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Document 52023PC0149
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 the four freedoms (EU-OSHA)
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 the four freedoms (EU-OSHA)
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 the four freedoms (EU-OSHA)
COM/2023/149 final
EUROPEAN COMMISSION
Brussels, 22.3.2023
COM(2023) 149 final
2023/0078(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 the four freedoms
(EU-OSHA)
(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 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 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 Protocol 31 to the EEA Agreement, on cooperation in specific fields outside the four freedoms.
The purpose of the envisaged act is to extend the cooperation of the Contracting Parties to the EEA Agreement to include Regulation (EU) 2019/126 of the European Parliament and of the Council of 16 January 2019 establishing the European Agency for Safety and Health at Work (EU-OSHA), and repealing Council Regulation (EC) No 2062/94 1 . Since Council Regulation (EC) No 2062/94 is already included in the EEA Agreement, it will consequently need to be repealed under the EEA Agreement.
In line with the EU budgetary policy, any participation in an EU activity can take place only once the corresponding financial contribution is paid. The payment can however take place once the 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 2023 and the reception of the respective payment, the envisaged act should 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.
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 participation rights for the EEA EFTA States in the European Agency for Safety and Health at Work (EU-OSHA), which goes 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.
The EEA EFTA States should also contribute financially to EU-OSHA in accordance with Article 82(1)(a) and Protocol 32 of the Agreement.
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 extends the cooperation of the Contracting Parties to the EEA Agreement to include Regulation (EU) 2019/126, 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 153(2) of the TFEU.
4.3.Conclusion
The legal basis of the proposed decision should be Article 153(2) 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 Protocol 31 to the EEA Agreement, on cooperation in specific fields outside the four freedoms, it is appropriate to publish it in the Official Journal of the European Union after its adoption.
2023/0078 (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 the four freedoms
(EU-OSHA)
(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 153 (2) 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, Protocol 31 to the EEA Agreement, on cooperation in specific fields outside the four freedoms.
(3)It is appropriate to extend the cooperation of the Contracting Parties to the EEA Agreement to include Regulation (EU) 2019/126 of the European Parliament and of the Council 5 .
(4)Protocol 31 to the EEA Agreement should therefore be amended in order to allow for this extended cooperation to take place from 1 January 2023.
(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 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,
For the Council
The President
EUROPEAN COMMISSION
Brussels, 22.3.2023
COM(2023) 149 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 the four freedoms
(EU-OSHA)
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 Article 98 thereof,
Whereas:
(1)It is appropriate to extend the cooperation of the Contracting Parties to the EEA Agreement to include Regulation (EU) 2019/126 of the European Parliament and of the Council of 16 January 2019 establishing the European Agency for Safety and Health at Work (EU-OSHA), and repealing Council Regulation (EC) No 2062/94 1 .
(2)Regulation (EU) 2019/126 repeals Council Regulation (EC) No 2062/94 2 , which is included in the EEA Agreement and which is consequently to be repealed under the EEA Agreement.
(3)Protocol 31 to the EEA Agreement should therefore be amended in order to allow for this extended cooperation to take place from 1 January 2023,
HAS ADOPTED THIS DECISION:
Article 1
The text of paragraph 11 of Article 5 of Protocol 31 shall be replaced by the following:
‘(a)The EFTA States shall participate fully in the European Agency for Safety and Health at Work (EU-OSHA), hereinafter referred to as the “Agency”, as set up by the following Union act:
-32019 R 0126: Regulation (EU) 2019/126 of the European Parliament and of the Council of 16 January 2019 establishing the European Agency for Safety and Health at Work (EU-OSHA), and repealing Council Regulation (EC) No 2062/94 (OJ L 30, 31.1.2019, p. 58).
(b)The EFTA States shall contribute financially to the activities referred to under (a) in accordance with Article 82(1)(a) and Protocol 32 of the Agreement.
(c) The EFTA States shall participate fully in the Management Board and shall within it have the same rights and obligations as EU Member States, except for the right to vote.
(d)The term ‘Member State(s)’ and other terms referring to their public entities contained in Article 12 of the Regulation shall be understood to include, in addition to their meaning in the Regulation, the EFTA States and their public entities.
(e) The Agency shall have legal personality. It shall enjoy in all the states of the Contracting Parties the most extensive legal capacity accorded to legal persons under their laws.
(f) The EFTA States shall grant privileges and immunities to the Agency and its staff equivalent to those contained in the Protocol on Privileges and Immunities of the European Union.
(g) By way of derogation from Article 12(2)(a) and 82(3)(a) of the Conditions of Employment of Other Servants of the European Union, nationals of EFTA States enjoying their full rights as citizens may be engaged under contract by the Executive Director of the Agency.
(h)By way of derogation from Articles 12(2)(e), 82(3)(e) and 85(3) of the Conditions of Employment of Other Servants of the European Union, the languages referred to in Article 129(1) of the Agreement shall be considered by the Agency, in respect of its staff, as languages of the Union referred to in Article 55(1) of the Treaty on European Union.
(i) By virtue of Article 79(3) of the Agreement, Part VII (Institutional Provisions) of the Agreement shall apply to this paragraph.
(j) Regulation (EC) No 1049/2001 of the European Parliament and the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents 3 shall, for the application of Regulation (EU) 2019/126, apply to any documents of the Agency regarding the EFTA States as well.’
Article 2
This Decision shall enter into force on the day following the last notification under Article 103(1) of the EEA Agreement 4*.
It shall apply from 1 January 2023.
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
[…]
Joint Declaration by the Contracting Parties
to Decision No …/… incorporating Regulation (EU) 2019/126 of the European Parliament and of the Council into the Agreement
The parties acknowledge that the incorporation of this act is without prejudice to the direct application of Protocol 7 on the privileges and immunities of the European Union to the nationals of EFTA states in the territory of each Member State of the European Union, pursuant to Article 11 of that Protocol.
