The EU Status of Forces Agreement: Continuity and Change in the Law of Visiting Forces

Abstract

The present paper provides a legal analysis of the EU Status of Forces Agreement of 2003 (EU SOFA) in the form of a commentary on its individual provisions. The EU SOFA was signed by the Representatives of the Governments of the Member States of the EU on 17 November 2003 in the margins of the General Affairs and External Relations Council meeting in Brussels. The purpose of the Agreement is to define the legal position of the military and civilian personnel, as well as the forces and headquarters, deployed by one Member State of the EU in the territory of another Member State in the context of the European Security and Defence Policy (ESDP).

While the EU SOFA is for the most part based on the relevant provisions of the NATO SOFA of 1951, it departs from the text of the NATO SOFA in several key respects. In particular, the drafters of the EU SOFA decided to address the legal position of the different categories of military and civilian personnel operating in the context of the ESDP within the framework of a single agreement, the EU SOFA, rather than follow the precedent set by NATO and define the status of different categories of personnel in separate legal instruments. Accordingly, the EU SOFA is divided into four parts. The first part contains those provisions which apply to all military and civilian personnel covered by the Agreement. The second part applies only to military and civilian personnel seconded by the Member States to the institutions of the EU, while the third part applies to headquarters and forces, as well as the military and civilian personnel working with them. The fourth part of the Agreement consists of the final provisions. Even though the division of the EU SOFA into these four parts constitutes an effective method, in principle, of accommodating the different rules and procedures applicable to different categories of personnel operating in the context of the ESDP, it leads to certain ambiguities in the text. Regrettably, the EU SOFA also fails to adequate distinguish between national contingents acting on behalf of their respective sending States on the one hand and military and civilian personnel acting in an international capacity on behalf of the EU on the other hand.

Despite these and other shortcomings, the EU SOFA makes an important contribution to the development of the EU's crisis management capabilities. By addressing some of the key legal and practical questions raised by the presence of military and civilian personnel belonging to the Member States of the EU abroad, the EU SOFA facilitates their transit and temporary deployment throughout the territory of the EU for the purposes of the ESDP. On a more general level, the EU SOFA also confirms the pre-eminent position of the NATO SOFA as a model for multilateral status of forces agreements governing the legal position of visiting forces deployed among politically equal partners.

Keywords: EU Status of Forces Agreement, EU SOFA, jurisdictional immunities, law of visiting forces, NATO SOFA