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 (on cooperation in specific fields outside the four freedoms) and Protocol 37 (containing the list provided for in Article 101) to the EEA Agreement (Serious cross-border threats to health)
Date: 2024-06-11
Institutions: European Commission, Secretariat-General
Subjects: EEA Joint Committee, European Economic Area, crisis management, cross-border cooperation, disease prevention, epidemic, infectious disease, protocol to an agreement, public health, revision of an agreement

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   EUROPEAN COMMISSION  Brussels, 11.6.2024  COM(2024) 241 final/2 2024/145 (NLE)  CORRIGENDUM This document corrects COM(2024) 241 final of 11.6.2024.  Concerns the English, German and French version. Interinstitutional serial number (NLE) added. The text shall read as follows: 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 (on cooperation in specific fields outside the four freedoms) and Protocol 37 (containing the list provided for in Article 101) to the EEA Agreement  (Serious cross-border threats to health)   (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  (on  cooperation  in  specific 
fields outside the four freedoms) and Protocol 37 (containing the list provided for in Article 
101) 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  Protocol  31  (on  cooperation  in  specific  fields 
outside the four freedoms) and Protocol 37 (containing the list provided for in Article 101) to 
the EEA Agreement. 

The purpose of the envisaged act is to extend the cooperation of the Contracting Parties to the 
EEA  Agreement  to  include  Regulation  (EU)  2022/2371  on  serious  cross-border  threats  to 
health1.  

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. 

1 

Regulation (EU) 2022/2371 of the European Parliament and of the Council of 23 November 2022 on 
serious cross-border threats to health and repealing Decision No 1082/2013/EU  (OJ L 314, 6.12.2022, 
p. 26). 

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The  annexed  draft  Decision  of  the  EEA  Joint  Committee  introduces  participation  rights  for 
the  EEA  EFTA  States  in  the  Health  Security  Committee,  which  goes  beyond  what  can  be 
considered mere technical adaptations in the sense of Council Regulation (EC) No 2894/942. 
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’3. 

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 (EC) No 2894/94. 

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  (EC)  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 into the EEA Agreement Regulation  (EU) 
2022/2371, 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 168(5) of the TFEU. 

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Council Regulation (EC) No 2894/94 of 28 November 1994 concerning arrangements for implementing 
the Agreement on the European Economic Area, OJ L 305, 30.11.1994, p. 6. 
Judgment  of 
ECLI:EU:C:2014:2258, paragraphs 61 to 64.  

the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  C-399/12, 

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4.3. 

Conclusion 

The legal basis of the proposed decision should be Article 168(5) TFEU, in conjunction with 
Article 218(9) TFEU and Article 1(3) of Council Regulation (EC) No 2894/94. 

5. 

PUBLICATION OF THE ENVISAGED ACT 

As  the  act  of  the  EEA  Joint  Committee  will  amend  Protocol  31  (on  cooperation  in  specific 
fields outside the four freedoms) and Protocol 37 (containing the list provided for in Article 
101)  to  the  EEA  Agreement,  it  is  appropriate  to  publish  it  in  the  Official  Journal  of  the 
European Union after its adoption. 

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2024/145 (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 (on cooperation in specific fields 
outside the four freedoms) and Protocol 37 (containing the list provided for in Article 
101) to the EEA Agreement 

(Serious cross-border threats to health) 

(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 168(5) 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  Area4,  and  in 
particular Article 1(3) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

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The Agreement on the European Economic Area5 ('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,  Protocol  31  (on  cooperation  in  specific  fields  outside  the  four 
freedoms) and Protocol 37 (containing the list provided for in Article 101) to the EEA 
Agreement. 

It  is  appropriate  to  extend  the  cooperation  of  the  Contracting  Parties  to  the  EEA 
Agreement to include Regulation (EU) 2022/2371 of the European Parliament and of 
the Council6. 

Protocol 31 (on cooperation in specific fields outside the four freedoms) and Protocol 
37  (containing  the  list  provided  for  in  Article  101)  to  the  EEA  Agreement  should 
therefore be amended accordingly. 

OJ L 305, 30.11.1994, p. 6. 
OJ L 1, 3.1.1994, p. 3. 
Regulation (EU) 2022/2371 of the European Parliament and of the Council of 23 November 2022 on 
serious cross-border threats to health and repealing Decision No 1082/2013/EU  (OJ L 314, 6.12.2022, 
p. 26). 

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(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  (on  cooperation  in  specific  fields  outside  the  four 
freedoms)  and  Protocol  37  (containing  the  list  provided  for  in  Article  101)  to  the  EEA 
Agreement, shall be based on the draft decision of the EEA Joint Committee attached to this 
Decision. 

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

Done at Brussels, 

Article 2 

For the Council 
The President 

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