EUROPEAN COMMISSION

Brussels, 5.3.2024

COM(2024) 103 final

2024/0055(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 Annex IX (Financial services) to the EEA Agreement

(Prudential requirements and securitisation)

(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 IX (Financial services) to the EEA Agreement

2.Context of the proposal

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 EEA Agreement entered into force on 1 January 1994. The Union together with its Member States is a party to the EEA Agreement.

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 and are binding on the Parties. The responsibility for coordinating EEA matters on the EU side is with the Secretariat General of the European Commission. 

The EEA Joint Committee is expected to adopt the EEA Joint Committee Decision (‘the envisaged act’) regarding the amendment of Annex IX (Financial services) to the EEA Agreement.

The purpose of the envisaged act is to incorporate Regulation (EU) 2017/2401 amending Regulation (EU) No 575/2013 on prudential requirements for credit institutions and investment firms 1 , as well as four related legal acts 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 annexed 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 annexed draft Decision of the EEA Joint Committee replicates in essence the financial services approach to the role of the EU financial supervisory authorities and EFTA Surveillance Authority for prudential decisions, which goes beyond what can be considered mere technical adaptations in the sense of Council Regulation No 2894/94 2 . The Union position shall therefore be established by the Council.

4.Legal basis

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 .

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.

The substantive legal basis for a decision under Article 218(9) TFEU in conjunction with Article 1(3) 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.

Since the Joint Committee Decision incorporates into the EEA Agreement Regulation (EU) 2017/2401, as well as four related legal acts, it is appropriate to base this Council decision on the same substantive legal base as the act that is incorporated. Therefore, the substantive legal basis of the proposed decision is Article 114 of the TFEU.

The legal basis of the proposed decision should be Article 114 TFEU, in conjunction with Article 218(9) TFEU and Article 1(3) of Council Regulation No 2894/94.

5.Publication of the envisaged act

As the act of the EEA Joint Committee will amend Annex IX (Financial services) to the EEA Agreement, it is appropriate to publish it in the Official Journal of the European Union after its adoption.

2024/0055 (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 Annex IX (Financial services) to the EEA Agreement

(Prudential requirements and securitisation)

(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 114 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 4 , and in particular Article 1(3) thereof,

Having regard to the proposal from the European Commission,

Whereas:

HAS ADOPTED THIS DECISION:

Article 1

The position to be adopted, on behalf of the Union, within the EEA Joint Committee on the proposed amendment to Annex IX (Financial services) 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,

(1)    Regulation (EU) 2017/2401 of the European Parliament and of the Council of 12 December 2017 amending Regulation (EU) No 575/2013 on prudential requirements for credit institutions and investment firms, OJ L 347, 28.12.2017, p. 1.

(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.

(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 (EU) 2017/2401 of the European Parliament and of the Council of 12 December 2017 amending Regulation (EU) No 575/2013 on prudential requirements for credit institutions and investment firms, OJ L 347, 28.12.2017, p. 1.

EUROPEAN COMMISSION

Brussels, 5.3.2024

COM(2024) 103 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 Annex IX (Financial services) to the EEA Agreement














(Prudential requirements and securitisation)

ANNEX

DRAFT DECISION OF THE EEA JOINT COMMITTEE

No […]

of […]

amending Annex IX (Financial services) 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)Regulation (EU) 2017/2401 of the European Parliament and of the Council of 12 December 2017 amending Regulation (EU) No 575/2013 on prudential requirements for credit institutions and investment firms 1  is to be incorporated into the EEA Agreement.

(2)Regulation (EU) 2017/2402 of the European Parliament and of the Council of 12 December 2017 laying down a general framework for securitisation and creating a specific framework for simple, transparent and standardised securitisation, and amending Directives 2009/65/EC, 2009/138/EC and 2011/61/EU and Regulations (EC) No 1060/2009 and (EU) No 648/2012 2  is to be incorporated into the EEA Agreement.

(3)Regulation (EU) 2021/557 of the European Parliament and of the Council of 31 March 2021 amending Regulation (EU) 2017/2402 laying down a general framework for securitisation and creating a specific framework for simple, transparent and standardised securitisation to help the recovery from the COVID-19 crisis 3  is to be incorporated into the EEA Agreement.

(4)Regulation (EU) 2021/558 of the European Parliament and of the Council of 31 March 2021 amending Regulation (EU) No 575/2013 as regards adjustments to the securitisation framework to support the economic recovery in response to the COVID-19 crisis 4  is to be incorporated into the EEA Agreement.

(5)Commission Delegated Regulation (EU) 2018/1221 of 1 June 2018 amending Delegated Regulation (EU) 2015/35 as regards the calculation of regulatory capital requirements for securitisations and simple, transparent and standardised securitisations held by insurance and reinsurance undertakings 5  is to be incorporated into the EEA Agreement.

(6)The EFTA States shall, when defining what countries shall be on the list of non-cooperative jurisdiction in their national legislation, take utmost account of the EU list of non-cooperative jurisdiction for tax purposes.

(7)Annex IX to the EEA Agreement should therefore be amended accordingly,

HAS ADOPTED THIS DECISION:

Article 1

Annex IX to the EEA Agreement shall be amended as follows:

1.The following indent is added in points 1 (Directive 2009/138/EC of the European Parliament and of the Council), 30 (Directive 2009/65/EC of the European Parliament and of the Council), 31bb (Directive 2011/61/EU of the European Parliament and of the Council) and 31bc (Regulation (EU) No 648/2012 of the European Parliament and of the Council):

‘-32017 R 2402: Regulation (EU) 2017/2402 of the European Parliament and of the Council of 12 December 2017 (OJ L 347, 28.12.2017, p. 35).’

2.Point 1b (Commission Delegated Regulation (EU) 2015/35) is amended as follows:

(i)the following indent is added:

‘-32018 R 1221: Commission Delegated Regulation (EU) 2018/1221 of 1 June 2018 (OJ L 227, 10.9.2018, p. 1).’

(ii)adaptations (b) and (c) are renumbered as adaptations (d) and (e).

(iii)the following adaptations are inserted:

‘(b)    In Article 178a, as regards the EFTA States:

(i)    in paragraphs 1 and 4, the words “1 January 2019” shall read “the date of entry into force of Decision of the EEA Joint Committee No …/… of [this Decision]”.

(ii)    in paragraphs 1 to 4, the words “31 December 2018” shall read “the day preceding the date of entry into force of Decision of the EEA Joint Committee No …/… of [this Decision]”.

(iii)    in paragraph 3, the words “18 January 2015” shall read “the date of entry into force of Decision of the EEA Joint Committee No 62/2018 of 23 March 2018”.

(c)    In Article 180, as regards the EFTA States:

(i)    in paragraph 10a, the words “1 January 2019” shall read “the date of entry into force of Decision of the EEA Joint Committee No …/… of [this Decision]”.

(ii)    in paragraph 10a, the words “31 December 2018” shall read “the day preceding the date of entry into force of Decision of the EEA Joint Committee No …/… of [this Decision]”.’

3.Point 14a (Regulation (EU) No 575/2013 of the European Parliament and of the Council) is amended as follows:

(i)the following indents are added:

‘-32017 R 2401: Regulation (EU) 2017/2401 of the European Parliament and of the Council of 12 December 2017 (OJ L 347, 28.12.2017, p. 1),

-32021 R 0558: Regulation (EU) 2021/558 of the European Parliament and of the Council of 31 March 2021 (OJ L 116, 6.4.2021, p. 25).’

(ii)adaptations (k) to (r) are renumbered as adaptations (m) to (t).

(iii)the following adaptations are inserted after adaptation (j):

‘(k)    In the second subparagraph of Article 254(3), as regards the EFTA States, the word “2018” shall read “of the year of entry into force of the Decision of the EEA Joint Committee No …/… of [this Decision]”.’ 

4.The following is inserted after point 31bj (Directive (EU) 2019/2162 of the European Parliament and of the Council):

‘31bk.32017 R 2402: Regulation (EU) 2017/2402 of the European Parliament and of the Council of 12 December 2017 laying down a general framework for securitisation and creating a specific framework for simple, transparent and standardised securitisation, and amending Directives 2009/65/EC, 2009/138/EC and 2011/61/EU and Regulations (EC) No 1060/2009 and (EU) No 648/2012 (OJ L 347, 28.12.2017, p. 35), as amended by:

-32021 R 0557: Regulation (EU) 2021/557 of the European Parliament and of the Council of 31 March 2021 (OJ L 116, 6.4.2021, p. 1).

The provisions of the Regulation shall, for the purposes of this Agreement, be read with the following adaptations:

(a)    Notwithstanding the provisions of Protocol 1 to this Agreement, and unless otherwise provided for in this Agreement, the terms Member States and competent authorities shall be understood to include, in addition to their meaning in the Regulation, the EFTA States and their competent authorities, respectively.

(b)    References to the powers of the European Securities and Markets Authority (ESMA) under Regulation (EU) No 648/2012 of the European Parliament and of the Council, Regulation (EU) No 1095/2010 of the European Parliament and of the Council, and Regulation (EU) No 600/2014 of the European Parliament and of the Council in the Regulation shall be understood as referring, in the cases provided for in and in accordance with this Agreement, to the powers of the EFTA Surveillance Authority as regards the EFTA States.

(c)    Unless otherwise provided for in this Agreement, ESMA and the EFTA Surveillance Authority shall cooperate, exchange information and consult each other for the purposes of the Regulation, in particular prior to taking any action.

(d)    Decisions, interim decisions, notifications, simple requests, revocations of decisions and other measures of the EFTA Surveillance Authority under Articles 10(6), 12 and 15 shall, without undue delay, be adopted on the basis of drafts prepared by ESMA at its own initiative or at the request of the EFTA Surveillance Authority.

(e)    Article 4(aa), as regards the EFTA States, shall read “third country is considered a non-cooperative jurisdiction as defined by the national legislation of the EFTA State concerned.”

(f)    In Articles 8(1), 9(4)(b) and 29(4), as regards the EFTA States, the words “1 January 2019” shall read “the date of entry into force of Decision of the EEA Joint Committee No …/… of [this Decision]”.

(g)    In Article 9, as regards the EFTA States, the words “Directive 2014/17/EU” shall read “Decision of the EEA Joint Committee No 125/2019 of 8 May 2019”.

(h)    In Article 10:

(i)    in paragraph 1, the words “or, in the case of a securitisation repository established in an EFTA State, with the EFTA Surveillance Authority” shall be inserted after the word “ESMA”.

(ii)    in paragraph 5, the words “or, in the case of a securitisation repository established in an EFTA State, to the EFTA Surveillance Authority” shall be inserted after the word “ESMA”.

(iii)    in paragraph 6, the words “or the EFTA Surveillance Authority, as the case may be,” shall be inserted after the word “ESMA”.

(i)    In Article 11, the words “or the EFTA Surveillance Authority, as the case may be,” shall be inserted after the word “ESMA”.

(j)    In Article 12, the words “or the EFTA Surveillance Authority, as the case may be,” shall be inserted after the word “ESMA”.

(k)    In Article 13:

(i)    in paragraph 1, the words “or the EFTA Surveillance Authority, as the case may be” shall be inserted after the word “ESMA”.

(ii)    paragraph 2 shall be replaced by the following:

   “ESMA and the EFTA Surveillance Authority shall communicate, without undue delay, to each other and to the Commission any decision taken in accordance with paragraph 1.”

(l)    In Article 15:

(i)    in paragraph 1, the words “or, in the case of a securitisation repository established in an EFTA State, the EFTA Surveillance Authority” shall be inserted after the word “ESMA”.

(ii)    as regards the EFTA States, in paragraph 2, the word “ESMA” shall read “The EFTA Surveillance Authority”.

(iii)    in the second sentence of paragraph 3, the words “or, in the case of a securitisation repository established in an EFTA State, not to prepare a draft for the EFTA Surveillance Authority to that effect” shall be inserted after the word “concerned”.

(m)    In Article 16(1), the following subparagraphs shall be added:

   “As regards securitisation repositories established in an EFTA State, fees shall be charged by the EFTA Surveillance Authority on the same basis as fees charged to other securitisation repositories in accordance with this Regulation and with the delegated acts referred to in paragraph 2.

   The amounts collected by the EFTA Surveillance Authority in accordance with this paragraph shall be passed on to ESMA without undue delay.”

(n)    In Article 26e(5)(c)(i), the words “Union” shall be replaced by “the EEA Agreement”.

(o)    In Article 29(5), as regards the EFTA States, the words “by 10 October 2021” shall read “within six months of the date of entry into force of Decision of the EEA Joint Committee No …/… of [this decision] and the words “8 April 2021” shall read “the date of entry into force of Decision of the EEA Joint Committee No …/… of [this decision]”.

(p)    In Article 31(4), the words “, and in case an EFTA State is an addressee, the Standing Committee of the EFTA States” shall be added after the word “Council”.

(q)    In Article 35, as regards the EFTA States, the words “18 January 2019” shall read “the seventeenth day following the date of entry into force of Decision of the EEA Joint Committee No …/… of [this Decision]”.

(r)    In Article 37(7), the words “, the EFTA Surveillance Authority” shall be inserted after the word “EIOPA”.

(s)    In Article 43, as regards the EFTA States:

(i)    the words “1 January 2019” shall read “the date of entry into force of Decision of the EEA Joint Committee No …/… of [this Decision]”.

(ii)    in paragraphs 5 and 6, the words “31 December 2018” shall read “the day preceding the date of entry into force of Decision of the EEA Joint Committee No …/… of [this Decision]”.

(t)    In Article 43a, as regards the EFTA States, the words “9 April 2021” shall read “the date of entry into force of Decision of the EEA Joint Committee No …/… of [this decision]”.’

5. Point 31eb (Regulation (EC) No 1060/2009 of the European Parliament and of the Council) is amended as follows:

(i)the following indent is added:

‘-32017 R 2402: Regulation (EU) 2017/2402 of the European Parliament and of the Council of 12 December 2017 (OJ L 347, 28.12.2017, p. 35).’

(ii)adaptation (g) is deleted.

(iii)adaptations (h) to (zm) are renumbered as adaptations (g) to (zl).

Article 2

The texts of Regulations (EU) 2017/2401, (EU) 2017/2402, (EU) 2021/557 and (EU) 2021/558 and Delegated Regulation (EU) 2018/1221 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 6*.

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 347, 28.12.2017, p. 1.

(2)    OJ L 347, 28.12.2017, p. 35.

(3)    OJ L 116, 6.4.2021, p. 1.

(4)    OJ L 116, 6.4.2021, p. 25.

(5)    OJ L 227, 10.9.2018, p. 1.

(6)    *    [No constitutional requirements indicated.] [Constitutional requirements indicated.]