DECISION OF THE STANDING COMMITTEE OF THE EFTA STATES

No 3/2012/SC

of 26 October 2012

laying down procedures for committees assisting the EFTA Surveillance Authority in carrying out its functions under Article 3 of Protocol 1 to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice

THE STANDING COMMITTEE OF THE EFTA STATES,

Having regard to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice as adjusted by the Protocol Adjusting the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice, hereinafter referred to as the Surveillance and Court Agreement, and in particular Article 3 Protocol 1 thereto;

Whereas:

The European Parliament and the Council in certain legal acts confer on the European Commission powers for the implementation of the rules contained therein. Article 291 of the Treaty on the Functioning of the European Union requires the European Parliament and the Council to lay down the rules and general principles concerning mechanisms for control by Member States of the Commission‘檚 exercise of implementing powers;

The European Parliament and the Council in Regulation (EU) No 182/2011 of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission‘檚 exercise of implementing powers (1), have laid down those rules and general principles;

Article 3 of Protocol 1 to the Surveillance and Court Agreement entrusts the EFTA Surveillance Authority with certain functions which within the European Union are carried out by the European Commission; whereas the European Commission when carrying out certain of these functions has to follow procedures in respect of the exercise of its implementing powers. According to those procedures the European Commission has to submit a draft measure to be taken to a committee;

Article 3 of Protocol 1 to the Surveillance and Court Agreement provides that the Standing Committee shall lay down the procedures to be followed when the EFTA Surveillance Authority must submit a draft measure to or otherwise consult with a committee;

Those procedures shall be identical to or correspond most closely to those which the European Commission, according to the acts referred to in the Annexes to the EEA Agreement, shall follow when carrying out the corresponding functions;

The designation of the committees among the EFTA States, corresponding to the relevant European Union committees, is subject to separate decisions by the Standing Committee under Article 5(2) of the Agreement on a Standing Committee of the EFTA States seised by a proposal made by the EFTA Surveillance Authority,

HAS DECIDED AS FOLLOWS:

Article 1

Common provisions

1. The EFTA Surveillance Authority shall be assisted by a committee composed of representatives of the EFTA States and chaired by a representative of the EFTA Surveillance Authority. The chair shall not take part in the committee vote.

2. The chair shall submit to the committee a draft of the measures to be taken for examination. The committee shall deliver its opinion on the draft measures within a time limit which the chair may lay down according to the urgency of the matter, if necessary by taking a vote. Time limits shall be proportionate and shall afford committee members early and effective opportunities to examine the draft measures and express their views.

3. Until an opinion has been delivered, any committee member may suggest amendments and the chair may present amended versions of the draft measures in order to take into account the discussions within the committee. The chair shall endeavour to find solutions which command the widest possible support within the committee. For that purpose, the chair may convene several meetings of the committee.

4. The committee‘檚 opinion shall be recorded in the minutes; in addition, each EFTA State shall have the right to ask to have its position recorded in the minutes.

5. Where applicable, the control mechanism shall include referral to an appeal committee. The appeal committee shall adopt its own rules of procedure by simple majority of its members. The EFTA Surveillance Authority shall submit a proposal to the committee for rules of procedure. The appeal committee shall deliver its opinion within two months of referral. A representative of the EFTA Surveillance Authority shall chair the appeal committee.

Article 2

Advisory procedure

1. Where the advisory procedure applies, the committee shall deliver its opinion, if necessary by taking a vote. In the case a vote is needed, the opinion of the committee shall be delivered by a simple majority.

2. The EFTA Surveillance Authority shall decide on the measures to be taken, taking the utmost account of the conclusions drawn from the discussions within the committee and of the opinion delivered. It shall inform the committee of the manner in which the opinion has been taken into account.

Article 3

Examination procedure

1. Where the examination procedure applies, the committee shall deliver its opinion, if necessary by taking a vote. In the case a vote is needed the opinion of the committee shall be delivered by a simple majority.

2. Where the committee delivers a positive opinion the EFTA Surveillance Authority shall adopt the draft measures envisaged.

3. Where the committee delivers a negative opinion, the EFTA Surveillance Authority shall not adopt those measures. In the case the draft measures are deemed to be necessary, the chair may either submit an amended version of the draft measures to the committee or submit the draft measures to the appeal committee for further deliberation.

4. If no opinion is delivered, the EFTA Surveillance Authority may adopt the measures envisaged unless the basic act provides that the draft measures may not be adopted where no opinion is delivered.

Article 4

Referral to the appeal committee

1. The appeal committee shall consist of one representative from each EFTA State and be chaired by a representative of the EFTA Surveillance Authority. Members of the committee assisting the EFTA Surveillance Authority (Article 1) shall not be members of the appeal committee. The appeal committee shall deliver its opinion by a simple majority. The chair of the appeal committee shall not take part in the appeal committee vote.

2. Until an opinion is delivered, any member of the appeal committee may suggest amendments to the draft measures and the chair may decide whether or not to modify them. The chair shall endeavour to find solutions which command the widest possible support within the appeal committee. The chair shall inform the appeal committee of the manner in which the discussions and suggestions for amendments have been taken into account, in particular as regards suggestions for amendments that have been largely supported within the appeal committee.

3. Where the appeal committee:

Article 5

Immediately applicable measures

1. By way of derogation from Articles 2 and 3, a basic act may provide that, on duly justified imperative grounds of urgency, that immediately applicable implementing measures are needed.

2. The EFTA Surveillance Authority shall then adopt measures which shall apply immediately without their prior submission to a committee and shall remain in force for a period not exceeding six months unless the basic act provides otherwise.

3. The chair shall without delay submit the measures referred to in paragraph 1 to the relevant committee in order to obtain its opinion in accordance with the procedure applying to this committee.

4. In the case of the examination procedure, where the measures are not in accordance with the opinion of the committee, the EFTA Surveillance Authority shall immediately repeal the measures adopted in accordance with paragraph 1.

5. The measures referred to in paragraph 1 shall remain in force until they are repealed or replaced.

Article 6

Repeal of SCD No 3/94/SC of 10 January 1994

Decision of the Standing Committee of the EFTA States No 3/94/SC of 10 January 1994 is hereby repealed.

Article 7

Transitional provisions: adaptation of existing basic acts

Where basic acts adopted before the entry into force of Regulation (EU) No 182/2011 of 16 February 2011 refer to Decision 1999/486/EC, the following shall apply:

Article 8

Transitional arrangement

This Decision shall not affect pending procedures in which a committee has already delivered its opinion in accordance with Standing Committee Decision No 3/94/SC.

Article 9

Information on committee proceedings

The EFTA Surveillance Authority shall report annually on the work of the committees.

Article 10

Entry into force

This Decision shall enter into force on the day of adoption.

Article 11

Publication

This Decision shall be published in the EEA Section of, and in the EEA Supplement to, the Official Journal of the European Union.

(1) OJ L 55, 28.2.2011, p.13