Source: EURLEX
Language: en
Format: md

![european flag](./../../../images/eclogo.jpg)EUROPEAN COMMISSION

Brussels, 15.12.2022

COM(2022) 743 final

2022/0431(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 to the EEA Agreement, on cooperation in specific fields outside the four freedoms  
  
(Cybersecurity Centre)

(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 to the EEA Agreement, on cooperation in specific fields outside the four freedoms

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 to the EEA Agreement, on cooperation in specific fields outside the four freedoms.

The purpose of the envisaged act is to extend the cooperation of the Contracting Parties to the EEA Agreement to include Regulation (EU) 2021/887 of the European Parliament and of the Council of 20 May 2021 establishing the European Cybersecurity Industrial, Technology and Research Competence Centre and the Network of National Coordination Centres
[1](#footnote1)
.

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 activities of the European Cybersecurity Industrial, Technology and Research Competence Centre and of the Network of National Coordination Centres, 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](#footnote2)
.

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 extends the cooperation of the Contracting Parties to the EEA Agreement to include Regulation (EU) 2021/887, 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 173(3) and the first paragraph of Article 188 of the TFEU.

4.3.Conclusion

The legal basis of the proposed decision should be Article 173(3) and the first paragraph of Article 188 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 Protocol 31 to the EEA Agreement, on cooperation in specific fields outside the four freedoms, it is appropriate to publish it in the Official Journal of the European Union after its adoption.

2022/0431 (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 to the EEA Agreement, on cooperation in specific fields outside the four freedoms
  

  
(Cybersecurity Centre)

(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 is Article 173(3) and the first paragraph of Article 188 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](#footnote3)
, 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](#footnote4)
 ('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, Protocol 31 on cooperation in specific fields outside the four freedoms (‘Protocol 31’) to the EEA Agreement.

(3)It is appropriate to extend the cooperation of the Contracting Parties to the EEA Agreement to include Regulation (EU) 2021/887 of the European Parliament and of the Council
[5](#footnote5)
.

(4)Protocol 31 to the EEA Agreement should therefore be amended in order to allow for this extended cooperation to take place from 1 January 2023.

(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 to the EEA Agreement, on cooperation in specific fields outside the four freedoms, 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

:   [(1)](#footnoteref1)
       OJ L 202, 8.6.2021, p. 1
:   [(2)](#footnoteref2)
       Judgment of the Court of Justice of 7 October 2014, Germany v Council, C-399/12, ECLI:EU:C:2014:2258, paragraphs 61 to 64.
:   [(3)](#footnoteref3)
       OJ L 305, 30.11.1994, p. 6.
:   [(4)](#footnoteref4)
       OJ L 1, 3.1.1994, p. 3.
:   [(5)](#footnoteref5)
       Regulation (EU) 2021/887 of the European Parliament and of the Council of 20 May 2021 establishing the European Cybersecurity Industrial, Technology and Research Competence Centre and the Network of National Coordination Centres (OJ L 202, 8.6.2021, p. 1).

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![european flag](./../../../images/eclogo.jpg)EUROPEAN COMMISSION

Brussels, 15.12.2022

COM(2022) 743 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 Protocol 31 to the EEA Agreement, on cooperation in specific fields outside the four freedoms  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
(Cybersecurity Centre)

ANNEX

DECISION OF THE EEA JOINT COMMITTEE

No […]

of […]

amending Protocol 31 to the EEA Agreement, on cooperation in specific fields outside the four freedoms

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)It is appropriate to extend the cooperation of the Contracting Parties to the EEA Agreement to include Regulation (EU) 2021/887 of the European Parliament and of the Council of 20 May 2021 establishing the European Cybersecurity Industrial, Technology and Research Competence Centre and the Network of National Coordination Centres
[1](#footnote1)
.

(2)Protocol 31 to the EEA Agreement should therefore be amended in order to allow for this extended cooperation to take place from 1 January 2023,

HAS ADOPTED THIS DECISION:

Article 1

In Article 2 of Protocol 31 to the EEA Agreement, the following point shall be inserted after point 7 (trans-European telecommunications networks):

‘8.(a)The EFTA States shall, as from 1 January 2023, participate in the activities which may result from the following act:

(1)32021 R 0887: Regulation (EU) 2021/887 of the European Parliament and of the Council of 20 May 2021 establishing the European Cybersecurity Industrial, Technology and Research Competence Centre and the Network of National Coordination Centres (OJ L 202, 8.6.2021, p. 1).

   (b)
   The EFTA States shall participate fully in the Governing Board and shall have the same rights and obligations within it as EU Member States, except for the right to vote.

   (c)
   Nationals of the EFTA States shall be eligible as members of the Strategic Advisory Group.

   (d)
   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 Executive Director of the Competence Centre.

(e)
   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 Agreement shall be considered by the Competence Centre, in respect of its staff, as languages of the Union referred to in Article 55(1) of the Treaty on European Union.

   (f)
   The EFTA States shall grant privileges and immunities to the Competence Centre and its staff equivalent to those contained in the Protocol on Privileges and Immunities of the European Union.

   (g)
   Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents shall, for the application of Regulation (EU) 2021/696, apply to any documents of the Competence Centre regarding the EFTA States as well.

   (h)
   By virtue of Article 79(3) of the Agreement, Part VII (Institutional Provisions) of the Agreement shall apply to this paragraph.’

Article 2

This Decision shall enter into force on the day following the last notification under Article 103(1) of the EEA Agreement
[2](#footnote2)\*.

It shall apply from 1 January 2023.

Article 3

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) 2021/887 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.

:   [(1)](#footnoteref1)
       OJ L 202, 8.6.2021, p. 1.
:   [(2)](#footnoteref2)
    \*
       [No constitutional requirements indicated.] [Constitutional requirements indicated.]

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