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Document 52025PC0715
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), Annex XII (Free movement of capital) and Annex XXII (Company law) to the EEA Agreement (Framework for the recovery and resolution of central counterparties)
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), Annex XII (Free movement of capital) and Annex XXII (Company law) to the EEA Agreement (Framework for the recovery and resolution of central counterparties)
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), Annex XII (Free movement of capital) and Annex XXII (Company law) to the EEA Agreement (Framework for the recovery and resolution of central counterparties)
COM/2025/715 final
EUROPEAN COMMISSION
Brussels, 26.11.2025
COM(2025) 715 final
2025/0370(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), Annex XII (Free movement of capital) and Annex XXII (Company law) to the EEA Agreement
(Framework for the recovery and resolution of central counterparties)
(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), Annex XII (Free movement of capital) and Annex XXII (Company law) to the EEA Agreement
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 EEA Agreement entered into force on 1 January 1994. The Union together with its Member States is a party to the EEA 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 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.
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 Annex IX (Financial services), Annex XII (Free movement of capital) and Annex XXII (Company law) to the EEA Agreement.
The purpose of the envisaged act is to incorporate Regulation (EU) 2021/23 on a framework for the recovery and resolution of central counterparties 1 , as well as three related legal acts, into the EEA Agreement.
The envisaged acts 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 framework for the recovery and resolution of central counterparties, 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
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’ 3 .
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 (EC) No 2894/94.
4.2.Substantive legal basis
4.2.1.Principles
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.
4.2.2.Application to the present case
Since the Joint Committee Decision incorporates into the EEA Agreement Regulation (EU) 2021/23, as well as three related legal acts, it is appropriate to base this Council decision on the same substantive legal base as the act that is incorporated. Therefore, the substantive legal basis of the proposed decision is Article 114 of the TFEU.
4.3.Conclusion
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), Annex XII (Free movement of capital) and Annex XXII (Company law) to the EEA Agreement, it is appropriate to publish it in the Official Journal of the European Union after its adoption.
2025/0370 (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), Annex XII (Free movement of capital) and Annex XXII (Company law) to the EEA Agreement
(Framework for the recovery and resolution of central counterparties)
(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:
(1)The Agreement on the European Economic Area 5 ('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, Annex IX (Financial services), Annex XII (Free movement of capital) and Annex XXII (Company law) to the EEA Agreement.
(3)Regulation (EU) 2021/23 of the European Parliament and of the Council 6 , as well as three related legals acts, should be incorporated into the EEA Agreement.
(4)Annex IX (Financial services), Annex XII (Free movement of capital) and Annex XXII (Company law) to the EEA Agreement should therefore be amended accordingly.
(5)The position of the Union within the EEA Joint Committee should therefore be based on the attached draft Decision,
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), Annex XII (Free movement of capital) and Annex XXII (Company law) 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,
For the Council
The President
EUROPEAN COMMISSION
Brussels, 26.11.2025
COM(2025) 715 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), Annex XII (Free movement of capital) and Annex XXII (Company law) to the EEA Agreement
(Framework for the recovery and resolution of central counterparties)
ANNEX
DRAFT DECISION OF THE EEA JOINT COMMITTEE
No […]
of […]
amending Annex IX (Financial services), Annex XII (Free movement of capital) and Annex XXII (Company law) 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)Regulation (EU) 2021/23 of the European Parliament and of the Council of 16 December 2020 on a framework for the recovery and resolution of central counterparties and amending Regulations (EU) No 1095/2010, (EU) No 648/2012, (EU) No 600/2014, (EU) No 806/2014 and (EU) 2015/2365 and Directives 2002/47/EC, 2004/25/EC, 2007/36/EC, 2014/59/EU and (EU) 2017/1132 1 is to be incorporated into the EEA Agreement.
(2)Regulation (EU) 2021/168 of the European Parliament and of the Council of 10 February 2021 amending Regulation (EU) 2016/1011 as regards the exemption of certain third-country spot foreign exchange benchmarks and the designation of replacements for certain benchmarks in cessation, and amending Regulation (EU) No 648/2012 2 , which was incorporated into the EEA Agreement by Decision of the EEA Joint Committee No 388/2021 of 10 December 2021 3 , should also be added as an amending act to Regulation (EU) No 648/2012 of the European Parliament and of the Council in Annex IX to the EEA Agreement.
(3)Commission Delegated Regulation (EU) 2023/450 of 25 November 2022 supplementing Regulation (EU) 2021/23 of the European Parliament and of the Council with regard to regulatory technical standards specifying the order in which CCPs are to pay the recompense referred to in Article 20(1) of Regulation (EU) 2021/23, the maximum number of years during which those CCPs are to use a share of their annual profits for such payments to possessors of instruments recognising a claim on their future profits and the maximum share of those profits that is to be used for those payments 4 is to be incorporated into the EEA Agreement.
(4)Commission Delegated Regulation (EU) 2023/451 of 25 November 2022 specifying the factors to be taken into consideration by the competent authority and the supervisory college when assessing the recovery plan of central counterparties 5 is to be incorporated into the EEA Agreement.
(5)Commission Delegated Regulation (EU) 2023/840 of 25 November 2022 supplementing Regulation (EU) 2021/23 of the European Parliament and of the Council with regard to regulatory technical standards specifying the methodology for calculation and maintenance of the additional amount of pre-funded dedicated own resources to be used in accordance with Article 9(14) of that Regulation 6 is to be incorporated into the EEA Agreement.
(6)Annexes IX, XII and XXII 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 indent is added in points 19b (Directive 2014/59/EU of the European Parliament and of the Council), 31bh (Regulation (EU) 2015/2365 of the European Parliament and of the Council), and 31i (Regulation (EU) No 1095/2010 of the European Parliament and of the Council):
‘-32021 R 0023: Regulation (EU) 2021/23 of the European Parliament and of the Council of 16 December 2020 (OJ L 22, 22.1.2021, p. 1).’
2.Point 31baa (Regulation (EU) No 600/2014 of the European Parliament and of the Council) is amended as follows:
(i)the following indent is added:
‘-32021 R 0023: Regulation (EU) 2021/23 of the European Parliament and of the Council of 16 December 2020 (OJ L 22, 22.1.2021, p. 1).’;
3.Point 31bc (Regulation (EU) No 648/2012 of the European Parliament and of the Council) is amended as follows:
(i)the following indents are added:
‘-32021 R 0023: Regulation (EU) 2021/23 of the European Parliament and of the Council of 16 December 2020 (OJ L 22, 22.1.2021, p. 1),
-32021 R 0168: Regulation (EU) 2021/168 of the European Parliament and of the Council of 10 February 2021 (OJ L 49, 12.2.2021, p. 6).’;
(ii)the following adaptation is inserted after adaptation (fa):
‘(faa) In Article 6b:
(i) in the first subparagraph of paragraphs 1, 3 and 10, the words “and, as regards the EFTA States, the EFTA Surveillance Authority” shall be inserted after the words “the Commission”;
(ii) in the third subparagraph of paragraph 1, the second subparagraph of paragraph 3 and the third and fifth subparagraphs of paragraph 10, the words “and the EFTA Surveillance Authority” shall be inserted after the words “the Commission”;
(iii) in paragraph 5, the following subparagraphs shall be added:
“The EFTA Surveillance Authority shall, without undue delay after receipt of the request referred to in paragraph 1, on the basis of the reasons and evidence provided by the authority referred to in paragraph 1, either suspend the clearing obligations for the specific classes of OTC derivatives by way of a decision, or reject the requested suspension.
In adopting the decision referred to in the fifth subparagraph, the EFTA Surveillance Authority shall take into account the opinion issued by ESMA referred to in paragraph 2 of this Article, the resolution objectives referred to in Article 21 of Regulation (EU) 2021/23, the criteria set out in Article 5(4) and (5) of this Regulation regarding those OTC derivative classes and the necessity of the suspension to avoid or address a serious threat to financial stability or the orderly functioning of financial markets in the European Economic Area.
Where the EFTA Surveillance Authority rejects the requested suspension, it shall provide reasons therefor in writing to the requesting authority referred to in the first subparagraph of paragraph 1 and to ESMA. The EFTA Surveillance Authority shall immediately inform the Standing Committee of the EFTA States thereof and forward it the reasons provided to the requesting authority referred to in the first subparagraph of paragraph 1 and to ESMA. Such information shall not be made public.
The Commission and the EFTA Surveillance Authority shall cooperate with a view to agreeing on identical positions as regards the suspension of the clearing obligation and, where applicable, the trading obligation and as regards the extension of the suspension according to paragraph 9.”;
(iv) in paragraphs 6 and 10, as regards the EFTA States, the words “implementing act” shall read “decision of the EFTA Surveillance Authority”;
(v) in paragraph 9, as regards the EFTA States, the words “the Commission may, by way of an implementing act,” shall read “the EFTA Surveillance Authority may, by way of a decision,”;
(vi) in the fifth subparagraph of paragraph 10, the words “and to the Standing Committee of the EFTA States” shall be inserted after the word “Council”.
(iii)the following adaptation is inserted after adaptation (h):
‘(ha) In Article 13a, as regards the EFTA States, the words “13 February 2021” shall read “the date of entry into force of Decision of the EEA Joint Committee No …/… of [this decision].’.
4.The following is inserted after point 31ca (Commission Decision 2001/528/EC):
‘31cb.32021 R 0023: Regulation (EU) 2021/23 of the European Parliament and of the Council of 16 December 2020 on a framework for the recovery and resolution of central counterparties and amending Regulations (EU) No 1095/2010, (EU) No 648/2012, (EU) No 600/2014, (EU) No 806/2014 and (EU) 2015/2365 and Directives 2002/47/EC, 2004/25/EC, 2007/36/EC, 2014/59/EU and (EU) 2017/1132 (OJ L 22, 22.1.2021, p. 1).
The provisions of the Regulation shall, for the purposes of the Agreement, be read with the following adaptations:
(a) Notwithstanding the provisions of Protocol 1 to this Agreement, and unless otherwise provided for in this Agreement, the terms Member States, resolution authorities and competent authorities shall be understood to include, in addition to their meaning in the Regulation, the EFTA States, their resolution authorities and their competent authorities, respectively.
(b) References to the powers of ESMA under Article 19 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council in the Regulation shall be understood as referring, in the cases provided for in and in accordance with point 31i of this Annex, to the powers of the EFTA Surveillance Authority as regards the EFTA States.
(c) References to members of the European System of Central Banks (ESCB)” or to “central banks” shall be understood to include, in addition to their meaning in the Regulation, the national central banks of the EFTA States, except as regards Liechtenstein for which such references shall not apply.
(d) References to Union law shall be understood as referring to the EEA Agreement.
(e) In point (30) of Article 2, the words “Article 107(1) of the Treaty on the Functioning of the European Union (TFEU)” shall be replaced by the words “Article 61(1) of the EEA Agreement”.
(f) References to the Union State aid framework as defined in point (39) of Article 2 shall be understood as referring to the State aid framework established by Chapter 2 of Part IV of the EEA Agreement, including the relevant Annexes and Protocols to the EEA Agreement and, as regards the EFTA States, the relevant provisions of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice.
(g) In point (k) of Article 4(2), the words “Union currencies” shall be replaced by the words “official currencies of the Contracting Parties to the EEA Agreement”.
(h) In Article 36(1), as regards the EFTA States, the word “Commission” shall read “EFTA Surveillance Authority”.
(i) In Article 43(2), the word “Union” shall be replaced by “the competition rules of the EEA Agreement”.
(j) In Article 73:
(i) in point (b) of paragraph 1, the words “and the EFTA Surveillance Authority” shall be inserted after the word “EBA”;
(ii) in point (b) of paragraph 5, the words “the EFTA Surveillance Authority,” shall be inserted after the word “ESMA”.
(k) Article 76 shall not apply.
(l) In Article 77(1), as regards the EFTA States, the words “as referred to in Article 76(1)” shall not apply.
(m) In Article 79:
(i) in paragraph 1, as regards the EFTA States, the words “as referred to in Article 76(1) and “as provided for in Article 76(1)” shall not apply;
(ii) the following subparagraph shall be added in paragraph 2:
“The conclusion of such cooperation arrangements shall not be mandatory for competent authorities and resolution authorities of the EFTA States.”.’
5.The following points are inserted after point 31cb (Regulation (EU) 2021/23 of the European Parliament and of the Council):
‘31cba. 32023 R 0450: Commission Delegated Regulation (EU) 2023/450 of 25 November 2022 supplementing Regulation (EU) 2021/23 of the European Parliament and of the Council with regard to regulatory technical standards specifying the order in which CCPs are to pay the recompense referred to in Article 20(1) of Regulation (EU) 2021/23, the maximum number of years during which those CCPs are to use a share of their annual profits for such payments to possessors of instruments recognising a claim on their future profits and the maximum share of those profits that is to be used for those payments (OJ L 67, 3.3.2023, p. 5).
31cbb. 32023 R 0451: Commission Delegated Regulation (EU) 2023/451 of 25 November 2022 specifying the factors to be taken into consideration by the competent authority and the supervisory college when assessing the recovery plan of central counterparties (OJ L 67, 3.3.2023, p. 7).
31cbc. 32023 R 0840: Commission Delegated Regulation (EU) 2023/840 of 25 November 2022 supplementing Regulation (EU) 2021/23 of the European Parliament and of the Council with regard to regulatory technical standards specifying the methodology for calculation and maintenance of the additional amount of pre-funded dedicated own resources to be used in accordance with Article 9(14) of that Regulation (OJ L 107, 21.4.2023, p. 29).’
Article 2
The following indent is added in point 4 (Directive 2002/47/EC of the European Parliament and of the Council) of Annex XII to the EEA Agreement:
‘-32021 R 0023: Regulation (EU) 2021/23 of the European Parliament and of the Council of 16 December 2020 (OJ L 22, 22.1.2021, p. 1).’
Article 3
The following indent is added in points 1 (Directive (EU) 2017/1132 of the European Parliament and of the Council), 10d (Directive 2004/25/EC of the European Parliament and of the Council) and 10g (Directive 2007/36/EC of the European Parliament and of the Council) of Annex XXII to the EEA Agreement:
‘-32021 R 0023: Regulation (EU) 2021/23 of the European Parliament and of the Council of 16 December 2020 (OJ L 22, 22.1.2021, p. 1).’
Article 4
The texts of Regulation (EU) 2021/23 and Delegated Regulations (EU) 2023/450, (EU) 2023/451 and (EU) 2023/840 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 5
This Decision shall enter into force on […], provided that all the notifications under Article 103(1) of the EEA Agreement have been made 7 *, or on the day of the entry into force of Decision of the EEA Joint Committee No .../... of […] 8 [incorporating {Regulation (EU) 2019/2099} into the EEA Agreement], or on the day of the entry into force of Decision of the EEA Joint Committee No …/… of […] 9 [incorporating {Directive (EU) 2019/2121} into the EEA Agreement] whichever is the latest.
Article 6
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
[…]