Explanatory Memorandum to COM(2022)33 - EU position concerning the amendment to Annex IV (Energy) to the EEA Agreement (Directive on the Energy Performance of Buildings)

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dossier COM(2022)33 - EU position concerning the amendment to Annex IV (Energy) to the EEA Agreement (Directive on the Energy Performance of ...
source COM(2022)33 EN
date 02-02-2022


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 IV (Energy) 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. 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 IV (Energy) to the EEA Agreement.

The purpose of the envisaged act is to incorporate Directive on the Energy Performance of Buildings 1  (“the EPBD”) 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 content and nature of the draft of the annexed Decision of the EEA Joint Committee 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.

The annexed Decision of the EEA Joint Committee contains inter-alia the following adaptations:

Due to the specificities of Iceland’s relatively recent and uniform building stock, a temporary and conditional exemption from applying Directive 2010/31/EU on the energy performance of buildings is proposed. In Iceland, 99.9% of electricity and 98% of space heating is covered by local renewable energy sources. In Iceland’s case, therefore, measures to improve energy efficiency of buildings will have virtually no impact on greenhouse gas emissions or energy security.

In line with the very small size of the building stock in Liechtenstein and its climatic and building typology, it is suggested to exempt Liechtenstein from the obligation to carry out its own calculations for the establishment of cost-optimal levels of minimum energy performance requirements for buildings in accordance with Article 5 of the EPBD.

It is further proposed that Norway and Liechtenstein may stipulate regulations on minimum energy performance requirements using a different system boundary than primary energy use which is the one required under the EPBD, provided, however, that the conditions stipulated under Article 1(c) of this decision are met.

In order to ensure that the user-operated energy performance certification system in Norway will produce equivalent results to certificates issued by independent experts as required by Article 17 of the EPBD, the adaptation under Article 1(d) is proposed.

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(2) 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 the establishment and functioning of the internal market in energy.

Therefore, the substantive legal basis of the proposed decision is Article 194(2) of the Treaty on the Functioning of the European Union.

4.3.Conclusion

The legal basis of the proposed decision should be Article 194(2), 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 IV (Energy) to the EEA Agreement, it is appropriate to publish it in the Official Journal of the European Union after its adoption.