How EU Law becomes EEA Law

EUROPEAN ECONOMIC AREA
STANDING COMMITTEE OF THE EFTA STATES

Ref. 17-1402
3 October 2023

Procedures in the EEA EFTA States, the EFTA Secretariat and the EU for the incorporation of legislation into the EEA Agreement

Note by the Secretariat

Introduction

This note provides a description of the main elements of the EEA procedures of the three EEA EFTA States, the EFTA Secretariat and the European Union (EU) and how they relate to each other.

Together, these elements form a chain from the initiative of the European Commission (Commission) to develop new legislation, to the incorporation of this new legal act into the Agreement on the European Economic Area (EEA Agreement).

This note is structured in the following manner:

  • Section 2 outlines the legal orders of the EEA EFTA States.
  • Section 3 describes the different possibilities for the EEA EFTA States to participate in the shaping of EU legislation.
  • Section 4 describes the EFTA Secretariat’s and national procedures for the early assessment of Commission proposals for European Parliament/Council or Council acts.
  • Section 5 gives an overview of the procedures of the EFTA Secretariat and the EEA EFTA States for preparing for the incorporation of EU acts into the EEA Agreement.
  • Section 6 describes the procedures in the EU once the EEA EFTA States have agreed to incorporate a new legal act and have submitted a draft Decision of the EEA Joint Committee (EEA JCD) to the European Commission´s Secretariat-General (Secretariat-General).
  • Section 7 describes the procedures for preparing the list of acts ready for adoption by the EEA Joint Committee (EEA JC), the so-called “Long list”.
  • Section 8 describes the procedures when an EEA EFTA State notifies that the incorporation of a legal act requires legislative amendments (known as “constitutional requirements”).
  • Section 9 provides an overview of procedures regarding the translation and publication of legal acts and JCDs.
  • The last section contains some relevant documents and websites for further information.

Influencing EU decision making

This section considers the stage where the Commission reviews existing legislation or assesses whether there is a need to regulate a new area and elaborates on the possibilities for the EEA EFTA States to participate in EU decision shaping.

EFTA Secretariat

When the Commission publishes EEA relevant white/green papers, communications, consultations and roadmaps, the EFTA Secretariat informs the relevant working group (WG) or expert group (EG). The EFTA Secretariat also informs the Heads of Delegation of Subcommittees I-IV via a “pre-pipeline overview”, which is sent out on a regular basis.

Iceland

The monthly pre-pipeline overview from the EFTA Secretariat is sent to the Foreign Affairs Committee of the Parliament for information, and is also made available in the EEA Database, which is used by Icelandic Ministries, agencies and Members of the Parliament3.

The Ministry for Foreign Affairs (MFA), along with the Prime Minister’s Office, organises regular meetings with the line ministries to discuss pipeline and pre-pipeline issues. The MFA and the Prime Ministers’ Office, in collaboration with line ministries, annually propose a list of priorities for adoption by the Government. Before being adopted, the draft list is sent to the Foreign Affairs Committee of the Parliament and to relevant interest groups for their input.

The Icelandic Mission in Brussels prepares regular newsletters and overviews of key pre-pipeline and pipeline issues, which are sent to the Parliament and to relevant interest groups.

The MFA generally encourages members of the WGs/EGs to inform/consult the MFA when issues come up that are of importance to Iceland.

The MFA also organises consultations with interest groups on pipeline and pre-pipeline issues and the Minister for Foreign Affairs presents annually the main issues to the Parliament.

Liechtenstein

In Liechtenstein, each national group of stakeholders has nominated an EEA contact person4. The EEA Coordination Unit5 informs the relevant contact person of new pre-pipeline acquis. The EFTA Secretariat’s pre-pipeline overview is used to double-check if all initiatives have been registered.

Liechtenstein also has a special Working Group in the area of Financial Services, which consists of relevant stakeholders, the Financial Market Authority and administration officials. The Working Group has a monitoring function and receives information about pre-pipeline acquis. The Working Group is chaired by the EEA Coordination Unit and meets four times a year.

Norway

In Norway, all EU initiatives at the pre-pipeline stage are, as far as possible, distributed and communicated by the responsible directorates and agencies. Distribution may take the form of emails to relevant experts or publication on the website of the responsible directorate/agency. Links to the Commission website “Have Your Say” are also made public where this is available6.

The Ministry for Foreign Affairs (MFA), in cooperation with the line ministries, develops an annual working programme with a list of prioritized acquis. This list serves as a guide for important acquis for Norway.

Pre-pipeline acquis is discussed in a special Clearing Committee to identify challenges and preliminary positions as early as possible. If time allows, consultation of relevant stakeholders may also be organised.

The responsible ministries/agencies/directorates are encouraged to make an informal preliminary impact assessment, although there are no formal procedures or requirements at this stage. Such assessments are not public, but intended for the preparatory work of the experts.

Twice a year, the ministries inform the Government of key pre-pipeline and pipeline issues. The MFA also informs the Parliament twice a year of key pre-pipeline and pipeline issues.

Direct participation by EEA EFTA experts in EU decision shaping

The EEA Agreement provides for the extensive participation of EEA EFTA experts in the preparatory work of the Commission.

EEA EFTA States have the right to participate in Commission Expert Groups (Article 99(1) EEA), which advise the Commission in the preparation of legislative proposals, policy initiatives and delegated acts7, and Comitology Committees (Article 100 EEA), which assist the Commission in the preparation of implementing acts8. Accordingly, when the Commission draws up draft measures, it shall refer to experts from the EEA EFTA States on the same basis as experts of EU Member States.

The EFTA Secretariat has compiled lists of Commission Expert Groups and Comitology Committees in which experts from the EEA EFTA States either participate or may wish to participate. This information is kept updated and shared with the EFTA Working and Expert Groups.

EEA EFTA State representatives also have access to programme committees9 (Article 81 EEA) and other committees in specific areas, as listed in Protocol 37 to the EEA Agreement (Article 101 EEA).

Another important channel of influence are the Seconded national experts that the EEA EFTA States provide to the Commission and some of their agencies for periods of 2-4 years. These expert positions are either established through the EEA EFTA participation in EU programmes and agencies, or through bilateral agreements. Even though these experts work for the EU institutions during their secondment, they contribute to the legislative process with their expertise and provide knowledge and information about the EEA Agreement and the specific conditions in the EEA EFTA States10

EEA EFTA Comments

The EEA EFTA States submit EEA EFTA Comments to the EU institutions on important policy issues.11

EEA EFTA Comments on Commission legislative initiatives and proposals are coordinated by the Secretariat based on input from the WGs/EGs as follows:

  • Experts in the relevant WG/EG agree to prepare an EEA EFTA Comment
  • The EFTA Secretariat sends a preliminary draft agreed by the WG/EG to the Missions/Heads of Delegations of Subcommittees I-IV who are requested to forward any comments to their national WG/EG delegates within three working days. Any comments following these consultations need to be communicated to the EFTA Secretariat within two working days
  • If no comments have been received within the deadline or the WG/EG has cleared the comments, the EFTA Secretariat sends the draft to the Heads of Delegations of the Subcommittees with a deadline of three working days for approval by written procedure. For Iceland and Norway, the line ministry usually approves the comment. Where required, prior consultations are held at political level and/or with the MFA.
  • For Liechtenstein experts in the WG/EG consult with EEA Coordination Unit before approving and the EEA Coordination Unit has to approve again at SC level
  • Following approval from the Subcommittee, the comment is sent to the Standing Committee. If no concerns are raised by its members within 24 hours, the comment is regarded as finally approved
  • The cover letters accompanying the comment are signed by the Chair of the Standing Committee and then submitted to the EU side by the EFTA Secretariat
  • The comment is submitted to the relevant contact at the Commission (the Secretariat-General and the Director-General of the relevant Directorate General (DG)) and other interested parties on the EU side (e.g. European Parliament, Council Presidency), depending on the stage of the decision-making process
  • The Commission usually provides feedback on EEA EFTA Comments at expert level, in a Working/Expert Group meeting.

Early assessment of EEA Horizontal Challenges in Commission proposals for European Parliament/Council or Council Acts

The procedures for incorporation of EU acts into the EEA Agreement provide for an early assessment of EEA horizontal challenges in Commission proposals.

For a more comprehensive description of the common EEA EFTA procedures, reference is made to the EFTA Secretariat’s Handbook on EEA EFTA procedures for incorporating EU acts into the EEA Agreement12.

EFTA Secretariat

The EFTA Secretariat’s Registrar identifies and registers Commission proposals for any EEA relevant EU acts within one week of their publication13.

The officer responsible for the act carries out a preliminary analysis of any possible EEA horizontal challenges raised by the proposal and informs the relevant WG/EG by e-mail about its publication, attaching a Commission proposal form. Experts have six weeks to reply.

Until the legislative act is approved, the officer sends updates on the state of play of the proposal to the WG/EG, as agreed by the individual WG/EG. The WG/EG discusses the proposal at its meetings and considers whether to prepare an EEA EFTA Comment (see point 3.6 above).

Iceland

The horizontal assessment of Commission proposals takes place in the relevant line ministry or, in some cases, in the relevant agencies. The relevant line ministry is responsible for returning the Commission proposal form to the EFTA Secretariat.

Acts that are subject to constitutional requirements are identified as early as possible because they need to be prioritised in relation to translation and also require consultation with Parliament under the Parliamentary Consultations Process (see paras 59-61).

EEA-relevant proposals are registered in the EEA Database.

Liechtenstein

The horizontal assessment of Commission proposals takes place in the relevant Office, which is responsible for returning the Commission proposal form to the EFTA Secretariat after consulting with the EEA Coordination Unit.

Stakeholders are consulted informally on proposals of high importance (see point 3.3 above).

All procedural and legislative steps, responsible persons and timetables are registered and outlined in an EEA Database, which is administered by the EEA Coordination Unit but with reading rights/access by the responsible Offices.

Norway

The horizontal assessment of Commission proposals takes place in the relevant line ministry or, in some cases, in the relevant agencies. The relevant line ministry is responsible for returning the Commission proposal form to the EFTA Secretariat.

Public consultation takes place for all proposals, except in cases where this is clearly unnecessary14.

All proposals considered to be EEA relevant are registered in the Database of EEA Notes15. EEA notes are normally drafted as early as possible in the preparatory phases of the legislative process and are updated continuously. They are drafted by the line ministry and the relevant special Clearing Committee, and contain information such as subject matter, the legislative procedure in the EU and in Norway, existing laws and legal, economic and administrative consequences.

Incorporation procedures for all EEA-relevant acts

EEA-relevant acts are incorporated into the EEA Agreement through JCDs.

EFTA Secretariat

The formal incorporation procedure starts as soon as the act is published by the EU.

The EFTA Secretariat Registrar, in consultation with the officers, identifies16 and registers EEA-relevant acts. These acts appear on EEA-Lex17 one day after registration.

The Commission services decide whether to mark an act EEA relevant. The practical effect of an act being marked EEA relevant is that the EFTA Secretariat must register it in its case handling system. It does not necessarily mean, however, that the legal act in question is indeed EEA relevant and must be incorporated. The EEA EFTA States assess the EEA relevance of acts independently from the EU, and the final decision to incorporate an act lies with the EEA JC.

The Secretariat triggers the process of incorporation for acts that are clearly EEA relevant even if they are not marked as such. Conversely, if an act is marked EEA relevant but clearly is not, the responsible officer excludes it18 from incorporation after it has been registered. In this case, the officer informs the relevant WG/EG, giving it a four-week deadline to oppose the exclusion. Member States can at any moment decide to review the decision to exclude an act.

Within one week of registration of an act by the EFTA Secretariat, the officer responsible for the act assesses it and launches the incorporation procedure by informing the relevant WG/EG following one of three procedures19:

  • Fast-track procedure20 for straightforward acts (six-week deadline to oppose21)
  • Standard procedure (16-week deadline)
  • Simplified procedure for certain urgent acts in the food and veterinary fields22

The EFTA Secretariat starts the incorporation procedure prior to publication in the OJ in two cases (“early start” procedure):

  • Implementing acts23 published in the Comitology register following a positive vote in the relevant Commission Committee
  • Delegated acts24 published in the Commission register after having been formally sent to the European Parliament/Council for scrutiny

The only difference between this “early start” and the “ordinary” procedure is that the former is started based on a preliminary published version of an act in order to save time. When the final act is published in the OJ, the EFTA Secretariat informs the WG/EG by providing a comparison document highlighting the differences between the register version and the version published in the OJ25.

When the deadline for opposition has passed (in the case of the fast-track procedure) or all standard procedure forms have been returned (standard procedure), and the act has been published in the OJ (in case of"early start"), the EFTA Secretariat draws up a draft JCD.

When EEA EFTA States request no adaptations, the EFTA Secretariat sends the draft JCD directly to the relevant Subcommittee for approval, with the WG/EG in copy. When adaptations are needed, the EFTA Secretariat first sends the draft JCD to the relevant WG/EG, with a two-week deadline to provide feedback. Once approved by the WG/EG, the draft JCD is sent to the relevant Subcommittee for approval, with a two-week deadline to provide feedback.

When the draft JCD has been approved by all three EEA EFTA States, it is ready to be sent to the Secretariat-General26.

The EFTA Secretariat sends “packages” of approved draft JCDs to the Secretariat-General on a weekly basis. When JCDs that have already been sent to the Secretariat-General are further discussed by EFTA and Commission experts, the revised draft JCD can be sent outside of these packages. This can also be done in exceptional cases, due for example to urgency or special political importance.

In special cases, usually when the EEA EFTA States intend to request substantive adaptations, the WG/EG may prefer to informally consult with the relevant DG before formally sending a draft JCD to the Secretariat-General. The idea is to agree on solutions to potential issues before formal submission, and to avoid substantial discussions at the next level of the procedure, see section 6.

Iceland

In Iceland, identical procedures apply for clearing acts under the fast-track and standard procedures. Experts in the relevant line ministry/agency assess the acts and are responsible for inserting the required information into the EEA Database.

The point of departure is to decide whether an act to be incorporated requires amendments to national laws (i.e. if there are constitutional requirements).

If there are no constitutional requirements, experts in the relevant line ministry / agency assess the act in question, its EEA relevance and any possible adaptations or implications. In the case of the standard procedure, the line ministry / agency returns the experts’ assessment to the EFTA Secretariat. In the case of the fast-track procedure with no opposition, no reaction is needed.

If there are constitutional requirements, a consultation process must be initiated with the Foreign Affairs Committee of the Parliament27.

The line ministry / agency experts first assess the EEA relevance of the act and possible adaptations/implications. Then it sends the act, a summary of it and the EFTA form (standard procedure form) to the MFA, which forwards it to the Foreign Affairs Committee of the Parliament28. The Committee proceeds in the following manner:

  • Act containing constitutional challenges: The Committee requests an opinion from the responsible Standing Committee and the Constitutional and Supervisory Committee.
  • Act requiring a substantial adaptation: The Committee can request an opinion from the responsible Standing Committee. If it considers it not necessary to consult with the responsible Standing Committee, the Committee informs the MFA of its conclusion and that the consultation procedure has been finalised.
  • Act requiring no adaptation: The Committee informs the MFA that the consultation procedure has been finalised.

When the Foreign Affairs Committee requests the responsible Standing Committee for an opinion, experts from the relevant line ministry / agency present the act to the Standing Committee, together with a member of the MFA’s EEA team. The Committee then provides the Foreign Affairs Committee with its assessment of the act. The Foreign Affairs Committee informs the Minister for Foreign Affairs of the conclusion of the consultation and its view by a letter.

The goal of these consultations is for the Parliament to provide its views at standard procedure form level on whether any adaptations are needed. In practice, however, the consultations mostly take place after the standard procedure form has been returned to the EFTA Secretariat.

The consultation procedure described above should be finished no later than two months after the Foreign Affairs Committee was first informed about the act29.

The MFA needs the following from the relevant line ministry before approving the draft JCD at Subcommittee level30:

  • Short text summarising the content of the act (“efnisútdráttur”)
  • Information on whether the act calls for legislative amendments. If an act calls for legislative amendments, the draft JCD cannot be cleared before consultation with the Foreign Affairs Committee has been finalised
  • Confirmation that the line ministry has approved the draft JCD

Liechtenstein

When the incorporation procedure of an act is launched, the experts in the Offices assess its EEA relevance and possible adaptations/implications.

Experts consult with the EEA Coordination Unit before the standard procedure form is returned to the EFTA Secretariat. After clearance from the EEA Coordination Unit, the experts submit the standard procedure form to the EFTA Secretariat.

In cases of the fast-track procedure with no opposition, there is also no need for experts to consult the EEA Coordination Unit. In case opposition is raised against the fast track procedure the EEA Coordination Unit has to be consulted beforehand.

The procedure for approving a draft JCD is similar to the procedure for clearing a standard procedure form: Experts assess the draft JCD and always consult with the EEA Coordination Unit before clearing the draft on expert level. The EEA Coordination Unit is responsible for the final clearance of the draft JCD on Subcommittee level.

Norway

When the incorporation procedure of an act is launched, line ministry experts assess the EEA relevance of the act and possible implications that could require adaptations, and fill in the standard procedure form. The preliminary EEA note is completed with any new information about the act.

A special Clearing Committee (“spesialutvalg”) for EEA matters31 ensures cooperation between ministries. Two weeks ahead of a Clearing Committee meeting, the line ministries send in a list of legal acts / EFTA forms for adoption. Once the committee has cleared the EEA note, the experts in the relevant line ministry can proceed with finalising and submitting the standard procedure form to the EFTA Secretariat.

Fast-track acts are not consulted on in the same way as regular acts, but the subject matter of the act is normally consulted on with a pre-identified group of experts and institutions. The responsibility to consult with stakeholders is delegated to the relevant agency/directorate by the line ministry. Consultations on fast-track acts will not necessarily be broad, due for instance to the technical nature of the act and to time constraints. There is as yet no formal instruction or legal basis in Norway that details how to consult on fast-track acts. Thus, practice may vary between the different sectors.

For the approval of draft JCDs, as the special Clearing Committee has already approved the standard procedure form or decided not to oppose the fast-track procedure, the draft JCD normally just needs a final check before the line ministry can clear it. On this occasion, the EEA note is updated if necessary. Following clearance by the line ministry, the MFA can formally approve a draft JCD.

EU incorporation procedures once a draft JCD has been agreed on by the EEA EFTA States

Once the EEA EFTA States have agreed to a draft JCD, the EFTA Secretariat submits it to the Secretariat-General. The Secretariat-General coordinates the incorporation process in the EU.

If a draft JCD contains no substantive adaptations and simply extends acts of EU legislation to the EEA, the Secretariat-General can adopt it, on behalf of the EU, in the EEA JC. The relevant Commission Directorate-General (DG) and the Secretariat-General need on average three weeks to clear such acts. This includes an inter-service consultation (ISC) with the relevant DGs and, where necessary, with other European institutions, which normally lasts around ten working days32. Following a clearing in inter-service consultation, the JCD is ready for adoption on the EU side through sub-delegation procedure (adoption by the Secretary-General). The adoption procedure on the EU side is launched ahead of the EEA JC meeting for the batch of draft JCDs on the Long list. Following these two steps the draft JCD is ready for adoption on the EU side (“EU ready”) by the EEA JC meeting (see section 7, below). The Secretariat-General also facilitates the debate on the draft JCDs on the EU side, collects comments and reactions, provides clarifications to the Commission services concerning the functioning of the EEA Agreement and coordinates the exchange of information with the EEA EFTA States.

If a draft JCD contains substantive adaptations, i.e., going beyond technical adaptations, the EU’s position regarding the draft must be adopted by the Council in accordance with Council Regulation (EC) No 2894/9433. In the same way as in the case above, the Secretariat-General sends it for inter-service consultation with the relevant DGs and, where relevant, with other European institutions. If clear at the outset, the inter-service consultation is done already on the draft Council decision document with the draft JCD in annex. Otherwise, an inter-service consultation needs to be done first on the JCD itself, and then on the draft Council decision document with the draft JCD in annex. Should the consulted parties have questions or comments to the draft JCD, they submit them to the Secretariat-General, which is responsible for establishing a common reaction to be submitted to the EFTA Secretariat. The EFTA Secretariat then forwards questions or comments on substance to the relevant WG and/or Subcommittee. At this stage, there can be several rounds back and forth with comments from the EU, and hence several versions of a draft JCD. This part of the process has no formal deadlines. Following a clearing in inter-service consultation, the draft Council decision has to be adopted by the College of Commissioners through written procedure. Simultaneously, translation process is launched as the file needs to be transferred to the Council in all linguistic versions. Once finalised, it is ready to go to the Council (see below).

In short, the Council procedure is the following:

  • When there is agreement on a draft JCD between the EEA EFTA States and the Commission, the Commission needs to submit the JCD to the Council by a draft Council Decision. The Commission proposal is composed of an explanatory memorandum and the draft Council Decision, the latter with the draft JCD as an annex. Once the Commission College has adopted the draft Council Decision, it is published on EUR-Lex and, at the same time, submitted to the Council Secretariat in all EU languages.34
  • The draft Council Decision is firstly submitted for review by Council lawyer linguists35. Subsequently, the Council Secretariat distributes it to the members of the EFTA Working Party36 for assessment and approval. At this stage, the EU Member States may send comments in writing to the Council Secretariat. The reactions from EU Member States are discussed in regular meetings of the EFTA Working Party in presence of the relevant Commission service and the Secretariat-General. Should the draft JCD need to be amended, the Secretariat-General submits the proposed revised version to the EFTA Secretariat. In this case, the EFTA Secretariat forwards the revised version to the EEA EFTA States, which assess the proposed changes. The draft JCD is then exchanged until an agreement is reached. At the stage of the discussions in the EFTA Working Party, an EU Member State can also notify a “scrutiny reserve”, i.e. that it needs time to finalise its position.

Following approval by the EFTA Working Party, the draft Council Decision is submitted to the Committee of Permanent Representatives (Coreper) as a non-discussion item (Part I of the agenda). Once Coreper approves the draft Council Decision it sends it to any Council formation for formal approval by the Council.

The draft Council Decision is then included as an “A” (non-discussion) item on the agenda of the Council that will approve it formally.

The various steps of the Council procedure (including translation in all EU languages) mean that it usually takes three to five months to clear a draft Council Decision on a draft JCD. Following clearance, the Secretariat-General has the mandate, on behalf of the EU, to co-adopt the JCD with the EEA EFTA States, in the EEA JC.

Adoption by the EEA JC

The EEA JC incorporates EU acts into the EEA Agreement by adopting the acquis on the so-called “Long list”, i.e. a list of all the decisions and legal acts to be incorporated at a meeting of the EEA JC.

The EFTA Secretariat and the Commission´s Secretariat-General

Approximately five weeks before each EEA JC meeting, the EFTA Secretariat sends a preliminary Long list to the EEA EFTA States, along with comments from the Secretariat. When preparing the List, the EFTA Secretariat removes the draft JCDs that are not ready to be adopted yet.37 The preliminary Long list thus includes the draft JCDs sent to the Secretariat-General for processing that are considered ready for adoption from the EEA EFTA side's perspective.

The EEA EFTA States have five working days to submit observations to the preliminary Long list and notably to confirm whether the acts listed are ready for adoption seen from their side.

The EFTA Secretariat updates the preliminary Long list with the comments from the EEA EFTA States and forwards it to the Secretariat-General for comments, with a deadline of three to five working days.

Following input from the Secretariat-General on the readiness to adopt individual files on the EU side, the final Long list is established, i.e. the list of acquis to be adopted by the EEA JC at its next meeting. On the agreed cut-off date, approximately two and a half weeks before the next EEA JC meeting, the EFTA Secretariat finalises the final Long list and sends it to the EEA EFTA States and the Secretariat-General.

Approximately two weeks before the EEA JC meeting, legal officers in the EFTA Secretariat and staff members in the Secretariat-General proofread all the JCDs on the final Long list. The EFTA Secretariat sends the final proofread versions of the JCDs to the EEA EFTA States. On the EU side, the Secretariat-General launches sub-delegation adoption procedure for the final batch of draft JCDs.

In exceptional cases, JCDs can be adopted by written procedure outside of EEA JC meetings in the form of an exchange of letters. All three EEA EFTA States and the EU must agree to use the written procedure before it is launched. This procedure may be used exceptionally during the summer recess or in other circumstances that require the swift incorporation of acts into the EEA Agreement, and that do not coincide with a scheduled meeting of the EEA JC. The EFTA Secretariat coordinates the procedure and prepares all the necessary documents, but the procedure requires the availability of the relevant representatives in the capitals and the presence of the signatories38 in Brussels.

Iceland

In Iceland, the MFA consults with line ministries as necessary and provides comments to the EFTA Secretariat on the preliminary Long list.

Based on the final Long list, a few days before the EEA JC meeting, the MFA submits memoranda to the Government notifying it of the acts that are ready for incorporation at the next EEA JC meeting.

The Government subsequently gives its approval to adopt the JCDs at the next EEA JC meeting.

No JCD requiring constitutional requirement by Iceland can be adopted without prior consultation with the Foreign Affairs Committee. Therefore, as soon as possible and in parallel to the above-mentioned process, the MFA sends the final Long list and memoranda for all the acts planned to be incorporated to the Foreign Affairs Committee of the Parliament before the EEA JC meeting. Before each EEA JC meeting, the Minister of Foreign Affairs should present the acts to be adopted to the Committee. In practice this is usually officials from the MFA with the relevant experts from the line ministries.

Liechtenstein

In Liechtenstein, the EEA Coordination Unit provides comments to the EFTA Secretariat on the preliminary Long list after consulting with the experts as necessary.

The EEA Coordination Unit collects “form sheets” from experts with summaries of legal acts on the preliminary Long list.

Based on the final Long list, the relevant acts and “form sheets” are sent electronically by the EEA Coordination Unit to the EEA Parliamentary Committee, which meets eight times a year and scrutinises all EU acts to be incorporated into the EEA Agreement. The EEA Parliamentary Committee scrutinises the acts on the final Long list, in particular those with constitutional requirements.

The week before the EEA JC meeting, a meeting takes place between the EEA Parliamentary Committee and the EEA Coordination Unit.

After obtaining the consent of the EEA Parliamentary Committee, the EEA Coordination Unit prepares a government decision, which takes note of the final Long list. This decision is adopted on the Tuesday preceding the EEA JC meeting.

Norway

In Norway, the MFA provides comments to the Secretariat on the preliminary Long list after consulting with the line ministries.

One week before the EEA JC meeting, the Minister of Foreign Affairs meets with the Parliament European Consultative Committee. This Committee consists of the Parliament’s Standing Committee on Foreign Affairs and Defence and members of the Norwegian delegation to the EEA Joint Parliamentary Committee. The Government submits the final Long list with relevant JCDs and updated EEA notes to the European Consultative Committee, which then provides its opinion on the list. The Government cannot accept a JCD on the Long list until it has received feedback from the Committee.

Notification of constitutional requirements

For all three EEA EFTA States, if a JCD incorporates an act that calls for amendments to national legislation (change to existing laws / enactment of new laws) or have certain budgetary implications, then parliamentary approval is needed prior to its entry into force. This is the meaning of the “constitutional requirements” notified when incorporating an act.

At the EEA JC meeting, each EEA EFTA State indicates to the EEA JC which of the JCDs have constitutional requirements39.

According to Article 103 of the EEA Agreement, a JCD does not enter into force until all Contracting Parties have notified that the constitutional requirements have been fulfilled40. If notification of the fulfilment of constitutional requirements has not taken place upon the expiry of the six-month period after the JCD was adopted, that JCD shall be applied provisionally pending the fulfilment of constitutional requirements, unless an EEA EFTA State indicates that such provisional application cannot take place.

EFTA Secretariat

The EFTA Secretariat monitors the entry into force of JCDs in the EEA and handles notifications of delay and / or fulfilment of constitutional requirements under Article 103 EEA Agreement.

Once the constitutional requirements have been fulfilled in an EEA EFTA State, that EEA EFTA State notifies the EFTA Secretariat, which forwards this information to the Secretariat-General, the other EEA EFTA States and the EFTA Surveillance Authority (ESA). Once the last EEA EFTA State with constitutional requirements has notified the EFTA Secretariat that these have been fulfilled, the JCD can enter into force.

The JCD normally enters into force on the first day of the second month following the last notification, in accordance with Article 103 EEA Agreement41. Exceptions to this rule are JCDs amending Protocol 31 EEA Agreement and other decisions on an ad hoc basis.

After each EEA JC meeting, the EFTA Secretariat informs ESA of the entry into force of JCDs42.

Iceland

The Parliament approves the entry into force of the JCD in the form of a Parliamentary Resolution. The procedure is as follows:

  • The MFA drafts a Parliamentary Resolution in collaboration with the relevant line ministry
  • The Minister for Foreign Affairs presents a proposal for a Parliamentary Resolution to the Parliament, along with an Icelandic translation of the JCD and the act. The Parliament adopts the Parliamentary Resolution following two readings (after the first reading, the case is referred to the Foreign Affairs Committee). The bill transposing the act is submitted at the same time or shortly after the Resolution is submitted to the Parliament.
  • The MFA submits a notification to the EFTA Secretariat.

Liechtenstein

The EEA Coordination Unit prepares Government decisions to task experts with drafting a special Article 103 Government Bill including a timeline to ensure the completion of the constitutional requirements within 6 months. The procedure is as follows:

  • After adoption by the Government, the Bill is sent to the Parliament for a single reading. The Foreign Affairs Committee of the Parliament scrutinises the Bill and proposes adoption by Parliament
  • The Parliament agrees to the Bill, i.e. the JCD, at its following session
  • A referendum period of 30 days applies
  • Signature by the Hereditary Prince
  • Notification to the EFTA Secretariat via the Liechtenstein Mission in Brussels
  • Publication of the JCD in the Law Gazette when it enters into force

Norway

The Parliament approves the entry into force of the JCD in the form of a Parliamentary Resolution. The procedure is as follows:

  • The Government submits a Parliamentary Resolution and the relevant Bill (to transpose the act) to the Parliament simultaneously (in principle). Fulfilling constitutional requirements requires sanctioning of the Parliament’s adoption by Royal Resolution in State Council. The Royal Resolution contains a (draft) translation of both the JCD and the legal act
  • National implementing measures are normally fulfilled before the JCD enters into force
  • Notification to the EFTA Secretariat via the Norwegian Mission in Brussels

Translation And publication of acts and JCDs

Acts

The translation of acts incorporated into the EEA Agreement into Icelandic and Norwegian is the responsibility of Iceland and Norway respectively. No translation of acts is necessary for Liechtenstein as it uses the German language version provided by the EU, in accordance with an arrangement with regard to the publication of EEA relevant information43.

The EFTA Secretariat is responsible for publishing the Icelandic and the Norwegian versions of the acts in the EEA Supplement to the OJ (EEA Supplement), and for assisting the national translation centres by preformatting all acts before the translation work starts.

Once the EFTA Secretariat has registered a new EEA relevant act in the case handling system, it initiates the translation procedure by emailing a preformatted version44 of the act to the MFA’s translation centres in Iceland and Norway. These two centres are responsible for translating the acts into Icelandic and Norwegian.

An act can only enter into force in Iceland once it has been published either in the EEA Supplement or in the Government Gazette (Stjórnartíðindi). The translation of an act starts as soon as the MFA’s translation centre receives the pre-formatted version from the EFTA Secretariat. When the draft translation is ready, it is sent to the relevant line ministry for approval. The publication of the Icelandic version normally takes place four to six weeks after its incorporation into the EEA Agreement, depending on the act’s entry into force.

In Norway a provisional translation of an act should be ready at the latest three days before the EEA JC meeting where the respective act is to be incorporated into the EEA Agreement. The final official translation is made available at a later stage. The translation of an act starts as soon as the pre-formatted version is received from the EFTA Secretariat. The translation is prioritised according to the importance and urgency of each act. Unlike Iceland, the entry into force of an act in Norway is not subject to its publication in Norwegian.

Once the translation of an act has been completed and communicated to the EFTA Secretariat, the EFTA Secretariat prepares it for publication45 and publishes it in the EEA Supplement.

JCDs

The EFTA Secretariat is responsible for translating JCDs into Icelandic and Norwegian, and for publishing them in the EEA Supplement. The EU, on the other hand, is responsible for translating the JCDs into the EU languages and publishing them in the Official Journal of the European Union (OJ). Only the English version of the JCD (except for JCDs that need to be adopted by the Council, see below) needs to be ready before it is adopted by the EEA JC.

Two weeks before a JCD is adopted by the EEA JC, the English version goes through proofreading, which is a joint effort between the EFTA Secretariat and the Secretariat-General (see point 7.1 above). The proofread English version serves as a basis for translating the JCD into Icelandic and Norwegian46. A few days after the adoption of the JCD by the EEA JC, the provisional Icelandic and Norwegian translations47, as well as the English version, are uploaded to the EFTA Secretariat’s website.

As mentioned above, the EU is responsible for translating JCDs into the EU languages. The translation process normally starts after a JCD has been adopted. However, JCDs that need approval from the Council prior to their adoption by the EEA JC are translated before they are presented to the Council. The Secretariat-General sends the German version of the JCD to Liechtenstein as soon as it is ready.

JCDs are published several months after their adoption. The Secretariat-General prepares and takes care of the publication of the JCDs in all the EU languages in the OJ, while the EFTA Secretariat takes care of the publication of the Icelandic and the Norwegian versions in the EEA Supplement. JCDs from one EEA JC meeting are usually treated as a package, and the EU language versions and Norwegian and Icelandic versions are published simultaneously. JCDs adopted by written procedure can be published with JCDs from the following EEA JC meeting.