A central part of the European Economic Area (EEA) is the concept of homogeneity. This is to be achieved firstly by the timely incorporation of EC legislation into the EEA Agreement. This means that as soon as an EEA-relevant EC legal act has been formally adopted on the EU side, the EEA Joint Committee shall take a decision concerning the appropriate amendment of the EEA Agreement "with a view to permitting a simultaneous application" of legislation in the EU and the EEA EFTA States (Article 102(1) EEA).
Before looking at the EEA decision-making procedure, it is useful to quickly go through the decision-making procedure on the EU side. It is the role of the European Commission to propose legislation. Once a proposal has been agreed internally in the Commission, it is presented to the Council and to the European Parliament (EP), co-legislators with equal rights to adopt EEA-relevant legislation. This decision-making procedure - co-decision (Article 251 EC) - was introduced by the Treaty of Maastricht and increased the legislative powers of the EP considerably. The co-decision procedure was further strengthened by the Treaty of Amsterdam and the Treaty of Nice.
Not all EEA-relevant acquis communautaire contains legislation adopted by the Council and the EP. In fact, the Commission, by virtue of the competencies delegated to it, adopts a far higher number of legislative acts than the Council. This takes place within the framework of adopted Council/EP regulations, directives or decisions. In other words, when the Council and the EP have decided “what” should be done, they authorise the Commission to create legislation stipulating “how” it should be done and give it the mandate to fill in the technical and detailed requirements across a range of issues.
During the decision-making process on the EU side, the EEA EFTA States have little or no formal opportunity to influence the Council or the EP. This is very different from the pre-pipeline or preparatory stage, where the EEA EFTA States take an active part in the decision shaping of EEA legislation.
Whenever a legal act of the secondary Community legislation is amended or a new act adopted, a corresponding amendment should be made to the relevant annex of the EEA Agreement.
The general principles for such adoption are laid down in Article 102 (1) EEA. The EEA Joint Committee is to take an amendment to the EEA Agreement as closely as possible to the adoption by the Community of the corresponding new Community legislation, with a view to permitting simultaneous application in the Community and in the EEA EFTA States. The Community is therefore obliged to inform the other contracting parties in the EEA Joint Committee whenever it adopts a legislative act on an issue governed by the EEA Agreement. All the EEA EFTA States have to be in agreement for the EEA Joint Committee to take a decision. Such agreement is reached by consultation within the Standing Committee throughout the decision-making procedure.
Once an EC act has gone through the EC procedures and been adopted, the desk officer in the EFTA Secretariat responsible for that area prepares a standard sheet concerning that particular act. The standard sheet is a form which records all references and vital information about the act in question. EFTA experts in the capitals must answer a number of questions, such as whether the act is EEA-relevant, whether it will require technical adaptations for implementation in the EEA EFTA States, and whether it is likely to have constitutional requirements (see Article 103 EEA).
Once the experts have returned the standard sheets to the Secretariat, the EC act is put on the agenda for the responsible subcommittee to confirm that it is EEA-relevant. Upon confirmation, the Secretariat drafts a Joint Committee Decision (JCD). Priority is given according to the timing of implementation of the legislation in the EU. The draft JCD is sent to the experts for approval and then, once it has been returned by the experts, the draft JCD comes under final legal scrutiny in the Secretariat before it is put on the agenda for the relevant subcommittee, where it is approved and handed over to the Commission.
The Secretariat then consults the Commission on the timing of adoption by the EEA Joint Committee.
The contracting parties have not transferred any legislative powers to the EEA Joint Committee. It has therefore been necessary to regulate the situation in which, according to their constitutions, an EEA JCD can only be binding on one or the other contracting party after it has been approved by parliament or by referendum.
Decisions that have budgetary implications for more than one year will in principle need parliamentary consent in Norway. In Liechtenstein parliamentary consent is needed if the financial contribution of participation by Liechtenstein in a Community activity amounts to more than CHF 50 000 in total or to more than CHF 20 000 per annum for three consecutive years. In Iceland, the administration negotiates the total EEA budget which is then presented to the Icelandic Parliament for approval as a single figure within the national budget. This process takes place on an annual (financial) basis.
The fulfilment of constitutional requirements has an impact on the date of entry into force of the JCD. Where one of the contracting parties needs to fulfil constitutional requirements and notification of fulfilment is received after the stated date of entry into force of the JCD, the confirmed date of entry into force will be the first day of the second month following the final notification (see Article 103 EEA).
If such notification has not been received within six months after the adoption of an EEA JCD, the JCD is, according to Article 103(2) EEA, to be applied provisionally pending the fulfilment of constitutional requirements, unless a contracting party states that provisional application cannot take place.
For the purpose of clarification and to shorten the time period needed for parliamentary approval, the EEA EFTA States have introduced procedures to inform and consult their parliaments at an early stage. This enables a date of entry into force to be set as close as possible to the expected completion of the parliamentary procedures (to avoid the main rule in Article 103 EEA, this can be up to almost two months). In the fields of programmes, for example, participation might be dependent on a JCD. The EEA EFTA States should therefore seek to have parliamentary approval before a JCD is adopted.
Once the procedures for the fulfilment of constitutional requirements have been completed in an EEA EFTA State, it notifies the EFTA Secretariat, which forwards the information to the Commission and other EEA EFTA States.
The EFTA Secretariat produces a list showing the JCDs adopted each year. This list is updated after every EEA Joint Committee meeting. In order to keep track of EEA JCDs awaiting fulfilment of constitutional requirements, the Secretariat produce a list containing “Awaited Notifications under Article 103 of the EEA Agreement”. An overview of all JCDs having constitutional requirements since the entry into force of the EEA Agreement can be found in the list “EEA Joint Committee Decisions with Constitutional Requirements”. These lists are available in the EFTA Legal Documents.