Proposal for a COUNCIL DECISION on the position to be adopted, on behalf of the European Union,_in the EEA Joint Committee_concerning an amendment to Annex XIII_to the EEA Agreement
Date: 2013-06-10
Institutions: European Commission
Subjects: European Economic Area, air safety, air space, air traffic, air traffic control, revision of an agreement

EUROPEAN 
COMMISSION 

Brussels, 10.6.2013  
COM(2013) 344 final 

2013/0182 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be adopted, on behalf of the European Union, 
in the EEA Joint Committee 
concerning an amendment to Annex XIII 
to the EEA Agreement 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

In  order  to  ensure  the  requisite  legal  security  and  homogeneity  of  the  Internal  Market,  the 
EEA Joint Committee is to integrate all the relevant EU legislation into the EEA Agreement 
as soon as possible after its adoption. 

2. 

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND 
IMPACT ASSESSMENTS 

The draft Decision of the EEA Joint Committee (annexed to the proposed Council Decision) 
aims  to  amend  Annex  XIII  (Transport)  to  the  EEA  Agreement  in  order  to  incorporate  with 
certain adaptations for the EEA EFTA states Regulation (EC) No 1070/2009 of the European 
Parliament and of the Council of 21 October 2009 amending Regulations (EC) No 549/2004, 
(EC)  No  550/2004,  (EC)  No  551/2004  and  (EC)  No  552/2004  in  order  to  improve  the 
performance and sustainability of the European aviation system1 

The adaptations for the EEA EFTA states concern the applicability of Articles 5, 11 and 13a 
of  Regulation  (EC)  No  549/20042  as  amended  by  Regulation  (EC)  No  1070/2009,  Articles 
9a(2)(c),  9a(2)(i)  and  9a(5)  and  (6)  of  Regulation  (EC)  No  550/20043  as  amended  by 
Regulation  (EC)  No  1070/2009  and  Article  6(2)  of  Regulation  (EC)  No  551/20044  as 
amended by Regulation (EC) No 1070/2009. 

According to Article 1(3) of Regulation (EC) No 549/2004, as amended by Regulation (EC) 
No 1070/2009, the application of the Regulation, as well as the application of the regulations 
referred to in Article 3, are without prejudice to the rights and duties of Member States under 
the 1944 Chicago Convention on International Civil Aviation (‘the Chicago Convention’).  

By virtue of Article 12 of the Chicago Convention, the Member States undertake to keep their 
own  regulations  uniform,  to  the  greatest  possible  extent,  with  those  established  under  the 
Chicago  Convention.  Parts  of  the  airspace  governed  by  Norway  and  Iceland  are  high  seas 
airspace within the ICAO NAT region. Consequently, Norway and Iceland have, as members 
of  the  Chicago  Convention  and  in  accordance  with  the  established  procedures,  rights, 
obligations  and  responsibilities  to  provide  air  traffic  services,  where  uniform  rules  apply  in 
accordance  with  the  requirements  of  annexes  2  and  11  of  the  Chicago  Convention. 
Furthermore,  a  long  standing  agreement  regarding  the  airspace  serviced  by  Iceland  enables 
operations  that  are  comparable,  and  serve  the  objectives  of  a  functional  airspace  block  as 
defined by the SES regulations. 

The services in the NAT region are based on ICAO requirements, the Organisation’s Global 
Air Navigation Plan and the vision statement on the global Air Traffic Management. There is 
consistency to a great extent between the objectives of the ICAO Global Air Navigation Plan 
and the regional requirements in the NAT region on the one hand, and the objectives reflected 
in  the  SES  packages  I  and  II  on  the  other.  However,  some  objectives  of  the  SES  II,  e.g. 

(5) 
(6) 
(7) 
(8) 

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OJ L 300, 14.11.2009, p. 34. 
OJ L 96, 31.3.2004, p. 1. 
OJ L 96, 31.3.2004, p. 10. 
OJ L 96, 31.3.2004, p. 20. 

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aiming  at  solving  congestion  problems  in  the  EUR  region,  might  not  be  relevant  or 
unnecessarily  burdensome  in  the  NAT  region.  To  this  end  regional  or  national  performance 
targets are more relevant to the services provided by Iceland within the NAT region. 

Regulation (EC) No 549/2004 

Participation in the Single Sky Committee (Article 5), adaptation (a): 

The current adaptation allows, without prejudice to Article 100 EEA, the EFTA States’ right 
to full participation in the Committee. This adaptation is retained. Due to the increased role of 
the EFTA Surveillance Authority after the incorporation of Regulation (EC)  No  1070/2009, 
the adaptation text also would allow that the EFTA Surveillance Authority can be present as 
observer in the meetings of the Committee.  

The application of Article 11 to Iceland, adaptation (b): 

In  order  to  adapt  Article  11  to  the  special  circumstances  in  Iceland,  an  adaptation  has  been 
added so that “Community-wide” shall read “regional or national”. 

Community wide performance targets (Article 11): 

The  Commission  will  adopt  Community-wide  performance  targets.  Those  targets  will  only 
apply  to  the  EFTA  States  once  the  Commission  decisions  are  incorporated  into  the  EEA 
Agreement.  

Applicability of Article 11 to Iceland 

As  the  current  reference  period  ends  on  31  December  2014,  Article  11  shall  not  apply  to 
Iceland until 1 January 2015. As there are no performance scheme requirements currently in 
force for Iceland this will give Iceland the time to prepare a scheme before the requirements 
take  effect  and  will  allow  the  reference  period  for  Iceland  to  be  in  sync  with  the  European 
reference period. 

The designation of a Performance Review Body (Article 11(2)), adaptation (d): 

In  line  with  the  two  pillar  structure  of  the  EEA  Agreement,  the  Performance  Review  Body 
(‘PRB’)  has  to  be  separately  designated  for  the  EFTA  States.  With  a  view  to  ensuring 
consistency,  coherence  and  homogeneity,  the  same  PRB  designated  for  the  EU  Member 
States should be designated for the EFTA States as well..  

Surveillance tasks (Article 11(3)(c) and (e)), adaptations (e) and (f): 

For functional airspace blocks, which exclusively cover the area of either one or more EFTA 
States  or  one  or  more  EU  Member  States,  the  EFTA  Surveillance  Authority  or  the 
Commission,  respectively,  will  carry  out  the  tasks  and  exercise  the  powers  set  out  in  the 
points.  

The  adaptation  concerning  letter  (c)  sets  out  the  rules  related  to  functional  airspace  blocks 
which cover the area of both one or more EFTA States and one or more EU Member States. 
The adaptation upholds the two pillar system by conferring the competence to carry out tasks 
regarding the EFTA States to the EFTA Surveillance Authority and the competence regarding 
the EU Member States to the Commission.  

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The adaptation for letter (e) is based on the same line of reasoning as the adaptation for letter 
(c).  This  adaptation,  however,  foresees  that  the  assessment  of  the  EFTA  Surveillance 
Authority with regards to functional airspace blocks which also cover the area of one or more 
EU  Member  States  shall  be  presented  jointly  to  the  Single  Sky  Committee,  and  not  to  a 
separate  Committee  in  the  EFTA  pillar.  This  adaptation  is  motivated  by  the  fact  that  the 
Single Sky Committee is highly specialised and that the particular EFTA issues are expected 
to  be  so  interlinked  with  the  EU  issues  that  a  separate  discussion  in  an  EFTA  Committee 
would not be viable. 

Coordination with EASA (Article 13a), adaptation (g): 

The adaptation ensures that the EFTA States and the EFTA Surveillance Authority, like the 
EU Member States and the Commission, shall coordinate with the EASA. 

Regulation (EC) No 550/2004 

Functional airspace blocks (Articles 9a(2)(c) and 9a(2)(i)), adaptations (a) and (b): 

The NAT region has a different regulatory obligation, as ICAO is the body proposing the set 
of rules governing the High Seas. The adaptation ensures this different regulatory context is 
taken  into  account.  The  management  of  traffic  flow  is  conducted  by  the  NAT  states 
themselves  on  both  sides  of  the  Atlantic.  It  is  therefore  necessary  that  consistency  with 
European or NAT Route Network is ensured by Iceland. 

Dispute resolution with regard to a cross-border functional airspace block (Article 9a(5)): 

The  procedure  set  out  in  Article  9a(5)  will  not  apply  to  the  EFTA  States,  as  sectoral 
adaptation  III  in  Annex  XIII  sets  out  a  separate  dispute  resolution  procedure  for  disputes 
involving one or more EFTA States. There is therefore no need for any adaptation text. 

The assessment of the functional airspace blocks (Article 9a(6)), adaptation (c): 

If a functional airspace block covers only EU Member States or only EFTA States, Protocol 1 
to  the  EEA  Agreement  will  apply,  and,  respectively,  the  Commission  and  the  EFTA 
Surveillance Authority will carry out the tasks set out in the point. The adaptation sets out the 
procedure in case the functional airspace block covers both one or more EU Member States 
and one or more EFTA States. It ensures that the two pillar structure of the EEA Agreement is 
adhered to as far as practically possible. 

Regulation (EC) No 551/2004 

Network management and design (Article 6(2)), adaptations (a), (b) and (c): 

This provision deals, inter alia, with the Commission’s responsibilities and tasks in relation to 
network management and design. Furthermore, the Commission is given the power to entrust 
tasks to a network manager, which was done on 7 July 2011.  

The adaptation texts set out the necessary provisions in order to designate a network mnager 
in  the  EFTA  pillar  by  the  EEA  EFTA  States.  Accordingly,  the  Standing  Committee  of  the 
EFTA States is given the tasks and functions of the Commission. Clearly, in order to facilitate 
that the work carried out in the two pillars are appropriately coordinated, it is important that 

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the same network manager is designated for the EEA EFTA States as has been designated for 
the EU Member States. 

Adaptation  (c)  ensures  that  the  Standing  Committee  of  the  EFTA  States  nominates  the 
Network Manager for the EEA EFTA States. Before the Network Manager is nominated, an 
agreement with the relevant manager must be concluded.  

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

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 Commission submits the Draft Decision of the EEA Joint Committee for adoption by the 
Council as the Union’s position. The Commission would hope to be able to present it in the 
EEA Joint Committee at the earliest possible opportunity. 

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2013/0182 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be adopted, on behalf of the European Union, 
in the EEA Joint Committee 
concerning an amendment to Annex XIII 
to the EEA Agreement 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on the Functioning of the European Union, and in particular 
Article 100(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 Area5, and in 
particular Article 1(3) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

The Agreement on the European Economic Area6 (“the EEA Agreement”) entered 
into force on 1 January 1994. 

Pursuant  to  Article  98  of  the  EEA  Agreement,  the  EEA  Joint  Committee  may 
decide to amend, inter alia, Annex XIII thereto. 

Annex  XIII  to  the  EEA  Agreement  contains specific  provisions on all modes of 
transport. 

Regulation (EC) No 1070/2009 of the European Parliament and of the Council of 
21  October  2009  amending  Regulations  (EC)  No  549/2004,  (EC)  No  550/2004, 
(EC)  No  551/2004  and  (EC)  No  552/2004  in  order  to  improve  the  performance 
and sustainability of the European aviation system7 is to be incorporated into the 
EEA Agreement with certain adaptations for the EEA EFTA states. 

5 
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OJ L 305, 30.11.1994, p. 6. 
OJ L 1, 3.1.1994, p. 3.  
OJ L 300, 14.11.2009, p. 34. 

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(5) 

The adaptations for the EEA EFTA states concern the applicability of Articles 5, 
11 and 13a of Regulation (EC) No 549/20048 as amended by Regulation (EC) No 
1070/2009,  Articles  9a(2)(c),  9a(2)(i)  and  9a(5)  and  (6)  of  Regulation  (EC)  No 
550/20049  as  amended  by  Regulation  (EC)  No  1070/2009  and  Article  6(2)  of 
Regulation (EC) No 551/200410 as amended by Regulation (EC) No 1070/2009. 

(6) 

Annex XIII to the EEA Agreement should therefore be amended accordingly. 

(7) 

The  position  of  the  Union  in  the  EEA  Joint  Committee  should  be  based  on  the 
attached draft Decision, 

HAS ADOPTED THIS DECISION:  

Article 1 

The  position  to  be  adopted,  on  behalf  of  the  European  Union,  in  the  EEA  Joint 
Committee  on  the  proposed  amendment  to  Annex  XIII  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 day of its adoption. 

Done at Brussels,  

For the Council 
The President 

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OJ L 96, 31.3.2004, p. 1. 
OJ L 96, 31.3.2004, p. 10. 
OJ L 96, 31.3.2004, p. 20. 

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Annex 

DECISION OF THE EEA JOINT COMMITTEE  
No 

of 

amending Annex XIII (Transport) 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) 

(2) 

Regulation (EC) No 1070/2009 of the European Parliament and of the Council 
of  21  October  2009  amending  Regulations  (EC)  No  549/2004,  (EC)  No 
550/2004,  (EC)  No  551/2004  and  (EC)  No  552/2004  in  order  to  improve  the 
performance  and  sustainability  of  the  European  aviation  system11  is  to  be 
incorporated into the EEA Agreement. 

The airspace where Iceland is responsible for the provision of air traffic services 
is  fully  within  the  ICAO  NAT  region,  where  regional  planning  and  regional 
agreements have been established, enabling FAB-like functioning, and serve the 
operational needs and requirements which differ from the ICAO EUR and AFI 
regions.  

(3) 

Annex XIII to the EEA Agreement should therefore be amended accordingly, 

HAS ADOPTED THIS DECISION: 

Article 1 

Annex XIII to the EEA Agreement shall be amended as follows: 

1. 

The text of point 66t (Regulation (EC) No 549/2004 of the European Parliament 
and of the Council) shall be amended as follows: 

(i)  The following text is added: 

‘, as amended by: 

11 

OJ L 300, 14.11.2009, p. 34. 

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- 

32009  R  1070:  Regulation  (EC)  No  1070/2009  of  the  European 
Parliament  and  of  the  Council  of  21  October  2009  (OJ  L  300, 
14.11.2009, p. 34).’ 

(ii)  The text of adaptation (a) is replaced by the following: 

‘The following paragraphs shall be added in Article 5: 

“6.  The EFTA States shall participate fully in the committee established 

pursuant to paragraph 1, except for the right to vote. 

7. 

The  EFTA  Surveillance  Authority  shall  have  observer  status  in  the 
Single Sky Committee.”’ 

(iii)  Adaptation (b) is renumbered as adaptation (h). 

(iv)  The following adaptations are inserted: 

‘(b)  In Article 11, the words “Community-wide” shall read “regional or 

national” with regard to Iceland. 

(c)  With regard to Iceland, Article 11 shall apply as of 1 January 2015. 

(d)  The first sentence of Article 11(2) shall read as follows: 

“The  Standing  Committee  of  the  EFTA  States  may  designate 
Eurocontrol  or  another  impartial  and  competent  body  to  act  as  a 
“performance  review  body”.  If  the  Commission  has  designated  a 
performance  review  body,  the  Standing  Committee  of  the  EFTA 
States  shall  endeavour  to  designate  the  same  entity  under  similar 
conditions to fulfil the same tasks in regard to the EFTA States.” 

(e) 

In Article 11(3)(c) the following paragraph shall be added: 

“If a functional airspace block covers the airspace of one or more EU 
Member States and one or more EFTA States, the tasks and powers 
set  out  in  this  point  shall  be  carried  out  and  exercised  by  the 
Commission with regard to the EU Member States and by the EFTA 
Surveillance  Authority  with  regard  to  the  EFTA  States.  The 
Commission  and  the  EFTA  Surveillance  Authority  shall  in  this 
regard cooperate with a view to adopting identical positions.” 

(f) 

In Article 11(3)(e) the following paragraph shall be added: 

“If the assessment concerns performance targets, which relate to one 
or  more  EU  Member  States  and  one  or  more  EFTA  States,  the 
assessment shall be carried out by the EFTA Surveillance Authority 
with regard to the EFTA States and by the Commission with regard 

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to  the  EU  Member  States.  The  Commission  and  the  EFTA 
Surveillance  Authority  shall  cooperate  with  a  view  to  presenting 
jointly the results to the Single Sky Committee.” 

(g) 

In Article 13a, with regards to the EFTA States, “Member States and 
the  Commission”  shall  read  “the  EFTA  States  and  the  EFTA 
Surveillance Authority”.’ 

2. 

The text of point 66u (Regulation (EC) No 550/2004 of the European Parliament 
and of the Council) shall be amended as follows: 

(i)  The following text is added: 

‘, as amended by: 

- 

32009  R  1070:  Regulation  (EC)  No  1070/2009  of  the  European 
Parliament  and  of  the  Council  of  21  October  2009  (OJ  L  300, 
14.11.2009, p. 34).’ 

(ii)  Adaptations (a), (b), (c) and (d) are renumbered as adaptations (d), (e), (f) 

and (g). 

(iii)  The following adaptations are inserted: 

‘(a)  With regard to Iceland Article 9a(2)(c) shall read as follows: 

“ensure consistency with the European route network established in 
accordance  with  Article  6  of  the  airspace  Regulation  or  the  route 
network established in the ICAO NAT region;” 

(b)  With regard to Iceland Article 9a(2)(i) shall read as follows: 

“facilitate  consistency  with  regional  or  national  performance 
targets.” 

(c) 

In Article 9a(6) the following paragraph shall be added: 

“The Commission and the EFTA Surveillance Authority shall assess 
the  fulfilment  of  the  requirements  set  out  in  paragraph  2  by 
functional airspace blocks involving one or more EU Member States 
and  one  or  more  EFTA  States,  and  shall  cooperate  with  a  view  to 
presenting a joint result to the Single Sky Committee for discussion. 
If the Commission and the EFTA Surveillance Authority find that an 
airspace block does not fulfil the requirements they shall engage in a 
dialogue  with  the  concerned  EU  Member  States  and  the  concerned 
EFTA  States  respectively  with  the  aim  of  reaching  a  consensus  on 
the measures necessary to rectify the situation.”’ 

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3. 

The text of point 66v (Regulation (EC) No 551/2004 of the European Parliament 
and of the Council) shall be amended as follows: 

(i)  The following text is added: 

‘, as amended by: 

– 

32009  R  1070:  Regulation  (EC)  No  1070/2009  of  the  European 
Parliament  and  of  the  Council  of  21  October  2009  (OJ  L  300, 
14.11.2009, p. 34).’ 

(ii)  The texts of adaptations (a) and (b) are deleted. 

(iii)  Adaptation (c) is renumbered as adaptation (d). 

(iv)  The following adaptations are inserted: 

‘(a)  In  Article  6(2),  the  word  ”Commission”  shall,  with  regard  to  the 
EFTA States, be replaced by the words “Standing Committee of the 
EFTA States”. 

(b) 

In  Article  6(2)(b)  third  subparagraph,  the  words  “after  consultation 
of  the  Single  Sky  Committee  and”  shall,  with  regard  to  the  EFTA 
States, not apply. 

(c) 

In Article 6(2)(b) third subparagraph, the following shall be added: 

“If the Commission has nominated a Network Manager, the Standing 
Committee  of  the  EFTA  States  shall  endeavour  to  designate  the 
same entity under similar conditions to fulfil the same tasks in regard 
to the EFTA States.”’ 

4. 

The  following  is  added  in  point  66w  (Regulation  (EC)  No  552/2004  of  the 
European Parliament and of the Council): 

‘, as amended by: 

– 

32009 R 1070: Regulation (EC) No 1070/2009 of the European Parliament 
and of the Council of 21 October 2009 (OJ L 300, 14.11.2009, p. 34).’ 

Article 2 

The texts of Regulation (EC) No 1070/2009 in the Icelandic and Norwegian languages, to 
be published in the EEA Supplement to the Official Journal of the European Union, shall 
be authentic. 

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Article 3 

This  Decision  shall  enter  into  force  on  […],  provided  that  all  the  notifications  under 
Article 103(1) of the EEA Agreement have been made∗. 

Article 4 

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 

ThePresident 

The Secretaries 
to the EEA Joint Committee 

∗ 

[No constitutional requirements indicated.] [Constitutional requirements indicated.] 

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