Explanatory Memorandum to COM(2022)468 - EU position concerning the amendment to Annex XI to the EEA Agreement (Audiovisual Media Services Directive) - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2022)468 - EU position concerning the amendment to Annex XI to the EEA Agreement (Audiovisual Media Services Directive). |
|---|---|
| source | COM(2022)468  |
| date | 16-09-2022 |
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 XI (Electronic communication, audiovisual services and information society) 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 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.
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 Annex XI (Electronic communication, audiovisual services and information society) to the EEA Agreement.
The purpose of the envisaged act is to incorporate Directive (EU) 2018/1808 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities 1 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 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 Decision of the EEA Joint Committee introduces participation rights for the EEA EFTA States in the work of a Union governing body - the European Regulators Group for Audiovisual Media Services (ERGA). In addition, a joint declaration attached to the draft Decision of the EEA Joint Committee foresees that:
“Directive (EU) 2018/1808 contains provisions with references to Directive (EU) 2017/541 of the European Parliament and of the Council, to Directive 2011/93/EU of the European Parliament and of the Council and to Framework Decision 2008/913/JHA, which are adopted under Title V TFEU. It is recalled that the incorporation of acts with such provisions into the EEA Agreement is without prejudice to the understanding that EU legislation adopted pursuant to Title V TFEU falls outside the scope of the EEA Agreement.
With regard to the references to Article 5 of Directive (EU) 2017/541, to Article 5 i of Directive 2011/93/EU and to Article 1 of Framework Decision 2008/913/JHA, the Contracting Parties, in the context of long-standing common values and European identity, acknowledge that the corresponding provisions of the national law of the EFTA States are applied in a functionally equivalent manner.”
We consider, that these elements go beyond what can be considered mere technical adaptations in the sense of the Council Regulation No 2894/94. 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’ 2 .
4.1.2.Application to the present case
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 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 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.
4.2.2.Application to the present case
The main objective and content of the envisaged act relate to provision of audiovisual media services (approximation of laws). Therefore, the substantive legal basis of the proposed decision is Article 53 (1) and Article 62 of the Treaty on the Functioning of the European Union.
4.3.Conclusion
The legal basis of the proposed decision should be Article 53 (1) and Article 62 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. Publication of the envisaged act
As the act of the EEA Joint Committee will amend Annex XI (Electronic communication, audiovisual services and information society) to the EEA Agreement, it is appropriate to publish it in the Official Journal of the European Union after its adoption.