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Document 52023PC0594
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 Annexes V (Free movement of workers) and VI (Social security) and Protocol 31 (On cooperation in specific fields outside the four freedoms) to the EEA Agreement (ELA Regulation)
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 Annexes V (Free movement of workers) and VI (Social security) and Protocol 31 (On cooperation in specific fields outside the four freedoms) to the EEA Agreement (ELA Regulation)
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 Annexes V (Free movement of workers) and VI (Social security) and Protocol 31 (On cooperation in specific fields outside the four freedoms) to the EEA Agreement (ELA Regulation)
COM/2023/594 final
EUROPEAN COMMISSION
Brussels, 18.10.2023
COM(2023) 594 final
2023/0364(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 Annexes V (Free movement of workers) and VI (Social security) and Protocol 31 (On cooperation in specific fields outside the four freedoms) to the EEA Agreement
(ELA 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 Annexes V (Free movement of workers) and VI (Social security) and Protocol 31 (On cooperation in specific fields outside the four freedoms) 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 Annexes V (Free movement of workers) and VI (Social security) and Protocol 31 (On cooperation in specific fields outside the four freedoms) to the EEA Agreement.
The purpose of the envisaged act is to incorporate Regulation establishing a European Labour Authority, amending Regulations (EC) No 883/2004, (EU) No 492/2011, and (EU) 2016/589 and repealing Decision (EU) 2016/344 1 into the EEA Agreement.
Since Decision (EU) 2016/344 is already included in the EEA Agreement, it will consequently need to be repealed under 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 participation rights for the EEA EFTA States in the European Labour Authority, 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.
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) 2019/1149 of the European Parliament and of the Council establishing a European Labour Authority, amending Regulations (EC) No 883/2004, (EU) No 492/2011, and (EU) 2016/589 and repealing Decision (EU) 2016/344 (OJ L 186, 11.7.2019, p. 21) 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 Articles 46 and 48 of the 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 EEA Agreement.
5.Publication of the envisaged act
As the act of the EEA Joint Committee will amend Annexes V (Free movement of workers) and VI (Social security) and Protocol 31 (On cooperation in specific fields outside the four freedoms) to the EEA Agreement, it is appropriate to publish it in the Official Journal of the European Union after its adoption.
2023/0364 (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 Annexes V (Free movement of workers) and VI (Social security) and Protocol 31 (On cooperation in specific fields outside the four freedoms) to the EEA Agreement
(ELA 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 46 and 48 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, Annexes V (Free movement of workers) and VI (Social security) and Protocol 31 (On cooperation in specific fields outside the four freedoms) to the EEA Agreement.
(3)Regulation (EU) 2019/1149 of the European Parliament and of the Council establishing a European Labour Authority, amending Regulations (EC) No 883/2004, (EU) No 492/2011, and (EU) 2016/589 and repealing Decision (EU) 2016/344 5 should be incorporated into the EEA Agreement.
(4)Annexes V (Free movement of workers) and VI (Social security) and Protocol 31 (On cooperation in specific fields outside the four freedoms) 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 Annexes V (Free movement of workers) and VI (Social security) and Protocol 31 (On cooperation in specific fields outside the four freedoms) 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, 18.10.2023
COM(2023) 594 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 Annexes V (Free movement of workers) and VI (Social security) and Protocol 31 (On cooperation in specific fields outside the four freedoms) to the EEA Agreement
(ELA Regulation)
ANNEX
DRAFT DECISION OF THE EEA JOINT COMMITTEE
No […]
of […]
amending Annexes V (Free movement of workers) and VI (Social security) and Protocol 31 (On cooperation in specific fields outside the four freedoms) to the EEA Agreement
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)Regulation (EU) 2019/1149 of the European Parliament and of the Council of 20 June 2019 establishing a European Labour Authority, amending Regulations (EC) No 883/2004, (EU) No 492/2011, and (EU) 2016/589 and repealing Decision (EU) 2016/344 1 is to be incorporated into the EEA Agreement.
(2)Regulation (EU) 2019/1149 repeals, with effect from 1 August 2021, Decision (EU) 2016/344 of the European Parliament and of the Council 2 , which is included in the EEA Agreement and which is consequently to be repealed under the EEA Agreement.
(3)Annexes V and VI and Protocol 31 to the EEA Agreement should therefore be amended accordingly,
HAS ADOPTED THIS DECISION:
Article 1
Annex V to the EEA Agreement shall be amended as follows:
1.The following indent is added in point 2 (Regulation (EU) No 492/2011 of the European Parliament and of the Council):
‘-32019 R 1149: Regulation (EU) 2019/1149 of the European Parliament and of the Council of 20 June 2019 (OJ L 186, 11.7.2019, p. 21).’
2.The following is added in point 9 (Regulation (EU) 2016/589 of the European Parliament and of the Council):
‘, as amended by:
-32019 R 1149: Regulation (EU) 2019/1149 of the European Parliament and of the Council of 20 June 2019 (OJ L 186, 11.7.2019, p. 21).’
3.The following is inserted after point 10n (Commission Implementing Decision (EU) 2021/1482):
‘11.32019 R 1149: Regulation (EU) 2019/1149 of the European Parliament and of the Council of 20 June 2019 establishing a European Labour Authority, amending Regulations (EC) No 883/2004, (EU) No 492/2011, and (EU) 2016/589 and repealing Decision (EU) 2016/344 (OJ L 186, 11.7.2019, p. 21).
The provisions of the Regulation shall, for the purposes of this Agreement, be read with the following adaptations:
(a) As regards the EFTA States, references to Union law shall be understood as references to the EEA Agreement.
(b) Notwithstanding the provisions of Protocol 1 to this Agreement, and unless otherwise provided for in this Agreement, the terms “Member State(s)” and “national authorities” shall be understood to include, in addition to their meaning in the Regulation, the EFTA States and their national authorities, respectively.
(c) In Articles 1(2) and 2, the words “ and the EFTA Surveillance Authority” shall be inserted after the words “the Commission”.
(d) In Articles 7(1)(e) and 13(13), the words “or, as regards the EFTA States, to the EFTA Surveillance Authority” shall be inserted after the words “the Commission”.
(e) In Articles 9(9) and 10(3) first subparagraph, the words “or, as regards the EFTA States, to the EFTA Surveillance Authority”, shall be inserted after the words “the Commission”.
(f) In Article 12, the following paragraph shall be added after paragraph 3:
“3a. The EFTA States shall participate fully in the Platform and shall have the same rights and obligations within it as EU Member States, except for the right to vote.”
(g) In Article 13:
(i) In paragraph 1, the words “and of the EFTA Court” shall be inserted after the words “Court of Justice”.
(ii) In paragraphs 3, 5, and 6, the words “, the EFTA Surveillance Authority, when one or more of the EFTA States are involved” shall be inserted after the words “the Commission”.
(h)In Article 16(2), the sentence “The Authority may invite representatives of the EFTA Surveillance Authority to the working groups and expert panels as observers.” is inserted after the first sentence of the first subparagraph.
(i)In Article 17, the following paragraph shall be added after paragraph 1:
“1a. The EFTA States and the EFTA Surveillance Authority shall participate fully in the Management Board and shall have the same rights and obligations within it as EU Member States and the Commission respectively, except for the right to vote.”
(j) The following paragraph shall be added in Article 26:
“5. The EFTA States shall participate in the contribution from the Union referred to in point (a) of paragraph 3. For this purpose, the procedures laid down in Article 82(1)(a) of and Protocol 32 to the EEA Agreement shall apply mutatis mutandis.”
(k) The following subparagraphs shall be added in Article 30:
“By way of derogation from Articles 12(2)(a) and 82(3)(a) of the Conditions of Employment of Other Servants of the European Union, nationals of the EFTA States enjoying their full rights as citizens may be engaged under contract by the appointing authority power of the Authority.
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 EEA Agreement shall be considered by the Authority, in respect of its staff, as languages of the Union referred to in Article 55(1) of the Treaty on European Union.”
(l) In Article 32, the following paragraph shall be added after paragraph 1:
“1a. An EFTA State may designate the National Liaison Officer of another EFTA State or EU Member State as its National Liaison Officer.”
(m) The following shall be added in Article 34:
“The EFTA States shall grant privileges and immunities to the Authority and its staff equivalent to those contained in Protocol No 7 on the privileges and immunities of the European Union.”’
Article 2
The following indent is added in point 1 (Regulation (EC) No 883/2004 of the Parliament and of the Council) of Annex VI to the EEA Agreement:
‘-32019 R 1149: Regulation (EU) 2019/1149 of the European Parliament and of the Council of 20 June 2019 (OJ L 186, 11.7.2019, p. 21).’
Article 3
The text of the second indent of Article 15(9) of Protocol 31 to the EEA Agreement (Decision (EU) 2016/344 of the European Parliament and of the Council) is deleted.
Article 4
The text of Regulation (EU) 2019/1149 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 3*.
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
[…]
Joint Declaration by the Contracting Parties
to Decision No …/… incorporating Regulation (EU) 2019/1149 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.
