Verdrag tussen het Koninkrijk der Nederlanden en de Republiek Malta inzake de wederzijdse beveiliging en uitwisseling van gerubriceerde gegevens

The objective of this Agreement is to ensure protection of Classified Information that is commonly generated or exchanged between the Parties or between Contractors under their jurisdiction.

This Agreement shall apply to any contract or agreement as well as any other cooperation between the Parties or between Contractors under their jurisdiction involving Classified Information.

This Agreement shall apply to any activities, contracts or agreements involving Classified Information that will be conducted or concluded between the Parties following the entry into force of this Agreement.

The provisions of this Agreement shall also apply to the Classified Information already exchanged or generated in the process of cooperation between the Parties before the entry into force of this Agreement.

This Agreement does not constitute a basis to compel the provision or exchange of Classified Information by the Parties.

This Agreement may not be invoked by either Party to obtain Classified Information that the other Party has received from a Third Party.

The Parties agree that the following security classification levels are equivalent and correspond to the security classification levels specified in their national laws and regulations. For the Republic of Malta, the Maltese and English markings can be used interchangeably.

Military Classified Information of the Kingdom of the Netherlands marked as DEPARTEMENTAAL VERTROUWELIJK may be subject to additional security measures provided by the Competent Security Authority of the Kingdom of the Netherlands.

The Originating Party may additionally mark the Classified Information with handling requirements, to specify any limitations on its use, disclosure, release and access by the Receiving Party.

The Competent Security Authorities shall inform one another of any new or further security classification concerning any information, which could be exchanged or produced under this Agreement.

The Competent Security Authorities of the Parties are listed in the Annex of this Agreement.

The Competent Security Authorities shall provide one another with official contact details and changes thereof.

The Parties shall inform one another through diplomatic channels about changes in the Competent Security Authorities.

The Competent Security Authorities shall inform one another, on request, of the laws and regulations in force in their Parties, as well as any changes regarding the protection of Classified Information generated or exchanged in accordance with this Agreement.

In order to achieve and maintain equivalent standards of security, the Competent Security Authorities may provide one another with information about the security standards, procedures and practises for the protection of Classified Information employed by the respective Party.

Within the scope of this Agreement, each Party shall mutually recognise the Personnel and Facility Security Clearances granted in accordance with the national laws and regulations of the other Party. The security clearances shall be equivalent in accordance with article 3 of this Agreement.

The Competent Security Authorities shall assist one another in carrying out Facility Security Clearance and Personnel Security Clearance investigations on request and in accordance with their national laws and regulations.

Upon request of the Competent Security Authority of the Originating Party, the Competent Security Authority of the Receiving Party shall issue a written confirmation that an individual has been issued a Personnel Security Clearance or a legal entity has been issued a Facility Security Clearance.

If the Competent Security Authorities of one of the Parties considers that a company registered on its national territory is owned or controlled by a Third Party whose aims are not compatible with its interests, that company shall not be issued a Facility Security Clearance. The Competent Security Authorities of the Parties that applied for a Facility Security Clearance shall be notified accordingly as quickly as possible.

The Competent Security Authorities shall promptly notify one another in writing about changes in recognised Personnel Security Clearances and Facility Security Clearances for whom or for which a confirmation or a rejection has been provided.

The cooperation under this Agreement shall be effected in English.

In accordance with their national laws and regulations, the Parties shall take all appropriate measures for the protection of Classified Information, which is exchanged or generated under this Agreement. As a minimum, the same level of protection shall be assigned to such Classified Information as is provided for the national Classified Information of the equivalent security classification level in accordance with article 3 of this Agreement.

Regarding the security of agencies, offices and facilities under their jurisdiction, the Parties shall ensure that any requirements arising from the national security laws and regulations are complied with, in particular via inspections.

The Originating Party shall inform the Receiving Party in writing about any change of the security classification level of the provided Classified Information, in order to apply the appropriate protection measures.

Access to Classified Information shall be granted only to those individuals who have a Need-to-know, are briefed on their responsibilities for the protection of Classified Information, and have signed a statement of confidentiality in accordance with the national laws and regulations of the Receiving Party.

In addition to the requirements in paragraph 4 of this article, access to Classified Information at the security classification levels equivalent to KUNFIDENZJALI / CONFIDENTIAL / Stg. CONFIDENTIEEL and above as mentioned in article 3 of this Agreement, shall be granted only to those individuals who hold a Personnel Security Clearance at the corresponding level or who are otherwise duly authorised to access Classified Information by virtue of their function, in accordance with the national laws and regulations of the Receiving Party.

Classified Information jointly originated by the Parties shall be assigned a security classification level that is mutually determined by the Parties.

The Receiving Party shall:

Classified Information shall be transmitted in accordance with the national laws and regulations of the Originating Party through diplomatic channels unless otherwise agreed upon by the Competent Security Authorities.

The Competent Security Authorities of both Parties may, by mutual agreement, agree that Classified Information may be transferred by a means other than through diplomatic channels when this method of transfer proves to be unsuitable or difficult.

Electronic transmission of Classified Information shall only be carried out through certified cryptographic means agreed upon by the Parties.

If transferred Classified Information is marked KUNFIDENZJALI / CONFIDENTIAL / Stg. CONFIDENTIEEL and above, the Receiving Party shall confirm the receipt in writing. The receipt of other Classified Information shall be confirmed upon request.

The transfer of an important quantity of Classified Information shall be organised between the respective Competent Security Authorities on a case-by-case basis.

Translations and reproductions of Classified Information shall be made in accordance with the national laws and regulations of the Receiving Party and the following procedures:

Classified Information marked SIGRIET / SECRET / Stg. GEHEIM or above shall be translated or reproduced only in exceptional cases and upon the prior written consent of the Originating Party.

Classified Information shall be destroyed after having been recognised as no longer necessary by the Receiving Party, so as to prevent its partial or total reconstruction, with the exception of information classified as L-OGĦLA SEGRETEZZA / TOP SECRET / Stg. ZEER GEHEIM. Classified Information marked L-OGĦLA SEGRETEZZA / TOP SECRET / Stg. ZEER GEHEIM shall be returned to the Originating Party after it is no longer considered necessary by the Receiving Party.

Classified Information marked up to SIGRIET/ SECRET / Stg. GEHEIM or below shall be destroyed after having been recognised as no longer necessary by the Receiving Party, insofar as to prevent its reconstruction in whole or in part. Classified Information marked up to SIGRIET/ SECRET / Stg. GEHEIM or below shall be destroyed in such a way that it is impossible to restore it in whole or in part.

The Receiving Party shall notify the Originating Party about the destruction of information classified as KUNFIDENZJALI / CONFIDENTIAL / Stg. CONFIDENTIEEL or above.

In case of a crisis situation, which makes it impossible to protect or return Classified Information generated or exchanged under this Agreement, Classified Information shall be destroyed immediately. The Competent Security Authority of the Receiving Party shall notify the Competent Security Authority of the Originating Party about the destruction of Classified Information as soon as possible.

The Competent Security Authority of the Originating Party shall notify the Competent Security Authority of the Receiving Party of any Classified Contract prior to any exchange of Classified Information. This notification must specify the highest level of classification of the information involved in the Contract.

A Party that intends to enter into or to authorise one of its Contractors to enter into a Classified Contract with a Contractor of the other Party shall check with the Competent Security Authorities of the Receiving Party that the latter has the suitable clearance level required in order to perform the Classified Contract.

Upon request of the Originating Party, the Competent Security Authority of the Receiving Party shall confirm that a proposed Contractor has been issued an appropriate Personnel and/or Facility Security Clearance. If the proposed Contractor does not hold an appropriate security clearance, the Competent Security Authority of the Originating Party may request the Competent Security Authority of the Receiving Party to issue the appropriate security clearance.

The Competent Security Authority in which jurisdiction the Classified Contract is to be performed, shall assume the responsibility for prescribing and administering security measures for the respective Classified Contract under the same standards and requirements that rule the protection of the Classified Contracts of the respective Parties in accordance with article 3 of this Agreement.

A Classified Contract shall include a specific section or security annex identifying the security requirements of the Classified Contract. The security annex shall be an integral part of each Classified Contract, or sub-contract, by which the Originating Party shall specify which Classified Information is to be released to the Receiving Party, which security classification level has been assigned to that information and the Contractor and/or Sub-contractor’s obligations to protect the Classified Information. These instructions shall be consistent with those given by the Competent Security Authority of the Originating Party. The Competent Security Authority of the Originating Party shall send a copy of the security annex to the Competent Security Authority of the other Party.

Each Classified Contract concluded in accordance with this Agreement shall include:

Prior to the release to either Party’s Contractors or prospective Contractors of any Classified Information received from the other Party, the Receiving Party shall, in accordance with its national laws and regulations, ensure that Contractors or prospective Contractors can afford adequate security protection to Classified Information and:

As soon as pre-contractual negotiations begin between a potential Contractor under the jurisdiction of one Party and another possible Contractor under the jurisdiction of the other Party, aiming at the signing of Classified Contracts, the Competent Security Authority shall inform the other Party of the security classification level given to the Classified Information related to those pre-contractual negotiations.

Copy of each Classified Contract shall be forwarded to the Competent Security Authority of the Party where the work is to be performed, to allow adequate security supervision and control.

If a Classified Contract allows the Contractor that part of the Classified Contract is performed by a Sub-contractor:

Classified Contracts shall be concluded and implemented in accordance with national laws and regulations.

Visits requiring access to Classified Information shall be subject to prior written consent given by the Competent Security Authority of the Host Party.

Visits involving access to Classified Information shall be allowed only if the visitors have been granted the appropriate Personnel Security Clearance and authorised to receive or to have access to Classified Information in accordance with their national laws and regulations.

Visits involving access to Classified Information by nationals from a Third Party shall only be authorised by a common agreement between the Parties.

The Competent Security Authority of the Host Party shall receive a request for visit from the other Competent Security Authority at least ten (10) working days in advance. The request for visit shall include:

The validity of visit approval shall not exceed one (1) year. In case of recurring visits, the total period covered by the visits shall be stated in the request for visit. The Parties may draw up lists of individuals authorised to make recurring visits.

The Competent Security Authority of the Host Party shall inform the security officials of the agency, facility and organisation to be visited, including the details of those individuals whose visit request has been approved. Once approval has been given, visit arrangements for individuals who have been given approval for recurring visits may be made directly with the agency, facility or organisation concerned.

In urgent cases, the request for visit shall be transmitted in writing at least seven (7) days in advance.

All visitors shall comply with the security regulations and instructions of the Host Party.

Either Party shall ensure the protection of personal data and, health and safety of the visitors according to its respective national laws and regulations.

The Competent Security Authority of the Receiving Party shall immediately notify the Competent Security Authority of the Originating Party in writing of any suspicion or discovery of a Breach of Security. The notice must contain enough details so that the Originating Party may fully assess the consequences.

The Competent Security Authority of the Receiving Party shall undertake all possible appropriate measures in accordance with its national laws and regulations so as to limit the consequences of the Breach of Security and to prevent further violations and ensure the appropriate investigation.

Upon request, the Competent Security Authority of the Originating Party shall provide investigative assistance.

The Competent Security Authority of the Receiving Party shall inform the Competent Security Authority of the Originating Party of the outcome of the proceedings and the corrective measures undertaken due to the violation.

If a breach of security occurs during transportation in a Third Party, the Competent Security Authority of the dispatching Party shall take the actions prescribed in paragraph 1 of this article.

The Originating Party shall be informed of the results of the investigation and shall receive a report, in English, on the reasons and extent of the damage.

This Agreement is concluded for an indefinite period of time. Each Party shall notify the other Party through diplomatic channels once the national procedures necessary for entry into force of this Agreement have been completed. This Agreement shall enter into force on the first day of the second month following the receipt of the latter notification.

With regard to the Kingdom of the Netherlands, this Agreement shall apply to the European part of the Netherlands and the Caribbean part of the Netherlands (the islands of Bonaire, Sint Eustatius and Saba).

This Agreement, including its Annex, may be amended with the mutual consent of the Parties. Either Party may propose amendments to this Agreement at any time through diplomatic channels. Such amendments shall enter into force under the conditions laid down in paragraph 1 of this article, with the exception of an amendment of the Annex, which amendment shall enter into force on a date to be agreed upon by the Parties.

This Agreement may be terminated by a Party through diplomatic channels. In that case, the termination takes effect six (6) months from the date on which the other Party has received the notice through diplomatic channels.

In case of termination of this Agreement, all Classified Information exchanged, released or generated pursuant to this Agreement shall continue to be protected in accordance with the provisions set forth herein and, upon request, returned to the Originating Party.