Proposal for a COUNCIL DECISION establishing the position to be taken on behalf of the European Union in the Joint Committee established by the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community as regards the adoption of a decision adding a newly adopted Union act to Annex 2 to the Windsor Framework

EXPLANATORY MEMORANDUM

This proposal concerns the decision establishing the position to be taken on the Union’s behalf in the Joint Committee established by the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (‘the Withdrawal Agreement’) in connection with the envisaged adoption of a Joint Committee Decision amending Annex 2 to the Windsor Framework ¹ , which forms an integral part of the Withdrawal Agreement.

The Withdrawal Agreement sets out the arrangements for the orderly withdrawal of the United Kingdom from the Union and Euratom. The Withdrawal Agreement entered into force on 1 February 2020. On 27 February 2023, the European Commission and the Government of the United Kingdom reached a political agreement in principle on the Windsor Framework. On 24 March 2023, the Joint Committee established by the Withdrawal Agreement adopted the new arrangements relating to the Windsor Framework and the two Parties agreed to work together intensively and faithfully to implement all elements of the Windsor Framework.

The Joint Committee established under Article 164(1) of the Withdrawal Agreement comprises representatives of the Union and of the United Kingdom. It is co-chaired by the Union and the United Kingdom. Annex VIII to the Withdrawal Agreement lays down the rules of procedure of the Joint Committee. The Joint Committee meets at least once a year or at the request of the Union or the United Kingdom and it sets its meeting schedule and agenda by mutual consent.

The tasks of the Joint Committee are laid down in Article 164 of the Withdrawal Agreement and consist principally of:

• overseeing the implementation and application of the Agreement directly or through the work of the specialised committees reporting to it;

• adopting decisions and recommendations, including amendments to the Agreement in the cases provided therein;

• preventing problems and resolving disputes that may arise regarding the interpretation and application of the Agreement.

At its next meeting, the Joint Committee is to adopt a decision adding a newly adopted Union act that falls within the scope of the Windsor Framework to Annex 2 to the Windsor Framework (‘the envisaged act’), pursuant to its Article 13(4).

The envisaged act will become binding on the Parties in accordance with Article 166(2) of the Withdrawal Agreement. In accordance with Rule 9 of the Rules of Procedure of the Joint Committee and Specialised Committees, decisions adopted by the Joint Committee will specify the date at which they take effect.

3.1.     Annex 2 (‘Provisions of Union law referred to in Article 5(4)’) to the Windsor Framework

Annex 2 to the Windsor Framework contains the provisions of Union law referred to in Article 5(4) thereof.

On 23 October 2024, the Union adopted a Regulation on horizontal cybersecurity requirements for products with digital elements (Regulation (EU) 2024/2847 ² ).

Regulation (EU) 2024/2847 lays down cybersecurity requirements for products with digital elements. It is broad in scope; examples include computer microchips, operating systems, mobile applications, as well as machinery and connected toys. Once applicable, manufacturers of such products will need to ensure an appropriate level of cybersecurity based on related risks.

This newly adopted Union act, except for Articles 5 and 67, relates to the internal market for goods and therefore falls within the scope of the Windsor Framework. It should therefore, with the exception of Articles 5 and 67, be added to Annex 2 to the Windsor Framework, under point 47 “Other”.

Articles 66 and 68 of the Regulation are already applicable to and in the United Kingdom in respect of Northern Ireland pursuant to Article 13(3) of the Windsor Framework as these provisions amend existing legislation listed in Annex 2 to the Framework.

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for Council’s 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.’

In addition, 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’ ³ .

The Joint Committee is a body set up by an agreement, namely the Withdrawal Agreement.

The act which the 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 Article 166(2) of the Withdrawal Agreement.

The envisaged act does not supplement or amend the institutional framework of the Withdrawal Agreement.

Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU.

The substantive legal basis for a decision under Article 218(9) TFEU depends primarily on the objective and content of the envisaged act in respect of which a position is taken on the Union's behalf. 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.

The sole objective and content of the envisaged act is to add a newly adopted Union act to Annex 2 to the Windsor Framework.

The conclusion of the Withdrawal Agreement was based on Article 50(2) of the Treaty on European Union (TEU).

Therefore, and in accordance with the basic principle that an act can be amended only by an act of the same type, the substantive legal basis of the proposed decision is Article 50(2) TEU.

The legal basis of the proposed decision should be Article 50(2) TEU, in conjunction with Article 218(9) TFEU.

As the act of the Joint Committee will amend Annex 2 to the Windsor Framework, it is appropriate to publish it in the Official Journal of the European Union after its adoption.

COUNCIL DECISION

establishing the position to be taken on behalf of the European Union in the Joint Committee established by the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community as regards the adoption of a decision adding a newly adopted Union act to Annex 2 to the Windsor Framework

Having regard to the Treaty on European Union, and in particular Article 50(2) thereof,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 218(9) thereof,

Having regard to the proposal from the European Commission,

Whereas:

1. The Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (‘the Withdrawal Agreement’) was concluded by the Union by Council Decision (EU) 2020/135 ⁴  and entered into force on 1 February 2020.

2. Pursuant to Article 13(4) of the Windsor Framework ⁵ , which forms an integral part of the Withdrawal Agreement, the Joint Committee established under Article 164(1) thereof (‘the Joint Committee’) is empowered to adopt decisions to amend the relevant Annexes to the Windsor Framework by adding newly adopted Union acts that fall within the scope of the Windsor Framework, but which neither amend nor replace Union acts listed in the Annexes to the Windsor Framework. 

3. Articles 66 and 68 of Regulation (EU) 2024/2847 of the European Parliament and of the Council ⁶  are applicable pursuant to Article 13(3) of the Windsor Framework. The remainder of the provisions of that Regulation are provisions of a newly adopted Union act falling within the scope of the Windsor Framework which should be added to Annex 2 to the Windsor Framework. This does not apply to Articles 5 and 67 of that Regulation.

4. The Joint Committee, at its next meeting, should adopt a decision pursuant to Article 13(4) of the Windsor Framework adding this newly adopted Union act, with the exception of Articles 5 and 67 thereof, to Annex 2 to the Windsor Framework.

5. It is appropriate to establish the position to be taken on the Union's behalf in the Joint Committee as regards the adoption of a decision adding the newly adopted Union act to Annex 2 to the Windsor Framework.

HAS ADOPTED THIS DECISION:

Article 1

The position to be taken on behalf of the European Union within the Joint Committee established by Article 164(1) of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (‘Joint Committee’) shall be based on the draft decision of the Joint Committee attached to this Decision.

Article 2

This Decision is addressed to the Commission.

Done at Brussels,

ANNEX

DECISION No […]/2025 OF THE JOINT COMMITTEE ESTABLISHED BY THE AGREEMENT ON THE WITHDRAWAL OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND FROM THE EUROPEAN UNION AND THE EUROPEAN ATOMIC ENERGY COMMUNITY

of …

adding a newly adopted Union act to Annex 2 to the Windsor Framework

THE JOINT COMMITTEE,

Having regard to the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community ¹ (‘the Withdrawal Agreement’), and in particular Article 13(4) of the Windsor Framework ² ,

Whereas:

1. Article 13(4) of the Windsor Framework empowers the Joint Committee established under Article 164(1) of the Withdrawal Agreement (‘the Joint Committee’) to adopt decisions adding newly adopted Union acts falling within the scope of the Windsor Framework to the relevant Annexes to the Windsor Framework.

2. Pursuant to Article 166(2) of the Withdrawal Agreement, the decisions adopted by the Joint Committee are binding on the Union and the United Kingdom. The Union and the United Kingdom are to implement such decisions, which have the same legal effect as the Withdrawal Agreement.

3. Articles 66 and 68 of Regulation (EU) 2024/2847 of the European Parliament and of the Council of 23 October 2024 on horizontal cybersecurity requirements for products with digital elements and amending Regulations (EU) No 168/2013 and (EU) 2019/1020 and Directive (EU) 2020/1828 (Cyber Resilience Act) ³  are applicable pursuant to Article 13(3) of the Windsor Framework. The remainder of the provisions of that Regulation, with the exception of Articles 5 and 67 thereof, are provisions of a newly adopted Union act falling within the scope of the Windsor Framework which should be added to Annex 2 to the Windsor Framework, 

HAS ADOPTED THIS DECISION:

Article 1

Regulation (EU) 2024/2847 of the European Parliament and of the Council of 23 October 2024 on horizontal cybersecurity requirements for products with digital elements and amending Regulations (EU) No 168/2013 and (EU) 2019/1020 and Directive (EU) 2020/1828 (Cyber Resilience Act) ⁴ , with the exception of Articles 5 and 67, shall be added to Annex 2 to the Windsor Framework under point 47 “Other”.

Article 2

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

Done at …,

For the Joint Committee

The Co-chairs