Explanatory Memorandum to COM(2023)678 - EU position concerning an amendment to Annex XX (Environment) to the EEA Agreement (ETS Aviation) - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2023)678 - EU position concerning an amendment to Annex XX (Environment) to the EEA Agreement (ETS Aviation). |
|---|---|
| source | COM(2023)678 |
| date | 30-10-2023 |
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 XX (Environment) 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 EEA Agreement entered into force on 1 January 1994. The Union together with its Member States is a party to the EEA 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 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.
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 XX (Environment) to the EEA Agreement.
The purpose of the envisaged act is to incorporate into the EEA Agreement Directive (EU) 2023/958 as regards aviation’s contribution to the Union’s economy-wide emission reduction target and the appropriate implementation of a global market-based measure (ETS Aviation)1 together with Decision (EU) 2023/136 as regards the notification of offsetting in respect of a global market-based measure for aircraft operators based in the Union2.
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 provides that allowances will be deducted from the number of allowances that Iceland would otherwise auction, in order for the conditional allocation of those allowances in 2025 and 2026 only to aircraft operators in respect of flights departing from an aerodrome located in Iceland and arriving at an aerodrome located in the EEA, in Switzerland or in the United Kingdom, or departing from an aerodrome located in the EEA and arriving in Iceland. Any such conditional allocation will take place in a manner that will ensure full respect of and conformity with the principle of equal treatment of airlines on the same route and of the objectives, principles and other provisions of the EEA Agreement.
Any additional allowances allocated to aircraft operators shall be conditional on accelerated actions towards climate neutrality.
In 2026, the report adopted by the Commission should also evaluate the air connectivity of Iceland, including consideration of competitiveness, carbon leakage and environmental and climate impacts, and of the adaptations set out in this draft Decision. The results of the evaluation should, where appropriate, be taken into account for the future revision of Directive 2003/87/EC beyond 2024 to 2026.
This adaptation goes beyond what can be considered mere technical adaptations in the sense of Council Regulation No 2894/943. 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’4.
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.
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
Since the Joint Committee Decision incorporates into the EEA Agreement Directive (EU) 2023/958 together with Decision (EU) 2023/136, it is appropriate to base this Council decision on the same substantive legal base as the acts that are incorporated. Therefore, the substantive legal basis of the proposed decision is Article 192(1) of the TFEU.
4.3. Conclusion
The legal basis of the proposed decision should be Article 192(1) 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 XX (Environment) to the EEA Agreement, it is appropriate to publish it in the Official Journal of the European Union after its adoption.