Considerations on 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
 
table>(1)In order to achieve the objectives referred to in Article 174 of the Treaty on the Functioning of the European Union (TFEU), Article 175, third paragraph, TFEU provides for the possibility of adopting specific actions outside the Funds referred to in Article 175, first paragraph, TFEU. Furthermore, territorial cooperation contributes to the objectives referred to in Article 174 TFEU. It is therefore appropriate to adopt the measures that are necessary to improve the conditions for the implementation of territorial cooperation actions.
(2)Article 174, third paragraph, TFEU recognises that certain challenges are faced by cross-border regions and provides that the Union is to pay particular attention to those regions, when developing and pursuing actions leading to the strengthening of the Union’s economic, social and territorial cohesion.

(3)The Commission communication of 20 September 2017 entitled ‘Boosting growth and cohesion in EU border regions’ acknowledged the progress made so far in transforming such regions from mainly peripheral areas into areas of growth and opportunities, but also highlighted the legal and other obstacles that persist in those regions, in particular obstacles related to health services, labour regulation, taxes and business development, and obstacles linked to differences in national legal frameworks and administrative cultures. Neither European territorial cooperation funding, provided in particular in the context of the ‘Interreg’ programmes established under Regulation (EU) 2021/1059 of the European Parliament and of the Council (4), nor the institutional support to cooperation by the European groupings of territorial cooperation (‘EGTCs’) established by Regulation (EC) No 1082/2006 of the European Parliament and of the Council (5) or by the b-solutions initiative launched in 2018 by the Commission is sufficient to address resolving some of the administrative and legal obstacles which hamper effective cooperation.

(4)Cross-border regions are at risk of being disproportionately affected in times of crisis. During the COVID-19 pandemic, the negative economic impact on cross-border regions due to border-related measures taken by Member States was more than double the average impact on all the Union’s regions in terms of GDP loss. That experience reinforces the need to provide for a means to address cross-border obstacles.

(5)Barriers and discrepancies of a legal or administrative nature that arise at the internal borders of the Union and potentially undermine cross-border interaction and the development of cross-border regions are difficult for the Member States to address alone. Consequently, finding a way to resolve those obstacles should be facilitated by piloting a clear and comprehensive framework at Union level that allows Member States to cooperate and coordinate their efforts. Recourse to the framework established under this Regulation should be optional for Member States.

(6)Where Member States decide to have recourse to that framework, they should be bound by common standards.

(7)In its assessment of data from the period 2014-2019, the relevant European Added Value Assessment study by the European Parliamentary Research Service found that resolving cross-border obstacles would bring significant benefits for NUTS 3 border regions and to the entire Union economy. More precisely, the total gross value added (GVA) benefit of resolving all legal and administrative barriers would yield approximately EUR 457 billion per year, representing 3,8 % of total 2019 EU GVA. Resolving 20 % of cross-border obstacles for all border regions would result in a total GVA benefit of EUR 123 billion per year, representing approximately 1 % of total 2019 EU GVA, as well as an employment benefit of 1 million jobs representing approximately 0,5 % of total employment at Union level.

(8)Even though several legal tools to resolve cross-border obstacles already exist at inter-governmental, national, regional and local level in certain regions of the Union, they do not cover all border regions in the Union nor do they necessarily address issues related to the development and strengthening of territorial cohesion in a consistent manner. This Regulation complements the existing tools by way of an additional framework established by Union law which includes the Cross-Border Facilitation Tool.

(9)In order to make it easier to handle files concerning cross-border obstacles, Member States that have decided to apply the framework should establish one or more cross-border coordination points, covering one or more border regions of those Member States. Such cross-border coordination points should be responsible for receiving cross-border files and informing initiators. The cross-border coordination points should liaise with the Commission and support its coordination role. Member States should decide in accordance with their own legal, administrative and institutional framework whether the cross-border coordination point should be entrusted with additional tasks, such as the assessment of cross-border files, or whether those tasks should be dealt with by a competent authority.

(10)Where a Member State does not establish a cross-border coordination point, it should submit information on the relevant authority to the Commission. It should be possible for that relevant authority to be contacted and to receive information from a cross-border coordination point of a neighbouring Member State handling a cross-border file. Where a relevant authority is contacted by a cross-border coordination point of a neighbouring Member State handling a cross-border file or receives information from such a cross-border coordination point, it should not give rise to an obligation under this Regulation for the relevant authority to resolve a cross-border obstacle. In particular, that authority should not be required to examine the file or to respond to the initiator.

(11)In order to support the establishment of cross-border coordination points, Member States could decide to allocate European Regional Development Fund resources under Interreg programmes pursuant to Article 14, paragraph 4, point (b), of Regulation (EU) 2021/1059 and European Regional Development Fund or Cohesion Fund resources, as appropriate, under the Investment for jobs and growth goal pursuant to Article 3, paragraph 4, point (c), of Regulation (EU) 2021/1058 of the European Parliament and of the Council (6).

(12)The application of this Regulation should be without prejudice to the application of national law or international agreements between Member States providing for equivalent procedures.

(13)Despite the fact that maritime border regions are different in nature from land border regions, due to more limited possibilities for cross-border interactions, this Regulation should also apply to maritime border regions. Where a Member State has both land and maritime borders with other Member States and decides to establish one or more cross-border coordination points, that Member State should not be required to establish a cross-border coordination point for a maritime border shared with another Member State. Member States which only have maritime borders with other Member States should not be required to establish a cross-border coordination point nor to submit information to the Commission on the relevant authority or any information required by the Annex.

(14)While this Regulation does not apply to cross-border obstacles in border regions between Member States and third countries, it should be possible for Member States to set up equivalent procedural frameworks under national law to identify and resolve legal and administrative cross-border obstacles in their cooperation with third countries.

(15)Several non-judicial tools exist at Union level to monitor and enforce Union law, including in particular those linked to the single market, such as SOLVIT (7). This Regulation should be without prejudice to such tools. The framework provided for by this Regulation should apply only to cross-border obstacles arising from legislative or administrative provisions or practices, including those provisions or practices that apply Union law correctly but in a divergent manner, which have the potential to unintentionally hinder the planning or implementation of cross-border public services or infrastructure. Cases involving a potential infringement of Union law by a public authority in a Member State should not be dealt with within the framework provided for by this Regulation. This Regulation is also without prejudice to the coordination mechanisms established for social security or taxation.

(16)In order to identify possible cross-border obstacles that fall within the scope of this Regulation, it is necessary to define the situations which qualify as cross-border interactions. This Regulation should therefore apply to any infrastructure for cross-border activities or to cross-border public services. Infrastructure needed for cross-border activities can be affected by cross-border obstacles, for example where there are different technical standards for buildings or vehicles, including for related equipment. Cross-border public services are provided on a long term basis and aim to generate benefits for the general public or a specific target group in the border region in which the service is provided, thereby improving living conditions and territorial cohesion in those regions.

(17)A cross-border file should be submitted by an initiator, an entity that can be private or public. In order to facilitate the handling of cross-border files and to establish a network of national bodies able to liaise with each other on the implementation of this Regulation, Member States should be able to establish one or more cross-border coordination points at national or regional level. Two or more neighbouring Member States should also be allowed to establish a joint cross-border coordination point competent for one or more of their cross-border regions.

(18)A Member State should have the possibility to establish a cross-border coordination point as a part of an existing authority, public law body or permanent entity, irrespective of whether that authority, body or entity has legal personality, in particular by entrusting it with the tasks of a cross-border coordination point, or as a separate authority, public law body or permanent entity. Such authorities, bodies and entities could, for example, be cross-border cooperation committees or commissions, established in the framework of bilateral cooperation or friendship treaties; inter-governmental commissions for cross-border cooperation or their secretariats; councils, secretariats or general-secretariats, established in the framework of multinational agreements for cooperation; national coordination offices, national centres or contact points, or similar structures established in the framework of other sectoral European policies; and Interreg programme authorities and EGTCs.

(19)In order to establish a framework for handling cross-border files that is common to all cross-border coordination points, it is necessary to define the tasks which each cross-border coordination point should carry out. A cross-border coordination point should act as a ‘one-stop shop’ for the initiators and should be the sole contact point for the initiator. Member States should ensure that the contact details of cross-border coordination points are publicly available, visible and accessible. In order to allow for a follow-up to the outcome of cross-border files and to increase transparency on resolving cross-border obstacles, cross-border coordination points should also be responsible for submitting information to the Commission. Moreover, this Regulation should set out obligations with regard to coordination, cooperation and exchange of information between the different cross-border coordination points in one Member State and between the cross-border coordination points of neighbouring Member States.

(20)It should only be possible for an initiator to submit a cross-border file if the obstacle pertains to a border for which at least one cross-border coordination point has been established. A cross-border file should be submitted by the initiator only once. Where another initiator in another Member State also submits a cross-border file related to the same cross-border obstacle, the cross-border coordination points of those Member States should liaise with each other to avoid parallel procedures concerning the same cross-border obstacle.

(21)The complexity of the applicable national law could make it difficult to identify the specific provision which constitutes a cross-border obstacle. Based on the experience with b-solutions, the initiator should therefore only describe the situation and the problem to be resolved.

(22)In order to establish a procedural framework ensuring legal certainty to the initiator of a cross-border file, the cross-border coordination point should assess the cross-border file and respond to the initiator within a reasonable time limit, which, as a rule, should be that established under national law. Where national law does not provide for a standard time limit for a response to an equivalent request, this Regulation should provide for appropriate time limits. Those time limits should start from the date of receipt of a cross-border file or a revised cross-border file, including in cases where a file has been received following a transfer from another cross-border coordination point or competent authority.

(23)The analysis of a cross-border file could conclude that there is no cross-border obstacle. In such a case, the cross-border file should be closed.

(24)Once the existence of a cross-border obstacle has been confirmed, Member States should have discretion to choose the appropriate tool to resolve the cross-border obstacle in the cross-border region concerned. For that purpose, Member States should be able to rely on any international agreements in force or other procedures existing under the law of the Member State concerned. Where that Member State considers that the available instruments do not enable it to resolve the cross-border obstacle, it should be allowed to create ad hoc mechanisms for that purpose. It should be possible to do so either individually or, if necessary and agreed, jointly with the neighbouring Member State. Member States should provide the reasons for the assessment steps taken and indicate possible options of legal redress, including in cases where they conclude that the alleged obstacle identified in the cross-border file does not fall within the scope of this Regulation.

(25)In addition, it should be possible for the cross-border coordination point or the competent authority to use the Cross-Border Facilitation Tool. As the outcome of the procedure might differ slightly, depending on whether the nature of the possible cross-border obstacle is administrative or legislative, this should be taken into account by the Cross-Border Facilitation Tool. Where the cross-border coordination point or the competent authority decides to resolve the cross-border obstacle identified by applying the Cross-Border Facilitation Tool, it might be necessary to coordinate with the neighbouring Member State. Where the Member State concerned and the neighbouring Member State are each willing to launch the necessary legislative procedure or to change their administrative provisions or practices, such coordination can take the form of a joint committee composed of representatives of the competent authorities and the cross-border coordination points of the Member States concerned.

(26)In order to provide an effective procedural framework to handle cross-border files, this Regulation should set out the essential procedural steps irrespective of whether the obstacle is administrative or legislative in nature. The existence of different legal systems in neighbouring Member States can result in a cross-border obstacle qualifying as an administrative provision or practice in one Member State but as a legislative provision in the other. Each Member State should therefore choose to apply the appropriate procedure under its own legal system. Neighbouring Member States should coordinate their respective procedures as far as possible. Where a final position is taken on a file, that position should be communicated to the initiator, together with the reasons therefor.

(27)This Regulation does not imply any obligation on the Member States to resolve a cross-border obstacle.

(28)The Commission should be entrusted with tasks relevant to monitoring the application of this Regulation at Union level and to providing support to Member States, including capacity building. The Commission should, in particular, support the cross-border coordination points by promoting the exchange of experiences between those coordination points. It should be possible for that support to also consist of technical assistance-based tools such as b-solutions.

(29)In order to allow for evidence-based policymaking, the Commission should review the implementation of this Regulation and submit a report to the European Parliament, the Council, the Committee of the Regions and the European Economic and Social Committee. In order to ensure that sufficient evidence is gathered regarding the application of this Regulation and of the Cross-Border Facilitation Tool, that report should be submitted five years from the entry into force of this Regulation.

(30)This Regulation respects fundamental rights, observes the principles recognised by the Charter of Fundamental Rights of the European Union (the ‘Charter’) and has no negative impact on any of those fundamental rights. Since the Regulation aims to resolve cross-border obstacles, it can foster the right of access to services of general economic interest, as laid down in Article 36 of the Charter, and the freedom to conduct business, as laid down in Article 16 of the Charter. The wide range of such services can also foster the access to health care, as laid down in Article 35 of the Charter. More generally, as cross-border public transport services are very likely to benefit from the Cross-Border Facilitation Tool, this Regulation can have a positive impact on the freedom of movement and of residence, as laid down in Article 45 of the Charter.

(31)Experience shows that Member States have undertaken individual, bilateral or even multilateral initiatives to resolve legal cross-border obstacles. However, those tools do not exist in all Member States or for all borders of a given Member State. Furthermore, since the objectives of this Regulation cannot be sufficiently achieved by the Member States but can rather, by reason of the cross-border nature of obstacles, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union.

(32)In accordance with the principle of proportionality as set out in Article 5 of the Treaty on European Union, this Regulation does not go beyond what is necessary in order to achieve those objectives. The use of the Cross-Border Facilitation Tool under this Regulation is optional for each Member State. A Member State should decide, on a specific border with one or more neighbouring Member States, to resolve cross-border obstacles through existing tools it has set up at national level or with one or more neighbouring Member States. This Regulation does therefore not go beyond what is necessary in order to facilitate cooperation in cross-border regions,