Proposal for a Regulation on a Mechanism to resolve legal and administrative obstacles in a cross-border context.

In “An Economy that Works for People”

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Internal border regions cover 40 % of the EU’s territory, account for 30 % of its population (150 million people) and are home to 2 million cross-border workers. On 29 May 2018 the EC published a proposal to resolve legal and administrative obstacles in a cross-border context (ECBM). It proposes a voluntary mechanism focusing on neighbouring EU land borders at NUTS 3 level and covering joint projects for any item of infrastructure or service of economic interest. The mechanism would enable the application of the laws of a neighbouring Member State if the laws of the former are a legal obstacle to the delivery of a joint project. It has two main measures: a European Cross-Border Commitment, which allows the committing Member State to transfer a law from a neighbouring Member State, and a European Cross-border Statement, involving a legislative procedure in the Member State to amend its national law in order to apply the law of a neighbouring Member State.

At Council, Member States have raised questions about the instrument’s voluntary nature, its extra administrative burden, the full recognition of existing mechanisms and implications relating to constitutional law. 

At the EP, the Committee on Regional Development (REGI) has adopted a draft report on 22 November 2018, which would strengthen the voluntary nature of the ECBM. Member States would be able to choose to apply the ECBM, join an existing mechanism or create a new one altogether and, would also have the right to choose not to resolve the obstacle. In addition, the report states that the decision whether or not to apply the ECBM would be taken for each single project. The report also proposes the mandatory creation of national Cross-border Coordination Points (CBCP) in all Member States.

On 12 December 2018, Parliament decided to enter into inter-institutional negotiations. However, negotiations have not commenced and the EP adopted its first reading position at its plenary session on 14 February 2019. On 2 October 2019, the newly elected committee decided to open interinstitutional negotiation. On the basis of the Conference of Presidents' decision of 16 October 2019, the EP decided to continue work on this file in the 2019-2024 term.

On 2 March 2020, Council's legal service issued an opinion, covering the choice of legal basis, the proposal's compatibility with the Treaties, as well as the choice of legal instrument and its voluntary nature. On 10 May 2021 the Working Party on Structural Measures decided that the Council would not continue work on this proposal. 

On 6 October 2022 REGI Coordinators have approved a request for a legislative own-initiative report (INL) to break the impasse. The new framework, also called BridgeEU, has been adopted in the REGI Committee on 19 July 2023. It pursues a threefold objective: (1) assigning a leading role in coordinating appropriate responses to existing obstacles to national CBCPs, tasked with analysing project proposals, liaising with competent local and regional authorities and monitoring implementation; (2) promoting the direct involvement of regional and local authorities in the formulation of solutions; and (3) preventing the increase of an unnecessary administrative burden. The report proposes replacing the original procedures for the conclusion of self-enforcing Commitments and Statements with provisions and tasks of Cross-border Committees (CBC). CBCs would not represent permanent structures, but rather ad-hoc bodies. Organisations supporting cross-border cooperation would be able to come up with projects identifying obstacles. The CBCP would analyse them and suggest the next steps. If the solution required the cooperation of another Member State, the national CBCP could ask its counterpart to set up a CBC. However, Member States would be free to decide whether to use the cross-border mechanism or not. The report outlines measures that Member States could take, which range from voluntary commitments via a revision of national legislative or administrative acts, the deferral of the solution to existing bilateral arrangements, or the resort to soft-law actions. Moreover, countries could also decide to follow the same arrangements for border regions with candidate countries. Parliament also wants the Commission to be in touch with CBCPs, provide technical assistance, promote best practices and set up a public database listing all ad-hoc solutions. The plenary has adopted the legislative initiative report in September 2023 with a large majority.

On 12 December 2023 the Commission has put forward an amended proposal, which takes into account the concerns and recommendations made by the two co-legislators, while maintaining its original focus of resolving obstacles that hamper the lives of cross-border communities. The Commission proposes that Member States set up CBCPs, which will assess any request submitted by border stakeholders on potential obstacles, and act as a liaison between them and the national authorities. The proposal would ensure that stakeholders receive a response after the assessment of each request. If an obstacle does in fact exist and if there is no bilateral or international cooperation agreement in place that could be used to implement a solution, Member States could apply the Cross-Border Facilitation Tool, a voluntary standard procedure designed to resolve administrative and legal obstacles in cross-border regions. While each request must be answered to, the decision on whether or not to resolve an obstacle would remain the prerogative of the competent national authorities. The Regulation also proposes creating a network of CBCPs for exchanging best practices and sharing knowledge.

On 17 April 2024 the Committee of the Regions (CoR) has adopted an opinion, which considers that the concerns of some of the Member States have now been clarified, and, therefore, the CoR calls on the Member States to enter the negotiations with a fresh view on the regulation.

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Author: Balazs Szechy, Members' Research Service, legislative-train@europarl.europa.eu

As of 15/12/2024.