One of the main principles of the Agreement on the European Economic Area (EEA Agreement) is that of homogeneity, i.e. the existence of common rules and equal conditions of competition throughout the EEA. Timely incorporation of EEA-relevant EU legislation into the EEA Agreement is therefore very important. Article 102(1) EEA provides that as soon as an EEA-relevant EU legal act has been adopted in the EU, the EEA Joint Committee shall take a decision concerning the appropriate amendment of the EEA Agreement with a view to permitting simultaneous application of the legislation in the whole of the EEA.
The decision-making phase on the EU side
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.
The decision-making phase in the EEA
Whenever an EEA-relevant EU legal act is amended or a new act adopted, a corresponding amendment should be made to the relevant Annex to the EEA Agreement.
The general principles for the incorporation of acts 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 of the corresponding new EU legislation, with a view to permitting simultaneous application in the European Union and in the EEA EFTA States. All of the EEA EFTA States must in agreement before the EEA Joint Committee can take a decision; they are to speak with one voice in the EEA Joint Committee. The EEA EFTA States therefore consult each other and come to an agreement on issues in the Standing Committee of the EFTA States
(Standing Committee) throughout the decision-making procedure.
Incorporation of EC legislation into the EEA Agreement
In January 2014, the EFTA Secretariat launched an interactive service that offers detailed information on the status of EU legal acts under consideration or acts already incorporated into the EEA Agreement: EEA-Lex.
The standard incorporation procedure entails that once an EU act has been adopted and published in the Official Journal of the European Union, the desk officer in the EFTA Secretariat responsible for the relevant area prepares a standard sheet concerning that particular act. The standard sheet is a form that 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 their standard sheets to the Secretariat, the EU act is put on the agenda of the relevant subcommittee to confirm its EEA relevance. Upon confirmation from the EEA EFTA States, the Secretariat drafts a Joint Committee Decision (JCD). The timeframe for implementation of the legislation in the EU may influence the order of priority, as the overall aim is to ensure simultaneous application throughout the EEA as far as possible. The draft JCD is sent to the experts for approval and, once it has been returned by the experts, comes under final legal scrutiny in the Secretariat before being put on the agenda of the relevant subcommittee, where it is approved and handed over to the European External Action Service (EEAS).
The Secretariat then consults the EEAS on the timing of adoption by the EEA Joint Committee, i.e. when both sides are ready to adopt a decision incorporating the relevant act into the EEA Agreement. The processing time therefore also depends on internal procedures for clearance both on the EU side and in the EEA EFTA States.
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 other contracting party after it has been approved by parliament or by referendum.
In general, the EEA EFTA States indicate constitutional requirements when the incorporation of an act requires the amendment of existing national law or the adoption of a new law in order to implement the act in question in the national legal order. Therefore, the consent of parliament must be obtained for the resulting amendment of the national legal order.
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 the 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, as a main rule, the first day of the second month following the final notification (see Article 103 EEA).
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 the 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 EEAS and the other EEA EFTA States.
Overview of EEA Joint Committee Decisions
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 produces 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”. Both of these lists are available in the EFTA Legal Documents.
Information on EEA policy making
EFTA Bulletin on Decision Shaping (March 2009)
EFTA Fact Sheet on Decision Making