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12938 Germany - Arrangement Regarding the Application of Article 73 of the Supplementary Agreement of August 3, 1959 to the NATO Status of Forces Agreement


   
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TREATIES AND OTHER INTERNATIONAL ACTS SERIES 12938

 

 

DEFENSE

NATO Status of Forces Agreement
Application of Article 73 of Supplementary Agreement

 

 


Arrangement Between the
UNITED STATES OF AMERICA
and the FEDERAL REPUBLIC OF GERMANY


Effected by Exchange of Notes
Dated at Bonn
March 27, 1998

 

 

 

EMBASSY OF THE
UNITED STATES OF AMERICA
Bonn, March 27, 1998
No. 147
Mr. State Secretary:
With reference to the discussions between
representatives of the Governments of the Federal Republic
of Germany and the United States of America, and with
reference to the agreement reached between our two
Governments by Exchange of Notes on July 13, 1995 regarding
the application of Article 73 of the Supplementary
Agreement to the NATO Status of Forces Agreement (NATO SOFA
SA), on behalf of the Government of the United States of
America, I have the honor to propose the following
Arrangement to replace the aforementioned Exchange of Notes:
1. The Parties to the present Arrangement shall
proceed on the assumption of the following
definition of the term "technical expert", which
shall serve as the basis for the interpretation
and application of Article 73 of the NATO SOFA SA
by the responsible authorities of the U. S. Forces
and the responsible German authorities:
a) For purposes of applying Article 73 of the
NATO SOFA SA, the term "technical expert"
shall refer to a person with a high degree of
skill or knowledge for the accomplishment of
complex tasks of a technical military nature,
- 2 -
or of a technical scientific nature, as
distinguished from routine mental, manual or
physical processes. The skill and knowledge
must have been acquired through a process of
higher education, or through a long period of
specialized training and experience.
Personnel normally classified as blue collar
shall not normally be considered to be
technical experts within the meaning of
Article 73, first sentence, of the NATO SOFA
SA. The same is true for skilled workers, as
well as for crafts and trades occupations.
b) The following are examples of persons who are
technical experts within the meaning of
Article 73, first sentence, of the NATO SOFA
SA:
aa) Technicians of firms through which
weapons systems, military command and
control systems, defense communications
systems, and intelligence systems are
procured when these technicians are
engaged in the initial fielding,
testing, training or repair of such
equipment or systems under terms of
guarantee, this however not extending to
routine maintenance;
bb) Technicians responsible for complicated
repairs, complicated re-engineering of
- 3 -
equipment and components, or
unprecedented and complicated
application of the equipment if these
technicians have specific knowledge
clearly exceeding the knowledge conveyed
within the scope of normal vocational
training;
cc) The top manager of a contract involving
substantial use of technical experts
within the meaning of Article 73 of the
NATO SOFA SA and those directly
subordinate managers responsible for
technical as opposed to administrative
functions;
dd) Computer software engineers;
ee) Technicians responsible for the
maintenance of aircraft, combat vehicles
and weapons systems and who must apply
knowledge of combat applications of this
equipment, this however not extending to
routine maintenance;
ff) Former officers, whose technical
military skill or technical military
knowledge are required for the
performance of their work in addition to
their other technical skills. As a
matter of exception, this shall also
- 4 -
apply to former non-commissioned
officers who, under military training
conditions, work closely together with
soldiers on equipment used for the
simulation of tactical combat
conditions.
c) The following are examples of persons who are
not technical experts within the meaning of
Article 73, first sentence, of the NATO SOFA
SA:
aa) Administrative support and clerical
personnel to include white collar
employees in budgeting and accounting,
general office workers, and hotel and
billeting personnel;
bb) Sales representatives and service
technicians for non-military equipment
such as telephones, fax machines and
copy machines;
cc) Automobile sales representatives;
dd) Secretaries, clerk-typists, computer
workstations operators, and draftsmen;
ee) Automotive, aircraft, electrical, and
similar mechanics or technicians, unless
- 5 -
covered in number 1, paragraph b,
letters (aa), (bb), or (ee);
ff) Electricians, plumbers, painters,
masons, carpenters, and similar skilled
workers;
gg) Unskilled and semi-skilled workers to
include warehouse workers, forklift
operators, drivers, and helpers;
hh) Customs control inspectors/specialists;
ii) Supply clerks and technicians.
2. a) For technical experts to be considered to be,
and treated as, members of the civilian
component, the other requirements set out in
Article 73 of the NATO SOFA SA must be met,
notably the absence of the non-eligibility
grounds specified in Article 73, sentence 2,
letters (a) to (d) NATO SOFA SA.
b) Specifically only such technical experts may
pursuant to Article 73, sentence 2, letter
(d) of the NATO SOFA SA be considered to be,
and treated as, members of the civilian
component within the meaning of Article 73 of
the NATO SOFA SA who are not ordinarily
resident in the Federal Republic of Germany
on commencing their work.
- 6 -
c) Individuals who have been present in the
territory of the Federal Republic of Germany
as members of the U.S. Forces or its civilian
component or as dependents of such members
may, within a period of 90 days after
terminating their activity as members of the
forces or its civilian component or their
status as dependents, commence work as
technical experts without being deemed -
solely on the basis of this fact - to have
become ordinarily resident in the territory
of the Federal Republic of Germany within the
meaning of Article 73, sentence 2, letter
(d), NATO SOFA SA. Hardship cases will be
sympathetically considered. Continued
privileged status shall, however, only be
applicable if the individuals have not become
ordinarily resident in the territory of the
Federal Republic of Germany within the
meaning of Article 73, sentence 2, letter
(d), NATO SOFA SA, prior to commencing their
work as technical experts.
d) Individuals who have worked as technical
experts on a contract and who have been
considered to be and treated as members of
the civilian component may, within a period
of 90 days after terminating their
employment as a technical expert, again take
up work as a technical expert under a
- 7 -
different contract/follow-up contract without
being deemed - solely on the basis of this
fact - to have become ordinarily resident in
the territory of the Federal Republic of
Germany within the meaning of Article 73,
sentence 2, letter (d), NATO SOFA SA.
Hardship cases will be sympathetically
considered. Continued privileged status
shall, however, only be applicable if
individuals have not become ordinarily
resident in the territory of the Federal
Republic of Germany within the meaning of
Article 73, sentence 2, letter (d), NATO SOFA
SA, prior to again commencing their work as
a technical expert.
e) The Parties to the present Arrangement agree
that technical experts employed by private
companies serving a force shall, in
accordance with Article 73 of the NATO SOFA
SA and provided such experts meet the
requirements laid down therein, be considered
to be and treated as members of the civilian
component.
f) In examining whether an individual is
ordinarily resident in the territory of the
Federal Republic of Germany within the
meaning of Article 73, sentence 2, letter
(d), NATO SOFA SA, it has to be ascertained,
by weighing the totality of the
- 8 -
circumstances, whether the individual has
shifted the main focus of vital interests
from another nation to the territory of the
Federal Republic of Germany. In weighing
the totality of the circumstances, the
following facts, in particular, have to be
taken into consideration:
aa) Duration of stay in the Federal Republic
of Germany without status as a member of
the forces or of the civilian component
or as a dependent;
bb) Performance of work in a trade, or in a
freelance capacity, or in an employment
status in the territory of the Federal
Republic of Germany which is not or was
not done in his/her capacity as a member
of the forces or of a civilian
component;
cc) Ownership of real property in the
territory of the Federal Republic of
Germany and/or outside Germany;
dd) Current or previous receipt of social
benefits from German public funds which
are not granted to a member of the
forces or of the civilian component;
- 9 -
ee) Regular place of residence of children
and, if applicable, children's
attendance at a German or non-German
kindergarten or educational institution;
ff) Location of other sources of income;
gg) Main focus of social and societal
relations within and outside the Federal
Republic of Germany;
hh) Professional activity of the spouse
within or outside the Federal Republic
of Germany including the extent to which
in Germany that activity is limited to
employment with the American military
community or to employment with an
agency of the United States;
ii) Marriage to a German citizen.
3. a) As early as possible during the acquisition
process for a contract whose performance is
likely to require the employment of a
technical expert, the responsible
authorities of the U. S. Forces shall notify
the responsible authorities of the Land
concerned of the nature and scope of the work
the technical experts are expected to
undertake. Such notification shall contain
information as to the nature of the work to
- 10 -
be performed by the contractor, at what
locations in Germany the contractor is to
operate, how many of its staff are to be
employed at such locations as well as how
many are to be employed as technical experts
pursuant to Article 73 of the NATO SOFA SA.
In this connection the U. S. Forces shall
also transmit key parts of any contracts
affecting Germany as well as any annexes
relating to Germany containing skill
classifications and wage or salary
categories, for example, the relevant "skill
classification cross reference."
b) Where contracts are to be awarded affecting
several Lander, the U. S. Forces shall
transmit such information to all Lander
concerned.
4. a) The responsible Land authority shall confirm
receipt of such information and notify the
responsible authorities of the U.S. Forces of
any objections it may have with regard. to
Article 73 of the NATO SOFA SA as soon as
possible. Such confirmation and/or
notification of objections shall not
prejudice any decision to treat individual
employees as technical experts.
b) In the event of differences as to the
admissibility of the intended employment of
- 11 -
technical experts, the responsible
authorities of the Lander and the U. S.
Forces shall endeavor to settle such
differences by way of negotiation as soon as
possible. Where no comments on the relevant
information have been received within five
weeks after receipt of the information, the
U. S. Forces shall proceed accordingly.
5. a) Before an employee proposed as a technical
expert commences his/her work under the
contract, the responsible authorities of the
U.S. Forces shall communicate to the
responsible German authorities the following
information:
aa) Personal details: Name, date of birth,
nationality, passport number, social
security number, home address and
telephone number in Germany and family
status;
bb) Family members:
Spouse's nationality, in the
case of Germans, name and
birth name, if different,
number of children and
dependents living in the
employee's household;
cc) Professional details:
- 12 -
Name, German civilian company
address and telephone number
of the contractor for which
the employee works, contract
number, place of work,
civilian work address and
telephone number, detailed job
description, starting date of
employment (copy of
employment contract or offer
and acceptance), amount of
remuneration, i.e., wage or
salary plus monetary value of
privileges granted,
description of the
remuneration package in the
general contract;
dd) Education and training, qualifications
and professional background:
Education and training (name
and description of educational
establishment, description and
date of qualifications
obtained), description of
military skills necessary for
the work to be performed as
well as of the employee's
professional background;
- 13 -
ee) Curriculum vitae prepared by the
employee;
ff) Declaration as to whether the individual
concerned has ever held a German work
permit (issuing authority, period of
validity and type of work permit);
gg) Declaration by the employee that he/she
has no intention of becoming ordinarily
resident in the Federal Republic of
Germany.
b) If the highest service authority of the U. S.
Forces declares that the employee concerned
will perform work affecting military
interests particularly worthy of protection,
the highest service authority of the U. S.
Forces may substitute for the detailed
description of the work envisaged in number 3
and number 5, paragraph a, letter (cc) above
a formal declaration to be transmitted to the
responsible German authority. Should the
German authority request additional
information in individual cases, the highest
service authority of the U. S. Forces shall
furnish such additional information as is
permissible under U. S. Forces security
regulations, so that the German authority is
provided with the means to conduct the
- 14 -
discussions envisaged under
number 6 below.
6. The responsible Land authority shall, as soon as
possible, normally not later than four weeks,
after receiving information concerning individual
employees, respond thereto in writing, stating the
reasons for any objections, provided the persons
concerned agree. If no response is given within
six weeks, it shall be assumed that no objections
exist. If objections are raised, the authorities
of the Land and the U. S. Forces shall, in
principle, within one week discuss whether the
prerequisites for technical expert status within
the meaning of Article 73, first sentence, of the
NATO SOFA SA are met. Should no agreement be
reached, the outcome shall be communicated to the
employer and employee concerned. The Federal
Foreign Office and the relevant authorities of the
financial, customs, Federal property, employment
and general internal as well as the social
security administrations shall be informed.
7. An employee shall only commence his/her work with
the contractor if the responsible Land authority
has raised no objections in its response, or
within the period specified in number 6 has made
no response, or if the responsible authorities
have discussed the matter and agreed that the
individual concerned has technical expert status,
or if the consultative commission has unanimously
- 15 -
recommended that the individual should be treated
as a technical expert.
8. If, in cases of military exigency, determined by
superior U. S. military authorities, the U. S.
Forces are unable to meet the advance notification
and consultation requirements prescribed above,
they will immediately inform the appropriate
Lander of the actual or imminent presence of such
technical experts as soon as the exigency and use
of such technical experts becomes known.
Treatment as technical expert in such an exigency
will be considered conditional until proper
notification and consultation occur. Any change
in treatment as a result of such notification and
consultation will be effected as soon as possible.
9. The outcome of discussions held pursuant to number
6 above shall not affect the right of the
responsible German authorities, including
financial authorities, to check specifically the
nationality of the technical expert in question,
his/her actual work as against the detailed work
description pursuant to number 5, paragraph a,
letter (cc) above as well as whether he/she works
exclusively as a technical expert. This shall
include external checks with his/her employer.
They shall, however, be bound by the judgment
reached by the responsible Land authority
following discussions pursuant to number 6 above,
- 16 -
unless the facts concerning the requirements for
treatment as a technical expert within the meaning
of Article 73 of the NATO SOFA SA (for example,
with regard to the employee's work, personal
qualifications and professional background) or
concerning the non-eligibility grounds relating to
the employee's residence were misrepresented or
incomplete.
10. The responsible authorities of the U. S. Forces
may on request, with the consent of the employee
concerned, communicate the views of the U. S.
Forces on the question of technical expert status
to the responsible German authorities.
11. The Parties to the present Arrangement shall
communicate the names and addresses of the
agencies to be designated responsible authorities.
12. a) Immediately upon entry into force of
this Exchange of Notes the responsible
authorities of the U. S. Forces shall
undertake a review of the status of all
individuals whom the U. S. Forces have
previously treated as technical experts. In
conducting the said review the responsible
authorities of the U. S. Forces shall apply
the definition of "technical expert" agreed
pursuant to number 1 above.
- 17 -
b) The responsible authorities of the U. S.
Forces shall conclude the review no later
than 31 December 1998 and communicate the
results thereof to the responsible German
authorities. Such communication shall
contain all the information required pursuant
to number 5 of this Arrangement concerning
individuals considered by the responsible
authorities of the U. S. Forces to meet
technical expert status as well as the names
of those individuals who in the light of the
agreed definition do not meet such status.
Individuals who no longer fulfill the legal
requirements for a technical expert in
accordance with Article 73 of the NATO SOFA
SA shall, upon official notification of the
nonexistence of technical expert status under
Article 73, apply as soon as possible, but
at the latest within one month, for the
necessary residence and work permits under
the relevant German laws and regulations. If
the U. S. Embassy exceptionally declares in
the following cases that a particular
position must be occupied by an American
citizen, the Government of the Federal
Republic of Germany shall seek to ensure that
the competent authorities grant the necessary
residence permits in accordance with German
law; the competent German authorities shall
approve applications for the necessary work
- 18 -
permits in these cases accordingly unless
precluded from doing so by German law:
aa) The incumbent must have full-time
access to military secrets as defined in
paragraph 3 of Article 29 of the NATO
SOFA SA. In this case, the declaration
will certify that the applicant has the
requisite access to military secrets and
contain as much information in support
of the requirement for access as is
permissible under U.S. Forces security
regulations.
bb) The incumbent meets the requirements of
number 1, paragraph b, letters (cc),
(ee) or (ff) but is ineligible for
treatment as a technical expert because
he/she is ordinarily resident in the
Federal territory. In this case, the
declaration will disclose which of the
cited requirements the person meets.
cc) The incumbent must be available for
immediate deployment with the U.S.
Forces on combat or other urgent
military operations outside the Federal
Republic of Germany. In this case, the
declaration would be based on the fact
that American military operations would
- 19 -
frequently take place in areas where
arrangements have not been made to
guarantee rapid entry for accompanying
civilian personnel who are not American
citizens. The declaration will certify
the applicant's availability for
deployment. The total number of
incumbents under number 12, paragraph b,
letter (cc) shall not exceed 100.
c) Individuals whom the said review has
found not to meet technical expert status
shall have neither the exemptions and
benefits nor the ensuing financial gains
actually enjoyed up to 31 December 1996
retroactively withdrawn. This shall not
apply to persons against whom at the time of
the conclusion of this Arrangement
proceedings on grounds of wrongfully
obtaining exemptions and benefits as
technical experts are pending before German
courts, public prosecutor's offices or
authorities to the extent that these have
been made known to the U.S. Forces, the
concerned company, or the concerned person
himself/herself.
13. A consultative commission, co-chaired by the
Federal Foreign Office and the Embassy of the
United States of America, shall meet periodically
to review implementation of this Arrangement and
- 20 -
address problems raised by either party. In cases
of lack of agreement between Lander and U. S.
Forces officials over the terms used in this
Arrangement or over its application, the
consultative commission shall meet at the earliest
opportunity following receipt of a written request
from either representatives of the Lander or of
the U. S. Forces to seek resolution and issue a
written report signed by the co-chairmen. If
possible, the report shall contain a written
recommendation.
14. This Arrangement shall be concluded in the English
and German languages, both texts being equally
authentic.
If the Government of the Federal Republic of
Germany agrees to the proposals contained in numbers 1
to 14, this Note and the Note in reply thereto
expressing your Government's agreement shall
constitute an Arrangement between our two Governments,
which shall enter into force on the date of your Note
in reply.
Please accept, Mr. State Secretary, the assurance
of my highest consideration. John C. Kornblum, Ambassador
John C. Kornblum, Ambassador
- 21 -
Dr. Hans-Friedrich v. Ploetz,
State Secretary of the Foreign Office of the
Federal Republic of Germany,
Bonn.
THE STATE SECRETARY
IN THE FEDERAL FOREIGN OFFICE Bonn, March 27, 1998
Mr. Ambassador:
I have the honor to confirm receipt of your Note No. 147 of March 27, 1998 with which you
propose on behalf of your Government an Arrangement between the Government of the
United States of America and the Government of the Federal Republic of Germany. Your
Note reads as follows:
"Mr. State Secretary:
With reference to the discussions between representatives of the Governments of the Federal
Republic of Germany and the United States of America, and with reference to the agreement
reached between our two Governments by Exchange of Notes on July 13, 1995 regarding the
application of Article 73 of the Supplementary Agreement to the NATO Status of Forces
Agreement (NATO SOFA SA), on behalf of the Government of the United States of America,
I have the honor to propose the following Arrangement to replace the aforementioned
Exchange of Notes:
1. The Parties to the present Arrangement shall proceed on the assumption of the following
definition of the term "technical expert", which shall serve as the basis for the interpreta-
tion and application of Article 73 of the NATO SOFA SA by the responsible authorities
of the U.S. Forces and the responsible German authorities:
a) For purposes of applying Article 73 of the NATO SOFA SA, the term "technical
expert" shall refer to a person with a high degree of skill or knowledge for the ac-
The Honorable
John C. Kornblum
Ambassador of the United States
of America
Bonn
-2-
complishment of complex tasks of a technical military nature, or of a technical scien-
tific nature, as distinguished from routine mental, manual or physical processes. The
skill and knowledge must have been acquired through a process of higher education,
or through a long period of specialized training and experience. Personnel normally
classified as blue collar shall not normally be considered to be technical experts
within the meaning of Article 73, first sentence, of the NATO SOFA SA. The same
is true for skilled workers, as well as for crafts and trades occupations.
b) The following are examples of persons who are technical experts within the meaning
of Article 73, first sentence, of the NATO SOFA SA:
aa) Technicians of firms through which weapons systems, military command and
control systems, defense communications systems, and intelligence systems are
procured when these technicians are engaged in the initial fielding, testing, train-
ing or repair of such equipment or systems under terms of guarantee, this how-
ever not extending to routine maintenance;
bb) Technicians responsible for complicated repairs, complicated re-engineering of
equipment and components, or unprecedented and complicated application of the
equipment if these technicians have specific knowledge clearly exceeding the
knowledge conveyed within the scope of normal vocational training;
cc) The top manager of a contract involving substantial use of technical experts
within the meaning of Article 73 of the NATO SOFA SA and those directly sub-
ordinate managers responsible for technical as opposed to administrative func-
tions;
dd) Computer software engineers;
ee) Technicians responsible for the maintenance of aircraft, combat vehicles and
weapons systems and who must apply knowledge of combat applications of this
equipment, this however not extending to routine maintenance;
ff) Former officers, whose technical military skill or technical military knowledge
are required for the performance of their work in addition to their other technical
skills. As a matter of exception, this shall also apply to former non-
-3-
commissioned officers who, under military training conditions, work closely
together with soldiers on equipment used for the simulation of tactical combat
conditions.
c) The following are examples of persons who are not technical experts within the
meaning of Article 73, first sentence, of the NATO SOFA SA:
aa) Administrative support and clerical personnel to include white collar employees
in budgeting and accounting, general office workers, and hotel and billeting
personnel;
bb) Sales representatives and service technicians for non-military equipment such as
telephones, fax machines and copy machines;
cc) Automobile sales representatives;
dd) Secretaries, clerk-typists, computer workstations operators, and draftsmen;
ee) Automotive, aircraft, electrical, and similar mechanics or technicians, unless
covered in number 1, paragraph b, letters (aa), (bb), or (ee);
ff) Electricians, plumbers, painters, masons, carpenters, and similar skilled workers;
gg) Unskilled and semi-skilled workers to include warehouse workers, forklift
operators, drivers, and helpers;
hh) Customs control inspectors/specialists;
ii) Supply clerks and technicians.
2. a) For technical experts to be considered to be, and treated as, members of the civilian
component, the other requirements set out in Article 73 of the NATO SOFA SA must
be met, notably the absence of the non-eligibility grounds specified in Article 73,
sentence 2, letters (a) to (d) NATO SOFA SA.
-4-
Specifically only such technical experts may pursuant to Article 73, sentence 2,
letter (d) of the NATO SOFA SA be considered to be, and treated as, members of the
civilian component within the meaning of Article 73 of the NATO SOFA SA who
are not ordinarily resident in the Federal Republic of Germany on commencing their
work.
c) Individuals who have been present in the territory of the Federal Republic of
Germany as members of the U.S. Forces or its civilian component or as dependents
of such members may, within a period of 90 days after terminating their activity as
members of the forces or its civilian component or their status as dependents,
commence work as technical experts without being deemed - solely on the basis of
this fact - to have become ordinarily resident in the territory of the Federal Republic
of Germany within the meaning of Article 73, sentence 2, letter (d), NATO SOFA
SA. Hardship cases will be sympathetically considered. Continued privileged status
shall, however, only be applicable if the individuals have not become ordinarily
resident in the territory of the Federal Republic of Germany within the meaning of
Article 73, sentence 2, letter (d), NATO SOFA SA, prior to commencing their work
as technical experts.
d) Individuals who have worked as technical experts on a contract and who have been
considered to be and treated as members of the civilian component may, within a pe-
riod of 90 days after terminating their employment as a technical expert, again take
up work as a technical expert under a different contract/follow-up contract without
being deemed - solely on the basis of this fact - to have become ordinarily resident in
the territory of the Federal Republic of Germany within the meaning of Article 73,
sentence 2, letter (d), NATO SOFA SA. Hardship cases will be sympathetically
considered. Continued privileged status shall, however, only be applicable if
individuals have not become ordinarily resident in the territory of the Federal
Republic of Germany within the meaning of Article 73, sentence 2, letter (d), NATO
SOFA SA, prior to again commencing their work as a technical expert.
e) The Parties to the present Arrangement agree that technical experts employed by
private companies serving a force shall, in accordance with Article 73 of the NATO
SOFA SA and provided such experts meet the requirements laid down therein, be
considered to be and treated as members of the civilian component.
-5-
f) In examining whether an individual is ordinarily resident in the territory of the
Federal Republic of Germany within the meaning of Article 73, sentence 2, letter (d),
NATO SOFA SA, it has to be ascertained, by weighing the totality of the
circumstances, whether the individual has shifted the main focus of vital interests
from another nation to the territory of the Federal Republic of Germany. In weighing
the totality of the circumstances, the following facts, in particular, have to be taken
into consideration:
aa) Duration of stay in the Federal Republic of Germany without status as a member
of the forces or of the civilian component or as a dependent;
bb) Performance of work in a trade, or in a freelance capacity, or in an employment
status in the territory of the Federal Republic of Germany which is not or was
not done in his/her capacity as a member of the forces or of a civilian
component;
cc) Ownership of real property in the territory of the Federal Republic of Germany
and/or outside Germany;
dd Current or previous receipt of social benefits from German public funds which
are not granted to a member of the forces or of the civilian component;
ee) Regular place of residence of children and, if applicable, children's attendance at
a German or non-German kindergarten or educational institution;
ff) Location of other sources of income;
gg) Main focus of social and societal relations within and outside the Federal Repub-
lic of Germany;
hh) Professional activity of the spouse within or outside the Federal Republic of
Germany including the extent to which in Germany that activity is limited to em-
ployment with the American military community or to employment with an
agency of the United States;
ii) Marriage to a German citizen.
-6-
3. a) As early as possible during the acquisition process for a contract whose performance
is likely to require the employment of a technical expert, the responsible authorities
of the U.S. Forces shall notify the responsible authorities of the Land concerned of
the nature and scope of the work the technical experts are expected to undertake.
Such notification shall contain information as to the nature of the work to be
performed by the contractor, at what locations in Germany the contractor is to
operate, how many of its staff are to be employed at such locations as well as how
many are to be employed as technical experts pursuant to Article 73 of the NATO
SOFA SA. In this connection the U.S. Forces shall also transmit key parts of any
contracts affecting Germany as well as any annexes relating to Germany containing
skill classifications and wage or salary categories, for example, the relevant "skill
classification cross reference".
b) Where contracts are to be awarded affecting several Lander, the U.S. Forces shall
transmit such information to all Lander concerned.
4. a) The responsible Land authority shall confirm receipt of such information and notify
the responsible authorities of the U.S. Forces of any objections it may have with
regard to Article 73 of the NATO SOFA SA as soon as possible. Such confirmation
and/or notification of objections shall not prejudice any decision to treat individual
employees as technical experts.
b) In the event of differences as to the admissibility of the intended employment of
technical experts, the responsible authorities of the Lander and the U.S. Forces shall
endeavor to settle such differences by way of negotiation as soon as possible. Where
no comments on the relevant information have been received within five weeks after
receipt of the information, the U.S. Forces shall proceed accordingly.
5. a) Before an employee proposed as a technical expert commences his/her work under
the contract, the responsible authorities of the U.S. Forces shall communicate to the
responsible German authorities the following information:
aa) Personal details:
Name, date of birth, nationality, passport number, social security number, home
address and telephone number in Germany and family status;
-7-
bb) Family members:
Spouse's nationality, in the case of Germans, name and birth name, if different,
number of children and dependents living in the employee's household;
cc) Professional details:
Name, German civilian company address and telephone number of the contractor
for which the employee works, contract number, place of work, civilian work ad-
dress and telephone number, detailed job description, starting date of
employment (copy of employment contract or offer and acceptance), amount of
remuneration, i.e., wage or salary plus monetary value of privileges granted,
description of the remuneration package in the general contract;
dd) Education and training, qualifications and professional background:
Education and training (name and description of educational establishment,
description and date of qualifications obtained), description of military skills
necessary for the work to be performed as well as of the employee's professional
background;
ee) Curriculum vitae prepared by the employee;
ff) Declaration as to whether the individual concerned has ever held a German work
permit (issuing authority, period of validity and type of work permit);
gg) Declaration by the employee that he/she has no intention of becoming ordinarily
resident in the Federal Republic of Germany.
b) If the highest service authority of the U.S. Forces declares that the employee con-
cerned will perform work affecting military interests particularly worthy of
protection, the highest service authority of the U.S. Forces may substitute for the
detailed description of the work envisaged in number 3 and number 5, paragraph a,
letter (cc) above a formal declaration to be transmitted to the responsible German
authority. Should the German authority request additional information in individual
cases, the highest service authority of the U.S. Forces shall furnish such additional
information as is permissible under U.S. Forces security regulations, so that the
German authority is provided with the means to conduct the discussions envisaged
under number 6 below.
-8-
6. The responsible Land authority shall, as soon as possible, normally not later than four
weeks, after receiving information concerning individual employees, respond thereto in
writing, stating the reasons for any objections, provided the persons concerned agree. If
no response is given within six weeks, it shall be assumed that no objections exist. If ob-
jections are raised, the authorities of the Land and the U.S. Forces shall, in principle,
within one week discuss whether the prerequisites for technical expert status within the
meaning of Article 73, first sentence, of the NATO SOFA SA are met. Should no agree-
ment be reached, the outcome shall be communicated to the employer and employee con-
cerned. The Federal Foreign Office and the relevant authorities of the financial, customs,
Federal property, employment and general internal as well as the social security admini-
strations shall be informed.
7. An employee shall only commence his/her work with the contractor if the responsible
Land authority has raised no objections in its response, or within the period specified in
number 6 has made no response, or if the responsible authorities have discussed the
matter and agreed that the individual concerned has technical expert status, or if the
consultative commission has unanimously recommended that the individual should be
treated as a technical expert.
8. If, in cases of military exigency, determined by superior U.S. military authorities, the
U.S. Forces are unable to meet the advance notification and consultation requirements
prescribed above, they will immediately inform the appropriate Lander of the actual or
imminent presence of such technical experts as soon as the exigency and use of such tech-
nical experts becomes known. Treatment as technical expert in such an exigency will be
considered conditional until proper notification and consultation occur. Any change in
treatment as a result of such notification and consultation will be effected as soon as pos-
sible.
9. The outcome of discussions held pursuant to number 6 above shall not affect the right of
the responsible German authorities, including financial authorities, to check specifically
the nationality of the technical expert in question, his/her actual work as against the
detailed work description pursuant to number 5, paragraph a, letter (cc) above as well as
whether he/she works exclusively as a technical expert. This shall include external checks
with his/her employer. They shall, however, be bound by the judgment reached by the
responsible Land authority following discussions pursuant to number 6 above, unless the
facts concerning the requirements for treatment as a technical expert within the meaning
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of Article 73 of the NATO SOFA SA (for example, with regard to the employee's work,
personal qualifications and professional background) or concerning the non-eligibility
grounds relating to the employee's residence were misrepresented or incomplete.
10. The responsible authorities of the U.S. Forces may on request, with the consent of the
employee concerned, communicate the views of the U.S. Forces on the question of
technical expert status to the responsible German authorities.
11. The Parties to the present Arrangement shall communicate the names and addresses of the
agencies to be designated responsible authorities.
12. a) Immediately upon entry into force of this Exchange of Notes the responsible authori-
ties of the U.S. Forces shall undertake a review of the status of all individuals whom
the U.S. Forces have previously treated as technical experts. In conducting the said
review the responsible authorities of the U.S. Forces shall apply the definition of
"technical expert" agreed pursuant to number 1 above.
b) The responsible authorities of the U.S. Forces shall conclude the review no later than
31 December 1998 and communicate the results thereof to the responsible German
authorities. Such communication shall contain all the information required pursuant
to number 5 of this Arrangement concerning individuals considered by the
responsible authorities of the U.S. Forces to meet technical expert status as well as
the names of those individuals who in the light of the agreed definition do not meet
such status. Individuals who no longer fulfill the legal requirements for a technical
expert in accordance with Article 73 of the NATO SOFA SA shall, upon official
notification of the nonexistence of technical expert status under Article 73, apply as
soon as possible, but at the latest within one month, for the necessary residence and
work permits under the relevant German laws and regulations. If the U.S. Embassy
exceptionally declares in the following cases that a particular position must be
occupied by an American citizen, the Government of the Federal Republic of
Germany shall seek to ensure that the competent authorities grant the necessary
residence permits in accordance with German law; the competent German authorities
shall approve applications for the necessary work permits in these cases accordingly
unless precluded from doing so by German law:
-10-
aa) The incumbent must have full time access to military secrets as defined in
paragraph 3 of Article 29 of the NATO SOFA SA. In this case, the declaration
will certify that the applicant has the requisite access to military secrets and
contain as much information in support of the requirement for access as is
permissible under U.S. Forces security regulations.
bb) The incumbent meets the requirements of number 1, paragraph b, letters (cc),
(ee) or (ff) but is ineligible for treatment as a technical expert because he/she is
ordinarily resident in the Federal territory. In this case, the declaration will dis-
close which of the cited requirements the person meets.
cc) The incumbent must be available for immediate deployment with the
U.S. Forces on combat or other urgent military operations outside the Federal
Republic of Germany. In this case, the declaration would be based on the fact
that American military operations would frequently take place in areas where
arrangements have not been made to guarantee rapid entry for accompanying
civilian personnel who are not American citizens. The declaration will certify the
applicant's availability for deployment. The total number of incumbents under
number 12, paragraph b, letter (cc) shall not exceed 100.
c) Individuals whom the said review has found not to meet technical expert status shall
have neither the exemptions and benefits nor the ensuing financial gains actually
enjoyed up to 31 December 1996 retroactively withdrawn. This shall not apply to
persons against whom at the time of the conclusion of this Arrangement proceedings
on grounds of wrongfully obtaining exemptions and benefits as technical experts are
pending before German courts, public prosecutor's offices or authorities to the extent
that these have been made known to the U.S. Forces, the concerned company, or the
concerned person himself/herself.
13. A consultative commission, co-chaired by the Federal Foreign Office and the Embassy of
the United States of America, shall meet periodically to review implementation of this
Arrangement and address problems raised by either party. In cases of lack of agreement
between Lander and U.S. Forces officials over the terms used in this Arrangement or over
its application, the consultative commission shall meet at the earliest opportunity
following receipt of a written request from either representatives of the Lander or of the
-11-
U.S. Forces to seek resolution and issue a written report signed by the co-chairmen. If
possible, the report shall contain a written recommendation.
14. This Arrangement shall be concluded in the English and German languages, both texts
being equally authentic.
If the Government of the Federal Republic of Germany agrees to the proposals contained in
numbers 1 to 14, this Note and the Note in reply thereto expressing your Government's
agreement shall constitute an Arrangement between our two Governments, which shall enter
into force on the date of your Note in reply.
Please accept, Mr. State Secretary, the assurance of my highest consideration."
1 have the honor to inform you that my Government agrees to the proposals contained in your
Note. Your Note and this Note in reply therefore constitute an Arrangement between our two
Governments, which enters into force on the date of this Note and the German and English
texts of which are equally authentic.
Please accept, Mr. Ambassador, the assurance of my high consideration.
 

 

 

 

 

 

 

 

NOTE BY THE DEPARTMENT OF STATE

Pursuant to Public Law 89—497, approved July 8, 1966
(80 Stat. 271; 1 U.S.C. 113)—

“. . .the Treaties and Other International Acts Series issued
under the authority of the Secretary of State shall be competent
evidence . . . of the treaties, international agreements other than
treaties, and proclamations by the President of such treaties and
international agreements other than treaties, as the case may be,
therein contained, in all the courts of law and equity and of maritime
jurisdiction, and in all the tribunals and public offices of the
United States, and of the several States, without any further proof
or authentication thereof.”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

FEDERAL REPUBLIC OF GERMANY

Defense: NATO Status of Forces Agreement
Application of Article 73 of
Supplementary Agreement

 


Arrangement effected by exchange of notes
Dated at Bonn March 27, 1998;
Entered into force March 27, 1998.



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