CELEX: 52021PC0635
Language: en
Date: 2021-10-15
Title: 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 (Space Programme of the Union)

EUROPEAN COMMISSION
            Brussels, 15.10.2021
            COM(2021) 635 final
            2021/0329(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(Space Programme of the Union) 
            (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 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 the functioning of the EEA Agreement. Its decisions are taken by consensus.  In accordance with the Treaty of Lisbon, responsibility for coordinating EEA matters on the EU side is with the European External Action Service.
            
            
               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 the participation of the EEA EFTA States in the Space Programme of the Union. Regulation (EU) 2021/696
                  1
                shall therefore be incorporated into the EEA Agreement. 
            
            
               
                  As Liechtenstein did not express its interest in participating in the Space Programme of the Union, the draft Decision of the EEA Joint Committee therefore concerns only Norway and Iceland.
               
            
            
               In line with the EU budgetary policy, any participation in an EU activity can take place only once the corresponding financial contribution is paid. The payment can however take place once this draft Council Decision is adopted and the subsequent EU call for funds, established by the European Commission, is submitted to the EEA EFTA States.
            
            
               Therefore, in order to bridge the period between 1st January 2021 and the reception of the respective payment, the draft Joint Committee Decision shall also be retroactively applicable from 1st January 2021. The retroactivity does not affect the rights and obligations of persons concerned and respects the principle of the legitimate expectations.
            
            
               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 Commission will present it 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 adjustments in the sense of the Council Regulation No 2894/94
                  2
               . 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 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 depends primarily on the objective and content of the envisaged act in respect of which a position is taken on the Union's behalf. 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 substantive legal basis of the proposed decision shall correspond with the substantive legal basis of the legal act it incorporates into the EEA Agreement. The Space Programme of the Union is based on Article 189(2) TFEU. Therefore, the substantive legal basis of the proposed decision should also be Article 189(2) TFEU.
            
            
               4.3.Conclusion
            
            
               The legal basis of the proposed decision should be Article 189(2) TFEU, 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.Budgetary Implications 
            
            
               
                  Norway and Iceland shall financially contribute to the Budget of the Union. The exact amount will be determined in conformity with the provisions of the EEA Agreement, once this draft Council Decision is adopted. 
               
            
            
               6.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.
            
            
               2021/0329 (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
               
                  (Space Programme of the Union) 
               
            
               (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 189(2), in conjunction with Article 218(9) thereof,
            
            
               Having regard to Council Regulation (EC) 2894/94 of 28 November 1994 concerning arrangements for implementing the Agreement on the European Economic Area
                  4
               , 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
                ('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 and Protocol 37 to the EEA Agreement, which contain provisions on cooperation in specific fields outside the four freedoms and the list provided for in Article 101 respectively.
            
            
               (3)Regulation (EU) 2021/696 of the European Parliament and of the Council
                  6
                is to be incorporated into the EEA Agreement. Only Norway and Iceland are concerned by this amendment.
            
            
               (4)Protocol 31 (on cooperation in specific fields outside the four freedoms) to the EEA Agreement and Protocol 37 (containing the list provided for in Article 101) to the EEA Agreement should therefore 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 Protocol 31 (on cooperation in specific fields outside the four freedoms) to the EEA Agreement 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.
            
            
               Article 2
            
            
               This Decision shall enter into force on the date of its adoption.
            
            
               Done at Brussels,
            
            
               
                     For the Council
               
            
         
         
            
               
                     The President
               
            
         
         
            
                  
                     (1)
                  
                        Regulation (UE) 2021/696 of the European Parliament and of the Council of  28 April 2021 establishing the Union Space Programme and the European Union Agency for the Space Programme and repealing Regulations (EU) No 912/2010, (EU) No 1285/2013, (EU) No 377/2014 and Decision 541/2014/EU, OJ L 170, 12.05.2021, p.69.
               
               
                  
                     (2)
                  
                        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. 6–8)
               
               
                  
                     (3)
                  
                        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)
                  
                        OJ L 305, 30.11.1994, p. 6.
               
               
                  
                     (5)
                  
                        OJ L 1, 3.1.1994, p. 3. 
               
               
                  
                     (6)
                  
                        Regulation (UE) 2021/696 of the European Parliament and of the Council of  28 April 2021 establishing the Union Space Programme and the European Union Agency for the Space Programme and repealing Regulations (EU) No 912/2010, (EU) No 1285/2013, (EU) No 377/2014 and Decision 541/2014/EU, OJ L 170, 12.05.2021, p.69. 
               
            
      
    ---documentbreak--- 
      
         
               EUROPEAN COMMISSION
            Brussels, 15.10.2021
            COM(2021) 635 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 on cooperation in specific fields outside the four freedoms and Protocol 37 containing the list provided for in Article 101 to the EEA Agreement(Space Programme of the Union)
            
               
         
         
            
               ANNEX
            
            
            
               DECISION OF THE EEA JOINT COMMITTEE
            
            
               No […]
            
            
               of […]
            
            
               amending 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 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) 2021/696 of the European Parliament and of the Council of 28 April 2021 establishing the Union Space Programme and the European Union Agency for the Space Programme and repealing Regulations (EU) No 912/2010, (EU) No 1285/2013 and (EU) No 377/2014 and Decision No 541/2014/EU
                  1
               .
            
            
               (2)It is appropriate that the participation of EFTA States in the activities resulting from Regulation (EU) 2021/696 commence from 1 January 2021, irrespective of when this Decision is adopted, or whether the fulfilment of constitutional requirements for this Decision, if any, is notified after 10 July 2021.
            
            
               (3)Entities established in the EFTA States should be entitled to participate in activities which start before the entry into force of this Decision. The costs incurred for such activities, the implementation of which starts after 1 January 2021, may be considered eligible under the same conditions as those applicable to costs incurred by entities established in the EU Member States, provided that this Decision enters into force before the end of the action concerned.
            
            
               (4)The conditions for participation of EFTA States and their institutions, undertakings, organizations and nationals in programmes of the European Union are set out in the EEA Agreement and in particular in Article 81 thereof.
            
            
               (5)The Contracting Parties acknowledge the existing formal cooperation in the various EU space programmes. They wish to build on this strong partnership and to extend the cooperation to all relevant components of the new space programme.
            
            
               (6)As regards the participation of Norway, account should also be taken of the Cooperation Agreement on Satellite Navigation between the European Union and its Member States and Norway
                  2
               .
            
            
               (7)Protocols 31 and 37 to the EEA Agreement should therefore be amended accordingly, in order to allow for this extended cooperation to take place from 1 January 2021,
            
            
               HAS ADOPTED THIS DECISION:
            
            
               Article 1
            
            
               The following is inserted after paragraph 8d of Article 1 of Protocol 31 to the EEA Agreement:
            
         
         
            
               ‘8e.(a)The EFTA States shall, as from 1 January 2021, participate in the activities which may result from the following Union act and in the European Union Agency for the Space Programme, hereafter referred to as the ‘Agency’ with the exception of the GOVSATCOM and SSA SST activities, as set up by the following Union act:
            
            
               -32021 R 0696: Regulation (EU) 2021/696 of the European Parliament and of the Council of 28 April 2021 establishing the Union Space Programme and the European Union Agency for the Space Programme and repealing Regulations (EU) No 912/2010, (EU) No 1285/2013 and (EU) No 377/2014 and Decision No 541/2014/EU (OJ L 170, 12.5.2021, p. 69).
            
            
               (b)The EFTA States shall contribute financially to the activities referred to under (a) in accordance with Article 82(1)(a) of and Protocol 32 to the Agreement.
            
            
               (c)The financial contribution, referred to under (b), shall also cover the cost of the inclusion of the EFTA States in the EGNOS mission and the extension of the EGNOS services coverage to the territories of the participating EFTA States. Such coverage extension shall be subject to technical feasibility and shall not delay the extension of the geographical coverage of the EGNOS system throughout the EU Member States’ territories geographically located in Europe.
            
            
               (d)The costs incurred for activities the implementation of which starts after 1 January 2021 may be considered eligible as from the starting date of the action fixed in the grant agreement or the grаnt decision concerned, under the conditions set out therein, provided that Decision of the EEA Joint Committee No XX/2021 of xx 2021 [this Decision] enters into force before the end of the action.
            
            
               (e)The eligible EFTA States shall participate fully, without the right to vote, in the Administrative Board of the Agency.
            
            
               (f)The eligible EFTA States shall participate, without the right to vote, in the Security Accreditation Board of the Agency, for relevant parts of the programme and restricted in compliance with the need-to-know policy established by the programme.
            
            
               (g)The Agency shall have legal personality. It shall enjoy in all the States of the Contracting Parties the most extensive legal capacity accorded to legal persons under their law.
            
            
               (h)The EFTA States shall grant privileges and immunities to the Agency and its staff equivalent to those contained in the Protocol on Privileges and Immunities of the European Union.
            
            
               (i)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 Agency.
            
            
               (j)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 EEA Agreement shall be considered by the Agency, in respect of its staff, as languages of the Union referred to in Article 55(1) of the Treaty on European Union.
            
            
               (k)By virtue of Article 79(3) of the Agreement, Part VII (Institutional Provisions) of the Agreement, with the exception of Sections 1 and 2 of Chapter 3, shall apply to this paragraph.
            
            
               (l)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 this Regulation, apply to any documents of the Agency regarding the EFTA States as well.
            
            
               (m)The eligible EFTA States shall participate fully, without the right to vote, in the Union committees which assist the European Commission in the management, development and implementation of the Galileo, EGNOS, Copernicus components and SSA SWE and SSA NEO sub-components of the activities referred to under (a). 
            
            
               The participation in the security configuration of these committees shall be restricted in compliance with the need-to-know policy established by the programme.
            
            
               (n)Liechtenstein shall be exempted from the participation in, and the financial contribution to, this programme.
            
            
               (o)Iceland shall participate in and financially contribute to the following activities of the programme: EGNOS, Copernicus, and the SSA sub-components SWE and NEO .’
            
            
               Article 2
            
            
               Protocol 37 to the EEA Agreement shall be amended as follows:
            
            
               1.The texts of points 36 and 37 shall be deleted;
            
         
         
            
               2.the following point(s) shall be inserted:
            
            
               ’43.The Security Accreditation Board of the European Union Agency for the Space Programme (Regulation (EU) 2021/696 of the European Parliament and of the Council).
            
            
               44.The Administrative Board of the European Union Agency for the Space Programme (Regulation (EU) 2021/696 of the European Parliament and of the Council).’.
            
            
               Article 3
            
            
               This Decision shall enter into force on the day following the last notification under Article 103(1) of the EEA Agreement 
                  3*.
            
            
               It shall apply from 1 January 2021.
            
            
               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 170, 12.5.2021, p. 69.
               
               
                  
                     (2)
                  
                        OJ L 283, 29.10.2010, p. 12.
               
               
                  
                     (3)
                  *
                        [No constitutional requirements indicated.] [Constitutional requirements indicated.]