This Decision shall enter into force on the date of its adoption.

The position to be adopted, on behalf of the Union, within the EEA Joint Committee on the proposed amendment to Annex IX (Financial Services) to the EEA Agreement, shall be based on the draft decisions of the EEA Joint Committee attached to this Decision.

(5)The position of the Union within the EEA Joint Committee should therefore be based on the attached draft decision,

(4)Annex IX to the EEA Agreement should therefore be amended accordingly.

(3)Regulation (EU) No 600/2014 of the European Parliament and of the Council and Directive 2014/65/EU of the European Parliament and of the Council are to be incorporated into the EEA Agreement.

(2)Pursuant to Article 98 of the EEA Agreement, the EEA Joint Committee may decide to amend, inter alia, amend Annex IX to the EEA Agreement, which contains provisions on financial services.

(1)The Agreement on the European Economic Area ('the EEA Agreement') entered into force on 1 January 1994.

Having regard to the proposal from the European Commission,

Having regard to Council Regulation (EC) No 2894/94 of 28 November 1994 concerning arrangements for implementing the Agreement on the European Economic Area, and in particular Article 1(3) thereof,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 in conjunction with Article 218(9) thereof,

on the position to be adopted, on behalf of the European Union, within the EEA Joint Committee, concerning an amendment to Annex IX (Financial Services) to the EEA Agreement (Markets in Financial Instruments Regulation (MiFIR) and Directive MiFID II)

In addition, adaptation (j)(ii) adjusts references to Articles 101 and 102 TFEU regarding competition rules to point at Articles 53 and 54 EEA, which form the common legal framework of reference between the Contracting Parties to the EEA Agreement.

In line with Art. 7 EEA, only acts that have been incorporated into the EEA Agreement are binding upon the EEA EFTA States. The obligation to license new benchmarks developed after the date of entry into force of MiFIR may hence only apply as from the date of entry into force of the Joint Committee Decision incorporating it into the EEA Agreement. Adaptation (j)(i) adjusts the text of Article 37(2) to that effect.

In order to guarantee the transparency of information on the extended internal market for all EEA operators, adaptation (i)(ii) provides that ESMA shall also include the notifications received by the EFTA Surveillance Authority on its list for publication.

As regards trading venues in the EEA EFTA States, the EFTA Surveillance Authority is the competent supervisory authority and shall receive their notifications. Adaptation (i)(i) therefore adjusts the text of Article 36(5) MiFIR to that effect.

Pursuant to Article 36(5) MiFIR, a trading venue shall notify ESMA and its NCA if it does not wish to be bound by Article 36 for exchange-traded derivatives.

In addition, the cut-off date for waivers, granted by EEA EFTA NCAs pursuant to legislation in force prior to MiFIR and to be reviewed by ESMA by 3 January 2019 in accordance with Article 4(7) MiFIR, is adjusted by adaptation (g)(ii) to reflect the date of entry into force of MiFIR in an EEA context.

Article 4(4) MiFIR provides that ESMA shall monitor the application of waivers granted by NCAs, and submit an annual report to the Commission. As ESMA will also be competent to monitor the application of waivers in the EEA EFTA States, adaptation (g)(i) ensures that ESMA shall also submit its annual report to the EFTA Surveillance Authority to enable it to carry out its surveillance function pursuant to Article 109 EEA.

In addition, adaptation (f) clarifies that third-country firms may not be treated more favourably than EEA firms when authorised by an EEA national competent or sectoral authority (NCA).Waivers for equity instruments (adaptation (g) relative to Regulation (EU) No 600/2014)

The Joint declaration to the JCD consequently states that the Contracting Parties share the understanding that the incorporation into the EEA Agreement of Directive 2014/65/EU is without prejudice to national rules of general application concerning the screening for security or public order of foreign direct investment.

The EEA Agreement does in principle not purport to regulate the relations of the Contracting Parties with third countries (see notably 16th recital of the Preamble to the EEA Agreement). The EEA Agreement does not provide for the liberalisation of capital flows or give rights regarding freedom of establishment or participation in the capital of firms as regards non-residents (see, Art. 31 and 34, 40 and 124 EEA).

Articles 11-13, Article 41(2) – Prudential assessment of non-resident proposed acquirers (Joint declaration to the JCD) and most-favoured treatment for EEA firms (adaptation (f) relative to Directive 2014/65/EU)

There are no budgetary implications expected as a result of incorporation of the above mentioned Regulation into the EEA Agreement.

In conformity with Article 98 of the EEA Agreement, the chosen instrument is the EEA Joint Committee decision. The EEA Joint Committee shall ensure the effective implementation and operation of the EEA Agreement. To this end, it shall take decisions in the cases provided for in the EEA Agreement.

In accordance with the principle of proportionality, this proposal does not go beyond what is necessary in order to achieve its objective.

The process of incorporation of the EU acquis into the EEA Agreement is conducted in conformity with the Council Regulation (EC) No 2894/94 of 28 November 1994 concerning arrangements for implementing the Agreement on the European Economic Area which confirms the approach taken.

The objective of this proposal, namely to ensure the homogeneity of the Internal Market, cannot be sufficiently achieved by the Member States and can therefore, by reason of the effects, be better achieved at Union level.

The proposal complies with the subsidiarity principle for the following reason.

The EEAS with the Commission services submit the draft Decisions of the EEA Joint Committee for adoption by the Council as the Union’s position. The EEAS would hope to be able to present them in the EEA Joint Committee at the earliest possible opportunity.

Article 1(3) of Council Regulation (EC) No 2894/94 concerning arrangements for implementing the EEA Agreement provides that the Council establishes the position to be adopted on the Union’s behalf on such Decisions, on a proposal from the Commission.

The legislation to be incorporated into the EEA Agreement is based on Article 114 of the Treaty on the Functioning of the European Union.

The extension of the EU acquis to the EEA EFTA States, through its incorporation into the EEA Agreement is conducted in conformity with the objectives and principles of that Agreement, aiming at establishing a dynamic and homogeneous European Economic Area, based on common rules and equal conditions of competition.

The annexed draft EEA Joint Committee Decision extends the already existing EU policy to the EEA EFTA States (Norway, Iceland and Liechtenstein).

The adaptations appearing in the drafts of the annexed Decisions of the EEA Joint Committee 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.

The draft Decision of the EEA Joint Committee (annexed to the proposed Council Decision) aims to amend Annex IX (Financial Services) to the EEA Agreement in order to incorporate the Markets in Financial Instruments Regulation (MiFiR) and and Directive MiFID II into the EEA Agreement.

on the position to be adopted, on behalf of the European Union, within the EEA Joint Committee, concerning an amendment to Annex IX (Financial Services) to the EEA Agreement (Markets in Financial Instruments Regulation (MiFIR) and Directive MiFID II)

EUROPEAN COMMISSION Brussels, 31.1.2019 COM(2019) 32 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 IX (Financial Services)

to the EEA Agreement



(Markets in Financial Instruments Regulation (MiFIR) and Directive MiFID II)





ANNEX DECISION OF THE EEA JOINT COMMITTEE

No amending Annex IX (Financial services) 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) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Regulation (EU) No 648/2012, as corrected by OJ L 270, 15.10.2015, p. 4, OJ L 187, 12.7.2016, p. 30 and OJ L 278, 27.10.2017, p. 54, is to be incorporated into the EEA Agreement. (2)Regulation (EU) 2016/1033 of the European Parliament and of the Council of 23 June 2016 amending Regulation (EU) No 600/2014 on markets in financial instruments, Regulation (EU) No 596/2014 on market abuse and Regulation (EU) No 909/2014 on improving securities settlement in the European Union and on central securities depositories is to be incorporated into the EEA Agreement. (3)Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU, as corrected by OJ L 188, 13.7.2016, p. 28, OJ L 273, 8.10.2016, p. 35 and OJ L 64, 10.3.2017, p. 116, is to be incorporated into the EEA Agreement. (4)Directive (EU) 2016/1034 of the European Parliament and of the Council of 23 June 2016 amending Directive 2014/65/EU on markets in financial instruments is to be incorporated into the EEA Agreement. (5)Directive 2014/65/EU repeals Directive 2004/39/EC of the European Parliament and of the Council, which is incorporated into the EEA Agreement and which is consequently to be repealed under the EEA Agreement. (6)Regulation (EU) No 600/2014 of the European Parliament and of the Council specifies cases in which the European Banking Authority (EBA) and European Securities and Markets Authority (ESMA) may temporarily prohibit or restrict certain financial activities, and lays down conditions thereto, in accordance with Article 9(5) of Regulation (EU) No 1093/2010 of the European Parliament and of the Council and of Regulation (EU) No 1095/2010 of the European Parliament and of the Council, respectively. For the purposes of the EEA Agreement, these powers are to be exercised by the EFTA Surveillance Authority as regards the EFTA States, in accordance with points 31g and 31i of Annex IX to the EEA Agreement and under the conditions prescribed therein. To ensure integration of the expertise of EBA and ESMA in the process and consistency between the two pillars of the EEA, such decisions of the EFTA Surveillance Authority will be adopted on the basis of drafts prepared by EBA or ESMA, as the case may be. This will preserve key advantages of supervision by a single authority. The Contracting Parties share the understanding that this Decision implements the agreement that was reflected in the conclusions of the EU and EEA EFTA Ministers of Finance and Economy of 14 October 2014 regarding the incorporation of the EU ESAs Regulations into the EEA Agreement. (7)Annex IX to the EEA Agreement should therefore be amended accordingly, HAS ADOPTED THIS DECISION: Article 1 Annex IX to the EEA Agreement shall be amended as follows: 1.The following is added in point 13b (Directive 2002/92/EC of the European Parliament and of the Council): ‘, as amended by:

-32014 L 0065: Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 (OJ L 173, 12.6.2014, p. 349), as corrected by OJ L 188, 13.7.2016, p. 28, OJ L 273, 8.10.2016, p. 35 and OJ L 64, 10.3.2017, p. 116.’ 2.The text of point 31ba (Directive 2004/39/EC of the European Parliament and of the Council) is replaced by the following: ‘32014 L 0065: Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ L 173, 12.6.2014, p. 349), as corrected by OJ L 188, 13.7.2016, p. 28, OJ L 273, 8.10.2016, p. 35 and OJ L 64, 10.3.2017, p. 116, as amended by: -32016 L 1034: Directive (EU) 2016/1034 of the European Parliament and of the Council of 23 June 2016 (OJ L 175, 30.6.2016, p. 8). The provisions of the Directive shall, for the purposes of this Agreement, be read with the following adaptations: (a)Notwithstanding the provisions of Protocol 1 to this Agreement, and unless otherwise provided for in this Agreement, the terms “Member State(s)” and “competent authorities” shall be understood to include, in addition to their meaning in the Directive, the EFTA States and their competent authorities, respectively. (b)References to “members of the ESCB” shall be understood to include, in addition to their meaning in the Directive, the national central banks of the EFTA States. (c)References to other acts in the Directive shall be considered relevant to the extent and in the form that those acts are incorporated into the Agreement. (d)In Article 3(2), as regards the EFTA States, the words “2 July 2014” shall read “the date of entry into force of Decision of the EEA Joint Committee No …/… of … [this Decision]” and the words “3 July 2019” shall read “five years thereafter”. (e)In Article 16(11), as regards the EFTA States, the words “2 July 2014” shall read “the date of entry into force of Decision of the EEA Joint Committee No …/… of … [this Decision]”. (f)In Article 41(2), the word “Union” shall be replaced by the word “EEA”. (g)In Article 57: (i)in the second subparagraph of paragraph 5, the words “it shall take action” shall be replaced by the words “ESMA or, as the case may be, the EFTA Surveillance Authority shall take action”; (ii)in paragraph 6, the words “or, as the case may be, the EFTA Surveillance Authority” shall be inserted after the word “ESMA”. (h)In points (f) and (g) of Article 70(6), as regards the EFTA States, the words “2 July 2014” shall read “the date of entry into force of Decision of the EEA Joint Committee No …/… of … [this Decision]”. (i)In Article 79: (i)in the second subparagraph of paragraph 1, the words “or, as the case may be, the EFTA Surveillance Authority” shall be inserted after the word “ESMA”; (ii)in the fifth subparagraph of paragraph 1, the words “, the EFTA Surveillance Authority” shall be inserted after the words “the Commission, ESMA”. (j)In Articles 81(5), 82(2) and 87(1), the words “or, as the case may be, the EFTA Surveillance Authority” shall be inserted after the word “ESMA”. (k)In Article 86, the words “ESMA, which” shall be replaced by the words “ESMA. ESMA or, as the case may be, the EFTA Surveillance Authority”.

(l)In Article 95(1), as regards the EFTA States, the words “3 January 2018” shall read “the date of entry into force of Decision of the EEA Joint Committee No …/… of … [this Decision]”.’ 3.The text of point 31baa (deleted) is replaced by the following: ‘32014 R 0600: Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Regulation (EU) No 648/2012 (OJ L 173, 12.6.2014, p. 84), as corrected by OJ L 270, 15.10.2015, p. 4, OJ L 187, 12.7.2016, p. 30 and OJ L 278, 27.10.2017, p. 54, as amended by: -32016 R 1033: Regulation (EU) 2016/1033 of the European Parliament and of the Council of 23 June 2016 (OJ L 175, 30.6.2016, p. 1). The provisions of the Regulation shall, for the purposes of this Agreement, be read with the following adaptations: (a)Notwithstanding the provisions of Protocol 1 to this Agreement, and unless otherwise provided for in this Agreement, the terms “Member State(s)” and “competent authorities” shall be understood to include, in addition to their meaning in the Regulation, the EFTA States and their competent authorities, respectively. (b)References to members of the ESCB shall be understood to include, in addition to their meaning in the Regulation, the national central banks of the EFTA States. (c)Unless otherwise provided for in this Agreement, the European Banking Authority (EBA) or the European Securities and Markets Authority (ESMA), as the case may be, and the EFTA Surveillance Authority shall cooperate, exchange information and consult each other for the purposes of the Regulation, in particular prior to taking any action. (d)References to other acts in the Regulation shall be considered relevant to the extent and in the form that those acts are incorporated into the Agreement. (e)References to the powers of ESMA under Article 19 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council in the Regulation shall be understood as referring, in the cases provided for in and in accordance with point 31i of this Annex, to the powers of the EFTA Surveillance Authority as regards the EFTA States. (f)In point (e) of Article 1(1): (i)as regards the EFTA States, the words “competent authorities, ESMA and EBA” shall read “competent authorities and the EFTA Surveillance Authority”; (ii)the words “or, as regards the EFTA States, the EFTA Surveillance Authority” shall be inserted after the words “powers of ESMA”. (g)In Article 4: (i)in paragraph 4, the words “and to the EFTA Surveillance Authority” shall be inserted after the words “the Commission”; (ii)in paragraph 7, the words “or, as regards waivers granted by competent authorities of the EFTA States, before the date of entry into force of Decision of the EEA Joint Committee No …/… of … [this Decision]” shall be inserted after the words “3 January 2018”. (h)In Articles 7(1), 9(2), 11(1) and 19(1), the words “and to the EFTA Surveillance Authority” shall be inserted after the words “the Commission”. (i)In Article 36(5): (i)in the first and second sentences, as regards the EFTA States, the word “ESMA” shall read “the EFTA Surveillance Authority”; (ii)the words “and shall include in the list all notifications received by the EFTA Surveillance Authority” shall be inserted after the words “ESMA shall publish a list of all notifications that it receives”.

(j)In Article 37(2): (i)as regards the EFTA States, the words “3 January 2018” shall read “the date of entry into force of Decision of the EEA Joint Committee No …/… of … [this Decision]”; (ii)the words “Article 101 and 102 TFEU” shall be replaced by the words “Articles 53 and 54 of the EEA Agreement”. (k)In Article 40: (i)as regards the EFTA States, in paragraphs 1 to 4, 6 and 7, the word “ESMA” shall read “the EFTA Surveillance Authority”; (ii)as regards the EFTA States, in paragraph 2, the words “Union law” shall read “the EEA Agreement”; (iii)in paragraph 3, the words “after consulting the public bodies” shall be replaced by the words “after consultation by ESMA of the public bodies”; (iv)in paragraph 3, the words “without issuing the opinion” shall be replaced by the words “without ESMA issuing the opinion”; (v)in paragraph 5, the words “any decision to take any action” shall be replaced by the words “each of its decisions to take action”; (vi)in paragraph 5, the words “. The EFTA Surveillance Authority shall publish on its website notice of each of its own decisions to take any action under this Article. A reference to the publication of the notice by the EFTA Surveillance Authority shall be posted on ESMA's website” shall be inserted after the words “this Article”. (l)In Article 41: (i)as regards the EFTA States, in paragraphs 1 to 4, 6 and 7, the word “EBA” shall read “the EFTA Surveillance Authority”; (ii)as regards the EFTA States, in paragraph 2, the words “Union law” shall read “the EEA Agreement”; (iii)in paragraph 3, the words “without issuing the opinion” shall be replaced by the words “without EBA issuing the opinion”; (iv)in paragraph 5, the words “any decision to take any action” shall be replaced by the words “each of its decisions to take action”; (v)in paragraph 5, the words “. The EFTA Surveillance Authority shall publish on its website notice of each of its own decisions to take any action under this Article. A reference to the publication of the notice by the EFTA Surveillance Authority shall be posted on EBA's website” shall be inserted after the words “this Article”. (m)In Article 45: (i)in the paragraph 1, the words “or, as regards the EFTA States, the EFTA Surveillance Authority” shall be inserted after the word “ESMA”; (ii)in paragraphs 2, 4, 5, 8 and 9 and in the first subparagraph of paragraph 3, the words “or, as the case may be, the EFTA Surveillance Authority” shall be inserted after the word “ESMA”; (iii)in the second and third subparagraphs of paragraph 3, the words “or, as the case may be, preparing drafts for the EFTA Surveillance Authority,” shall be inserted after the words “before taking any measure”;