EUROPEAN COMMISSION
Brussels, 4.10.2023
COM(2023) 565 final
2023/0340(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 II (Technical regulations, standards, testing and certification) to the EEA Agreement
(Market Surveillance and Compliance of Products Regulation)
(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 II (Technical Regulations, standards, testing and certification) 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 II (Technical Regulations, standards, testing and certification) to the EEA Agreement.
The purpose of the envisaged act is to incorporate Regulation on market surveillance and compliance of products, 1 and Commission Implementing Regulation specifying the details of the statistical data to be submitted by the Member States as regards controls on products entering the Union market with regard to product safety and compliance, 2 and Commission Implementing Regulation specifying the procedures for the designation of Union testing facilities for the purposes of market surveillance and verification of product compliance 3 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 introduces adaptations for the EEA EFTA States, which 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.
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’ 4 .
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 in conjunction with Article 1(3) of Council Regulation 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 Regulation (EU) 2019/1020 of the European Parliament and of the Council of 20 June 2019 (OJ L 169, 25.6.2019, p. 1) into the EEA Agreement, 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 are Article 33 and 114 of the TFEU.
4.3.Conclusion
The legal basis of the proposed decision should be Articles 33 and 114 TFEU, in conjunction with Article 218(9) TFEU and Article 1(3) of Council Regulation No 2894/94 concerning arrangements for implementing the EEA Agreement.
5.Publication of the envisaged act
As the act of the EEA Joint Committee will amend Annex II (Technical Regulations, standards, testing and certification) to the EEA Agreement, it is appropriate to publish it in the Official Journal of the European Union after its adoption.
2023/0340 (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 II (Technical regulations, standards, testing and certification) to the EEA Agreement
(Market Surveillance and Compliance of Products Regulation)
(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 Articles 33 and 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 5 , 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 6 ('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 II (Technical regulations, standards, testing and certification) to the EEA Agreement.
(3)Regulation (EU) 2019/1020 of the European Parliament and of the Council 7 and Commission Implementing Regulation (EU) 2021/1121 8 and Commission Implementing Regulation (EU) 2022/1267 9 should be incorporated into the EEA Agreement.
(4)Annex II (Technical regulations, standards, testing and certification) 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 to Annex II (Technical regulations, standards, testing and certification) 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, 4.10.2023
COM(2023) 565 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 II (Technical regulations, standards, testing and certification) to the EEA Agreement
(Market Surveillance and Compliance of Products Regulation)
ANNEX
DRAFT DECISION OF THE EEA JOINT COMMITTEE
No […]
of […]
amending Annex II (Technical regulations, standards, testing and certification) 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) 2019/1020 of the European Parliament and of the Council of 20 June 2019 on market surveillance and compliance of products and amending Directive 2004/42/EC and Regulations (EC) No 765/2008 and (EU) No 305/2011 1 is to be incorporated into the EEA Agreement.
(2)Commission Implementing Regulation (EU) 2021/1121 of 8 July 2021 specifying the details of the statistical data to be submitted by the Member States as regards controls on products entering the Union market with regard to product safety and compliance 2 is to be incorporated into the EEA Agreement.
(3)Commission Implementing Regulation (EU) 2022/1267 of 20 July 2022 specifying the procedures for the designation of Union testing facilities for the purposes of market surveillance and verification of product compliance in accordance with Regulation (EU) 2019/1020 of the European Parliament and of the Council 3 is to be incorporated into the EEA Agreement.
(4)Annex II to the EEA Agreement should therefore be amended accordingly,
HAS ADOPTED THIS DECISION:
Article 1
Annex II to the EEA Agreement shall be amended as follows:
1.The following indent is added in point 9 (Directive 2004/42/EC of the European Parliament and of the Council) of Chapter XVII:
‘-32019 R 1020: Regulation (EU) 2019/1020 of the European Parliament and of the Council of 20 June 2019 (OJ L 169, 25.6.2019, p. 1).’
2.Point 3b (Regulation (EC) No 765/2008 of the European Parliament and of the Council) of Chapter XIX is amended as follows:
(i)The following is added:
‘, as amended by:
-32019 R 1020: Regulation (EU) 2019/1020 of the European Parliament and of the Council of 20 June 2019 (OJ L 169, 25.6.2019, p. 1).’;
(ii)Adaptation (b) is deleted.
3.The following is inserted after point 3u (Regulation (EU) 2019/515 of the European Parliament and of the Council) of Chapter XIX:
‘3v.32019 R 1020: Regulation (EU) 2019/1020 of the European Parliament and of the Council of 20 June 2019 on market surveillance and compliance of products and amending Directive 2004/42/EC and Regulations (EC) No 765/2008 and (EU) No 305/2011 (OJ L 169, 25.6.2019, p. 1).
The provisions of the Regulation shall, for the purposes of this Agreement, be read with the following adaptations:
(a) Unless otherwise specified, references to Union law shall be understood as referring to the EEA Agreement.
(b) Article 3 shall be amended as follows:
(i) in paragraph 24, the words “or the customs administrations of the EFTA States responsible for applying the customs legislation and any other authorities of the EFTA States empowered under national law to apply certain customs legislation” shall be added after the reference to Regulation (EU) No 952/2013.
(ii) in paragraph 25, the words “or, as regards the EFTA States, the corresponding procedures in accordance with their respective national customs legislation” shall be added after the reference to Regulation (EU) No 952/2013.
(iii) in paragraph 26, the words “or within the customs territories of the EFTA States” shall be added after the words “customs territory of the Union”.
(c) In paragraph 2 of Article 14, the words “, including the principles of the Charter of Fundamental Rights of the European Union” shall not apply to the EFTA States.
(d) In paragraphs 3 and 4 of Article 25 and in the second subparagraph of Article 28(4), references to Regulation (EU) No 952/2013 of the European Parliament and of the Council shall, as regards the EFTA States, be understood to refer to corresponding provisions of national customs law.
(e) As regards Liechtenstein, obligations on authorities designated under Article 25(1) shall be governed by national law.
(f) Products exported from Liechtenstein to the other Contracting Parties may be subjected to controls according to Articles 25 to 28 when entering the EEA.
(g) Articles 25(2), (4), and (6) and 34(6) shall not apply to Liechtenstein.
(h) Article 26(4) shall not apply to the EFTA States.
(i) In Article 28, as regards the EFTA States, the words “the customs data-processing system” shall read “any notification issued to the affected parties in accordance with national procedures”.
(j) The EFTA States shall participate fully, without the right to vote, in the Union Product Compliance Network in accordance with Articles 29-31. The EFTA Surveillance Authority shall participate as observer.
3va.32021 R 1121: Commission Implementing Regulation (EU) 2021/1121 of 8 July 2021 specifying the details of the statistical data to be submitted by the Member States as regards controls on products entering the Union market with regard to product safety and compliance (OJ L 243, 9.7.2021, p. 37).
The provisions of the Implementing Regulation shall, for the purposes of this Agreement, be read with the following adaptations:
(a)In paragraphs 1(c) and 4 of Article 1, references to Commission Delegated Regulation (EU) 2015/2446 shall, as regards the EFTA States, be understood to refer to corresponding provisions of national customs law.
(b)In point (c)(ix) of Article 1, the words “Union legislation” shall be replaced by the words “provisions of the EEA Agreement”.
3vb.32022 R 1267: Commission Implementing Regulation (EU) 2022/1267 of 20 July 2022 specifying the procedures for the designation of Union testing facilities for the purposes of market surveillance and verification of product compliance in accordance with Regulation (EU) 2019/1020 of the European Parliament and of the Council (OJ L 192, 21.7.2022, p. 21).’
4.The following indent is added in point 1 (Regulation (EU) No 305/2011 of the European Parliament and of the Council) of Chapter XXI:
‘-32019 R 1020: Regulation (EU) 2019/1020 of the European Parliament and of the Council of 20 June 2019 (OJ L 169, 25.6.2019, p. 1).’
Article 2
The text of Regulation (EU) 2019/1020 and Implementing Regulations (EU) 2021/1121 and (EU) 2022/1267 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*.
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
[…]