sign the Agreement in order to bind the European Union.

Article 3

This Decision shall take effect on the date of its adoption.

Article 4

This Decision shall be published in the

Official Journal of the European Union

.

Done at Brussels, 16 March 2009.

For the Council

The President

A. VONDRA

AGREEMENT

on security procedures for exchanging classified information between the European Union and Israel

THE GOVERNMENT OF THE STATE OF ISRAEL,

represented by the Israeli Ministry of Defence, hereinafter referred to as ‘the IMOD’

and

THE EUROPEAN UNION,

hereinafter referred to as ‘the EU’,

represented by the Presidency of the Council of the European Union,

hereinafter referred to as ‘the Parties’;

WHEREAS the Parties intend to cooperate on matters of common interest relating in particular to defence and security issues;

WHEREAS full and effective consultation and cooperation between the Parties may require access to Israeli and EU classified information and material, as well as the exchange of classified information and related material between Israel and the EU;

WHEREAS the Parties wish to protect and safeguard classified information and material exchanged between them;

WHEREAS the protection of classified information and related material accessed and exchanged requires appropriate security measures,

HAVE AGREED AS FOLLOWS:

Article 1

In order to fulfil the objectives of full and effective cooperation between the Parties on matters of common interest relating in particular to defence and security issues, this Agreement on security procedures for the exchange of classified information and material (hereinafter the ‘Agreement’) shall apply to classified information and material in any form and in any field either provided or exchanged between the Parties.

Article 2

For the purposes of this Agreement:

(a) ‘classified information’ shall mean any information (namely, knowledge that can be communicated in any form, including written, oral or visual) or material determined by either Party, in accordance with its internal laws and regulations, to be in its respective security interests and to require protection against unauthorised disclosure and which bears a security classification of either of the Parties to this Agreement (hereinafter: ‘classified information’);

(b) ‘material’ shall mean any document, product or substance on or in which information may be recorded or embodied, regardless of its physical character including, but not limited to: writing (letter, note, minute, report, memorandum, signal/message), hardware, computer disks, CD ROM, USB flash sticks, equipment, machinery, apparatus, devices, models, photographs/slides/sketches, recordings, tapes, cassettes, films, reproductions, maps, charts, plans, notebooks, stencil, carbon, typewriter or printer ribbon.

Article 3

For the purposes of this Agreement, ‘the EU’ shall mean the Council of the European Union (hereinafter: ‘the Council’), the Secretary-General/High Representative and the General Secretariat of the Council, and the Commission of the European Communities (hereinafter the ‘European Commission’).

Article 4

Each Party shall:

(a) protect and safeguard classified information provided by or exchanged with the other Party under this Agreement in accordance with its internal laws and regulations;

(b) ensure that classified information provided or exchanged under this Agreement keeps the security classification marking given to it by the providing Party. The receiving Party shall protect and safeguard the classified information according to the provisions set out in its own security regulations for information or material holding an equivalent security classification as specified in Article 6. In so doing, the Parties shall afford to all such classified information the same degree of security protection as is provided for their own classified information of equivalent classification;

(c) not use such classified information for purposes or under security conditions other than those established by the originator or those for which the information is provided or exchanged; this shall include the location of classified equipment;

(d) not disclose such classified information to any third parties or to any EU institution or entities not mentioned in Article 3 without the prior written consent of the providing Party;

(e) not allow access to classified information to individuals unless they have a need-to-know (i.e. who in the conduct of their official duties require access) and, where needed, have been appropriately security-cleared and authorised by the relevant Party.

Article 5

1.   Classified information may be disclosed or released by one Party (the providing Party) to the other Party (the receiving Party).

2.   For release to recipients other than the Parties, a decision on disclosure or release of classified information shall be made by the receiving Party subject to the prior written consent of the providing Party.

3.   Each Party shall decide on the release of classified information to the other Party on a case-by-case basis. In implementing paragraphs 1 and 2, generic release shall be possible only where procedures are established and agreed between the Parties regarding certain categories of information relevant to their operational requirements.

4.   Classified information received from the providing Party may be provided to a contractor or prospective contractor by the receiving Party with the prior written consent of the providing Party. Prior to the release or disclosure to a contractor or a prospective contractor of any classified information received from the providing Party, the receiving Party, in accordance with its internal rules and regulations, shall ensure that any such contractor or prospective contractor, and the contractor’s facility, have the capability to protect the classified information and have an appropriate clearance.

5.   In accordance with its internal rules and regulations, each Party shall ensure the security of facilities and establishments where classified information released to it by the other Party is kept, and shall ensure for each such facility or establishment that all necessary measures are taken to control and protect the classified information.

Article 6

1.   Classified information shall be marked as follows:

(a) For the State of Israel, classified information shall be marked

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(Top Secret),

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(Secret) or

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(Confidential);

(b) For the EU, classified information shall be marked TRES SECRET UE/EU TOP SECRET, SECRET UE, CONFIDENTIEL UE or RESTREINT UE.

2.   The corresponding security classifications are:

The Israeli Party undertakes to afford RESTREINT UE classified information the same protection as its

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(Confidential) classified information.

Article 7

Each of the Parties shall ensure that it has a security system and security measures in place, based on the basic principles and minimum standards of security laid down in its respective internal laws and regulations and reflected in the arrangements to be established pursuant to Article 12, in order to ensure that an equivalent level of protection is applied to classified information provided or exchanged under this Agreement.

Article 8

1.   The Parties shall ensure that all persons who in the conduct of their official duties require access, or whose duties or functions may afford access to classified information provided or exchanged under this Agreement are appropriately security-cleared before they are granted access to such classified information.

2.   The security clearance procedures shall be designed to determine, in accordance with internal rules and regulations, whether all relevant factors concerning an individual are such that he or she may have access to classified information.

Article 9

The Parties shall provide mutual assistance with regard to the security of classified information provided or exchanged under this Agreement and matters of common security interest. Reciprocal security consultations and visits shall be conducted by the authorities referred to in Article 12 to ascertain, ‘within the Parties’ respective areas of responsibility, the effectiveness of the security arrangements to be established pursuant to that Article. The practical details for such visits and any other visits for the purposes of implementing this Agreement shall be set out in the arrangements to be drawn up pursuant to Article 12.

Article 10

1.   For the purpose of this Agreement:

(a) as regards the EU, correspondence shall be sent to the Council at the following address:

Council of the European Union

Chief Registry Officer

Rue de la Loi/Wetstraat, 175

1048 Brussels

BELGIUM;

all correspondence shall be forwarded by the Chief Registry Officer of the Council to the Member States and to the European Commission, subject to paragraph 2;

(b) as regards Israel, correspondence shall be sent to the Directorate of Security of the Defence Establishment D.S.D.E (MALMAB), at the following address:

Ministry of Defence

Kaplan St.

Hakirya Tel.-Aviv

ISRAEL.

2.   Exceptionally, correspondence from one Party which is accessible to only specific competent officials, organs or services of that Party may, for operational reasons, be addressed and be accessible to only specific competent officials, organs or services of the other Party specifically designated as recipients, taking into account their competencies and according to the need-to-know principle.

As far as the EU is concerned, this correspondence shall be transmitted through the Chief Registry Officer of the Council or the Chief Registry Officer of the European Commission Security Directorate when such information is addressed to the European Commission.

As far as the Israeli Party is concerned, such correspondence shall be transmitted through the Directorate of Security of the Defence Establishment D.S.D.E (MALMAB). Where the EU wishes to send classified information to Israeli ministries or organisations other than the IMOD, the Directorate of Security of the Defence Establishment D.S.D.E (MALMAB) shall notify the Chief Registry Officer of the Council of the Israeli security authority responsible for these ministries or organisations which apply equivalent standards for the protection of classified information.

Article 11

The IMOD, the Secretary-General of the Council and the Member of the European Commission responsible for security matters shall oversee the implementation of this Agreement.

Article 12

1.   In order to implement this Agreement, security arrangements shall be established between the three authorities designated in paragraphs 2, 3 and 4 in order to lay down the standards for the reciprocal protection and safeguarding of classified information under this Agreement.

2.   The Directorate of Security for the Defence Establishment D.S.D.E (MALMAB), under the direction and on behalf of the Israeli Ministry of Defence, shall be in charge of the security arrangements for the protection and safeguarding of classified information provided to Israel under this Agreement.

3.   The Security Office of the General Secretariat of the Council, under the direction and on behalf of the Secretary-General of the Council, acting in the name of the Council and under its authority shall be in charge of the security arrangements for the protection and safeguarding of classified information provided to the European Union under this Agreement.

4.   The European Commission Security Directorate, acting under the authority of the Member of the Commission responsible for security matters, shall be in charge of the security arrangements for the protection and safeguarding of classified information provided or exchanged under this Agreement within the European Commission and its premises.

5.   For the EU, the security arrangements referred to in paragraph 1 shall be subject to approval by the Council Security Committee.

Article 13

The providing Party shall be informed in the event of any proven or suspected loss or compromise of its classified information by the receiving Party. The receiving Party shall initiate an investigation to determine the circumstances. The results of the investigation and information regarding measures taken to prevent recurrence shall be forwarded to the providing Party. The authorities referred to in Article 12 may establish procedures to that effect.

Article 14

Each Party shall be responsible for bearing its own costs incurred in implementing this Agreement.

Article 15

Before classified information is provided or exchanged between the Parties under this Agreement, the responsible security authorities referred to in Article 12 shall agree that the Parties are in a position to protect and safeguard the classified information in a way consistent with this Agreement and the arrangements to be established pursuant to Article 12.

Article 16

This Agreement shall not prevent the Parties from concluding other agreements relating to the provision or exchange of classified information provided that they do not conflict with the provisions of this Agreement.

Article 17

Any differences between Israel and the European Union arising out of the interpretation or application of this Agreement shall be addressed solely by negotiation between the Parties. During the negotiation both Parties shall continue to fulfil all of their obligations under this Agreement.

Article 18

1.   This Agreement shall enter into force once the Parties have notified each other of the completion of the internal procedures necessary for this purpose.

2.   Each Party shall notify the other Party of any changes in its laws and regulations that could affect the protection of classified information referred to in this Agreement.

3.   This Agreement may be reviewed for consideration of possible amendments at the request of either Party.

4.   Any amendment to this Agreement shall be made in writing only and by common agreement of the Parties. It shall enter into force upon mutual notification as provided under paragraph 1.

Article 19

This Agreement may be terminated by one Party by written notice of termination given to the other Party. Such termination shall take effect six months after receipt of notification by the other Party, but shall not affect obligations already contracted under the provisions of this Agreement. In particular, all classified information provided or exchanged pursuant to this Agreement shall continue to be protected in accordance with the provisions set forth herein.

In witness whereof the undersigned, respectively duly authorised, have signed this Agreement.

Done at Tel Aviv, this

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day of June 2009 in two copies each in the English language.

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For Israel

The Minister of Defence

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For the European Union

The Secretary General/High Representative