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Document 52023PC0095
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 I (Veterinary and phytosanitary matters) and Annex II (Technical regulations, standards, testing and certification) to the EEA Agreement (Fertilisers)
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 I (Veterinary and phytosanitary matters) and Annex II (Technical regulations, standards, testing and certification) to the EEA Agreement (Fertilisers)
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 I (Veterinary and phytosanitary matters) and Annex II (Technical regulations, standards, testing and certification) to the EEA Agreement (Fertilisers)
COM/2023/95 final
EUROPEAN COMMISSION
Brussels, 24.2.2023
COM(2023) 95 final
2023/0047(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 I (Veterinary and phytosanitary matters) and Annex II (Technical regulations, standards, testing and certification) to the EEA Agreement
(Fertilisers)
(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 amending Annex I (Veterinary and phytosanitary matters) and 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’) amending Annex I (Veterinary and phytosanitary matters) and Annex II (Technical regulations, standards, testing and certification) to the EEA Agreement.
The purpose of the envisaged act is to incorporate Regulation (EU) 2019/1009 of the European Parliament and of the Council of 5 June 2019 laying down rules on the making available on the market of EU fertilising products and amending Regulations (EC) No 1069/2009 and (EC) No 1107/2009 and repealing Regulation (EC) No 2003/2003 1 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 allows the EEA EFTA States to continue to apply their national limit values for cadmium in phosphate fertilisers existing at the date of entry into force of the EEA Joint Committee Decision until such time as harmonised limit values for cadmium content in phosphate fertilisers which are equal to or lower than those limit values become applicable in the European Economic Area.
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’ 2 .
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) 2019/1009 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 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 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 I (Veterinary and phytosanitary matters) and 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.
2023/0047 (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 I (Veterinary and phytosanitary matters) and Annex II (Technical regulations, standards, testing and certification) to the EEA Agreement
(Fertilisers)
(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 3 , 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 4 ('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 I (Veterinary and phytosanitary matters) and Annex II (Technical regulations, standards, testing and certification) to the EEA Agreement.
(3)Regulation (EU) 2019/1009 of the European Parliament and of the Council 5 is to be incorporated into the EEA Agreement.
(4)Annexes I and II 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 draft EEA Joint Committee Decision set out in the Annex to this 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 I (Veterinary and phytosanitary matters) and 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, 24.2.2023
COM(2023) 95 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 I (Veterinary and phytosanitary matters) and Annex II (Technical regulations, standards, testing and certification) to the EEA Agreement
(Fertilisers)
ANNEX
DRAFT DECISION OF THE EEA JOINT COMMITTEE
No […]
of […]
amending Annex I (Veterinary and phytosanitary matters) and 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) 2019/1009 of the European Parliament and of the Council of 5 June 2019 laying down rules on the making available on the market of EU fertilising products and amending Regulations (EC) No 1069/2009 and (EC) No 1107/2009 and repealing Regulation (EC) No 2003/2003 1 , as corrected by OJ L 83, 10.3.2022, p. 66 and OJ L 161, 16.6.2022, p. 121, is to be incorporated into the EEA Agreement.
(2)Commission Delegated Regulation (EU) 2021/1768 of 23 June 2021 amending, for the purpose of its adaptation to technical progress, Annexes I, II, III and IV to Regulation (EU) 2019/1009 of the European Parliament and of the Council laying down rules on the making available on the market of EU fertilising products 2 is to be incorporated into the EEA Agreement.
(3)Commission Decision (EU) 2020/1178 of 27 July 2020 on the national provisions notified by the Kingdom of Denmark pursuant to Article 114(4) of the Treaty of the Functioning of the European Union concerning cadmium content in fertilisers 3 is to be incorporated into the EEA Agreement.
(4)Commission Decision (EU) 2020/1184 of 17 July 2020 on the national provisions notified by Hungary pursuant to Article 114(4) of the Treaty on the Functioning of the European Union concerning the cadmium content in phosphate fertilisers 4 is to be incorporated into the EEA Agreement.
(5)Commission Decision (EU) 2020/1205 of 6 August 2020 on the national provisions notified by the Slovak Republic pursuant to Article 114(4) of the Treaty on the Functioning of the European Union concerning the cadmium content in phosphate fertilisers 5 is to be incorporated into the EEA Agreement.
(6)Communication from the Commission concerning the visual appearance of the label on EU fertilising products referred to in Annex III to Regulation (EU) 2019/1009 of the European Parliament and of the Council 6 is to be incorporated into the EEA Agreement.
(7)Regulation (EU) 2019/1009 repeals Regulation (EC) No 2003/2003 of the European Parliament and of the Council 7 , which is incorporated into the EEA Agreement and which is consequently to be repealed under the EEA Agreement.
(8)The derogation enabling the EFTA States to limit the marketing of fertilisers in their markets due to cadmium contents has been in place in the EEA Agreement since its entry into force in 1994. As for the EU Member States which have been granted the same derogations with regard to cadmium content in fertilisers, the factual circumstances necessitating this derogation remain valid.
(9)Commission Regulations (EC) No 2076/2004 8 , (EC) No 162/2007 9 , (EC) No 1107/2008 10 , (EC) No 1020/2009 11 , (EU) No 137/2011 12 , (EU) No 223/2012 13 , (EU) No 463/2013 14 , (EU) No 1257/2014 15 , (EU) 2016/1618 16 , (EU) 2019/1102 17 , (EU) 2020/1666 18 and (EU) 2021/862 19 , which are incorporated into the EEA Agreement, have become obsolete and are consequently to be repealed under the EEA Agreement.
(10)This Decision contains provisions regarding veterinary matters. Legislation regarding veterinary matters shall not apply to Liechtenstein as long as the application of the Agreement between the European Community and the Swiss Confederation on trade in agricultural products is extended to Liechtenstein, as specified in the sectoral adaptations to Annex I.
(11)Annexes I and II to the EEA Agreement should therefore be amended accordingly,
HAS ADOPTED THIS DECISION:
Article 1
The following indent is added in point 9b (Regulation (EC) No 1069/2009 of the European Parliament and of the Council) in Part 7.1 of Chapter I of Annex I to the EEA Agreement:
‘-32019 R 1009: Regulation (EU) 2019/1009 of the European Parliament and of the Council of 5 June 2019 (OJ L 170, 25.6.2019, p. 1), as corrected by OJ L 83, 10.3.2022, p. 66 and OJ L 161, 16.6.2022, p. 121.’
Article 2
Annex II to the EEA Agreement shall be amended as follows:
1.The text of point 1 (Regulation (EC) No 2003/2003 of the European Parliament and of the Council) of Chapter XIV shall be replaced by the following:
‘32019 R 1009: Regulation (EU) 2019/1009 of the European Parliament and of the Council of 5 June 2019 laying down rules on the making available on the market of EU fertilising products and amending Regulations (EC) No 1069/2009 and (EC) No 1107/2009 and repealing Regulation (EC) No 2003/2003 (OJ L 170, 25.6.2019, p. 1), as corrected by OJ L 83, 10.3.2022, p. 66 and OJ L 161, 16.6.2022, p. 121, as amended by:
-32021 R 1768: Commission Delegated Regulation (EU) 2021/1768 of 23 June 2021 (OJ L 356, 8.10.2021, p. 8).
The provisions of the Regulation shall, for the purposes of this Agreement, be read with the following adaptations:
(a) The EFTA States shall be free to continue to apply their national limit values for cadmium in phosphate fertilisers existing at the date of entry into force of Decision of the EEA Joint Committee No …/… of [this decision] until such time as harmonised limit values for cadmium content in phosphate fertilisers which are equal to or lower than those limit values become applicable in the European Economic Area.
(b) In Article 1(2), the following points shall be added after point (p):
“(q) the national plant health law of the EFTA States;
(r) the national law on invasive alien species of the EFTA States.”
(c) In Article 52, as regards the EFTA States, the words “or the date of entry into force of Decision of the EEA Joint Committee No …/… of [this decision], whichever is the later” are inserted after the words “16 July 2022”.’
2.The following is inserted after point 5 (Commission Decision 2006/390/EC) of Chapter XIV:
‘6.32020 D 1178: Commission Decision (EU) 2020/1178 of 27 July 2020 on the national provisions notified by the Kingdom of Denmark pursuant to Article 114(4) of the Treaty of the Functioning of the European Union concerning cadmium content in fertilisers (OJ L 259, 10.8.2020, p. 14).
7.32022 D 1184: Commission Decision (EU) 2020/1184 of 17 July 2020 on the national provisions notified by Hungary pursuant to Article 114(4) of the Treaty on the Functioning of the European Union concerning the cadmium content in phosphate fertilisers (OJ L 261, 11.8.2020, p. 42).
8.32020 D 1205: Commission Decision (EU) 2020/1205 of 6 August 2020 on the national provisions notified by the Slovak Republic pursuant to Article 114(4) of the Treaty on the Functioning of the European Union concerning the cadmium content in phosphate fertilisers (OJ L 270, 18.8.2020, p. 7).
ACTS OF WHICH THE CONTRACTING PARTIES SHALL TAKE NOTE
The Contracting Parties shall take note of the following acts:
1.52021XC0407(04): Communication from the Commission concerning the visual appearance of the label on EU fertilising products referred to in Annex III to Regulation (EU) 2019/1009 of the European Parliament and of the Council (OJ C 119, 7.4.2021, p. 1).’
3.Point 13 (Regulation (EC) No 1107/2009 of the European Parliament and of the Council) of Chapter XV is amended as follows:
(i)the following indent is added:
‘-32019 R 1009: Regulation (EU) 2019/1009 of the European Parliament and of the Council (OJ L 170, 25.6.2019, p. 1), as corrected by OJ L 83, 10.3.2022, p. 66 and OJ L 161, 16.6.2022, p. 121.’
(ii)adaptations (i) and (j) are renumbered as adaptations (j) and (k), respectively.
(iii)the following adaptation is inserted after adaptation (h):
‘(i) In Article 80(8), as regards the EFTA States, the words “15 July 2019” shall read “the date of entry into force of Decision of the EEA Joint Committee No …/… of [this decision].”’
Article 3
The texts of Regulation (EU) 2019/1009, as corrected by OJ L 83, 10.3.2022, p. 66 and OJ L 161, 16.6.2022, p. 121, and Delegated Regulation (EU) 2021/1768, Decisions (EU) 2020/1178, (EU) 2020/1184 and (EU) 2020/1205, and of the Communication from the Commission concerning the visual appearance of the label on EU fertilising products referred to in Annex III to Regulation (EU) 2019/1009 of the European Parliament and of the Council 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 4
This Decision shall enter into force on the day following the last notification under Article 103(1) of the EEA Agreement have been made 20*.
Article 5
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
[…]
