EUROPEAN COMMISSION

Brussels, 31.3.2026

COM(2026) 143 final

2026/0079(NLE)

Proposal for a

COUNCIL DECISION

on the position to be adopted, on behalf of the European Union, within the EEA Joint Committee concerning an amendment to Annex IX (Financial services) to the EEA Agreement

(Supervision of certain benchmark administrators by ESMA)

(Text with EEA relevance)

EXPLANATORY MEMORANDUM

1.Subject matter of the proposal

This proposal concerns the decision establishing the position to be adopted on the Union's behalf in the EEA Joint Committee in connection with the envisaged adoption of the Joint Committee Decision concerning an amendment of Annex IX (Financial services) to the EEA Agreement

2.Context of the proposal

The Agreement on the European Economic Area (‘the EEA Agreement’) guarantees equal rights and obligations within the Internal Market for citizens and economic operators in the EEA. It provides for the inclusion of EU legislation covering the four freedoms throughout the 30 EEA States comprising of EU Member States, Norway, Iceland and Liechtenstein. In addition, the EEA Agreement covers cooperation in other important areas such as research and development, education, social policy, the environment, consumer protection, tourism and culture, collectively known as “flanking and horizontal” policies. The EEA Agreement entered into force on 1 January 1994. The Union together with its Member States is a party to the EEA Agreement.

The EEA Joint Committee is responsible for the management of the EEA Agreement. It is a forum for exchanging views linked to the functioning of the EEA Agreement. Its decisions are taken by consensus and are binding on the Parties. The responsibility for coordinating EEA matters on the EU side is with the Secretariat General of the European Commission. 

The EEA Joint Committee is expected to adopt the EEA Joint Committee Decision (‘the envisaged act’) regarding the amendment of Annex IX (Financial services) to the EEA Agreement.

The purpose of the envisaged act is to incorporate into the EEA Agreement Commission Delegated Regulation (EU) 2022/804 supplementing Regulation (EU) 2016/1011 by specifying rules of procedure for measures applicable to the supervision by the European Securities Markets Authority of certain benchmark administrators 1 , as well as two related legal acts, into the EEA Agreement. 

The envisaged act will become binding on the parties in accordance with Articles 103 and 104 of the EEA Agreement.

3.Position to be taken on the Union's behalf

The Commission submits the annexed draft Decision of the EEA Joint Committee for adoption by the Council as the Union’s position. The position, once adopted, should be presented in the EEA Joint Committee at the earliest possible opportunity.

The annexed draft Decision of the EEA Joint Committee contains extensive institutional adaptations, which in essence replicate the existing financial services approach to the role of the EU financial supervisory authorities and EFTA Surveillance Authority in the field of benchmark administrators, which goes beyond what can be considered mere technical adaptations in the sense of Council Regulation (EC) No 2894/94 2 . The Union position shall therefore be established by the Council.

4.Legal basis

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement.’

The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the rules of international law governing the body in question. It also includes instruments that do not have a binding effect under international law, but that are ‘capable of decisively influencing the content of the legislation adopted by the EU legislature’ 3 .

The EEA Joint Committee is a body set up by an agreement, namely the EEA Agreement. The act, which the EEA Joint Committee is called upon to adopt, constitutes an act having legal effects. The envisaged act will be binding under international law in accordance with Articles 103 and 104 of the EEA Agreement.

The envisaged act does not supplement or amend the institutional framework of the Agreement. Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU in conjunction with Article 1(3) of Council Regulation (EC) No 2894/94.

The substantive legal basis for a decision under Article 218(9) TFEU in conjunction with Article 1(3) of Council Regulation (EC) No 2894/94 depends primarily on the substantive legal basis of the EU legal act to be incorporated into the EEA Agreement.

If the envisaged act pursues two aims or has two components and if one of those aims or components is identifiable as the main one, whereas the other is merely incidental, the decision under Article 218(9) TFEU must be founded on a single substantive legal basis, namely that required by the main or predominant aim or component.

Since the Joint Committee Decision incorporates into the EEA Agreement Commission Delegated Regulation (EU) 2022/804, as well as two related legal acts, it is appropriate to base this Council decision on the same substantive legal base as the acts that are incorporated. Therefore, the substantive legal basis of the proposed decision is Article 114 of the TFEU.

The legal basis of the proposed decision should be Article 114 TFEU, in conjunction with Article 218(9) TFEU and Article 1(3) of Council Regulation (EC) No 2894/94.

5.Publication of the envisaged act

As the act of the EEA Joint Committee will amend Annex IX (Financial services) to the EEA Agreement, it is appropriate to publish it in the Official Journal of the European Union after its adoption.

2026/0079 (NLE)

Proposal for a

COUNCIL DECISION

on the position to be adopted, on behalf of the European Union, within the EEA Joint Committee concerning an amendment to Annex IX (Financial services) to the EEA Agreement

(Supervision of certain benchmark administrators by ESMA)

(Text with EEA relevance)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 in conjunction with Article 218(9) thereof,

Having regard to Council Regulation (EC) No 2894/94 of 28 November 1994 concerning arrangements for implementing the Agreement on the European Economic Area 4 , and in particular Article 1(3) thereof,

Having regard to the proposal from the European Commission,

Whereas:

HAS ADOPTED THIS DECISION:

Article 1

The position to be adopted, on behalf of the Union, within the EEA Joint Committee on the proposed amendment of Annex IX (Financial services) to the EEA Agreement, shall be based on the draft decision of the EEA Joint Committee attached to this Decision.

Article 2

This Decision shall enter into force on the date of its adoption.

Done at Brussels,

(1)    Commission Delegated Regulation (EU) 2022/804 of 16 February 2022 supplementing Regulation (EU) 2016/1011 of the European Parliament and of the Council by specifying rules of procedure for measures applicable to the supervision by the European Securities Markets Authority of certain benchmark administrators, OJ L 145, 24.5.2022, p. 7.

(2)    Council Regulation (EC) No 2894/94 of 28 November 1994 concerning arrangements for implementing the Agreement on the European Economic Area, OJ L 305, 30.11.1994, p. 6.

(3)    Judgment of the Court of Justice of 7 October 2014, Germany v Council, C-399/12, ECLI:EU:C:2014:2258, paragraphs 61 to 64.

(4)    OJ L 305, 30.11.1994, p. 6.

(5)    OJ L 1, 3.1.1994, p. 3.

(6)    Commission Delegated Regulation (EU) 2022/804 of 16 February 2022 supplementing Regulation (EU) 2016/1011 of the European Parliament and of the Council by specifying rules of procedure for measures applicable to the supervision by the European Securities Markets Authority of certain benchmark administrators, OJ L 145, 24.5.2022, p. 7.

EUROPEAN COMMISSION

Brussels, 31.3.2026

COM(2026) 143 final

ANNEX

to the

Proposal for a

COUNCIL DECISION

on the position to be adopted, on behalf of the European Union, within the EEA Joint Committee concerning an amendment to Annex IX (Financial services) to the EEA Agreement









(Supervision of certain benchmark administrators by ESMA)

ANNEX

DRAFT DECISION OF THE EEA JOINT COMMITTEE

No […]

of […]

amending Annex IX (Financial services) to the EEA Agreement

THE EEA JOINT COMMITTEE,

Having regard to the Agreement on the European Economic Area (“the EEA Agreement”), and in particular Article 98 thereof,

Whereas:

(1)Commission Delegated Regulation (EU) 2022/804 of 16 February 2022 supplementing Regulation (EU) 2016/1011 of the European Parliament and of the Council by specifying rules of procedure for measures applicable to the supervision by the European Securities Markets Authority of certain benchmark administrators 1  is to be incorporated into the EEA Agreement.

(2)Commission Delegated Regulation (EU) 2022/805 of 16 February 2022 supplementing Regulation (EU) 2016/1011 of the European Parliament and of the Council by specifying fees applicable to the supervision by the European Securities Markets Authority of certain benchmark administrators 2  is to be incorporated into the EEA Agreement.

(3)Commission Delegated Regulation (EU) 2024/1705 of 11 March 2024 amending Delegated Regulation (EU) 2022/805 as regards harmonisation of certain aspects of fees charged by the European Securities and Markets Authority to certain benchmark administrators 3 is to be incorporated into the EEA Agreement.

(4)Annex IX to the EEA Agreement should therefore be amended accordingly,

HAS ADOPTED THIS DECISION:

Article 1

Annex IX to the EEA Agreement shall be amended as follows:

1.The following is inserted after point 31lzb (Commission Implementing Regulation (EU) 2021/1848):

‘31lzc. 32022 R 0804: Commission Delegated Regulation (EU) 2022/804 of 16 February 2022 supplementing Regulation (EU) 2016/1011 of the European Parliament and of the Council by specifying rules of procedure for measures applicable to the supervision by the European Securities Markets Authority of certain benchmark administrators (OJ L 145, 24.5.2022, p. 7).

The provisions of the Delegated Regulation shall, for the purposes of this Agreement, be read with the following adaptations:

(a)In Article 2(1), the words “and, as regards the EFTA States, the EFTA Surveillance Authority” shall be inserted after the word “ESMA”.

(b)In Article 3:

(i)in paragraphs 1 and 6, the words “and, as the case may be, the EFTA Surveillance Authority” shall be inserted after the word “ESMA”;

(ii) in paragraph 2, the following subparagraph shall be inserted:

“As regards the EFTA States, when a file is incomplete, ESMA shall inform the EFTA Surveillance Authority thereof. The EFTA Surveillance Authority shall make a reasoned request for additional documents to the investigation officer.”;

(iii)in paragraph 3, the words “or, as regards the EFTA States, the EFTA Surveillance Authority” shall be inserted after the word “it”;

(iv)in paragraph 4, the following subparagraph shall be inserted:

“As regards the EFTA States, where ESMA does not agree with the findings of the investigation officer, it shall inform the EFTA Surveillance Authority thereof. The EFTA Surveillance Authority shall submit a new statement of findings to the person subject to investigation. That statement of findings shall set a time limit of at least four weeks within which the person subject to investigation may make written submissions. ESMA, before preparing a draft for the EFTA Surveillance Authority, or the EFTA Surveillance Authority shall not be obliged to take into account written submissions received after the expiry of that time limit for adopting a decision on the existence of an infringement and on supervisory measures and the imposition of a fine in accordance with Articles 48e and 48f of Regulation (EU) 2016/1011.”;

(v)in paragraph 5, the following subparagraph shall be inserted:

“As regards the EFTA States, where ESMA agrees with all or some of the findings of the investigation officer, it shall inform the EFTA Surveillance Authority thereof. The EFTA Surveillance Authority shall inform the person subject to investigation accordingly. Such communication shall set a time limit of at least two weeks in case ESMA agrees with all of the findings, and at least four weeks in case ESMA does not agree with all of the findings, within which period the person subject to investigation may make written submissions. ESMA, before preparing a draft for the EFTA Surveillance Authority, or the EFTA Surveillance Authority shall not be obliged to take into account written submissions received after the expiry of that time limit for adopting a decision on the existence of an infringement and on supervisory measures and the imposition of a fine in accordance with Articles 48e and 48f of Regulation (EU) 2016/1011.”;

(vi)in paragraph 7, the words “or, as the case may be, the EFTA Surveillance Authority” shall be inserted after the word “ESMA”.

(c)In Article 4:

(i)in paragraph 1, the words “or, as the case may be, the EFTA Surveillance Authority” shall be inserted after the word “ESMA”;

(ii)in paragraph 4, the words “and, as regards the EFTA States, the EFTA Surveillance Authority” shall be inserted after the word “ESMA”.

(d)In Article 5:

(i)in paragraph 1, paragraph 2, first and second subparagraphs, paragraph 3, first subparagraph and paragraph 4, the words “or, as the case may be, the EFTA Surveillance Authority, shall be inserted after the word “ESMA”;

(ii)in paragraph 2, third and fourth subparagraph, the words “and, as the case may be, the EFTA Surveillance Authority” shall be inserted after the word “ESMA”;

(iii)in paragraph 3, the following subparagraph shall be inserted after the second subparagraph:

“As regards the EFTA States, where ESMA considers, after having heard the person subject to the interim decision, that an infringement of the provisions referred to in Article 38g(1) of Regulation (EU) No 600/2014 has been committed by the person subject to the interim decision, it shall inform the EFTA Surveillance Authority thereof. The EFTA Surveillance Authority shall adopt a confirmatory decision imposing one or more supervisory measures laid down in Article 48e of Regulation (EU) 2016/1011. The EFTA Surveillance Authority shall immediately notify that decision to the persons subject to the interim decision.”.

(e)In Article 6:

(i)the words “and, as the case may be, the EFTA Surveillance Authority” shall be inserted after the first use of the word “ESMA”;

(ii)the words “or, as the case may be, the EFTA Surveillance Authority” shall be inserted after the second use of the word “ESMA”.

(f)In Article 7:

(i)in paragraph 3, the words “and, as regards the EFTA States, the EFTA Surveillance Authority” shall be inserted after the first use of the word “ESMA”;

(ii)in paragraph 3, the words “or, as the case may be, the EFTA Surveillance Authority” shall be inserted after the second use of the word “ESMA”;

(iii)in paragraph 5, the following subparagraph is inserted:

“The limitation period for imposing fines and periodic penalty payments shall be suspended for as long as the decision of the EFTA Surveillance Authority is subject to proceedings pending before the EFTA Court, in accordance with Article 36 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice.”

(g)In Article 8, as regards the EFTA States:

(i)in paragraphs 1 and 3, the words “or, as the case may be, the EFTA Surveillance Authority” shall be inserted after the word “ESMA”;

(ii)in paragraph 5, the words “or, as regards the EFTA States, a review by the EFTA Court in accordance with Article 35 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice” shall be inserted after the words “Regulation (EU) 2016/1011”.’

2.The following is inserted after point 31lzc (Commission Delegated Regulation (EU) 2022/804):

‘31lzd. 32022 R 0805: Commission Delegated Regulation (EU) 2022/805 of 16 February 2022 supplementing Regulation (EU) 2016/1011 of the European Parliament and of the Council by specifying fees applicable to the supervision by the European Securities Markets Authority of certain benchmark administrators (OJ L 145, 24.5.2022, p. 14), as amended by:

-32024 R 1705: Commission Delegated Regulation (EU) 2024/1705 of 11 March 2024 (OJ L, 2024/1705, 18.6.2024).

The provisions of the Delegated Regulation shall, for the purposes of this Agreement, be read with the following adaptations:

(a)In Article 1, Article 2a, point b and Articles 4(3), 5, 8(2), 9 and 10, the words “or, as the case may be, the EFTA Surveillance Authority” shall be inserted after the word “ESMA”.

(b)In Article 3(3), the words “or, as the case may be, the EFTA Surveillance Authority’s debit note” shall be inserted after the words “ESMA’s debit note”.

(c)In Article 5, the words “or, as the case may be, the EFTA Surveillance Authority’s relevant debit note” shall be inserted after the words “ESMA’s relevant debit note”;

(d)In Article 7:

(i)in paragraph 2, the words “or, as regards the EFTA States, the default interest outlined in paragraph 3 - 6 of this Article” shall be inserted after the words “the Council”;

(ii)the following paragraphs shall be inserted after paragraph 2:

“3. Without prejudice to any specific provisions deriving from the application of specific regulations, any amount receivable not repaid on the deadline shall bear interest in accordance with paragraphs 4 and 5 of this Article.

4. The interest rate for amounts receivable not repaid on the deadline shall be the rate applied by the European Central Bank to its principal refinancing operations, as published in the C series of the Official Journal of the European Union, in force on the first calendar day of the month in which the deadline falls, increased by:

(a)eight percentage points where the obligating event is a supply contract or a service contract;

(b)three and a half percentage points in all other cases.

5. Interest shall be calculated from the calendar day following the deadline up to the calendar day on which the debt is repaid in full.

The recovery order corresponding to the amount of the default interest shall be issued when that interest is actually received.

6. In cases where the overall interest rate would be negative it shall be set at zero percent.”.

(e)In Article 8, the words “or, as regards the EFTA States, the invoice from the EFTA Surveillance Authority” shall be inserted after the words “ESMA’s invoice”.

(f)In Article 10(2), the following subparagraph shall be inserted:

“When, as regards administrators of critical benchmarks established in the EFTA States, the EFTA Surveillance Authority is to reimburse a national competent authority, ESMA shall without delay make available the amounts to be reimbursed to to the EFTA Surveillance Authority for that purpose.”.’

Article 2

The texts of Delegated Regulations (EU) 2022/804, (EU) 2022/805 and (EU) 2024/1705 in the Icelandic and Norwegian languages, to be published in the EEA Supplement to the Official Journal of the European Union, shall be authentic.

Article 3

This Decision shall enter into force on […], provided that all the notifications under Article 103(1) of the EEA Agreement have been made 4*, or on the day of the entry into force of Decision of the EEA Joint Committee No .../... of […] 5 incorporating {Regulation (EU) 2019/2175} into the EEA Agreement], whichever is the later.

Article 4

This Decision shall be published in the EEA Section of, and in the EEA Supplement to, the Official Journal of the European Union.

Done at Brussels,

   For the EEA Joint Committee

   The President

   The Secretaries

   To the EEA Joint Committee

(1)    OJ L 145, 24.5.2022, p. 7.

(2)    OJ L 145, 24.5.2022, p. 14.

(3)    OJ L, 2024/1705, 18.6.2024, ELI: http://data.europa.eu/eli/reg_del/2024/1705/oj  

(4) *    [No constitutional requirements indicated.] [Constitutional requirements indicated.]

(5)    OJ L