Legal provisions of COM(2018)373 - Mechanism to resolve legal and administrative obstacles in a cross-border context

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dossier COM(2018)373 - Mechanism to resolve legal and administrative obstacles in a cross-border context.
document COM(2018)373 EN
date May  7, 2025


CHAPTER I

GENERAL PROVISIONS

Article 1

Subject matter

1. This Regulation establishes a framework to facilitate identifying and resolving cross-border obstacles that hamper the establishment and functioning of any infrastructure necessary for public or private cross-border activities, or of any cross-border public service that is provided in a given cross-border region and that fosters economic, social and territorial cohesion in that cross-border region.

2. The framework referred to in paragraph 1 shall provide for the possibility to initiate a procedure with regard to a cross-border obstacle in a Member State which decides to establish a cross-border coordination point in accordance with this Regulation.

3. This Regulation also lays down rules on:

(a)the organisation and tasks of cross-border coordination points in the Member States; and

(b)the coordination tasks of the Commission.

Article 2

Scope

1. This Regulation shall apply to cross-border obstacles in land or maritime border regions of neighbouring Member States.

2. This Regulation shall not apply to cross-border obstacles in border regions between Member States and third countries.

3. This Regulation shall be without prejudice to any other Union legal acts, in particular those applicable to the non-judicial resolution of legal issues arising from cross-border obstacles and to the correct interpretation or implementation of Union law.

It shall also be without prejudice to the coordination mechanisms established for social security or taxation.

4. Without prejudice to the respective competences of the Union and its Member States, Member States may:

(a)provide for procedures under national law to resolve cross-border obstacles; and

(b)conclude new international agreements and modify existing agreements that lay down such procedures.

Member States may also create ad hoc mechanisms.

Article 3

Definitions

1. For the purposes of this Regulation, the following definitions apply:

(1)‘cross-border interaction’ means:

(a)any infrastructure necessary for public or private cross-border activities; or

(b)the establishment, functioning or provision of any cross-border public service in a cross-border region;

(2)‘cross-border obstacle’ means any legislative or administrative provision in a Member State, or any administrative practice by a public authority in a Member State, that has the potential to negatively affect a cross-border interaction and thus the development of a cross-border region and which does not have the potential to infringe Union law;

(3)‘competent authority’ means a body at national, regional or local level that has the power to adopt legally binding and enforceable acts in a Member State that establishes one or more cross-border coordination points;

(4)‘cross-border file’ means a document that has been prepared by one or more initiators and submitted to a cross-border coordination point;

(5)‘cross-border public service’ means an activity that is carried out in the public interest to provide a service in, or to address common problems or the development potential of border regions located on different sides of one or more neighbouring Member States’ borders, and that fosters economic, social and territorial cohesion in the cross-border region concerned;

(6)‘initiator’ means any private or public entity involved in the provision, operation, establishment or functioning of any cross-border public service or of infrastructure on a border for which at least one cross-border coordination point is established;

(7)‘relevant authority’ means any authority, public law body or permanent entity within a Member State without any cross-border coordination point, which a cross-border coordination point from a neighbouring Member State can contact with regard to a cross-border file.

2. For the purposes of this Regulation, a reference to the ‘competent authority’ shall also cover situations where more than one competent authority within the same Member State is competent or has to be consulted.

3. For the purposes of this Regulation, the term ‘cross-border obstacle’ shall cover one or more cross-border obstacles linked to a cross-border file.

CHAPTER II

CROSS-BORDER COORDINATION POINTS AND RELEVANT AUTHORITIES

Article 4

Establishment of cross-border coordination points

1. Member States may establish, on the basis of their institutional and legal framework, one or more cross-border coordination points at national or regional level in accordance with paragraphs 2 and 3.

Where a Member State decides to establish one or more cross-border coordination points only for some of its border regions, it shall not be required to establish cross-border coordination points for its other border regions.

Where a Member State has both land and maritime borders with another Member State and decides to establish one or more cross-border coordination points, it shall not be required to establish a cross-border coordination point for any of its maritime border shared with that Member State.

2. Two or more neighbouring Member States may decide to establish a joint cross-border coordination point competent for one or more of their cross-border regions.

3. Where a Member State decides to establish one or more cross-border coordination points, each cross-border coordination point shall be established either as:

(a)a part of an existing authority, public law body or permanent entity, including by entrusting that authority, public law body or permanent entity with the additional tasks of the cross-border coordination point; or

(b)a separate authority, public law body or permanent entity.

4. Member States shall ensure that, within two months of the adoption of a decision establishing a cross-border coordination point, its contact details and information relating to its tasks:

(a)are made available on the website of the authority, public law body or permanent entity that has been established as a cross-border coordination point and on the websites of the relevant Interreg A programmes referred to in Article 36(2) of Regulation (EU) 2021/1059; and

(b)are at the same time transmitted electronically to the Commission in accordance with the Annex to this Regulation.

Member States shall ensure that those contact details and information are kept up to date.

Member States shall ensure visibility and accessibility of the cross-border coordination point.

Article 5

Main tasks of the cross-border coordination points

1. Each cross-border coordination point shall liaise with the initiator as provided for in Articles 9 and 10 and, where applicable, Articles 11 and 12.

The cross-border coordination point to which the initiator submits its cross-border file, irrespective of whether it is national, regional or joint, shall constitute the sole contact point for the initiator with respect to the assessment of the cross-border file under Chapter III and, where applicable, Chapter IV.

2. Member States shall decide whether cross-border coordination points may act upon a cross-border file on their own behalf or whether they shall be responsible only for communicating with the initiator on behalf of the competent authority in accordance with paragraph 1.

3. Member States shall determine, either individually in the case referred to in Article 4(1) or jointly in the case referred to in Article 4(2), the distribution of the following tasks and procedures established under Chapters II and III and, where applicable, Chapter IV between the cross-border coordination point and the competent authority:

(a)carrying out an assessment of all cross-border files, in accordance with Article 9;

(b)ensuring transparency and access to the information referred to in Article 4(4) and the Annex;

(c)preparation and implementation of solutions to cross-border obstacles concerning their territory in accordance with Articles 9 and 10 and, where applicable, Articles 11 and 12;

(d)liaising with the cross-border coordination point or points or, in the absence thereof, with the relevant authority or authorities in the neighbouring Member State or States, in accordance with Article 9(4);

(e)liaising with the Commission and supporting it in carrying out the coordination tasks referred to in Article 13, in particular the updating of the register as referred to in Article 13(1), point (a), by providing at least once a year information about each cross-border file processed, in accordance with the Annex.

Article 6

Information on the relevant authority

1. Where a Member State has not established one or more cross-border coordination points, it shall submit information on the relevant authority to the Commission in accordance with Article 13(2) and the Annex.

2. Paragraph 1 of this Article shall apply only to those Member States that have land border regions as referred to in Article 2(1).

CHAPTER III

CROSS-BORDER FILES

Article 7

Preparation and submission of cross-border files

1. The initiator shall prepare a cross-border file in accordance with Article 8.

2. The initiator shall submit the cross-border file to the cross-border coordination point in one of the Member States in the territory of which the geographical area concerned by the alleged cross-border obstacle is located.

3. Where cross-border files concerning the same cross-border obstacle are submitted in two or more neighbouring Member States, the respective cross-border coordination points shall liaise with each other to determine which one of them shall handle the cross-border file. The other cross-border coordination points shall transfer their cross-border files accordingly.

Article 8

Content of cross-border files

1. The cross-border file shall contain at least the following elements:

(a)a description of the cross-border interaction and its context;

(b)a description of the problem arising from a cross-border obstacle;

(c)the reason for the need to resolve the cross-border obstacle;

(d)where available, a description of the negative impact of the cross-border obstacle on the development of the cross-border region;

(e)the geographical area concerned;

(f)where known and relevant, the expected necessary duration of the application of a derogation from or exception to the cross-border obstacle or its removal;

(g)where known, information on whether a cross-border file concerning the same alleged cross-border obstacle has been submitted to another cross-border coordination point.

2. The initiator may also identify the cross-border obstacle and, if possible, suggest the text for a derogation from or exception to the cross-border obstacle or for resolving the cross-border obstacle by way of an ad hoc legal solution.

3. The geographical area referred to in paragraph 1, point (e), shall be limited to the minimum necessary to resolve the cross-border obstacle in an effective manner.

Article 9

Assessment steps

1. The cross-border coordination point or the competent authority shall assess each cross-border file submitted pursuant to Articles 7 and 8 and shall identify the cross-border obstacle, if any.

2. Within two months of the date of submission of the cross-border file, the cross-border coordination point or the competent authority may request the initiator to clarify the cross-border file or to submit specific additional information.

If, following the assessment steps referred to in paragraph 1 and the first subparagraph of this paragraph, of this Article, the cross-border file does not contain all the elements required by Article 8(1), the cross-border coordination point or the competent authority may close the file, setting out the reasons therefor, and the cross-border coordination point shall inform the initiator accordingly.

3. Where, after assessing a cross-border file, the cross-border coordination point or the competent authority concludes that there is no cross-border obstacle, the cross-border coordination point or the competent authority may close the file, setting out the reasons therefor, and the cross-border coordination point shall inform the initiator accordingly.

4. Where, after assessing a cross-border file, the cross-border coordination point or the competent authority concludes that the alleged cross-border obstacle falls within the competence of another Member State, it shall contact the cross-border coordination point in that other Member State or, in the absence thereof, the relevant authority in that Member State.

Where that cross-border coordination point or relevant authority agrees, the cross-border coordination point shall transfer all relevant information to it, and immediately inform the initiator accordingly.

5. Where, after assessing a cross-border file, the cross-border coordination point or the competent authority concludes that there is a cross-border obstacle, it may contact either a cross-border coordination point or, in the absence thereof, the relevant authority of a neighbouring Member State or Member States.

6. The cross-border coordination point or the competent authority in the Member State concerned by the cross-border obstacle may proceed in one of the following ways:

(a)where possible, rely on an international agreement in force, whether bilateral or multilateral, sector-specific or multi-sectoral, which provides for a mechanism to resolve such cross-border obstacles between the Member States party to such an agreement;

(b)where applicable, rely on other procedures existing under the law of the Member State concerned;

(c)create ad hoc mechanisms;

(d)apply the Cross-Border Facilitation Tool laid down in Chapter IV, either individually or, if necessary and agreed, jointly with the neighbouring Member State;

(e)choose not to resolve the obstacle and close the file.

For the purposes of point (a), resolving the cross-border obstacle, including elements such as the actors involved and the procedure to be followed, in particular for liaising and cooperating with the neighbouring Member State, shall be governed exclusively by the provisions of that agreement.

Article 10

Information to be provided to the initiator

1. The cross-border coordination point shall inform the initiator in writing of the assessment steps carried out in accordance with Article 9, within the standard time limit provided for by national law for a response to an equivalent request.

2. Where no such time limit is provided for by national law, the following time limits shall apply:

(a)three months from the date of reception of the cross-border file by the cross-border coordination point for the assessment steps referred to in Article 9(2), second subparagraph;

(b)six months from the date of reception of the cross-border file by the cross-border coordination point for the assessment steps referred to in Article 9(3), (4), (5) and (6).

3. The information to be provided under paragraph 1 shall indicate:

(a)the assessment steps taken, the reasons therefor and, where available, conclusions reached; and

(b)what means of legal redress are open to the initiator under national law against those assessment steps.

The legal redress shall be limited to verifying the respect of procedural rights referred to in this Regulation.

4. The time limit referred to in paragraph 1 of this Article may be extended in accordance with the national rules applicable to similar procedures. In the absence of such national rules, the time limits under paragraph 2 of this Article may be extended by a maximum of three months where a cross-border coordination point or a competent authority concludes that more time is needed for legal analysis or for consultations inside the Member State or for coordination with the neighbouring Member State, pursuant to Article 9(1).

CHAPTER IV

CROSS-BORDER FACILITATION TOOL

Article 11

Procedure

1. If the cross-border coordination point or the competent authority decides to apply the Cross-Border Facilitation Tool, the procedure provided for in this Article shall apply.

2. Where the cross-border coordination point or the competent authority has concluded that there is a cross-border obstacle, it shall inform the initiator of:

(a)the cross-border obstacle identified;

(b)the next steps, whether leading to resolving the cross-border obstacle or not, and, if relevant, which of the procedures under paragraphs 4 and 5 applies.

3. After the assessment of the cross-border file and the identification of the cross-border obstacle, the cross-border coordination point shall share relevant information about that cross-border obstacle with the cross-border coordination point or, in the absence thereof, the relevant authority in the neighbouring Member State. The cross-border coordination points shall endeavour to avoid parallel procedures concerning the same cross-border obstacle.

4. Where the cross-border obstacle consists of an administrative provision or practice and the cross-border coordination point or competent authority considers that resolving the obstacle would not require an amendment to a legislative provision, either the cross-border coordination point or the competent authority shall contact the competent authority responsible for the administrative provision or practice to ascertain whether an amendment to that administrative provision or a change in practice would be sufficient to resolve the cross-border obstacle and whether that authority would be willing to amend or change it accordingly.

The initiator shall be informed in writing within eight months of the date of the submission of the cross-border file pursuant to Article 7.

5. Where the cross-border obstacle consists of a legislative provision, the cross-border coordination point or competent authority shall contact the competent authority responsible for the legislative provision to ascertain whether an amendment, such as a derogation from or an exception to the applicable legislative provision, would enable the cross-border obstacle to be resolved and whether the competent authority would be willing to take the necessary steps to launch a legislative procedure to make such an amendment in accordance with the institutional and legal framework of the Member State concerned.

The initiator shall be informed in writing within eight months of the date of the submission of the cross-border file pursuant to Article 7.

6. Where cross-border files concerning the same cross-border obstacle have been submitted to cross-border coordination points in two or more neighbouring Member States, each of those cross-border coordination points shall decide whether the procedure under paragraph 4 or 5 applies in their respective Member State and shall liaise with each other.

7. Where the cross-border coordination point is unable to respond to the initiator within the eight-month time limit laid down in paragraph 4, second subparagraph, or paragraph 5, second subparagraph, due to an ongoing legal analysis, consultations inside its Member State, coordination with the neighbouring Member State, or where the competent or relevant authority of the neighbouring Member State amends an administrative provision or changes a practice, or launches a legislative procedure, the initiator shall be informed in writing of the reason for the delay and the timeline of the response.

Article 12

Final steps

1. The cross-border coordination point shall, on the basis of its assessment carried out pursuant to Article 9 and in accordance with the information received under Article 11(3), inform the initiator in writing about the outcome of the procedure, namely:

(a)the outcome of any procedure carried out under Article 11(4), including where relevant, the amendment to any administrative provision or change in practice;

(b)the outcome of a procedure under Article 11(5), including where relevant, the launch of a legislative procedure or the amendment to any legislative provision;

(c)that the cross-border obstacle will not be resolved;

(d)the reasons for any position adopted under point (a), (b) or (c);

(e)the time limit for legal redress under national law if any.

For the purposes of point (e), in the absence of such a time limit under national law, the initiator shall be granted six months to request legal redress.

The legal redress shall be limited to verifying the respect of procedural rights pursuant to this Regulation.

2. Where the cross-border coordination point or the competent authority has decided to resolve the cross-border obstacle by way of the procedure provided for in Article 11(5), it shall:

(a)inform the cross-border coordination point of the neighbouring Member State;

(b)inform the initiator of the most important steps with respect to the amendment to the legislative provision, including where relevant, to the legislative procedure launched to amend the legislative provision concerned in order to resolve the cross-border obstacle or the final decision closing the procedure.

The cross-border coordination point shall also inform the initiator where the competent authority of the neighbouring Member State has launched a legislative procedure to amend a legislative provision.

3. Where the Member State concerned and the neighbouring Member State conclude that each of them is willing to launch a legislative procedure to amend their respective legislative provision, to amend their respective administrative provision or to change their respective practice, they shall do so in close coordination, in accordance with their respective institutional and legal frameworks. That coordination may cover the timing of the procedures and may lead to the establishment of a joint committee with representatives of the competent authorities and the cross-border coordination points, where relevant.

CHAPTER V

FINAL PROVISIONS

Article 13

Coordination tasks of the Commission

1. The Commission shall fulfil the following coordination tasks:

(a)set up and maintain a single Union public register of cross-border files;

(b)liaise with the cross-border coordination points;

(c)support the enhancement of the institutional capacity in Member States that is necessary to implement this Regulation efficiently;

(d)promote the exchange of experience between Member States and in particular between the cross-border coordination points;

(e)publish and keep updated a list of all national and regional cross-border coordination points.

2. Member States shall support the Commission’s coordination tasks referred to in paragraph 1, point (d), of this Article either in accordance with Article 5(3), point (e), or by submitting information annually in accordance with the Annex.

The first subparagraph of this paragraph shall apply only to Member States that have land border regions as referred to in Article 2(1).

Article 14

Monitoring and reporting

By 9 June 2030, the Commission shall review the implementation of this Regulation and shall submit a report to the European Parliament, the Council, the Committee of the Regions and the European Economic and Social Committee.

Article 15

Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.