CELEX: 52022PC0033
Language: en
Date: 2022-02-02
Title: Proposal for a COUNCIL DECISION on the position to be adopted, on behalf of the European Union, within the EEA Joint Committee, concerning the amendment to Annex IV (Energy) to the EEA Agreement (Directive on the Energy Performance of Buildings)

EUROPEAN COMMISSION
            Brussels, 2.2.2022
            COM(2022) 33 final
            2022/0022(NLE)
            
            Proposal for a
            COUNCIL DECISION
            on the position to be adopted, on behalf of the European Union, within the EEA Joint Committee, concerning the amendment to Annex IV (Energy) to the EEA Agreement(Directive on the Energy Performance of Buildings)
            (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 Agreement entered into force on 1 January 1994. The European Union together with its Member States is a party to the 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 functioning of the EEA Agreement. Its decisions are taken by consensus. 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 Directive on the Energy Performance of Buildings
                  1
                (“the EPBD”) 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 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 content and nature of the draft of the annexed Decision 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 annexed Decision of the EEA Joint Committee contains inter-alia the following adaptations: 
            
            
               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 is proposed. In Iceland, 99.9% of electricity and 98% of space heating is covered by local renewable energy sources. In Iceland’s case, therefore, measures to improve energy efficiency of buildings will have virtually no impact on greenhouse gas emissions or energy security.
            
            
               In line with the very small size of the building stock in Liechtenstein and its climatic and building typology, it is suggested to exempt Liechtenstein from the obligation to carry out its own calculations for the establishment of cost-optimal levels of minimum energy performance requirements for buildings in accordance with Article 5 of the EPBD.
            
            
               It is further proposed that Norway and Liechtenstein may stipulate regulations on minimum energy performance requirements using a different system boundary than primary energy use which is the one required under the EPBD, provided, however, that the conditions stipulated under Article 1(c) of this decision are met.
            
         
         
            
               In order to ensure that the user-operated energy performance certification system in Norway will produce equivalent results to certificates issued by independent experts as required by Article 17 of the EPBD, the adaptation under Article 1(d) is proposed.
            
            
               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
               .
            
            
               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(2) 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
            
            
               The main objective and content of the envisaged act relate to the establishment and functioning of the internal market in energy. 
            
            
               Therefore, the substantive legal basis of the proposed decision is Article 194(2) of the Treaty on the Functioning of the European Union.
            
            
               4.3.Conclusion
            
            
               The legal basis of the proposed decision should be Article 194(2), in conjunction with Article 218(9) TFEU and Article 1(3) of Council Regulation No 2894/94 concerning arrangements for implementing the Agreement on the European Economic Area.
            
            
               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.
            
         
         
            
               2022/0022 (NLE)
            
            
               Proposal for a
            
            
               COUNCIL DECISION
            
            
               on the position to be adopted, on behalf of the European Union, within the EEA Joint Committee, concerning the amendment to Annex IV (Energy) to the EEA Agreement
               
                  (Directive on the Energy Performance of Buildings)
            
            
               (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
                  3
               , 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
                ('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 to the EEA Agreement, which contains provisions on energy.
            
            
               (3)Directive 2010/31/EU of the European Parliament and of the Council
                  5
                (“the EPBD”) is to be incorporated into the EEA Agreement.
            
            
               (4)Annex IV (Energy) to the EEA Agreement should be amended accordingly.
            
            
               (5)The position of the Union in the EEA Joint Committee should therefore be based on the draft EEA Joint Committee Decision set out in the Annex to this Decision,
            
            
               HAS ADOPTED THIS DECISION:
            
            
               Article 1
            
            
               The position to be adopted on the Union's behalf within the EEA Joint Committee on the proposed amendment of 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)
                  
                        OJ L 153, 18.6.2010, p. 13.
               
               
                  
                     (2)
                  
                        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)
                  
                        OJ L 305, 30.11.1994, p. 6.
               
               
                  
                     (4)
                  
                        OJ L 1, 3.1.1994, p. 3. 
               
               
                  
                     (5)
                  
                        Directive 2010/31/EU of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings, OJ L 153, 18.6.2010, p. 13.
               
            
      
    ---documentbreak--- 
      
         
               EUROPEAN COMMISSION
            Brussels, 2.2.2022
            COM(2022) 33 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 the amendment to Annex IV (Energy) to the EEA Agreement(Directive on the Energy Performance of Buildings)
            
               
         
         
            
               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)Directive 2010/31/EU of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings
                  1
                (“the EPBD”) 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 is agreed. 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 and is strictly limited in time until an agreement is reached concerning incorporation of Directive 2010/31/EU as amended by Directive (EU) 2018/844.
            
            
               (3)In line with the very small size of the building stock in Liechtenstein and its climatic and building typology, Liechtenstein is exempted from the obligation to carry out its own calculations for the establishment of cost-optimal levels of minimum energy performance requirements for buildings in accordance with Article 5 of the EPBD.
            
            
               (4)Norway and Liechtenstein may stipulate regulations  on minimum energy performance requirements using a different system boundary than primary energy use which is the one required under the EPBD, provided, however, that the conditions stipulated under Article 1(c) of this decision are met.
            
            
               (5)In order to ensure that the user-operated energy performance certification system in Norway will produce equivalent results to certificates issued by independent experts as required by Article 17 of the EPBD, the adaptation under Article 1(d) is proposed.
            
            
               (6)Annex IV to the EEA Agreement should therefore be amended accordingly,
            
            
               HAS ADOPTED THIS DECISION:
            
            
               Article 1
            
            
               The text of point 17 (Directive (EC) No 2002/91 of the European Parliament and of the Council of 16 December 2002) of Annex IV of the EEA Agreement is replaced by the following:
            
            
               ‘32010 L 0031: Directive 2010/31/EU of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings (OJ L 153, 18.6.2010, p. 13).
            
            
               The provisions of the Directive shall, for the purposes of this Agreement, be read with the following adaptations:
            
         
         
            
               (a)The Directive shall not apply to Iceland. 
            
            
               (b)The following shall be added to Article 5(2):
            
            
               “For the purpose of establishing the cost-optimal levels of minimum energy performance requirements, Liechtenstein may use the calculations of another Contracting Party having comparative parameters.”
            
            
               (c)For the purpose of Article 9(3)(a) and Annex I of the EPBD, Liechtenstein and Norway may base their requirements for energy use on net energy, provided that the following conditions and safeguards are fulfilled:
            
            
               
                     2
                  (i) The minimum energy performance requirements are set in line with the requirements of Article 5 of the EPBD, following the basic principles of the methodology framework, which has been established for the calculation of cost-optimal levels of minimum energy performance requirements. 
            
            
               (ii) A numeric indicator of primary energy use corresponding to the energy performance requirements set in the building code is published.
            
            
               (iii) The Commission reserves the right to revisit this specific adaptation in the context of the future negotiations on the EPBD as amended by Directive (EU) 2018/844. 
            
            
                (d)The following shall be added to Article 17:
            
            
               “EFTA States may establish a simplified user-operated energy performance certification system for residential buildings that can be used as an alternative to the use of experts if the following conditions are met:
            
            
               (i) There is a thorough knowledge and good quality data available on the entire residential building stock, including all the building typologies and age bands, and the characteristics of the building envelope and technical building systems in use per typology, which enables the calculation of the energy performance of individual buildings and building units with a high degree of certainty on the basis of user inputs,
            
            
               (ii) Detailed information is available on cost-optimal or cost-effective improvements for each building typology,
            
            
               (iii) Measures are in place to support the users to operate the system for the purpose of the system issuing building certificates. These measures may include a helpline or advisory services that will enable contact between the users on the one hand, and independent experts and system experts on the other,
            
            
               iv)To ensure negligible risk of manipulation of results, the user-operated certification system includes quality control and verification mechanism(s) to check users' input data and that the users' input data are transparent,
            
            
               v)Independent control systems are in place to ensure that the user-operated energy performance certification produces equivalent results to certificates issued by experts, in terms of quality and reliability,
            
            
               vi)The user-operated system issues recommendations which can advise the users of cost-optimal or cost-effective improvements specific for their buildings and building units.”’
            
            
               Article 2
            
            
               The text of Directive 2010/31/EU 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
                  3*.
            
            
               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)
                  
                        OJ L 153, 18.6.2010, p. 13.
               
               
                  
                     (2)
                  
                        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.
               
               
                  
                     (3)
                  *
                        [No constitutional requirements indicated.] [Constitutional requirements indicated.]