Source: EURLEX
Language: en
Format: md

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

Brussels, 16.10.2023

COM(2023) 585 final

2023/0358(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 Annex IV (Energy) to the EEA Agreement  
  
(EPBD: comparative methodology framework)

(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 Annex IV (Energy) 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 Annex IV (Energy) to the EEA Agreement.

The purpose of the envisaged act is to incorporate Commission Delegated Regulation supplementing Directive 2010/31/EU on the energy performance of buildings by establishing a comparative methodology framework for calculating cost-optimal levels of minimum energy performance requirements for buildings and building elements
[1](#footnote1)
 into the EEA Agreement.

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 includes derogation for Iceland, based on temporary and conditional exemption from applying Directive 2010/31/EU on the energy performance of buildings
[2](#footnote2)
 adopted in the Joint Committee Decision 135/2022. This derogation 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’
[3](#footnote3)
.

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 incorporates Commission Delegated Regulation supplementing Directive 2010/31/EU on the energy performance of buildings by establishing a comparative methodology framework for calculating cost-optimal levels of minimum energy performance requirements for buildings and building elements (OJ L 81, 21.3.2012, p. 18) into the EEA Agreement, 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 194(2) of the TFEU.

4.3.Conclusion

The legal basis of the proposed decision should be Article 194(2) 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 Annex IV (Energy) to the EEA Agreement, it is appropriate to publish it in the Official Journal of the European Union after its adoption.

2023/0358 (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 Annex IV (Energy) to the EEA Agreement
  

  
(EPBD: comparative methodology framework)

(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 194(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 Area
[4](#footnote4)
, 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
[5](#footnote5)
 ('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, Annex IV (Energy) to the EEA Agreement.

(3)Commission Delegated Regulation supplementing Directive 2010/31/EU on the energy performance of buildings by establishing a comparative methodology framework for calculating cost-optimal levels of minimum energy performance requirements for buildings and building elements
[6](#footnote6)
 should be incorporated into the EEA Agreement.

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

(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 Annex IV (Energy) 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 date of its adoption.

Done at Brussels,

For the Council

   The President

:   [(1)](#footnoteref1)
       Commission Delegated Regulation (EU) No 244/2012 of 16 January 2012 supplementing Directive 2010/31/EU of the European Parliament and of the Council on the energy performance of buildings by establishing a comparative methodology framework for calculating cost-optimal levels of minimum energy performance requirements for buildings and building elements, OJ L 81, 21.3.2012, p. 18.
:   [(2)](#footnoteref2)
       Directive 2010/31/EU of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings (EPBD, OJ L 153, 18.6.2010, p. 13.
:   [(3)](#footnoteref3)
       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.
:   [(4)](#footnoteref4)
       OJ L 305, 30.11.1994, p. 6.
:   [(5)](#footnoteref5)
       OJ L 1, 3.1.1994, p. 3.
:   [(6)](#footnoteref6)
       Commission Delegated Regulation (EU) No 244/2012 of 16 January 2012 supplementing Directive 2010/31/EU of the European Parliament and of the Council on the energy performance of buildings by establishing a comparative methodology framework for calculating cost-optimal levels of minimum energy performance requirements for buildings and building elements, OJ L 81, 21.3.2012, p. 18.

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

Brussels, 16.10.2023

COM(2023) 585 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 IV (Energy) to the EEA Agreement  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
(EPBD: comparative methodology framework)

ANNEX

DRAFT DECISION OF THE EEA JOINT COMMITTEE

No […]

of […]

amending Annex IV (Energy) 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)Commission Delegated Regulation (EU) No 244/2012 of 16 January 2012 supplementing Directive 2010/31/EU of the European Parliament and of the Council on the energy performance of buildings by establishing a comparative methodology framework for calculating cost-optimal levels of minimum energy performance requirements for buildings and building elements
[1](#footnote1)
 is to be incorporated into the EEA Agreement.

(2)Due to the specificities of Iceland’s relatively recent and uniform building stock, a temporary and conditional exemption from applying Directive 2010/31/EU on the energy performance of buildings was agreed, pursuant to Decision of the EEA Joint Committee No 135/2022 of 29 April 2022 amending Annex IV (Energy) to the EEA Agreement. This exemption applies to Directive 2010/31/EU as in force before the amendment by Directive (EU) 2018/844 of the European Parliament and of the Council of 30 May 2018. Delegated Regulation (EU) No 244/2012 should therefore not apply to Iceland. The exemption is strictly limited in time and should apply only until an agreement is reached concerning incorporation of Directive 2010/31/EU as amended by Directive (EU) 2018/844 into the EEA Agreement. An agreement should be deemed to be reached once Directive 2010/31/EU as amended by Directive (EU) 2018/844 has been incorporated into the EEA Agreement.

(3)Annex IV to the EEA Agreement should therefore be amended accordingly,

HAS ADOPTED THIS DECISION:

Article 1

The following point is inserted after point 17 (Directive 2010/31/EU of the European Parliament and of the Council) of Annex IV to the EEA Agreement:

‘17a.32012 R 0244: Commission Delegated Regulation (EU) No 244/2012 of 16 January 2012 supplementing Directive 2010/31/EU of the European Parliament and of the Council on the energy performance of buildings by establishing a comparative methodology framework for calculating cost-optimal levels of minimum energy performance requirements for buildings and building elements (OJ L 81, 21.3.2012, p. 18).

The provisions of the Regulation shall, for the purposes of this Agreement, be read with the following adaptation:

The Regulation shall not apply to Iceland.’

Article 2

The text of Delegated Regulation (EU) No 244/2012 in the Icelandic and Norwegian languages, to be published in the EEA Supplement to the Official Journal of the European Union, shall be authentic.

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
[2](#footnote2)\*, or on the day of the entry into force of Decision of the EEA Joint Committee No 135/2022 of 29 April 2022
[3](#footnote3)
, whichever is the later.

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

   The President

   […]

   The Secretaries

   To the EEA Joint Committee

   […]

:   [(1)](#footnoteref1)
       OJ L 81, 21.3.2012, p. 18.
:   [(2)](#footnoteref2)
    \*
       [No constitutional requirements indicated.] [Constitutional requirements indicated.]
:   [(3)](#footnoteref3)
       OJ L 246, 22.9.2022, p. 87.

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