Proposal for a COUNCIL DECISION on the signature, on behalf of the European Community, of the Agreement between the European Community and the Swiss Confederation concerning the latter's participation in the European Environment Agency and the European Environment Information and Observation Network

EXPLANATORY MEMORANDUM

1. Introduction

The European Environment Agency was created by Council Regulation (EEC) 1210/90 of 7 May 1990, as amended by Council Regulation (EC) 933/99 of 29 April 1999. The overall task of the Agency is to produce objective, reliable and comparable information for those concerned with the implementation of the European Environment Policy. The trans-boundary nature of environmental problems means that the Agency must work in close co-operation with third countries in Europe. Switzerland is the only major country of Western Europe outside the Agency's network and it would be of mutual interest to have the Swiss as members of the Agency, particularly for reporting on the Alps.

Article 19 of the Regulation allows third country membership. Switzerland made a formal application to join the Agency in July 1999. The Commission negotiated with Switzerland pursuant to the authorisation given to it by the Council on 20 July 2000 and has rounded off the negotiations with the initialling of the Agreement on 25 June 2004.

The Commission hereby proposes two Council Decisions for the signature and the conclusion, on behalf of the European Community, of the Agreement on the participation of Switzerland in the European Environment Agency and the European Environment Information and Observation Network (EIONET).

2. Council Decision authorising the Commission to conduct negotiations on the participation of Switzerland in the EEA

On the basis of a Commission proposal [1], the Council decided on 20 July 2000 to authorise the Commission to conduct negotiations on the participation of Switzerland in the European Environment Agency.

[1] SEC(1999) 2129 final of 22 December 1999.

The main objective of the negotiations were to ensure that the arrangements for the participation of Switzerland as an observer without the right to vote in the European Environment Agency are in conformity with the Treaty of the Union, Regulation 1210/90, as amended by Regulation 933/99 on the establishment of the European Environment Agency and the EIONET and relevant Community legislation.

A further objective was that the financial contribution from Switzerland to the Agency represents the full costs of its participation. For the calculation of this annual figure, the objective was that the Agency's annual subvention should be divided by the number of Member States.

The Commission was requested to report to the Council on the results of the negotiations and, where appropriate, on any problem that may arise during the negotiations. In addition, the Council requested the Commission to take account of on-going negotiations in other areas.

In addition to the negotiation directives, the Council adopted a Declaration by which it emphasised that, while authorising the Commission to negotiate with Switzerland on its participation in the Agency, it would at the same time consider the result of the negotiations not only on the basis of its own merits but also in the light of progress achieved in other areas to be negotiated in parallel with Switzerland in order to achieve an overall balance of mutual advantage.

3. The negotiations

The Commission started the negotiations in 2001. During that year an overall agreement was reached on most substantial issues in line with the negotiating directives the Council has issued. Subsequent negotiations focused on horizontal items relevant to the general relations between Switzerland and the European Union, such as the application of the Protocol on Privileges and Immunities.

4. Draft Agreement

The Agreement with Switzerland grants the country conditions for participation, similar to those governing the participation of the current non-EU Member States of the Agency (Liechtenstein, Iceland and Norway), as well as to those which were negotiated for the participation of the candidate countries [2].

[2] It is noted that Annex III on the Protocol on Privileges and Immunities (PPI) contains an Appendix on its modalities of application in the case of Switzerland. The Appendix clarifies in point 2 certain practical modalities of application of the tax exemption to the Agency, taking into account the characteristics of the Swiss fiscal system. This approach is in line with comparable clarifications made bilaterally with EU Member States for the practical application of the PPI. In view of the preference expressed by Switzerland, point 3 contains a waiver of its rights under Article 14 of the PPI: it will not require that officials of the Agency having Swiss nationality be considered as having maintained their domicile in Switzerland. As a final clarification, the Appendix recalls the exclusive jurisdiction of the European Court of Justice on all matters between the Agency and its officials.

As to Switzerland's financial contribution, an agreement was reached along the lines of the Council's negotiating directive on this issue.

On the substance, the Agreement states that Switzerland takes full part in the work programme of the Agency and will comply with the obligations of the Agency Regulation.

Switzerland will have to establish an infrastructure for providing uniform environmental data and information on the state of the environment in its territory. Switzerland will contribute financially to the Agency budget to cover the cost of its participation. It will also have the right to participate in the Management Board of the Agency without the right to vote.

The Agreement is concluded for an unlimited period. For this reason, a Joint Committee has been set up in Article 16 to allow for technical adaptations, including the incorporation to Annex I of the Agreement of future Community legislation relevant to the functioning of the Agency.

The Parties will sign and then ratify the Agreement in accordance with their own procedures. It will enter into force when both Parties have notified each other that their respective procedures have been completed.

For its part, the Agency will treat Switzerland as a Member State, through equal treatment in terms of provisions of environmental data and information and analysis, staffing provisions, contracts to third parties and appointments of and participation in Topic Centres.

Annex III on the Protocol on Privileges and Immunities (PPI) contains an Appendix on the modalities of application in Switzerland. To ensure that Swiss authorities, in particular the sub-federal authorities, will correctly apply the PPI to the Agency and the institutions of the Community involved in its operation, point 1 assimilates Switzerland to an EU Member State for this purpose. Point 2 of the Appendix clarifies certain practical modalities of application of the tax exemption to the Agency (for instance the minimum price of goods of services subject to exoneration), taking into account the characteristics of the Swiss fiscal system. This approach is in line with comparable arrangements for the practical application of the PPI that have been concluded bilaterally between the Commission or the Agency and the EU Member States. As Switzerland does not automatically take PPI-relevant secondary legislation on board, point 3 of the Appendix specifies in detail the implications of the exemption contained in Article 13(2) of the PPI. It also clarifies that officials of the Agency and their family members having Swiss nationality or with other links to Switzerland will not be bound to take part in the Swiss social security system. In addition, in view of the preference expressed by Switzerland and in line with the interpretation given by Member States, point 3 clarifies that the extension of the right of taxation under Article 14 of the PPI shall apply only within the European Union, and therefore does not require that such officials be considered as having maintained their domicile in Switzerland. As a final clarification, the Appendix recalls the exclusive jurisdiction of the European Court of Justice on all legal disputes between the Agency and its officials concerning staff matters.

5. Signature and conclusion of the Agreement

5.1. Legal basis

Negotiations enabling the Agency to be opened to the participation of Switzerland are possible under Article 19 of Council Regulation (EEC) 1210/1990, modified by Regulation 933/1999 on the establishment of the European Environment Agency and EIONET.

The text in the above mentioned Article comprises the necessary rules on procedure for the opening of the Agency to countries which are not members of the Union, but which share the concern of the Community and the Member States for the objectives of the Agency. In order to conclude such Agreement, the procedure of Article 300 paragraphs 2 and 3 of the Treaty applies.

Following this procedure, the Commission is now proposing two Council Decisions on the signature and conclusion of the Agreement, with the objective to allow Switzerland to participate in the European Environment Agency.

5.2. Financial implications

According to the Agreement, Switzerland will contribute financially to the European Environment Agency to cover the full cost involved of its participation to the EEA work programme. In accordance with the negotiating directives issued by the Council, this full cost, and thus Switzerland's contribution, is calculated as the annual Community subvention, divided by the number of EU Member States.

For the Community there are thus no negative financial implications.

6. Benefits of the Agreement

Benefits of the participation of Switzerland in the Agency are several:

- The participation will help to bring Swiss monitoring systems and methods for data collection and data treatment in line with those used by the other countries participating in the Agency, which will facilitate the provision of reliable and comparable information on the state of environment in Europe.

- The participation of Switzerland will also support integrated assessment and environmental reporting of the ecosystems that are shared by Switzerland and its neighbouring countries.

- The European Environment Agency will be able to report on the state of the environment of a larger part of Europe, including Switzerland. Being an enclave within the territory of the European Union, the participation of this country is particularly important for coherent environmental reporting.

- Inclusion of Switzerland in all other reporting activities of the Agency.

7. Recommendation

An agreement was reached with Switzerland on the modalities and conditions of its participation in the European Environment Agency, in line with the negotiation directives issued by the Council to the Commission.

It is therefore possible for the Community to sign and conclude the Agreement with Switzerland concerning its participation in the European Environment Agency and the European Environment Information and Observation Network.

Proposal for a COUNCIL DECISION on the signature, on behalf of the European Community, of the Agreement between the European Community and the Swiss Confederation concerning the latter's participation in the European Environment Agency and the European Environment Information and Observation Network

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 175(1) in conjunction with the first sentence of the first subparagraph of Article 300(2) thereof,

Having regard to the proposal from the Commission [3],

[3] OJ C [...], [...], p. [...].

Whereas:

(1) The activities of the European Environment Agency and the European Environment Information and Observation Network, established by Council Regulation (EEC) No 1210/90 of 7 May 1990 [4], have already been extended to other European countries by means of bilateral agreements entered into by the European Community, taking into account the transboundary nature of environmental issues and the importance of enhancing international cooperation in the field of environment.

[4] OJ L 120, 11.5.1990, p. 1.

(2) The Council authorised the Commission on 20 July 2000, on behalf of the Community, to negotiate with the Swiss Confederation an agreement concerning the participation in the European Environment Agency and the European Environment Information and Observation Network. The result of the negotiations duly reflects the negotiating directives issued by the Council.

(3) Subject to its conclusion at a later date, it is desirable to sign the Agreement that was initialled on 25 June 2004,

HAS DECIDED AS FOLLOWS:

Sole Article

Subject to its conclusion at a later date, the President of the Council is hereby authorized to designate the person empowered to sign, on behalf of the European Community, the Agreement between the European Community and the Swiss Confederation concerning the latter's participation in the European Environment Agency and the European Environment Information and Observation Network.

Done at Brussels,

For the Council

The President