EUROPEAN COMMISSION

Brussels, 5.7.2021

COM(2021) 354 final

2021/0175(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 Protocol 31 to the EEA Agreement, on cooperation in specific fields outside of the four freedoms

(Budget line 07 20 03 01 - Social Security)

(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 Protocol 31 to the EEA Agreement, on cooperation in specific fields outside of the four freedoms

2.Context of the proposal

2.1.The EEA Agreement

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 Agreement entered into force on 1 January 1994. The European Union together with its Member States is a party to the Agreement.

2.2.The EEA Joint Committee

The EEA Joint Committee is responsible for the management of the EEA Agreement. It is a forum for exchanging views linked to functioning of the EEA Agreement. Its decisions are taken by consensus. In accordance with the Treaty of Lisbon, responsibility for coordinating EEA matters on the EU side is with the European External Action Service.

2.3.The envisaged act of the EEA Joint Committee

The EEA Joint Committee is expected to adopt the EEA Joint Committee Decision (‘the envisaged act’) regarding the amendment of Protocol 31 to the EEA Agreement, on cooperation in specific fields outside of the four freedoms.

The purpose of the envisaged act is to ensure continuation of the cooperation of the Contracting Parties to the EEA Agreement in Union actions funded from the general budget of the Union regarding the free movement of workers, coordination of social security schemes and measures for migrants, including migrants from third countries (Budget line 07 20 03 01), entered into the general budget of the European Union for the financial year 2021.

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 services submit the draft Decision of the EEA Joint Committee for adoption by the Council as the Union’s position. The Commission would hope to be able to present it in the EEA Joint Committee at the earliest possible opportunity.

The content and nature of the draft of the annexed Decision of the EEA Joint Committee go beyond what can be considered mere technical adaptations in the sense of the Council Regulation No 2894/94. The Union position shall therefore be established by the Council.

In line with the EU budgetary policy, any participation in an Union action can take place only once the corresponding financial contribution is paid. The payment can however take place once this draft Council Decision is adopted and the subsequent EU call for funds established by the European Commission is submitted to the EEA EFTA States.

Therefore, in order to bridge the period between 1st January 2021 and the reception of the respective payment, the draft Joint Committee Decision shall also be retroactively applicable from 1st January 2021. The retroactivity does not affect the rights and obligations of persons concerned and respects the principle of the legitimate expectations.

4.Legal basis

4.1.Procedural legal basis

4.1.1.Principles

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’ 1 .

4.1.2.Application to the present case

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 No 2894/94 concerning arrangements for implementing the Agreement on the European Economic Area.

4.2.Substantive legal basis

4.2.1.Principles

The substantive legal basis for a decision under Article 218(9) TFEU depends primarily on the objective and content of the envisaged act in respect of which a position is taken on the Union's behalf. 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.

With regard to an envisaged act that simultaneously pursues a number of objectives, or that has several components, which are inseparably linked without one being incidental to the other, the substantive legal basis of a decision under Article 218(9) TFEU will have to include, exceptionally, the various corresponding legal bases.

4.2.2.Application to the present case

The envisaged act pursues objectives and has components in the area of free movement of workers and coordination of social security schemes. The substantive legal basis shall therefore be Articles 46 and 48 TFEU.

4.3.Conclusion

The legal basis of the proposed decision should be Articles 46 and 48 TFEU, in conjunction with Article 218(9) TFEU and Article 1(3) of Council Regulation No 2894/94 concerning arrangements for implementing the Agreement on the European Economic Area.

5.Budgetary Implications

6.Publication of the envisaged act

As the act of the EEA Joint Committee will amend Protocol 31 to the EEA Agreement, on cooperation in specific fields outside of the four freedoms, it is appropriate to publish it in the Official Journal of the European Union after its adoption.

2021/0175 (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 Protocol 31 to the EEA Agreement, on cooperation in specific fields outside of the four freedoms

(Budget line 07 20 03 01 - Social Security)

(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 46 and 48 in conjunction with Article 218(9) thereof,

Having regard to Council Regulation (EC) 2894/94 of 28 November 1994 concerning arrangements for implementing the Agreement on the European Economic Area 2 , and in particular Article 1(3) thereof,

Having regard to the proposal from the European Commission,

Whereas:

(1)The Agreement on the European Economic Area 3 ('the EEA Agreement') entered into force on 1 January 1994.

(2)Pursuant to Article 98 of the EEA Agreement, the EEA Joint Committee may decide to amend, inter alia, Protocol 31 to the EEA Agreement.

(3)Protocol 31 to the EEA Agreement contains provisions on cooperation in specific fields outside the four freedoms.

(4)It is appropriate to continue the cooperation of the Contracting Parties to the EEA Agreement to include cooperation concerning free movement of workers, coordination of social security systems and measures for migrants, including migrants from third countries.

(5)Protocol 31 to the EEA Agreement should therefore be amended in order to allow for this extended cooperation to continue from 1 January 2021.

(6)The position of the Union within the EEA Joint Committee should be based on the attached draft decision,

HAS ADOPTED THIS DECISION:

Article 1

The position to be adopted, on the Union's behalf, within the EEA Joint Committee on the proposed amendment to Protocol 31 to the EEA Agreement, on cooperation in specific fields outside the four freedoms, 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)    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.

(2)    OJ L 305, 30.11.1994, p. 6–8.

(3)    OJ L 1, 3.1.1994, p. 3.

EUROPEAN COMMISSION

Brussels, 5.7.2021

COM(2021) 354 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 Protocol 31 to the EEA Agreement, on cooperation in specific fields outside of the four freedoms





(Budget line 07 20 03 01 - Social Security)

ANNEX

DECISION OF THE EEA JOINT COMMITTEE

No […]

of […]

amending Protocol 31 to the EEA Agreement,
on cooperation in specific fields outside the four freedoms

THE EEA JOINT COMMITTEE,

Having regard to the Agreement on the European Economic Area (“the EEA Agreement”), and in particular Articles 86 and 98 thereof,

Whereas:

(1)It is appropriate to continue the cooperation of the Contracting Parties to the EEA Agreement in Union actions funded from the general budget of the Union regarding the free movement of workers, coordination of social security schemes and measures for migrants, including migrants from third countries.

(2)It is appropriate that this cooperation should continue beyond 31 December 2020, irrespective of when this Decision is adopted or whether the fulfilment of constitutional requirements for this Decision, if any, is notified after 10 July 2021.

(3)Entities established in the EFTA States should be entitled to participate in activities, which start before the entry into force of this Decision. The costs incurred for such activities, the implementation of which starts after 1 January 2021, may be considered eligible under the same conditions as those applicable to costs incurred by entities established in the EU Member States provided that this Decision enters into force before the end of the action concerned.

(4)Protocol 31 to the EEA Agreement should therefore be amended in order to allow for that extended cooperation to take place from 1 January 2021,

HAS ADOPTED THIS DECISION:

Article 1

Article 5 of Protocol 31 to the EEA Agreement shall be amended as follows:

1.The following paragraph is inserted after paragraph 13:

‘14.The EFTA States shall, as from 1 January 2021, participate in the actions funded from the following budget line, entered into the general budget of the European Union for the financial year 2021:

-Budget line 07 20 03 01: “Free movement of workers, coordination of social security schemes and measures for migrants including migrants from third countries”.

The costs incurred for activities the implementation of which starts after 1 January 2021, may be considered eligible as from the beginning of the action under the grant agreement or the grаnt decision concerned provided that Decision of the EEA Joint Committee No XX/2021 of […][This decision] enters into force before the end of the action.’

2.In paragraph 5, the words ‘and in the actions funded from the budget line for the financial years 2014, 2015, 2016, 2017, 2018, 2019 and 2020 referred to in paragraph 13 as from 1 January 2014’ are replaced by the words ‘, in the actions funded from the budget line for the financial years 2014, 2015, 2016, 2017, 2018, 2019, 2020, and 2021 referred to in paragraph 13 as from 1 January 2014 and in the actions funded from the budget line for the financial year 2021 referred to in paragraph 14 as from 1 January 2021’.

3.In paragraphs 6 and 7, the words ‘paragraphs 8, 12 and 13’ are replaced by the words ‘paragraphs 8, 12, 13 and 14’.

Article 2

This Decision shall enter into force on the day following the last notification under Article 103(1) of the EEA Agreement 1*.

It shall apply from 1 January 2021.

Article 3

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