EU agrees to exchange of classified documents on "crisis operations" including justice and home affairs issues

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At the Justice and Home Affairs Council on 28-29 November 2003 the Ministers adopted as an "A" Point (without debate) "Council authorisation" for the Presidency to "open negotiations" under Article 24 and 38 of the Treaty on the European Union (TEU) for the exchange of classified information with non-EU states. The states concerned are: Bulgaria, Romania, Iceland, Norway, Turkey, Canada, Russian Federation, Ukraine, the USA, Bosnia and Herzegovina and FYROM (Macedonia). The objective is to establish agreements which meet:

"a permanent or long-term need for the exchange of classified information between the EU and third States and international organisations"

The highly controversial agreements between the EU and the USA on extradition and judicial cooperation which went through earlier this year were also negotiated under Articles 24 and 38 of the TEU. Agreements negotiated under these Articles do not have to be referred to the European Parliament or national parliaments for their opinions. In the case of the latter EU-USA agreements the Council of the European Union was eventually forced to de-classify the texts and refer them to parliaments. The texts of the new agreements are not public.

It is the scope of the new agreements which is of great concern as they will cover:

"all security matters"

and because of the need to encompass "EU crisis management operations" this means the agreements will cover:

"many different areas of EU business (not only security and defence matters)"

The two main areas of EU "business" to be covered are security and defence and justice and home affairs (which is why it went through the JHA Council in November). Justice and home affairs in the EU covers policing, immigration and asylum, external border management and legal cooperation.

EU "crisis management operations" are defined as including not just military operations as in Macedonia but also policing operations and civil administration follow-up - the latter two categories come under "non-military crisis management" (see: Global "policing" role for EU: How "non-military crisis management" will "contaminate" justice and home affairs, trade and aid).

The countries to be signed up fall into three categories (excluding the 10 acceding states who are already obliged to meet EU standards):

1. Candidate countries: Bulgaria and Romania plus "a need also exists with Turkey"

2. "States likely to be closely involved in EU crisis management operations, including at the pre-operational stage":

a) "non-EU European NATO allies": Iceland, Norway and Turkey;
b) ""recognised" potential contributors to EU operations": Canada, the Russian Federation and Ukraine; Bosnia and Herzegovina, FYROM
c) "and the United States of America".

3. "certain international organisations": the UN, OSCE and the ESA (European Space Agency) - as they organisations do not have "developed policies and security structures" they would only have access to EUCI (European Union Classified Information) up to "Restricted" level (very low status).

Each of the countries/organisations has been allocated a security level:

a. Level 1 (security regulations very close or comparable to the EU's): USA, Canada, Iceland, Norway, Turkey, Bulgaria, Romania and NATO

b. Level 2 (security regulations markedly different from EU's): Russian Federation, Ukraine and FRYOM

c. Level 3 (security regulations cannot be assessed): Bosnia and Herzegovina, OSCE, UN and ESA.

It should be noted that the exchange of documents with the Russian Federation and Ukraine will be limited to operations they are engaged on in the Balkans. The exchange of classified documents with the USA appears to be open-ended.

The European Commission did not want to be included in the agreements and considered they should only cover EU Classified Information "originating in the Council" (the Council of the European Uni

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