Decision shaping is the phase of preparatory work undertaken by the European Commission to draw up new legislative proposals. The Commission has an exclusive right of making proposals for new legislation but is obliged to call on advice from external sources when doing so.
The EEA Agreement contains provisions for input from the EEA EFTA side at various stages before new legislation is adopted. Input can take the form of participation by EEA EFTA experts in EC committees or the submission of EEA EFTA comments, as well as the adoption of resolutions in response to Commission initiatives.
Bearing in mind that the EEA EFTA States have little influence on the decision-making phase on the EU side, it is all the more important for them to be actively involved in the decision-shaping process of EEA legislation. Community legislation to be incorporated into the EEA Agreement originates from different procedures on the EU side (see EEA decision making) such as the Council/European Parliament legislative procedure or comitology procedures. The EEA EFTA States have the possibility of providing input at various stages of both procedures.
The EEA Agreement provides for the extensive participation of EFTA experts in the preparatory work of the Commission. According to Article 99 (1) EEA, the Commission “shall informally seek advice from experts of the EFTA States” in the same manner as from EU experts when new legislation is being drawn up in a field covered by the EEA Agreement. The Commission invites experts on the basis of their professional qualifications; they are not considered representatives of individual states. In practice, the Commission may seek advice by phone, correspondence or in meetings.
In addition to the meetings with experts mentioned above, EEA EFTA State representatives have access to the following types of Commission committees in the policy-shaping phase: comitology committees (Article 100 EEA), programme committees (Article 81 EEA) and other committees in very specific areas (Article 101 EEA).
Comitology committees assist the Commission in the exercise of its executive powers where the Council and the European Parliament have authorised the Commission to establish subsidiary legislation to bring into effect a broader piece of legislation that they have introduced (see EEA decision making). Programme committees are responsible for the development and management of the Community programmes outside the four freedoms. EEA EFTA States are also entitled to participate in committees in specific areas. These areas are listed in Protocol 37 to the EEA Agreement.
EFTA participation in EU committees has two main dimensions. First, it ensures a certain flow of information, which is necessary not only to consider whether or not a certain piece of legislation should be incorporated into the EEA Agreement, but also to help the EEA EFTA States implement such legislation in a timely manner. Second, with regard to decision shaping, participation in committees may be seen as a means to influence the development of acquis as well as the management of EU programmes.
EEA EFTA comments are the typical tool of decision shaping during the “continuous information and consultation process” in the EEA Joint Committee (Article 99 (3) EEA). EEA EFTA comments are usually handed over to the Commission at subcommittee level, having been drafted by the relevant working groups. In order to be able to present EFTA comments in a timely manner, the EFTA side needs to keep well informed about developments in the Community. This implies active information gathering and processing on the EFTA side.