Introductory text

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Articles 42 and 45 thereof,

Whereas:

The European Defence Agency (‘the Agency’) was established by Council Joint Action 2004/551/CFSP^f1 to support the Council and Member States in their effort to improve the Union's defence capabilities in the field of crisis management and to sustain the European Security and Defence Policy.

The European Security Strategy, endorsed by the European Council on 12 December 2003, identifies the establishment of a defence agency as an important element towards the development of more flexible and efficient European military resources.

The report on the implementation of the European Security Strategy of 11 December 2008 endorses the Agency's leading role in the process of developing key defence capabilities for the Common Security and Defence Policy (CSDP).

Article 45 of the Treaty on European Union (TEU) provides for the adoption, by the Council, of a decision defining the Agency's statute, seat and operational rules, which should take account of the level of effective participation of the Member States in the Agency's activities.

The Agency should contribute to the implementation of the Common Foreign and Security Policy (CFSP), in particular the CSDP.

The structure of the Agency should enable it to respond to the operational requirements of the Union and its Member States for the CSDP and, where necessary to fulfil its functions, to cooperate with third countries, organisations and entities.

The Agency should develop close working relations with existing arrangements, groupings and organisations such as those established under the Letter of Intent Framework Agreement (‘LoI Framework Agreement’), as well as the Organisation Conjointe de Coopération en matière d'Armement (OCCAR) and the European Space Agency (ESA).

For the purpose of fulfilling its mission, the Agency should be able to cooperate, and to conclude appropriate arrangements, with the Union's institutions, bodies, offices and agencies.

In accordance with Article 18(2) TEU, the High Representative of the Union for Foreign Affairs and Security Policy (HR) should have a leading role in the Agency's structure and provide the essential link between the Agency and the Council.

In the exercise of its role of political supervision and policy-making, the Council should issue guidelines or guidance to the Agency.

In view of their nature, the conclusion of administrative arrangements between the Agency and third countries, organisations and entities should be approved by the Council acting unanimously.

When adopting guidelines, guidance and decisions in relation to the work of the Agency, the Council should meet at the level of Defence Ministers. Any guidelines, guidance or decisions adopted by the Council in relation with the Agency's work should be prepared in accordance with Article 240 of the Treaty on the Functioning of the European Union (TFEU).

The competences of the Council's preparatory and advisory bodies, in particular those of the Committee of Permanent Representatives under Article 240 TFEU, the Political and Security Committee (PSC) under Article 38 TEU and the EU Military Committee (EUMC) should remain unaffected.

The National Armaments Directors (NAD), Capability Directors, Research & Technology (R&T) Directors and Defence Policy Directors should receive reports and contribute on issues within their competence in the preparation of Council decisions relating to the Agency.

The Agency should have the legal personality necessary to perform its functions and attain its objectives, while maintaining close links with the Council and fully respecting the responsibilities of the Union and its institutions.

It should be provided that the budgets administered by the Agency may, on a case-by-case basis, receive contributions from the general budget of the Union, in full respect of the rules, procedures and decision-making processes applicable to it, including Article 41(2) TEU.

The Agency, while being open to participation by all Member States, should also provide for the possibility of specific groups of Member States establishing ad hoc projects or programmes.

The fact that these ad hoc projects and programmes fall within the functions and tasks attributed to the Agency is underpinned by the efforts made to clarify the status of these activities as integral components of the Agency's budget. It should ensure that only activities where the role of the Agency in administering projects or programmes in support of Member States brings an added value can benefit from the exemption in Article 3 of Protocol No 7 on the privileges and immunities of the European Union (‘Protocol No 7’), annexed to the TEU and the TFEU, and point (aa) of Article 151(1) of Council Directive 2006/112/EC^f2. For such exemption to apply, the Agency has to have an added-value role. The exemption would therefore not extend to cases where that role merely entails goods or services being procured for the Member States.

Subject to a Council decision on the establishment of permanent structured cooperation, in accordance with Article 42(6) and Article 46 TEU and with Protocol No 10 on permanent structured cooperation established by Article 42 TEU (‘Protocol No 10’), annexed to the TEU and the TFEU, the Agency should support the implementation of permanent structured cooperation.

The Agency should have decision-making procedures allowing it to fulfil its tasks efficiently, while respecting the national security and defence policies of participating Member States.

The Agency should fulfil its mission in full respect of Article 40 TEU.

The Agency should act in full compliance with the Council's security standards and rules. The Agency should apply the relevant Union legislation concerning public access to documents, as set out in Regulation (EC) No 1049/2001 of the European Parliament and of the Council^f3, and the protection of individuals with regard to the processing of personal data as set out in Regulation (EC) No 45/2001 of the European Parliament and of the Council^f4.

In accordance with Article 5 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark does not participate in the elaboration and implementation of decisions and actions of the Union which have defence implications. Denmark will therefore not be bound by this Decision.

A number of amendments are to be made to Council Decision 2011/411/CFSP^f5. In the interest of clarity, that Decision should be recast,

HAS ADOPTED THIS DECISION: