Statewatch article: RefNo# 28108
EU-USA: Agreement on the exchange of classified information
Statewatch News Online, September 2007
- "carte blanche" for exchanging information on a host of issues
- all documents to be exchanged by courier
- no electronic exchanges

Yet another EU-USA agreement slipped into the EU's acquis almost unnoticed over the summer - to create a system for the exchange of classified information between the two states. [Footnote 1]

The mandate for the agreement was set in motion in 2003, see: Building the new security regime: EU agrees to exchange of classified documents on "crisis operations" including justice and home affairs issues (link)

The agreement has been signed by the EU (Council and Commission) under Articles 24 and 38 of the Treaty on the European Union. Agreements negotiated under these Articles do not have to be referred to the European Parliaments or national parliaments, so they have no say at all.

On 3 May 2007 the formal Council of the European Union's Decision (pdf) and the text of the Agreement (pdf) were published in the Official Journal. The scope as set out in 2003 was to cover:

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

The 2007 Agreement is not much more forthcoming, simply stating that:

"the USG [US government] and the EU share the objectives to strengthen their own security in all ways..."

and that:

"a permanent need therefore exists to exchange classified information between the USG and the EU"

No further details on the scope of matters to be covered is given.

"Classified information" is simply described as anything that:

"the unauthorised disclosure of which could cause varying degree of damage or harm to the interests of the USG or of the EU or one of its Member States"

The classification categories to be covered on both sides are:

- TOP SECRET/TRES SECRET UE
- SECRET/SECRET UE
- CONFIDENTIAL/CONFIDENTIEL UE

However, the EU has added another category: RESTREINT EU, for which there is:

"No US equivalent" (Article 3.2)

The "Restricted" category is not mentioned in the EU's Regulation on access to documents but is included in the Council's security regulations (pdf) adopted in 2001. Most documents in the EU are in the category "LIMITE" which is not a classified document category.

Article 4 of the 2007 Agreement says the recipient state shall not use or disclose:

"classified information for any other purpose than that for which it was provided without the prior written approval of the releasing Party" (4.3)

The same (Article 4.4) goes for the "further release" or disclosure - this would cover third states but does it cover "further" release to the myriad of US federal, state or local agencies?

However, the Agreement does not affect the long-standing bilateral agreements the US has with individual EU member states - especially those with the UK (Article 19).

An intriguing aspect of the Agreement is the "Transmission" of classified documents (Article 9). All classified information "in written form" is to be sent either to the Chief Registry Officer of the Council or to the US Mission in Brussels (Article 9.1). Whereas classified information in "electronic" form shall be encrypted and transmitted/sent:

"up to the level Confidential/Confidentiel UE"

which begs the question of how Secret and Top Secret information is to be exchanged? For which see below.

The technical arrangements (Article 13) for the Agreement are in the hands of the US Department of State, the Security Office of the General Secretariat of the Council (under the direction of the Secretary-General, Mr Solana) and the European Commission's S

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