Projet d'Annexe au Protocole n° 3

NB_CE

Strasbourg, 28 March 2013 CDLR(2013)8

Item C.1 of the agenda

EUROPEAN COMMITTEE ON LOCAL AND REGIONAL DEMOCRACY

(CDLR)

EXAMINATION OF THE PROVISIONS OF THE APPENDIX TO PROTOCOL No. 3 OF THE MADRID OUTLINE CONVENTION

For action

Secretariat Memorandum

prepared by the

Directorate of Democratic Governance

Democratic Institutions and Governance Department

This document is public. It will not be distributed at the meeting. Please bring this copy.

Ce document est public. Il ne sera pas distribué en réunion. Prière de vous munir de cet exemplaire.

Introduction

This document reproduces the set of proposals for provisions to be included as an Appendix to Protocol No 3 to the Madrid Outline Convention.

Protocol No 3 was opened for signature in Utrecht, on 16 November 2009, on the occasion of the 16th session of the Council of Europe Conference of Ministers responsible for Local and Regional Government. It entered into force on 1 March 2013 with respect to Germany, Slovenia, Switzerland and Ukraine and will enter into force on 15 May 2013 with respect to France. In addition, Armenia, Belgium, Cyprus, Lithuania, Luxembourg, Montenegro, the Netherlands and Russian Federation are signatory states, which means that ratification is still pending.

Article 13 foresees the preparation of an appendix “to facilitate implementation and to provide the more detailed, but optional, provisions for the establishment and operation of ECGs.”[1] Under the auspices of Committee of Ministers, and in accordance with the ad hoc terms of reference given to it in November 2011, the CDLR commenced drafting provisions for inclusion in the Appendix to Protocol No 3. Three open consultations were held (July and November 2012, March 2013) at which the draft prepared by the consultant, Professor Yves Lejeune, was thoroughly examined.

These detailed provisions in the appendix are fully optional and do not constitute an authoritative interpretation of the Protocol. Parties and prospective Parties to the Protocol as well as (prospective) signatory states are totally free to introduce (or not) the provisions into their legislation, be it at the time of ratification of the Protocol or afterwards, for instance in close cooperation with one or more neighbouring countries.

In recent years, when discussing the draft text of Protocol No 3, a number of Council of Europe Member States indicated their interest in receiving guidance as to which set of (new) provisions in their domestic legislation could facilitate transfrontier cooperation with other Member States. Such a set of provisions should not be of a prescriptive nature, however. Member States remain fully free to introduce such provisions in their domestic legislation, including after having ratified Protocol No 3.

States may indeed consider that existing domestic legislation already complies with the Protocol and enables effective implementation of it without further legislative changes. So far, the 5 countries mentioned above that have ratified Protocol No 3, have not introduced any further legislative changes into their domestic legislation. Other states can – at the time of ratification or afterwards – draw inspiration from the Appendix should they wish to include new elements in domestic legislation on transfrontier cooperation.

In drafting the Appendix care has been taken firstly to be fully consistent with the provisions of the Protocol and, secondly, to take inspiration from legislation on ECGs or similar transfrontier cooperation bodies already in force in a number of member states. The provisions of the Protocol and the Appendix should be considered as a further contribution towards supporting member states in further improving transfrontier cooperation and in developing new transfrontier initiatives such as the establishment of macro-regions as suggested by the Congress.

Having regard to the need to ensure both compatibility and complementarity of ECGs and the European Grouping of Territorial Cooperation (EGTC) established by virtue of Regulation (CE) 1082/2006, the Appendix also refers to measures taken (by EU member states) or proposed (by the European Commission) with a view to ensuring the effectiveness of EGTCs.

The proposals that follow present on the left-hand page the provisions of the Protocol and on the right-hand page the optional provisions that have a direct link with the Protocol and that could be used as an inspiration in preparing domestic legislation

Action

At the CDLR meeting (11-12 April 2013), the nature of the Appendix will be explained in more detail to CDLR members. They are invited to ask questions or request clarifications at this meeting. Should the CDLR so decide, time for written comments would be granted to delegations (for instance, until 31 May 2013) with a view to collecting all remarks and finalising the text in the course of the summer (for instance by 31 July 2013), for adoption by the CDLR at its second meeting of 2013.

Remarks should focus on the consistency (or the lack thereof) of the proposed provisions in the Appendix with the Protocol, not (existing) domestic legislation since the Appendix is not intended for ratification by member states (it is not an international treaty) but only as a source of possible inspiration for lawmakers at national level.

Once the Appendix has been reviewed and approved by the CDLR, it will be transmitted to the Committee of Ministers for approval as required in accordance with Article 13 of the Protocol.

APPENDIX to Protocol No. 3

TABLE MATCHING

THE PROVISIONS OF THE PROTOCOL WITH THOSE OF THE APPENDIX

Protocol	Subject	Appendix (Sections)
Article 13	Scope of the provisions implementing the Protocol.	I
Article 1 and Article 3.2 and 3.3	Right to establish or join an ECG	II
Article 3.1 and 3.2, and Article 5.3	Law applicable to the ECG	III
Article 2.1, 2.2, 2.4 and 2.5	Legal personality and legal capacity of the ECG, budgetary autonomy	IV
Article 3	Membership of the ECG	V
Article 2.3; Article 4.1, 4.3, 4.7 and 4.9	Agreement establishing the ECG	VI
Article 4.2 and 4.8	Procedure for establishing an ECG	VII
Article 4.3	Premises and headquarters of the ECG	VIII
Article 5	Statutes of the ECG	IX
Article 5.3 and Article 11.4	Withdrawal or exclusion of members of the ECG	X
Article 5.3	Management bodies of the ECG	XI
Article 5.3	General Assembly of the ECG	XII
Article 5.3	Board of Directors of the ECG	XIII
Article 5.3 (by implication)	Chairmanship and vice-chairmanship of the ECG	XIV
Article 5.3 (by implication)	Management of the ECG	XV
Article 5.3	General rules on the terms of office of representatives of ECG members on the Grouping’s statutory bodies and the deliberations of these bodies	XVI
Article 5.3	Transparency: information and access to documents of the ECG	XVII
Article 5.3	Budgetary and accounting rules applicable to the ECG	XVIII
Article 5.3	Contributions by members of the ECG	XIX
Article 5. 3	Material and financial resources of the ECG	XIX bis.

APPENDIX to Protocol No. 3

TABLE MATCHING

THE PROVISIONS OF THE PROTOCOL WITH THOSE OF THE APPENDIX

Article 5. 3	Staff of the ECG	XX
Article 6	Amendments to the agreement establishing the ECG and to its statutes	XXI
Article 6 (by implication)	Procedure for subsequent accessions to the ECG	XXII
Article 7.1 and 7.2	Role and field of action of the ECG	XXIII
Article 7.2; Article 11.3	Implementation of decisions of the ECG	XXIV
Article 7.3 and 7.4	Competence and powers of the ECG under public law (See also Protocol 1, Art. 5.2)	XXV
Article 7.3 (a contrario)	Mandate, delegation and concession of public services	XXVI
Article 7.3 (a contrario)	Public procurement contracts	XXVII
Articles 8 and 11.5	Duration, prolongation, winding up and liquidation of the ECG	XXVIII
Article 9.1 and 9.4	Financial liability of the ECG and its members	XXIX
Article 9.1 and 9.2	Liability of the ECG	XXX
Article 9.3	Liability of the ECG’s organs	XXXI
Article 10.1, 10.2, 10.4 and 10.5	Judicial settlement of disputes (legal remedies)	XXXII
Article 10.3	Arbitration	XXXIII
Article 11.1, 11.2 and 11.4	Administrative review of legality	XXXIV
Article 11.5	Judicial review of legality	XXXV
Article 12	External financial supervision	XXXVI
Article 15	Applicability of existing treaty rules	XXXVII
Article 16.1	Exclusion from scope of application	XXXVIII
Article 18	Terms and definitions	XXXIX
Not mentioned	Transfer of the ECG’s headquarters to the territory of another State Party to the Protocol	XL
Not mentioned	Transformation of an existing transfrontier co-operation body into an ECG	XLI

APPENDIX to Protocol No. 3

Model legal provisions

to ensure the implementation of the Protocol

on Euroregional Co-operation Groupings (ECGs)

General considerations

1. Choice of national wording for implementing provisions. — From the standpoint of form, in order to draft the texts designed to facilitate each State Party’s normative implementation of Protocol No. 3, it was necessary to adopt a unilateral drafting approach. Accordingly, the aim is that each State Party should adopt an approach to implementation which takes account of its own situation, covering:

- the participation of its own territorial communities or authorities in the establishment of ECGs;

- the organisation and functioning of the ECG governed, on a subsidiary basis, by the legislation applicable to a particular category of legal entities established under domestic law;

- the participation of foreign territorial communities or authorities in this ECG; and

- supervision of the activities on its territory of a public body established under foreign law.

2. Taking into account national conceptions of the relationship between international and domestic law. — The texts proposed here take account of the different legal traditions of the Council of Europe member states, some of which are resolutely dualist as regards the relationship between international law and their own legal system,[2] others monist to varying degrees, depending on the effect given to certain international rules in their domestic law. In order to meet the needs of the former, it seemed important not to limit the content of the Appendix to provisions intended to supplement the Protocol for the purposes of its application, but to also include rules which reproduced in a unilateral way the substance of the Protocol itself. These texts will therefore be able to serve as models for the drafting of a complete legislative transposition of the Protocol and for the drafting of simple additional implementing rules.

3. Taking into account the various methodological options for the wording of the provisions; identification and classification of the Sections.— Account also had to be taken of the many legal forms in which states may consider ensuring the normative implementation of the Protocol they intend to ratify. A state may opt for passing a law exclusively relating to ECGs; it may also involve introducing specific changes to various laws relating to the categories of legal entities that may be chosen in order to clarify the law applicable to these Groupings. In order to facilitate the task of all interested states, the Appendix comprises 41 provisions or sets of provisions, each numbered with Roman numerals. These provisions and sets of provisions constitute Sections relating closely or more loosely to an Article of the Protocol, apart from the first and the last two. With the exception of these, all the Sections are given in the order of the articles of the Protocol.

In this way, all State Parties may decide to reproduce only those provisions that suit them or adapt them to the requirements of their national legislation; those States Parties that so wish may, on the same basis, draft a single, comprehensive law, or co-ordinate in one text all the rules contained in the Protocol itself and the more detailed, but optional rules that are proposed as a supplement to the Protocol.

APPENDIX to Protocol No. 3

Model legal provisions

to ensure the implementation of the Protocol

on Euroregional Co-operation Groupings (ECGs)

Initial remarks

It is for each state to determine whether its current laws and regulations enable it to guarantee, without taking new legislative or administrative measures, the due implementation of Protocol No. 3, which it wishes to ratify. In this connection, it should be recalled that the provisions of the Appendix setting out obligations are merely proposals submitted to the legislatures of the States Parties to the Protocol.

Some of these provisions merely draw immediate conclusions from the commitments entered into by the states which have ratified Protocol No. 3; they are simply recommendations addressed to each state so as to facilitate the normative implementation of the Protocol in accordance with Article 13 thereof.

Other, sometimes more detailed, provisions are just suggestions for "practical solutions which would facilitate the creation or functioning of ECGs", as stated in the explanatory note to Section I, without being absolutely required by Protocol No. 3. In this case, the rules laid down reflect the theoretical choice that national legislators may make freely in order to add to the regulatory framework governing ECGs subject to their legislation. It will be for each parliament to draw on these suggestions, if it so wishes, and to freely determine the obligations to be imposed on ECGs having their headquarters in the state or territorial community for which it is legislating and on members of these Groupings.

I. Scope of the provisions implementing the Protocol

1. This law governs transfrontier or interterritorial co-operation bodies under *** law,[3] established in the form of Euroregional Co-operation Groupings in accordance with Protocol No. 3 to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities

2. It also applies to the participation of *** territorial communities or authorities in the establishment of Euroregional Co-operation Groupings under foreign law, to their accession to such Groupings and to their liability for Groupings’ debts in the event of default by the latter.

3. It also governs the supervision of acts performed on the national territory by Euroregional Co-operation Groupings under foreign law, where the government of *** is a member thereof or where *** territorial communities or authorities are members of those Groupings.

APPENDIX to Protocol No. 3

Explanatory note

This first “Section” specifies those aspects of the legal status of ECGs that may fall within the unilateral legislative or regulatory competence of a state. The principle underlying Protocol No. 3 is to take as a basis the various legal statuses assigned by each national legislature to the different categories of legal entities existing under its domestic law, which may include foreign territorial communities or authorities (see Sections III and IV of this Appendix); the provisions of Protocol No. 3 supplement these various national legal instruments and institute exceptions thereto only to the extent strictly stipulated by those provisions. Accordingly, the aspects of the legal status of ECGs which each State Party is invited to address on the basis of this Appendix, primarily refer to measures intended to harmonise the relevant national legal instruments with the provisions of the Protocol.

Most of the time, these provisions may also serve to ensure the implementation of Regulation (EC) No. 1082/2006; it will be noted that the provisions in the various Sections of the Appendix also take account of the European Commission’s proposed amendments to this Regulation[4] and the compromise proposals drawn up by the EU Council Presidency.[5] They also offer some practical solutions which would facilitate the creation or functioning of ECGs, even though such solutions are not mentioned in either the Protocol or the European Union Regulation. In this case, the rules set out in the Appendix are not a requirement of Protocol No. 3; they reflect instead the theoretical choice that national legislatures may freely make in order to add to the regulatory framework applicable to the ECGs subject to their legislation. Wherever it was deemed necessary, the explanatory notes in the Sections indicate whether the proposed solutions are at present not mentioned in Protocol No. 3 or Regulation No. 1082/2006.

As presented here, Section I can provide introductory provisions for a possible “Law on Euroregional Co-operation Groupings under *** law”. Its wording draws on the Netherlands law of 26 November 2009 implementing Regulation (EC) No 1082/2006 on a European Grouping of Territorial Co-operation (EGTC) (abbreviated to the [Netherlands] law implementing the EGTC Regulation).[6] Like that law, Section I identifies three aspects of the status of ECGs that fall within each State Party’s own legislative competence: (a) the rules on the organisation, powers and functioning of an ECG under *** law, including those on participation by the territorial communities or authorities of *** in the establishment and functioning of such an ECG, the rules on the participation of foreign territorial communities or authorities in such an ECG and the procedure whereby territorial communities or authorities, whether *** or foreign, can subsequently accede to the Grouping in question; b) the rules governing participation by the territorial communities or authorities of the legislating state in the establishment and functioning of an ECG under foreign law and the rules on the subsequent accession of such communities or authorities to the Grouping in question; (c) the rules concerning supervision of the activities, on the national territory, of an ECG under foreign law.

APPENDIX to Protocol No. 3

The concepts of transfrontier or interterritorial co-operation and territorial communities or authorities used here for the first time are defined in Section XXXIX based on the terminology of the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities (ETS No. 106) and its first two protocols (ETS Nos. 159 and 169).

Text of Protocol No. 3

Article 1 – Euroregional co-operation groupings (ECGs)

1 Territorial communities or authorities and other bodies referred to under Article 3, paragraph 1, may set up a transfrontier co-operation body in the form of a "Euroregional co-operation grouping” (ECG) on the territory of the member States of the Council of Europe, Parties to this Protocol, under the conditions provided by it.

2 The objective of the ECG shall be to promote, support and develop, for the benefit of populations, transfrontier and interterritorial co-operation between its members in their common areas of competence and in keeping with the competences established under the national law of the States concerned.

Article 3 – Membership

2 Territorial communities or authorities of a State non-Party to this Protocol, which shares a border with a Party which is or will become the State in which the ECG has its headquarters, may take part in the establishment of, or join, this ECG if an agreement between these two States so allows, without prejudice to the provisions of this Protocol.

3 Territorial communities or authorities of the Parties shall have the majority of voting rights in the ECG.
APPENDIX to Protocol No. 3

II. Right to establish and join an ECG (Articles 1 and 3.2 and 3.3 of the Protocol)

1 Within the limits of their competence and in accordance with the international commitments of ***, *** territorial communities or authorities, which are not excluded from the scope of the present law, may establish a Euroregional Co-operation Grouping under *** or foreign law with territorial communities or authorities of other States Parties to Protocol No. 3, or join such a Grouping, provided that those foreign territorial communities or authorities are themselves authorised to do so.

2 The territorial communities or authorities which are members of a Euroregional Co-operation Grouping established in accordance with paragraph II.1 above shall have the majority of voting rights within the deliberative bodies of that Grouping.

3 Within the limits of their competence, *** territorial communities or authorities which are not excluded from the scope of the present law may establish a Euroregional Co-operation Grouping under *** law with territorial communities or authorities of a state which is not a Party to Protocol No. 3, or join such a Grouping, if *** has a shared border with that state and to the extent that a bilateral treaty concluded with it so allows.

Explanatory note

Paragraphs 1 and 2 of this Section authorise the territorial communities or authorities of the legislating state to establish an ECG under national law with their foreign counterparts, or to join such a Grouping subsequent to its establishment, on condition that together with the latter they hold the majority of voting rights in the Grouping’s deliberative bodies. Clearly, these territorial communities or authorities must themselves be authorised to establish or join such a Grouping in the state to whose jurisdiction they are subject.

The authorisation referred to in paragraph 1 also relates to the establishment of an ECG under foreign law with the participation of territorial communities or authorities subject to the jurisdiction of the legislating state and to their subsequent accession to such a Grouping.

Paragraph 2 applies to both national and foreign territorial communities or authorities. The “deliberative bodies” of an ECG are understood to mean at the very least the General Assembly and the Board (see Section XI).

Paragraph 3 also authorises the establishment of an ECG under national law or the accession of a national territorial community or authority to that ECG where the participating foreign communities or authorities are subject to the jurisdiction of a state which is not a Party to Protocol No. 3. In accordance with Article 3.2 of the Protocol, this is possible only where (a) the two states have a shared border, (b) they have concluded a treaty to that effect and (c) the ECG has its headquarters in the legislating state in accordance with Article 2.1 of the Protocol.

Under Section XXXVIII, certain categories of territorial communities or authorities may be excluded from the scope of the legal provisions for implementing the Protocol, in conformity with Article 16 of the Protocol.

Text of Protocol No. 3

Article 2 – Legal personality, legal capacity and applicable law

1 The ECG shall be a legal person, governed by the law of the Party, Council of Europe member State, in which it has its headquarters.

3 The law applicable to the type of corporate entity chosen for the ECG by the members shall be stipulated in the agreement establishing the ECG, without prejudice to the provisions of this Protocol or to any other specific provision adopted by the party in accordance with Article 13.

Article 5 – Statutes

3 In addition to the mandatory provisions of the agreement, the statutes shall contain rules on membership, withdrawal and dissolution of the ECG, including the legal consequences, as well as on operations, organs and their tasks, staffing, budgets and financing, liability, accountability and transparency of the ECG, without prejudice to the provisions of this Protocol and in conformity with the applicable law.

APPENDIX to Protocol No. 3

III. Law applicable to the ECG (Articles 2.1, 2.3 and 5.3 of the Protocol)

1 Without prejudice to the provisions of Protocol No. 3, a Euroregional Co-operation Grouping shall be governed by this law if it has its headquarters in ***.

2 With regard to matters or aspects of a matter not dealt with by this law, it shall also be governed by:

a. the legal or regulatory provisions applicable to the categories of legal entity designated in the transfrontier or interterritorial co-operation agreement establishing the Grouping in accordance with the provisions of Sections IV (paragraph 2) and VI (paragraph 4.e) below;[7]

b. its statutes drawn up in conformity with Protocol No. 3, with this law and with the legal and regulatory provisions referred to in a) above.

Explanatory note

Under paragraph 1, the ECG is governed by Protocol No. 3 and by the law of the state in which it has its headquarters. The state establishing this rule must be a party to the Protocol and, in that capacity, necessarily a member of the Council of Europe and a signatory of the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities.

The term “headquarters” means the head office or one of the operational units of an ECG, constituting its official registered address and specified in its statutes, in accordance with Sections VIII and XXXIX.

With regard to matters or aspects of a matter not dealt with by Protocol No. 3 or by the law implementing that Protocol, the ECG is governed by the legal or regulatory provisions applicable to the category of legal entity chosen by the Grouping’s potential members, in accordance with Article 2.3 of the Protocol. This choice must be stipulated in the agreement establishing the ECG.

Paragraph 2 a) of this Section refers expressly to this agreement and these laws and regulations. Accordingly, it enables the general legal arrangements of ECGs to be adapted to the specific features of each national legal system.

Paragraph 2 b) sets out the requirement for the statutes of the Grouping to be in conformity with Protocol No. 3 and the legal and regulatory provisions applicable to the category of legal entity chosen, in accordance with Article 5.3 of the Protocol.

Text of Protocol No. 3

Article 2 – Legal personality, legal capacity and applicable law

1 The ECG shall be a legal person, governed by the law of the Party, Council of Europe member State, in which it has its headquarters.

2 The ECG shall have the most extensive legal capacity accorded to legal persons under that State’s national law.

4 The ECG shall have the right to its own budget and the power to implement it.

5 The ECG may enter into contracts, hire staff, acquire movable and immovable property and bring legal proceedings.

APPENDIX to Protocol No. 3

IV. Legal personality and legal capacity of the ECG, budgetary autonomy (Article 2.1, 2.2, 2.4 and 2.5 of the Protocol)

1 A Euroregional Co-operation Grouping shall be a legal entity under public or private law.

2 The transfrontier or interterritorial co-operation agreement establishing the Grouping shall determine whether it comes under public or private law by making it subject, with regard to matters or aspects of a matter not dealt with by this law or by Protocol No. 3, to the legal or regulatory provisions applicable to one of the categories of legal entity in which the participation of foreign territorial communities or authorities is authorised.

3 The Grouping shall have the most extensive legal capacity that can be granted to legal entities under national legislation, insofar as is necessary for the performance of its tasks and the accomplishment of its purpose. This capacity shall in all cases encompass the rights to enter into contracts, to acquire and dispose of moveable and immoveable property, to hire staff, to institute legal proceedings, to draw up its own budget and to implement the expenditure provided for therein.

4 In particular, the Grouping shall be able to conclude transfrontier or interterritorial co-operation agreements under the conditions provided for in Section XXXIX. These agreements shall specify the law to be applied when interpreting and implementing their provisions. The law specified shall be that of *** or of a state to whose jurisdiction one of the foreign co-contracting territorial communities or authorities is subject.

Explanatory Note

Paragraph 1 offers additional possibilities for the status of ECGs compared with Regulation (EC) No. 1082/2006 on a European Grouping of Territorial Co-operation;[8] the potential members of an ECG may declare that it falls into one of the categories of public-law legal entities which exist under the law of the legislating state and which the relevant institutional legislation authorises to include foreign territorial communities or authorities. Various consequences resulting from this choice are set out under Sections XXV to XXVII.

The categories of legal entity covered by paragraph 2 will vary according to national legislation. Examples of public-law legal entities include:

i. the various legal forms of intermunicipal Groupings (public establishments, unions, associations, etc. based on intermunicipal co-operation)

ii. the various legal forms of Groupings of other territorial communities

iii. the various legal forms of Groupings of territorial communities involving other public-law legal entities

iv. the various legal forms of Groupings of territorial communities involving other public-law and private-law legal entities;

and, if the national institutional legislation authorises them to include both national and international territorial communities or authorities:

v. the various forms of public interest Groupings

vi. public-law Groupings involving private-law legal entities.

Text of Protocol No. 3
APPENDIX to Protocol No. 3

Private-law legal entities (international associations, non-profit making associations, private-law foundations, local semi-public companies, etc.) may also serve as a legal framework for ECGs, provided that:

a. they may include national territorial communities or authorities;

b. they may in addition include foreign territorial communities or authorities.

The EGTC status instituted by Regulation (EC)No. 1082/2006 fulfils the two aforementioned conditions in states which are members of the European Union, since the Regulation has a direct effect in those states. However, it has to be supplemented by numerous implementing provisions; the Sections in this Appendix could offer some models for drafting those provisions.

Paragraph 3 specifies the minimum substance of “the most extensive legal capacity” which the state whose law is applicable must accord the ECG in accordance with Article 2.4 and 2.5 of Protocol No. 3.

The date on which the ECG acquires legal capacity need not be stipulated in paragraph 3. In conjunction with Article 4.7 of Protocol No. 3, the wording of paragraph 3 above indeed allows the competent legislature to decide whether the registration (or publication) of the founding agreement and statutes of the ECG constitutes a requirement for the attribution of legal personality or merely a requirement for that legal personality to be effective vis-à-vis third parties. In principle, the question will be settled by the legislation subsidiarily applicable to the Grouping under the founding agreement. Should the partners wish to set up a Grouping that can also qualify as an EGTC under Regulation (EC) No. 1082/2006, the legislature, if it is in agreement with this possibility, should specify that the Grouping will acquire legal personality only on the date when its founding agreement and statutes are registered or published.[9]

Paragraph 4 of this Section clarifies the scope of Article 2.5 of Protocol No. 3 in one respect. It authorises the ECG to enter into transfrontier or interterritorial co-operation agreements in the same way as its member territorial communities or authorities. The choice of applicable law is restricted to either the law of the state in which the Grouping is located or the law of any state to whose jurisdiction one of the foreign co-contracting territorial communities or authorities is subject. Since States Parties to Protocol No. 3 are under no obligation to ratify either the Additional Protocol of 9 November 1995 to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities or Protocol No. 2 concerning interterritorial co-operation of 17 March 1998, the conditions for concluding such agreements are set out in section XXXIX, to which paragraph 4 makes reference.

Text of Protocol No. 3

Article 3 – Membership

1 Members of the ECG shall be territorial communities or authorities of a Party and may also include the respective member State concerned of the Council of Europe. All legal persons established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character may be members if:

–   their activity is financed mainly by the State, a territorial community or authority or similar body; or
–   their management is subject to the control of these entities; or
–   half the members of their administrative, managerial or supervisory organ are appointed by the state, a territorial community or authority or similar body.

Individuals may not be members of an ECG.

3 Territorial communities or authorities of the Parties shall have the majority of voting rights in the ECG.
APPENDIX to Protocol No. 3

V. Membership of the ECG (Article 3 of the Protocol)

The following may be members of a Euroregional Co-operation Grouping under *** law:

1 *** territorial communities or authorities *** which are not excluded by the scope of the present law, and territorial communities or authorities of other States Parties to Protocol No. 3, provided that they are authorised to do so;

2 member states of the Council of Europe to whose jurisdiction the territorial communities or authorities in question are subject, and the competent bodies of those states;

3 territorial communities or authorities subject to the jurisdiction of a state not party to Protocol No. 3, if the Grouping in which they wish to participate will have its headquarters in ***, if *** has a shared border with that state and insofar as a bilateral treaty concluded with it so allows;

4 legal entities established for the specific purpose of meeting general interest needs and which are not industrial or commercial in nature, if:

– their activity is financed mainly by a State Party to Protocol No. 3 or by territorial communities or authorities or public-law bodies of such a state; or;

– their management is subject to the supervision of this state, these territorial communities or authorities or these public-law bodies; or;

– over half the members of their administrative, managerial or supervisory organ are appointed by a State Party to Protocol No. 3 or by territorial communities or authorities or public-law bodies of such a state;

5 industrial or commercial undertakings over which a State Party to Protocol No. 3 or territorial communities or authorities or public-law bodies of such a state have a dominant influence because they:

- own the majority of the capital;

- hold the majority of the voting rights associated with the shares issued by such undertakings;

- may appoint more than half of the members of the administrative, managerial or supervisory organ of the undertaking in question;

6 other private-law entities under *** law, provided they comply with one of the following:

a. they have some degree of public authority;

b. they have a mandate, delegation or concession of public services.

7 legal entities or undertakings, as indicated in points 4 and 5 and 6 above, which are not subject to the jurisdiction of a State Party to Protocol No. 3, under the same conditions as the legal entities or undertakings referred to above;

8 associations comprising territorial communities or authorities referred to in paragraphs 1 and 3 above.

Text of Protocol No. 3
APPENDIX to Protocol No. 3

Explanatory note

Paragraphs 1 to 4 above list the “potential members” of an ECG in accordance with Article 3 of Protocol No. 3. Section XXXVIII deals with the categories of territorial communities or authorities of the legislating state which may be excluded in conformity with Article 16 of the Protocol. Clearly foreign territorial communities and authorities must themselves have been authorised to join a GEC by the state to whose jurisdiction they are subject.

Paragraph 2 also mentions states’ “competent bodies”, which are not cited in the Protocol. The possibility of allowing state bodies to participate in ECGs is not a requirement of Protocol No. 3. It was introduced in order to ensure continued compatibility with Regulation (EC) No. 1082/2006 concerning EGTCs should Article 3.1 of this Regulation be amended in line with the European Commission’s proposal of 6 October 2011. In order to take account of the fact that “competences may be regional on one side of a border, but national on the other side, especially in smaller or centralised member states”, the Commission suggests specifying in the Regulation that “national authorities may become members of an EGTC alongside the member state”.[10] The term utilised by the Commission is “authorities at national level”.[11]

Paragraph 5 also includes undertakings over which the public authorities have a dominant influence among the “potential members” of an ECG. This is not a requirement of Protocol No. 3. The aim is again to ensure continued compatibility with Regulation (EC) No. 1082/2006 concerning EGTCs should the same Article 3.1 be amended so that “EGTCs may be used in the future to manage jointly public services of general economic interest or infrastructures [with] other private or public law actors”.[12] This presupposes that it must be possible for the members of an ECG to include not only “legal entities established for the specific purpose of meeting general interest needs and which are not industrial or commercial in nature” (paragraph 4),[13] but also private undertakings over which the public authorities have a dominant influence (paragraph 5). In the European Union, these undertakings are equated to public undertakings for the application of Directive 2004/17/EC of 31 March 2004 co-ordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors.[14]

At the request of practitioners specialising in transfrontier co-operation law, the proposed provision in paragraph 6 authorises the participation of private-law entities belonging to categories other than those referred to in paragraphs 4 and 5 (legal entities and undertakings established, run or supervised by public authorities subject to the jurisdiction of a State Party to Protocol No. 3). To be admissible, the private-law entity referred to in paragraph 6 must have, if only very partially, the right to take unilaterally mandatory measures vis-à-vis third parties; or it must have the right to perform tasks normally incumbent on the public authorities. These various hypotheses are covered neither by Protocol No. 3 nor Regulation (EC) No. 1082/2006, nor by the proposal for an amending regulation. They are based on Article 2 of the Protocol of 22 September 1998 supplementing the 1986 Benelux Convention on transfrontier co-operation between territorial communities or authorities. The Appendix therefore offers an undisputed added value for states wishing to promote harmonious regulations governing transfrontier or interterritorial co-operation between territorial communities or authorities.

Text of Protocol No. 3

APPENDIX to Protocol No. 3

In line with Article 3.2 of Protocol No. 3, paragraph 7 enables the legal entities and undertakings referred to in paragraphs 4 to 6 to become members of an ECG even if they are subject to the law of a state not party to the Protocol, under the same conditions as territorial communities or authorities of that state (see paragraph 3 of section II above).

Lastly, paragraph 8 provides that associations of territorial communities or authorities may be included among the potential members of an ECG. This possibility is not explicitly provided for in Protocol No. 3; it is currently available under Article 3.1 of Regulation (EC) No. 1082/2006 and the proposal for an amending regulation has not removed this possibility.[15]

Text of Protocol No. 3

Article 2 – Legal personality, legal capacity and applicable law

Article 4 – Establishment of the ECG

1 The ECG shall be established by a written agreement between its founding members.

3 The agreement shall specify, in addition to the list of members, the name of the ECG, the address of its headquarters, the duration, object and tasks of the ECG, as well as its geographical scope. The name of an ECG whose members have limited liability shall include the word “limited.”

7 The agreement shall be registered or published in the State where the ECG has its headquarters, as well as in all States to which its members belong, in accordance with the national law applicable.

9 The agreement shall be written in the language(s) of the State where the ECG has its headquarters and in the language(s) of the member(s), all versions being equally authentic.

APPENDIX to Protocol No. 3

VI. Agreement establishing the ECG (Article 2.3 and Article 4.1, 4.3, 4.7 and 4.9 of the Protocol)

1 A Grouping shall be established by a transfrontier or interterritorial co-operation agreement, the negotiation of which shall involve one or more *** territorial communities.

2 The agreement establishing the Grouping shall be a written document. It shall specify the law to be applied when interpreting and implementing its provisions. The law to be applied shall be that of the state to whose jurisdiction at least one of the founding territorial communities or authorities is subject, without prejudice to the relevant provisions of Protocol No. 3.

3 The agreement shall be written in the official state language(s) and in the languages of the members, all versions being equally authentic.

4 The agreement shall contain provisions on:

a. the name of the Grouping and its headquarters;

b. the members of the Grouping;

c. the period for which it has been established and the arrangements for possibly prolonging it;

d. the domestic law governing its foundation;

e. the category of legal entities to which it belongs and the legislation primarily applicable to that category;

f. the principles governing staff recruitment and management methods and the law applicable to staff;

g. the fields to be covered by the Grouping’s activities;

h. the geographical scope of these activities, if appropriate;

i. the arrangements for sharing the subsidiary liability of the members of the Grouping where the liability of at least one of the members is limited by the domestic law to which that member is subject.

5 The founding agreement under *** law shall be registered or published in accordance with the legislation that applies to the category of legal entity it designates.

6 The founding agreement under *** law shall affect neither the extent nor the nature of the powers and responsibilities of the *** territorial communities or authorities or other public-law legal entities parties to it. Those public institutions shall not be divested of the powers and responsibilities which they allocate to the Grouping in accordance with this law, without prejudice to the concessions or delegations of tasks carried out in accordance with the provisions of section XXVI

Text of Protocol No. 3

APPENDIX to Protocol No. 3

Explanatory note

The first four paragraphs of this section refer both to ECGs established under national law and those established under foreign law, provided that the territorial communities or authorities subject to the jurisdiction of the legislating state are founding members of the Grouping.

Paragraph 1 of this section has two implications. Firstly, it implies that the power of the legislature of the State Party to Protocol No. 3 with regard to the establishment of ECGs is based on the involvement of territorial communities or authorities governed by the national law of this state; secondly, it requires the adoption of a founding agreement in the form of a transfrontier or interterritorial co-operation agreement. It should be emphasised that this agreement must be unanimous as all the founding members must be parties to it.

The aim of paragraph 2 is to complement Protocol No. 3 by stipulating the law that must apply when interpreting and applying the agreement establishing an ECG comprising members from the legislating state, without prejudice to the application of the Protocol.

Paragraph 4 lists the items that have to be included in the founding agreement. Four matters require clarification: the national law applicable to the Grouping, the provisions applying to the category of legal entity to which the Grouping belongs; the staff regulations; and arrangements for sharing the subsidiary liability of members of the Grouping if the liability of at least one of the members is limited or precluded by that member’s domestic law.

- In principle, the national law governing the Grouping (paragraph 4.d) should be the same as that which applies to the interpretation and application of the agreement (paragraph 2).

- Article 2.3 of the Protocol requires the category of legal entity to which the Grouping will belong and the law which as a result shall apply once it has been established (paragraph 4.e) to be mentioned in the founding agreement.

- Point f, on the principles for staff recruitment and management and the law applicable to staff, corresponds to a provision that the European Commission proposed to add to the EGTC Regulation.[16]

- Point i also corresponds to an amendment to the EGTC Regulation.[17] In view of the significant consequences of the limitation under the statutes of the liability of certain members of a Grouping, this provision requires that in such cases the arrangements for sharing the subsidiary liability among all members be stipulated in the agreement establishing the Grouping – and not merely in the statutes. In this way, it supplements Article 9.4 of Protocol No. 3 which merely provides that this limitation be specified in the statutes.[18]

Paragraph 6 is based on the principle that the delegation of powers to an ECG under a founding agreement subject to the law of the legislating state does not divest the founding members subject to the jurisdiction of this state of the powers and responsibilities assigned to them by national legislation. If the opposite principle were accepted in the legislating state, this would have to be clearly stipulated in the law in order to notify the foreign states and potential foreign participants in such Groupings.

Text of Protocol No. 3

Article 4 – Establishment of the ECG

2 The prospective members shall submit all appropriate documentation to prove that the necessary procedures or formalities required by the national law applicable to them have been respected. This documentation shall be appended to the agreement.

8 The territorial communities or authorities, members of the ECG, shall inform their national authorities that the ECG has been lawfully established.

APPENDIX to Protocol No. 3

VII. Procedure for establishing an ECG (Article 4.2 and 4.8 of the Protocol)

1 Before concluding an agreement to establish a Euroregional Co-operation Grouping or before joining such a Grouping, each *** territorial community or authority concerned shall inform the administrative authorities supervising its activities of its intention.

2 The decisions of *** territorial communities or authorities on their participation in the establishment of a Grouping shall be subject to the same procedures and the same controls as laid down for the other acts and deliberations of those territorial communities or authorities. The *** administrative authority shall review the legality of such decisions and their compatibility with public policy and the public interest. It shall state the reasons for its own decisions.

3 The same shall apply, mutatis mutandis, to decisions by other legal entities under *** law on their decision to participate in the establishment of the Grouping.

4 Prospective members from other States Parties to Protocol No. 3 shall submit all appropriate documentation certifying that the necessary procedures or formalities required by the national law applicable to them have been complied with. This documentation shall be appended to the agreement establishing the Grouping.

5 *** territorial communities or authorities that are members of the Grouping shall inform their respective supervisory authorities that the Grouping has been lawfully established.

Explanatory note

With regard to paragraphs 1, 2, 3 and 5 of this Section, the jurisdiction of the legislating state is mostly limited to territorial communities or authorities and other prospective members of the ECG governed by the law of that state. Paragraph 4 also requires potential foreign members to produce documents proving that their decision to participate complies with the law of the state to whose jurisdiction they are subject.

Instead of setting up a special system of information, notification or authorisation from which all States Parties can withdraw unilaterally under Article 4.6 of the Protocol, paragraphs 2 and 3 of the proposed text refer to the general system of administrative control that already exists in the legislating state with regard to each category of potential member whose existence and powers are established in accordance with that state’s domestic law. It is specified however that the supervisory authorities may verify not only that decisions to participate in the Grouping are lawful but also that they are compatible with public policy and public interest, in accordance with Article 4.5 of the Protocol.

Text of Protocol No. 3

Article 4 – Establishment of the ECG

APPENDIX to Protocol No. 3

VIII. Premises and headquarters of the ECG (Article 4.3 of the Protocol)

1 The Euroregional Co-operation Grouping of *** law shall establish its headquarters on national territory.

2 The Grouping may establish other operational units on the territory of states to whose jurisdiction the foreign territorial communities or authorities which are members of the Grouping are subject.

3 To be valid, any notice, summons or service of process must be sent to the Grouping’s headquarters or an operational unit. This shall also apply to all official correspondence.

Explanatory note

The term “headquarters” is commonly used to refer to the place in which a legal entity of some kind is established, making it its legal registered address, provided that the fact is specified in that entity’s statutes. Where ECGs are concerned, the term can mean both the sole location in which the Grouping is based or one of its operational units. The State Party on whose territory the headquarters of a Grouping is based determines the national law by which the Grouping will mainly be governed (see section III), even if this is not where its central administrative offices are located.

Paragraph 2 authorises Groupings to set up operational units - including central administrative offices - outside the territory of the state in which they have their headquarters, in other words outside the state by whose law the Grouping is mainly governed.

Paragraphs 2 and 3 are based on Article 8 of the draft new Benelux Convention on transfrontier and interterritorial co-operation. As all correspondence is officially sent to any of the ECG’s operational units, it is for the latter to ensure that the central administrative offices and/or the headquarters are duly informed of the content of such correspondence.

Text of Protocol No. 3

Article 5 – Statutes

1 The statutes of the ECG shall be an integral part of the agreement establishing it.

2 The statutes shall be written in the language(s) of the State where the ECG has its headquarters and in the language(s) of the member(s), all versions being equally authentic. They may specify which language or language(s) is(are) to be considered the working language(s).

APPENDIX to Protocol No. 3

IX. Statutes of the ECG (Article 5 of the Protocol)

1 The statutes of the Euroregional Co-operation Grouping under *** law shall form an integral part of the founding agreement.

2 The statutes shall be written in the language(s) of the state where the Grouping has its headquarters and in the language(s) of the members, all versions being equally authentic. They may specify which language or languages are to be regarded as the working language(s).

3 The statutes of the Grouping shall contain provisions on:

a. the stipulations required by section VI.4;

b. the purpose, tasks, powers and responsibilities assigned to the Grouping;

c. the conditions governing amendment of the statutes, particularly with regard to membership, withdrawal and exclusion of members;

d. the conditions governing the prolongation, winding up and liquidation of the Grouping;

e. the composition of the Grouping’s statutory bodies, their duties, the modes of representation of its members and the system of appointment of their representatives to these bodies;

f. the procedure for convening meetings, their public or non-public character;

g. quorums, the procedures for making decisions and the majorities required for their adoption;

h. the Grouping’s operating methods, particularly with regard to transparency and management reporting;

i. the specific arrangements for staff management and recruitment procedures;

j. the arrangements for financing the Grouping’s activities;

k. the applicable budgetary and accounting rules;

l. the rules governing the Grouping’s relations with its members, particularly with regard to the subsidiary responsibility of members.

4 The statutes of the Grouping shall be registered or published, in accordance with the legal and regulatory provisions applicable to the category of legal entities specified by the agreement establishing the Grouping.

Explanatory note

The points to be covered by the statutes match those listed in Article 5.3 of the Protocol. The statutes may also specify which language or languages are to be regarded as the working language(s).

If the agreement establishing the Grouping contains provisions relating to the principles of staff recruitment and management and the law applicable to staff (Section VI, paragraph 4, point f), the statutes may simply describe the specific arrangements for staff management and recruitment procedures, as proposed by paragraph 3, point i of this Section.

Point l of paragraph 3 contains a requirement that the statutes specify how responsibilities are to be shared between the Grouping and its members, within the limits to be set by the legislature in accordance with Sections XXIX and XXX.

Text of Protocol No. 3
APPENDIX to Protocol No. 3

Although Protocol No. 3 does not explicitly require the statutes to be registered or published in the same way as the agreement establishing the Grouping,[19] paragraph 4 of this Section provides for this formality echoing Article 5.1 of Regulation No. 1082/2006 on the EGTC.

Text of Protocol No. 3

Article 5 – Statutes

Article 11 – Supervision, administrative and judicial review

4 Where the ECG carries out any activity in contravention of the provisions on public policy, public security, public health or public morality of the States to which its members belong, or in contravention of the public interest of the said States, the competent authority or body of these States may prohibit that activity on its territory or require those members that fall under its jurisdiction to withdraw from the ECG unless the latter ceases the activity in question. Such prohibitions shall not constitute a means of arbitrary or disguised restriction on co-operation between the members. Review of the competent authority’s or body’s decision by a judicial authority shall be possible.

APPENDIX to Protocol No. 3

X. Withdrawal or exclusion of ECG members (Article 5.3 and Article 11.4 of the Protocol)

1 Any member of a Euroregional Co-operation Grouping may withdraw from the Grouping during the term of the agreement establishing the Grouping, at the end of a financial year, provided it has discharged its obligations fully and given notice of its intention two months prior to the end of that financial year.

2 The General Assembly referred to in Section XII may, on a duly substantiated proposal given by the Board referred to in Section XIII, expel any member which seriously fails to discharge its obligations and is still in breach of them after a period of two months from the Board’s serving a warning on it by registered letter. A representative of the member concerned shall be heard beforehand.

3 The duly substantiated notification referred to in paragraph 7 of Section XXXIV shall be deemed grounds for withdrawal, unless it is set aside by the competent court of the state that opposes continued participation in the Grouping by the foreign members coming under its jurisdiction.

4 The Grouping’s statutes shall lay down the rules on the procedure for the withdrawal or exclusion of members.

5 An addendum to the founding agreement shall specify the practical, and particularly financial, aspects of withdrawal or exclusion. It shall provide for compensation for the Grouping for damage sustained as a result of the failure of the expelled member to meet its obligations.

6 The provisions in paragraphs 2 and 4 of Section XXI shall apply to the addendum.

Explanatory note

Under Article 5.3 of Protocol No. 3, the statutes must contain rules on the withdrawal of members from the ECG. It is for each legislative body of a State Party to the Protocol to lay down a minimum framework in this connection.

Paragraphs 1, 2 and 5 of this Section are proposals directly based on Articles 20 and 21 of the revised preliminary draft uniform law on territorial co-operation groupings (doc. CDLR (2006) 17 of 27 April 2006). This lays down the minimum legal framework of the procedure to be followed in the event of the withdrawal or exclusion of a member. The details must be specified in the statutes (paragraph 4).

Among other causes, insolvency, financial collapse or bankruptcy of a member of the Grouping may justify that member being expelled by decision of the General Assembly, in accordance with paragraph 2.

Paragraph 3 provides for the application of the rules set forth in the subsequent paragraphs of this Section in the event that the authorities of the state to whose jurisdiction one or more foreign members of the Grouping are subject demand their withdrawal, in accordance with Article 11.4 of the Protocol. This situation is described in paragraph 7 of Section XXXIV.

Text of Protocol No. 3

APPENDIX to Protocol No. 3

Paragraph 6 makes the provisions of section XXI, under which all modifications to the agreement establishing the Grouping are subject to the same preparation and publication procedure as the initial agreement, applicable to the addendum specifying the arrangements for the withdrawal or exclusion of a member. The founding agreement must be amended since the withdrawal or exclusion of a member of the Grouping changes that Grouping’s membership. Yet paragraphs 2 and 4 of section XXI require, in accordance with Article 6 of the Protocol, that “any amendment to the founding agreement and any amendment to the mandatory provisions thereof reproduced in the statutes ... be adopted according to the established procedure described in Section VII” and subject to the same formalities concerning registration and publication of the notice that a Grouping has been established, in other words they must be adopted according to the procedure set out in Article 4 of the Protocol.

Text of Protocol No. 3

Article 5 – Statutes

APPENDIX to Protocol No. 3

XI. Management bodies of the ECG (Article 5.3 of the Protocol)

Under the conditions provided for in this law, a Euroregional Co-operation Grouping having legal personality shall comprise a General Assembly, a Board, a Chair and one or more Vice-Chairs.

The statutes may provide for additional bodies subject to compliance with the legislation that applies to the category of legal entity to which the Grouping belongs.

The statutes shall allocate powers to the management bodies in accordance with the legislation that applies to the category of legal entity to which the Grouping belongs, without prejudice to specific powers allocated by this law to one body or another.

They may also provide for the appointment, for a specified term, of a Director General under the Board’s authority.

Explanatory note

Article 5.3 of the Protocol No. 3 does not list the management bodies of an ECG. It leaves it to the Grouping’s statutes to lay down the rules on the organisation and tasks of each body. This Section proposes that each legislature of a State Party to the Protocol should establish a general framework by listing the ECG’s management bodies, allocating powers to them and, where appropriate, providing for a director general to be appointed.

For the situation to be compatible with the rules on EGTCs, the Grouping must have, at the least, a General Assembly and a Director General.[20]

The respective powers of the management bodies shall be specified in the statutes, in accordance with the legislation that applies to the category of legal entities to which the Grouping belongs, except where provided otherwise in Protocol No. 3 or particular legal provisions compatible with that Protocol.

Text of Protocol No. 3

Article 5 – Statutes

APPENDIX to Protocol No. 3

XII. General Assembly of the ECG (Article 5.3 of the Protocol)

1. The General Assembly shall comprise representatives of all the Grouping’s members.

2. Each member of the Grouping shall have at least one seat in the General Assembly. No single territorial community or authority may hold more than half the seats.

3. Without prejudice to the provisions of this law, the organisation and proceedings of the General Assembly shall be governed by the legislation that applies to the category of legal entity to which the Grouping belongs.

4. Meetings of the General Assembly shall be public, except in special cases provided for in the statutes.

Explanatory note

The proposals in this section are drawn directly from Articles 28 and 30 of the revised preliminary draft uniform law on territorial co-operation groupings (doc. CDLR (2006) 17 of 27 April 2006). They lay down the basis for the organisation and functioning of the General Assembly. The other rules shall be laid down in the legislation applicable to the category of legal entities to which the Grouping belongs and in the statutes.

Text of Protocol No. 3

Article 5 – Statutes

APPENDIX to Protocol No. 3

XIII. Board of Directors of the ECG (Article 5.3 of the Protocol)

1. The number of members of the Board or the rules for determining that number shall be laid down in the Grouping’s statutes.

2. The members of the Board shall be elected by the General Assembly. However, the members of the first Board may be designated in the statutes.

3. Each member of the Grouping shall put forward candidates. The latter need not be members of the General Assembly.

4. Meetings of the Board shall not be public, except in special cases provided for in the statutes.

Explanatory note

Paragraphs 2 and 3 lay down the basis for the organisation and functioning of the Board. The other rules shall be laid down in the legislation applicable to the category of legal entities to which the Grouping belongs and in the statutes.

The proposals in this Section are taken directly from Articles 23 and 24 of the revised preliminary draft uniform law on territorial co-operation groupings (doc. CDLR (2006) 17 of 27 April 2006).

Text of Protocol No. 3

Article 5 – Statutes

APPENDIX to Protocol No. 3

XIV. Chairmanship and vice-chairmanship of the ECG (Article 5.3 of the Protocol)

The Board shall elect from among its members a Chair and one or more Vice-Chairs. The Vice-Chairs shall be chosen among the representatives of territorial communities or authorities of each state other than that of which the Chair is a national.

The Chair shall convene and chair meetings of the Board under the conditions laid down in the statutes; he or she shall direct the proceedings of the General Assembly.

The Chair shall act in the name and on behalf of the Grouping. He or she shall represent it in judicial and extra-judicial matters.

In the absence of the Chair, the Vice-Chair or Vice-Chairs shall perform his or her duties.

Explanatory note

The proposals in this section are taken directly from Article 26 of the revised preliminary draft uniform law on territorial co-operation groupings (doc. CDLR (2006) 17 of 27 April 2006). They set out the basic rules governing the election and powers of the Chair and Vice-Chairs. Additional rules shall be laid down in the statutes, in full compliance with the legislation applicable to the category of legal entities to which the Grouping belongs

Text of Protocol No. 3

Article 5 – Statutes

APPENDIX to Protocol No. 3

XV. Director General of the ECG (Article 5.3 of the Protocol)

The Board may, on the Chair’s proposal, task a Director General with the day-to-day management of the Grouping for a fixed period.

The Director General shall have authority over all staff working within the Grouping.

He or she may hold delegated powers. On a proposal from the Board, the Chair may authorise him or her to represent the Grouping and act in its name and on its behalf where such is provided for in the statutes and in the circumstances specified therein.

Explanatory note

Paragraphs 1 and 2 of this Section are partially based on Article 27 of the revised preliminary draft uniform law on territorial co-operation groupings (doc. CDLR (2006) 17 of 27 April 2006).

Under the proposals set out in this Section, a decision delegating authority may permit the Director General, in accordance with paragraph 3, to act on behalf of the Grouping in certain circumstances. Such delegated authority would ensure on this point compatibility of an ECG’s statutes with Article 10 of the European Union Regulation No. 1082/2006 on the EGTC.

Text of Protocol No. 3

Article 5 – Statutes

APPENDIX to Protocol No. 3

XVI. General rules on the terms of office of representatives of the ECG’s members on the Grouping’s statutory bodies and the deliberations of those bodies (Article 5.3 of the Protocol)

The appointment and terms of office of representatives of the territorial communities or authorities and other legal entities which are members of the Grouping on the Board and in the General Assembly shall be governed by the domestic law of the state to whose jurisdiction each territorial community, authority or entity concerned is subject.

The representatives of *** members of the Grouping on its statutory bodies shall be subject to the disqualifications from eligibility for office laid down by the legislation that applies to the category of legal entity to which the Grouping belongs.

The members of the Grouping’s statutory bodies shall be appointed for a period laid down in the statutes not exceeding six years. This term of office shall be renewable once or more than once, unless restrictions are laid down in the statutes.

The term of office of representatives of members of the Grouping shall end at the latest with the first meeting of the deliberative assembly following the renewal of the statutory bodies of the territorial community or authority or other legal entity by which they have been appointed.

Representatives on the General Assembly who are elected to the Board shall immediately give up their seats. The member of the Grouping which appointed them shall replace them forthwith.

If a seat on the Board becomes vacant for any reason, the Board shall appoint a temporary member. He or she shall serve until a new Board member is elected.

Except where otherwise provided in this law or the statutes, any decision by a statutory body of the Grouping shall be taken by an absolute majority of the votes cast. Quorums shall be set by the states to whose jurisdiction the members of the Grouping are subject.

Voting by proxy shall be permitted. No member may hold more than one proxy.

Minutes shall be drawn up for each meeting of the General Assembly and Board.

Minutes shall be drafted in the language or languages whose use is prescribed by the domestic law of each of the states to whose jurisdiction the members of the Grouping are subject for their proceedings and decisions. They shall be sent to each member and to the authorities responsible for supervising the Grouping.

Text of Protocol No. 3
APPENDIX to Protocol No. 3

Explanatory note

Under Article 5.3 of Protocol No. 3, statutes must contain rules on the statutory bodies of the ECG and their tasks. It is for each legislature of a State Party to the Protocol to establish a basic framework for this. The proposals on this subject contained in this Section are drawn directly from Articles 23.5 28.3, 31.2, 33, 36.1, 37.1 and 38 of the revised preliminary draft uniform law on territorial co-operation groupings (doc. CDLR (2006) 17 of 27 April 2006).

Paragraph 1 merely states that it is for each interested state to lay down the rules for their representation on the ECG’s collegial bodies.

Paragraph 2 does not apply to foreign members of the Grouping. It is for the legislation of the states to whose jurisdiction these members are subject to address the incompatibilities applicable to them.

Paragraph 3 does not relate to the legal entities which are members of the ECG but rather their representatives in the Grouping’s collegial bodies. It lays down the duration of their terms of office on the said bodies.

Paragraph 4 is applicable to all representatives of ECG members, irrespective of the state to whose jurisdiction the members they represent are subject.

Paragraphs 5 and 6 relate in principle to the replacements of members of the General Assembly and the Board in the event of a vacant seat or incompatibility.

Paragraphs 7 and 8 govern the exercise of voting rights in the Grouping’s collegial bodies. Paragraph 9 and 10 lay down the basic rules on the drafting and distribution of the minutes of the meetings of these collegial bodies.

Text of Protocol No. 3

Article 5 – Statutes

APPENDIX to Protocol No. 3

XVII. Transparency - information and access to ECG documents (Article 5.3 of the Protocol)

1. Any representative of a member of the Grouping who so requests during a meeting of the General Assembly shall be entitled to obtain information from the Board on the Grouping’s activities relating to subjects on which the General Assembly may take a decision.

2. The General Assembly shall periodically adopt a full report on the Grouping’s activities and forward it to the latter’s members.

3. The representatives of the Grouping’s members in the General Assembly shall report periodically, in writing, to the members who have appointed them on the Assembly’s activities and on the manner in which they have performed their duties.

4. All members of the Board may consult all the reports, documents and information received by that body.

5. The Board shall supply in writing, within one month, information requested by any member of the Grouping.

6. Any natural or legal person shall have a right of access, on request, to the public documents held by the Grouping, on whatever medium, without having to provide reasons for the request to access them. The Grouping’s statutes shall lay down the conditions of access and the procedure to be followed, in accordance with the *** constitution and legislation, and in full compliance with the international commitments of ***. Full reasons must be given for any refusal to grant access, and if the interested party so requires, such reasons must be provided in writing. In such cases, the party requesting access has a right of appeal before the *** court with jurisdiction in this matter.

Explanatory note

Under Article 5.3 of Protocol No. 3, statutes must contain rules on accountability and transparency. It is for each legislature of a State Party to the Protocol to establish a basic framework for this.

Paragraphs 1 to 5 contain suggestions taken directly from Articles 25 and 32 of the revised preliminary draft uniform law on territorial co-operation groupings (doc. CDLR (2006) 17 of 27 April 2006). They propose placing on the ECG an obligation to report regularly on its activities to its members and to provide the representatives of those members in the General Assembly with the information they seek. These paragraphs also place an obligation on those members to inform the legal entity which has appointed them, and on the Board to inform any member of the Grouping.

Paragraph 3 sets out a proposal which applies to members subject to the jurisdiction of the legislating state and to foreign members of the Grouping.

Paragraph 6 proposes introducing the principle of individual access to public documents. It lays down the minimum conditions with reference to the constitution, legislation and international commitments of the legislating state. Among the international rules which should be complied with by ECGs in this respect is the Council of Europe Convention on Access to Official Documents, opened for signature in Tromsø on 18 June 2009.

Text of Protocol No. 3

Article 5 – Statutes

APPENDIX to Protocol No. 3

XVIII. Budgetary and accounting rules applicable to the ECG (Article 5.3 of the Protocol)

1. The Grouping shall have an annual draft budget approved by the General Assembly. It shall draw up a balance sheet and profit and loss account certified correct by auditors independent from its members, in accordance with the provisions of Section XXXVI.

2. The budget, including the charges relating to the servicing of any loans, shall be balanced.

3. The annual budget shall be drawn up and the Grouping’s accounts shall be kept and managed in accordance with the rules applicable to the category of *** legal entities to which the Grouping belongs.

Explanatory note

Under Article 5.3 of Protocol No. 3, the statutes must contain rules on budgets and the requirement for financial accountability. It is for each legislature of a State Party to the Protocol to establish a basic framework for this.

Under the proposals in this Section, the Grouping’s General Assembly must draw up a balanced annual budget every year. The budgetary and accounting rules which apply are those of the state where the Grouping has its headquarters.

The wording of the proposals is based on Article 5.2 of the first additional Protocol to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities; Article 51 of the revised preliminary draft uniform law on territorial co-operation groupings (doc. CDLR 2006-17 of 27 April 2006); Article 14 of the Karlsruhe Agreement of 23 January 1996 or the Brussels Agreement of 16 September 2002, and Article 6.1 of the Genevan Law of 14 November 2008 on transfrontier co-operation bodies (LOCT) in the case of paragraph 2.

Text of Protocol No. 3

Article 5 – Statutes

APPENDIX to Protocol No. 3

XIX. Contributions by members of the ECG (Article 5.3 of the Protocol)

1. The members’ contributions to the costs and expenses occasioned by the Grouping’s work shall take the form of annual financial contributions and, possibly, the provision of premises or equipment and the making available or secondment of staff of territorial communities or authorities.

2. The nature of these contributions and the basis for their distribution among members of the Grouping shall be determined in the statutes, along with the arrangements for periodic adaptations of this distribution.

Explanatory note

Under Article 5.3 of Protocol No. 3, the statutes must contain rules on the staffing, budgets and financing of the ECG. It is for each legislature of a State Party to the Protocol to establish a basic framework for this.

The following, entirely classical, proposals are made concerning the types of contributions of members of a Grouping:

(a) an annual financial contribution by each member;

(b) the making available or secondment of staff of territorial communities or authorities participating in the Grouping (see Section XX);

(c) possibly, the provision of premises or equipment by certain members of the Grouping.

These proposals are based on Article 44 of the revised preliminary draft uniform law on territorial co-operation groupings (doc. CDLR (2006) 17 of 27 April 2006).

Text of Protocol No. 3

Article 5 – Statutes

APPENDIX to Protocol No. 3

XIX. bis Material and financial resources of the ECG (Article 5.3 of the Protocol)

The annual financial contributions referred to in the previous Section shall be compulsory expenses for the territorial communities or authorities and the other members of the Grouping. They shall be revised periodically in accordance with the rules laid down by the statutes.

2 The facilities and equipment provided by members of the Grouping shall remain their property. They shall recover them when the Grouping is wound up.

3. The Grouping may also be funded by income from the services it provides for the territorial communities or authorities, users or third parties, but not by any levies of a fiscal nature.

4. The Grouping’s income shall also comprise subsidies made to it at its request, gifts and legacies from natural or legal persons and interest and other returns on its assets.

5. The Grouping may contract loans. Any loans shall be approved by the body or bodies competent for such decisions within each legal entity which is a member of the Grouping.

6. Items purchased by the Grouping shall remain its property. If the Grouping is wound up, they shall be devolved in accordance with the rules set out in Section XXVIII.

Explanatory note

Under Article 5.3 of Protocol No. 3, the statutes must contain rules on the finances of the ECG. It is for each legislature of a State Party to the Protocol to establish a basic framework for this.

The proposals in this Section are mere suggestions. They are based directly on Articles 44, 48 and 49 of the revised preliminary draft uniform law on territorial co-operation groupings (doc. CDLR 2006-17 of 27 April 2006), Article 5.2 of the first additional Protocol to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities and Article 6.3 of the Genevan Law of 14 November 2008 on transfrontier co-operation bodies (LOCT).

Paragraphs 1 and 2 list the various types of contributions by the members to the operation of an ECG.

Paragraphs 3 to 5 list ECGs’ other optional sources of income: subsidies, payment for services rendered, gifts and legacies, return on assets and loans contracted. The latter must be approved by all members of the Grouping. Loan charges must be entered in the budget (see Section XVIII).

Text of Protocol No. 3

Article 5 – Statutes

APPENDIX to Protocol No. 3

XX. Staff of the ECG (Article 5.3 of the Protocol)

The staff of the Grouping under *** law shall be made up of:
1. staff directly recruited by the Grouping on fixed-term or permanent contracts and paid from its budget;
2. staff made available by members of the Grouping;
3. staff seconded from these territorial communities or authorities and paid from the Grouping’s budget.

In the event that the Grouping is wound up, staff members directly recruited by the Grouping for an indefinite duration, shall be offered employment by some or all of the members, in accordance with paragraph 4 of Section XXVIII.

Staff made available to the Grouping shall retain their original terms and conditions of employment. The practical aspects of such arrangements, particularly any compensatory adjustment between the salary paid by the original employer and the contribution he or she owes to the Grouping, shall be the subject of an agreement between the Grouping and the original employer.

The staff shall take their instructions exclusively from the Grouping. They shall be answerable to the Director General if there is one and, otherwise, to the Chair of the Grouping.

The labour regulations and the taxation and social security arrangements concerning the Grouping’s staff shall be governed by *** law. However, labour relations with staff assigned to an operational unit which is not the Grouping’s headquarters shall be subject exclusively to the law of the state in which this operational unit is located; the rules on the taxation and social security of such staff shall be determined in the same manner.

The Grouping shall attempt to ensure that working conditions are equivalent in all its different operational units. The statutes may contain additional provisions in this respect.

Explanatory note

Under Article 5.3 of Protocol No. 3, statutes must contain rules on the staff of the ECG. It is for each legislature of a State Party to the Protocol to establish a basic framework for this. The proposals in this Section are mere suggestions. They are not required by Protocol No. 3, but are entirely compatible with it and with the proposed amendment of Regulation (EC) No. 1082/2006 on the rules applicable to the staff of EGTCs.[21] They are based directly on Articles 10 and 11 of the new draft Benelux Convention on transfrontier and interterritorial co-operation and on Articles 45 to 47 of

Text of Protocol No. 3
APPENDIX to Protocol No. 3

the revised preliminary draft uniform law on territorial co-operation groupings (doc. CDLR (2006) 17 of 27 April 2006).

Under the terms of paragraph 1, the Grouping’s own staff are recruited on work contracts. If such contracts are for an indefinite duration, paragraph 2 provides that where the Grouping is wound up ahead of time or upon expiry of the period for which it was set up, it must redeploy the staff members concerned in accordance with the conditions laid down in paragraph 4 of Section XXVIII. To avoid this obligation, the Grouping should from the outset refrain from recruiting its own staff under indefinite term contracts.

Any ECG member may place staff at the disposal of the Grouping. Such staff shall retain their original terms and conditions of employment (paragraph 3) but shall take their instructions from the Grouping in accordance with the general rule set out in paragraph 4.

Staff are regarded as having been “seconded” to the ECG where they are “lent” to the Grouping and paid by the latter (paragraph 1, c). This category of staff is also placed under the operational authority of the Grouping.

Under paragraph 5, the law governing staff’s labour relations and the social security arrangements shall be determined in compliance with the rules specifying the law that may be applied on the territory of the member states of the European Union (in particular Article 11.3a of Regulation No. 883/2004 of 29 April 2004 on the co-ordination of social security systems and Article 8 of Regulation No. 593/2008 of 17 June 2008 on the law applicable to contractual relations — Rome I); accordingly, ECGs which are subject to the jurisdiction of a European Union member state and the territorial communities or authorities that are members of that Grouping must comply with EU law in this matter.[22]

Any disparity between the legal provisions relating to the working conditions of members of staff as a result of their place of work (hours, leave entitlement, etc.) may be offset by the granting of additional advantages to those whose local conditions of work are less favourable than those applicable by law in another operational unit of the same ECG. Such advantages may be stipulated in the statutes (paragraph 6). This proposal is based on Article 10 of the draft new Benelux Convention on transfrontier and interterritorial co-operation.

Text of Protocol No. 3

Article 6 – Amendments to the agreement and the statutes

Any amendment to the agreement referred to in Article 4 and any substantial amendment to the statutes referred to in Article 5 shall follow the same procedures and form of those articles respectively. Substantial amendments to the statutes shall be those entailing, directly or indirectly, an amendment to the agreement. The majority required for the adoption of any such amendment shall be determined in the statutes.

APPENDIX to Protocol No. 3

XXI. Amendments to the agreement establishing the ECG and to its statutes (Article 6 of the Protocol)

The Board and the members of a Grouping may submit proposals to the General Assembly for amendments to the founding agreement or to the statutes.

Any amendment to the founding agreement and any amendment to the mandatory provisions thereof reproduced in the statutes shall be adopted according to the established procedure described in Section VII.

Any other amendment to the statutes shall be adopted by the General Assembly. Amendments shall require a decision taken by a majority which may not be less than two-thirds of the votes cast unless the law applying to legal entities established under the same laws as the Grouping provides for or allows a higher majority. The majority required shall be determined in the statutes.

Amendments to the founding agreement or the statutes shall be published in accordance with the procedure laid down by the legal and regulatory provisions applicable to the categories of legal entities to which the Grouping belongs.

Explanatory note

Under Article 6 of Protocol No. 3, “any amendment to the agreement referred to in Article 4 and any substantial amendment to the statutes referred to in Article 5 shall follow the same procedures and form of those articles respectively”. This is the message of paragraphs 2 and 4 of this section.

It is also for each legislature of a State Party to the Protocol to establish a basic framework for the introduction of any amendment and the adoption of amendments described as “non-substantial” amendments because they do not entail, directly or indirectly, an amendment to the agreement establishing the ECG. Paragraphs 1 and 3 of this section contain specific yet limited proposals in this respect.

Text of Protocol No. 3

Article 6 – Amendments to the agreement and the statutes

APPENDIX to Protocol No. 3

XXII. Procedure for subsequent accessions to the ECG (by implication, Article 6 of the Protocol)

1 A Euroregional Co-operation Grouping under *** law may admit new members under either *** or foreign law. Applications for membership shall be made in writing and submitted to the General Assembly.

2 Applications by *** territorial communities or authorities for membership of an existing Euroregional Co-operation Grouping, both under *** law and under foreign law, shall be subject to the same notifications and the same checks as for other acts and deliberations of those territorial communities or authorities. The same shall apply, mutatis mutandis, to applications for membership from other *** legal persons to such a Grouping.

3 For their membership to take effect, all new members shall be required to sign a transfrontier or interterritorial co-operation agreement amending the agreement establishing the Grouping so as to determine the terms and effects of the new member’s accession.

4 The provisions in paragraphs 2 and 4 of Section XXI shall apply to the agreement amending the founding agreement. Nevertheless, the consent of the current members governed by *** law to the conclusion of that agreement shall not be subject to the notifications and checks provided in respect of their other deliberations, provided that the national law governing the foreign members of the Grouping also makes this provision in respect of them.

5 Groupings under *** law shall notify the agreement confirming the accession of a new member, whether that new member is *** or foreign, only to the state to whose jurisdiction the new member is subject, unless no other member of the Grouping is already subject to that state’s jurisdiction.

6 If a member of a Grouping under *** law has been legally taken over by another public-law legal entity which is now performing all its functions or if this other public-law legal entity has been legally substituted for this member, the member shall be automatically replaced by this entity as a member of the Grouping. No application for membership shall be required in such cases.

Text of Protocol No. 3
APPENDIX to Protocol No. 3

Explanatory note

With the exception of the admissibility of the accession of foreign members and the notification thereof, the proposals in Section XXII govern only subsequent accessions of potential members governed by the law of the legislating state, but they apply both to ECGs governed mainly by the law of that state and ECGs governed by foreign law.

In principle, any amendment to the founding agreement must be approved by the member states in accordance with the procedure provided for in Article 4 of Protocol No. 3. However, this procedure may seem too cumbersome when an existing ECG wishes to admit an additional member subject to the jurisdiction of a state whose authorities have already scrutinised the content of the founding agreement. To encourage such accessions, the procedure for amending the founding agreement should be simplified. The European Commission has made a simplification suggestion with regard to EGTCs.[23]

The proposals made in paragraphs 2, 4 and 5 of this Section permit the adoption of similar simplified rules. However, the only check provided for in respect of the amending agreement is that performed by the legislating state concerning the future *** member's admissibility (see paragraphs 2 and 4) and the only notification envisaged is that to be performed by the ECG under national law; the latter is required to notify a new member's accession solely to the state to whose jurisdiction the new member is subject, unless no other member of the Grouping is already subject to that state’s jurisdiction (see paragraph 5).[24] This last hypothesis concerns accession to an ECG that is under the jurisdiction of neither the legislating state nor the foreign state to whose law the new member is subject: in this case the notification must be sent to all the states concerned.

Paragraph 6 specifies that the take-over of a member or its legal substitution by another public-law legal entity does not require an application for membership of the Grouping. It shall apply both to members subject to the jurisdiction of the legislating state and to foreign members of the Grouping.

Text of Protocol No. 3

Article 7 – Tasks and scope of action

1 The ECG shall perform the tasks that its members entrust to it. These tasks shall be in accordance with the competences of the members under their respective national law and shall be listed in the agreement and in the statutes.

APPENDIX to Protocol No. 3

XXIII. Role and field of action of the ECG (Article 7.1 of the Protocol)

1 The objective of the establishment of a Euroregional Co-operation Grouping shall be to promote, support and develop, for the benefit of populations, transfrontier or interterritorial co-operation between its members.

2 In accordance with this objective and its purpose, any Euroregional Co-operation Grouping established under *** law shall perform the tasks assigned to it by its members in accordance with the conditions provided for in the domestic law of the states to whose jurisdiction they are subject. These tasks shall be in accordance with the competences of the members under their respective national law.

3 The *** state and the other states having jurisdiction over the territorial communities or authorities belonging to a European Co-operation Grouping, established under *** law or foreign law, may entrust the Grouping with the planning, negotiation, putting in place and management of territorial co-operation programmes co-financed by the European Union.

Explanatory note

Paragraph 1 of this section partially reproduces the text of Article 1.2 of Protocol No. 3. To quote the explanatory report to the Protocol, it "provides for maximum flexibility as regards the reasons why an ECG shall be established”.

Paragraph 2 concerns the functions of ECGs. It points out that the tasks of an ECG must be assigned in accordance with the procedures provided for under the domestic law of the states to whose jurisdiction the members of the Grouping are subject.^{^[25]} It also requires the tasks to be “in accordance with the competences of the members” of the ECG. This wording, taken from Article 7.1 of Protocol No. 3, enables an ECG to be established without the field of action of each member having to cover all the tasks assigned to the Grouping. It does not therefore rule out the participation of a potential member which does not have competence for one of the ECG's tasks or in all the areas covered by the objective assigned to the Grouping.^{^[26]}

Paragraph 3 is based on Article 2.3 of the revised preliminary draft uniform law on territorial co-operation groupings (doc. CDLR 2006-17 of 27 April 2006). It confirms that an ECG is a legal instrument which may be used not only to carry out "territorial co-operation” programmes co-financed by the European Union but also to facilitate the normative implementation of Regulation (EC) No. 1082/2006 on EGTCs. This objective may be achieved without the ECG having to assume the form of a European Grouping of Territorial Co-operation (EGTC).

Text of Protocol No. 3

Article 7 – Tasks and scope of action

2 The ECG shall adopt decisions and ensure their implementation, in respect and for the benefit of individual persons or legal entities subject to the jurisdiction of the States to which its members belong. Members shall adopt or facilitate all necessary measures falling within their competences in order to ensure that the ECG’s decisions are implemented.

Article 11 – Supervision, administrative and judicial review

3 Decisions and acts of territorial communities or authorities and other public and private law entities shall be subject to the supervision and administrative and judicial review of the legality of acts of territorial communities or authorities and of other public law entities in the forms required in the States under whose jurisdiction the said authorities fall.

APPENDIX to Protocol No. 3

XXIV. Implementation of decisions of the ECG (Article 7.2 and Article 11.3 of the Protocol)

Territorial communities or authorities shall, in good faith, take all necessary measures to ensure implementation of the decisions of the Grouping of which they are members, within the limits of the competences conferred on them by the domestic law of the state to whose jurisdiction they are subject. This shall also apply, mutatis mutandis, to the other legal entities which are members of the Grouping.

These measures shall be subject to the procedures and the supervision provided for in the domestic law of each state to whose jurisdiction the territorial communities or authorities are subject concerning the acts and deliberations of such communities or authorities. This shall also apply, mutatis mutandis, to any procedures and supervision to which other legal entities which are members of the Grouping may be subject.

The Grouping shall ensure the implementation of its own decisions in respect of individuals or legal entities subject to the jurisdiction of the states to whose domestic law its members are subject. The statutes shall contain rules of procedure to this end.

Explanatory note

Paragraph 1 in this section corresponds to the second provision of Article 7.2 of Protocol No. 3, Article 43.1 of the revised preliminary draft uniform law on territorial co-operation groupings (doc. CDLR 2006-17 of 27 April 2006) and Article 9.1 of the Genevan Law of 14 November 2008 on transfrontier co-operation bodies (LOCT). According to these various texts, the members of a Grouping which has legal personality are required to implement in good faith the decisions taken by the competent body of the Grouping to which they belong: any partner which failed to do so would be held liable. In the case of territorial communities or authorities which are members of the Grouping, the obligation to implement the decisions also stems from the principle of subsidiarity set out in Article 4.3 of the European Charter of Local Self-Government: they must each facilitate the implementation of the Grouping's decisions whenever the Grouping does not have the power to implement them.

Paragraph 2 corresponds to Article 11.3 of Protocol No. 3 and Article 43.2 of the 2006 revised preliminary draft uniform law on territorial co-operation groupings. It confirms that the acts of territorial communities or authorities which are members of an ECG remain subject to the supervision and administrative review applicable to such acts. The purpose of this provision is to reiterate the provisions of Article 6.1 of the first additional Protocol to the Madrid Outline Convention. It also applies, mutatis mutandis, to the other legal entities in the Grouping.

The rule set out in paragraph 3 corresponds to the first provision of Article 7.2 of the Protocol. According to the explanatory report to Protocol No. 3, it offers “utmost flexibility” regarding the mandatory nature of the ECG’s decisions in the various states to whose jurisdiction its members are subject. Depending on whether it is a public-law or private-law entity, an ECG does not have the same authority or effective legal mechanisms for implementing its decisions. This is equally true in the legislating state (where the ECG has its headquarters) and in any foreign state to whose jurisdiction some of the Grouping’s members are subject (see Section XXV below). It is therefore proposed that the statutes include rules of procedure suited to the nature of the ECG so as to ensure that the members take on a timely basis the measures needed to implement the Grouping's decisions in respect of their citizens.

Text of Protocol No. 3

Article 7 – Tasks and scope of action

3 The tasks given to an ECG shall not concern the exercise of regulatory powers. The ECG shall not be empowered to take measures which might affect the rights and freedoms of individuals, or to impose levies of a fiscal nature.

4 The ECG may not exercise competences that territorial communities or authorities exercise as agents of the State to which they belong, except where duly authorised. It may exercise competences that States members of the ECG confer upon it.

APPENDIX to Protocol No. 3

XXV. Competences and powers of the ECG under public law (Articles 7.3 and 7.4 of the Protocol)

1 Within the limits laid down in paragraph 2 above, any Euroregional Co-operation Grouping including *** territorial communities or authorities but established under the public law of a foreign state shall be empowered to adopt unilateral administrative measures enforceable in national territory in accordance with *** law.

2 However, on the national territory, the Euroregional Co-operation Grouping established under *** or foreign public law shall not be empowered to lay down rules or to take decisions which might affect the rights and freedoms of individuals, nor to decide on levies of a fiscal nature, except where expressly provided by a specific international agreement.

3 As an exception to paragraph 2, any Euroregional Co-operation Grouping established under *** law may determine the conditions of use, on the national territory, of an item of infrastructure or any other community service it is managing, including the prices and fees to be paid by users.

4 A Euroregional Co-operation Grouping established under *** law may not exercise competences conferred upon *** territorial communities or authorities as agents of the state or by virtue of delegated state authority, except where duly authorised to do so under a specific legislative or regulatory provision.

5 The *** state may, in agreement with the other states which are members of the same Euroregional Co-operation Grouping established under *** law, assign to the Grouping powers going beyond the limits laid down in the preceding paragraphs.

Text of Protocol No. 3
APPENDIX to Protocol No. 3

Explanatory note

Paragraph 1 contains one of the only provisions relating exclusively to ECGs under foreign law. In order to solve the sensitive issue of the exercise of particular rights under public law by a foreign public-law entity on national territory, it proposes that the solution be found by the state to whose jurisdiction this territory is subject. It is suggested that the legislating state grant ECGs under foreign public law the right to adopt unilateral measures which are mandatory for third parties.

Paragraph 2 reproduces the prohibitions contained in Article 7.3 of Protocol No. 3. It constitutes a particular application of Article 4.2, letters b and c of the first additional Protocol to the Outline Convention, adding the possibility of exceptions where provided for by an international agreement between the States Parties. The geographical scope of this paragraph is exclusively the territory of the legislating state, on which ECGs established under public law are prohibited from exercising such powers.

Again to ensure continued compatibility with Regulation (EC) No. 1082/2006 in the event of its being amended, paragraph 3 introduces an exception to the prohibition of an ECG exercising regulatory powers. In line with what is provided for with regard to EGTCs,[27] this paragraph would enable ECGs established under public law to “determine the conditions of use of an item of infrastructure” that it manages, “including the prices and fees to be paid by users.” Nonetheless, it is suggested that the exception be extended to the conditions of use of other community services offered by ECGs established under public law: hospitals, retirement homes and other community residential establishments, etc.

Paragraph 4 provides more precise information regarding the prohibition and exceptions contained in the first provision of Article 7.4 of Protocol No. 3.

Paragraph 5 contains a proposal which seeks to give specific effect to the second provision in Article 7.4 of the Protocol.

Text of Protocol No. 3

Article 7 – Tasks and scope of action

APPENDIX to Protocol No. 3

XXVI. Mandate, delegation and concession of public services (a contrario: Article 7.3 of the Protocol)

1. For the purpose of achieving its aim, a public-law Grouping may be given specific tasks to perform in the name of, on behalf of and on the instructions of one of the territorial communities or authorities which belong to it, while complying with the domestic law which governs it.

2. The concession or delegation of public services to a Grouping by one of the territorial communities or authorities which belong to it shall be subject to the provisions and procedures laid down in *** law and that of the state to whose jurisdiction that community or authority is subject.

Explanatory note

Article 7.3 of Protocol No. 3 prohibits ECGs from exercising regulatory powers, taking measures which might affect the rights and freedoms of individuals or raising taxes. A contrario, it does not prohibit the territorial communities or authorities which belong to a public-law ECG from assigning specific tasks of theirs to it, nor from granting concessions or delegating public-service tasks to it. That is the purpose of the proposals in this section. They are based directly on Article 41 of the revised preliminary draft uniform law on territorial co-operation groupings (doc. CDLR 2006-17 of 27 April 2006) and Article 5 of the Karlsruhe Agreement of 23 January 1996 and the Brussels Agreement of 16 September 2002.

Paragraph 1 only concerns ECGs established under national law, but applies to all the territorial communities or authorities which belong to them, regardless of the state to whose jurisdiction they are subject. In particular, it allows foreign territorial communities or authorities to issue instructions to an ECG governed by the law of the legislating state, provided that they are members of the Grouping.

The territorial communities or authorities which may grant concessions or delegate public services as provided for in paragraph 2 to the Grouping to which they belong may also be either domestic or foreign, while the Grouping is governed by the law of the legislating state. If the community or authority is foreign, the public law of the state to whose jurisdiction it is subject determines the conditions for granting concessions or delegating services; the law of the legislating state establishes the conditions for exercising the delegated powers or concessions.

Text of Protocol No. 3

Article 7 – Tasks and scope of action

APPENDIX to Protocol No. 3

XXVII. Public procurement contracts (a contrario: Article 7.3 of the Protocol)

Where *** law provides for the granting of public procurement contracts, any Euroregional Co-operation Grouping established under *** law shall comply with the relevant rules if it initiates such contracts.

In respect of procedures for advertising, calls for tender and the choice of firms, *** or foreign territorial communities or authorities participating directly or indirectly in the funding of such operations shall indicate, in the transfrontier or interterritorial co-operation agreement providing for their participation, the obligations which the domestic law of their respective states lay down for such operations, having regard to the nature of the operation and its cost. Without prejudice to the law applying to the contract, they shall take measures enabling each of them to respect its obligations under its domestic law.

Explanatory note

Under the EU directives, “contracting authorities” include not only states, regional or local authorities and bodies governed by public law but also all “public enterprises" and all public-law or private-law legal entities “not having an industrial or commercial character”, provided that they are subject to the dominant influence of such contracting authorities by virtue of ownership, financial participation or the rules which govern them. When an ECG is principally governed by the law of a state bound by these directives, it may therefore be subject to the legislation on public procurement. The same applies to ECGs which are governed by the public law of any other Council of Europe member state. Article 7.3 of Protocol No. 3, which prohibits ECGs from exercising regulatory powers, taking measures which might affect the rights and freedoms of individuals or raising taxes, does not exempt them from the application of national legislation on public procurement.

The rules applicable to ECGs in this respect are those of the law in force in the state where the ECG has its headquarters. Paragraph 1, which sets out this proposal, is consistent with the principle laid down in Article 2.1 of Protocol No. 3, which is reiterated in Section III of this Appendix.

Paragraph 2 seeks to take account of the interests of the territorial communities or authorities which belong to the Grouping which participate directly or indirectly in the funding of such operations. It is based on Article 42.2 of the revised preliminary draft uniform law on territorial co-operation groupings (doc. CDLR 2006-17 of 27 April 2006) and Article 6 of the Karlsruhe Agreement of 23 January 1996 or the Brussels Agreement of 16 September 2002.

Text of Protocol No. 3

Article 8 – Duration

1 The ECG shall be established for a limited or unlimited period of time, to be specified in the agreement and the statutes.

2 The ECG shall be wound up ipso facto when the period for which it was established has expired or if the territorial communities or authorities cease to control the majority of voting rights. It may also be wound up by a unanimous decision of its members.

Article 11 – Supervision, administrative and judicial review

5 Notwithstanding the rules on dissolution of the ECG under the present Protocol and the statutes, at the request of a competent authority with a legitimate interest, a competent court or the competent authority of a party where the ECG has its headquarters may order the ECG to be wound up if it finds that the ECG is acting outside the tasks entrusted to it. The competent court or authority may allow the ECG time to rectify the situation. If the ECG fails to do so within the time allowed, it may be declared wound up.
APPENDIX to Protocol No. 3

XXVIII. Duration, prolongation, winding up and liquidation of the ECG (Articles 8 and 11.5 of the Protocol)

1 The Euroregional Co-operation Grouping shall be established for a limited or unlimited period of time.

2 The Grouping shall be wound up ipso facto:

1) when the founding agreement expires if the agreement was concluded for a limited period and was not renewed;

2) when its purpose is accomplished;

3) when territorial communities or authorities no longer form the majority of its members.

3 The Grouping may be wound up ahead of time:

1) by unanimous decision of its members;

2) by decision of the competent *** court, under the conditions laid down in the provisions of paragraph 3 of Section XXXV.

4 If the dissolved Grouping had its own staff members recruited for an indefinite duration, its members must offer those staff members employment. A supplementary agreement between the members of the Grouping shall govern the arrangements for redeployment.

5 Winding up of the Grouping shall entail its liquidation. The Grouping shall also be liquidated in the event of a court ruling that its founding agreement is null and void, in accordance with paragraph 1 of Section XXXV. It shall retain legal personality for purposes of the liquidation, until such time as this is completed.

6 The General Assembly shall determine the practical details of liquidation in accordance with the statutes and appoint one or more liquidators. The Board’s functions shall cease once these appointments have been made.

7 If the Grouping’s assets at the time of liquidation are insufficient, its members shall be liable for paying off all debts contracted before it was wound up until the extinction of such debts, in accordance with the provisions of Section XXIX.

8 After payment of the debts and, if applicable, recovery of the initial contributions, the liquidator(s) shall divide surplus assets between the Grouping members in proportion to their previous financial contribution.

9 The commencement and completion of the liquidation procedure shall be publicised in accordance with the provisions of the legislation applying to the category of legal entity to which the Grouping belongs. They shall also be notified by the liquidator(s) to all the states to whose jurisdiction the Grouping’s members are subject.

Text of Protocol No. 3
APPENDIX to Protocol No. 3

Explanatory note

Paragraph 1 corresponds to Article 8.1 of Protocol No. 3, which it expands upon by setting out the conditions for extending the duration of ECGs set up for limited periods of time.

Paragraphs 2 and 3 list the cases where ECGs are wound up ipso facto or ahead of time.

Paragraph 4 governs what happens to staff members recruited for an indefinite duration when the ECG which employed them is wound up: it proposes that they be taken on by the members of the dissolved Grouping (see the explanatory note under Section XX.2).

Paragraphs 5 and 6 deal successively with the liquidation of ECGs and the details of liquidation.

Paragraphs 7 and 8 require each member to contribute to paying off any debts which the ECG contracted but is unable to honour and then indicate the basis for dividing surplus assets or, if the assets are insufficient, outstanding liabilities between the members of the Grouping.

Paragraph 9 governs the publicity to be given to the commencement and completion of the liquidation procedure.

The wording of paragraphs 1, 4, 5, 6, 8 and 9is based respectively on Articles 64.2, 65.3, 65.1, 65.2, 65.4 and 66 of the revised preliminary draft uniform law on territorial co-operation groupings (doc. CDLR 2006-17 of 27 April 2006). The wording of paragraph 7 is based on Article 11.3 of the Genevan Law of 14 November 2008 on transfrontier co-operation bodies (LOCT).

Text of Protocol No. 3

Article 9 – Liabilities

1 The ECG – or, if its assets are not sufficient, its members jointly – shall be liable with regard to third parties for its acts, including debts of whatever nature, even if those acts do not fall within its tasks.

4 If a member of the ECG has only limited liability in accordance with the national law to which it is subject, the other members may also limit their liability in the statutes.

APPENDIX to Protocol No. 3

XXIX. Financial liability of the ECG and its members (Article 9.1 and 9.4 of the Protocol)

1. The Grouping shall be bound to meet the cost of its debts.

2. If the Grouping is unable to meet its obligations of whatever nature, its members shall take on its debts. They shall not be jointly and severally liable in relation to third parties. The statutes shall determine the apportionment of the burden among the members. Otherwise, each member’s share shall be set in proportion to their financial contribution.

3. Former members of the Grouping shall remain liable, in the same proportion, for payment of the debts arising from activities of the Grouping conducted when they were members, until the extinction of such debts.

4. If the liability of at least one member of the Grouping is limited or excluded by the national law governing it, the founding agreement may provide for the sharing of the subsidiary liability of all the members and limit the liability of the other members in the same proportion.

5. In this case, the Grouping shall cover the risks specific to its activities by:

a. taking out appropriate insurance policies; or

b. obtaining a guarantee from a bank or other financial institution established within national territory; or

c. benefiting from a facility provided as a guarantee by the state of *** or by any legal entity under *** public law.

Text of Protocol No. 3
APPENDIX to Protocol No. 3

Explanatory note

In paragraph 1, it is suggested that preference be given to the wording “The Grouping shall be bound to meet the cost of its debts”rather than that used in Article 9.1 of Protocol No. 3 and Article 12 of Regulation (EC) No. 1082/2006: “The Grouping shall be liable for (all) its debts”, which seems meaningless if the term “debt” only means a sum of money owed.

Paragraph 2 provides that, insofar as the assets of a Grouping are insufficient to honour its commitments, each of its members is required to take on its share of them, such share being laid down in the statutes or, in the absence of specific provisions in the statutes, in proportion to its financial contribution. The wording is based on Article 9.3 of the Genevan Law of 14 November 2008 on transfrontier co-operation bodies (LOCT).

Paragraph 3 concerns three specific cases: the withdrawal or exclusion of a member and the winding up of the Grouping. In all three cases, former members remain liable for payment of their share in the debts until the extinction thereof.

Paragraphs 2, 4 and 5 take account of the proposals for amending Regulation (EC) No. 1082/2006 concerning:

- each member's share in the payment of the ECG's debts in the event of its default,

- the arrangements for sharing in the event of the liability of at least one of the members being limited or excluded by its national law,

- and the requirements in that case to include these arrangements in the founding agreement and to take out insurance for the liability of the ECG or provide for it to be covered by an appropriate financial guarantee.^{^[28]}

The wording of the proposals is principally based on Article 14.3 of the Karlsruhe Agreement or the Brussels Agreement and Article 12 of the draft new Benelux Convention on transfrontier and interterritorial co-operation.

Text of Protocol No. 3

Article 9 – Liabilities

2 The ECG shall be liable to its members for any breach of the law to which it may be subject.

APPENDIX to Protocol No. 3

XXX. Liability of the ECG (Article 9.1 and 9.2 of the Protocol)

1. The Grouping shall assume all the obligations deriving from its commitments.

2. The Grouping shall be liable to its members for any breaches of this law, the statutes or other laws to which it is subject.

3. The Grouping shall be liable with regard to third parties for the acts of its management bodies and staff, even where such acts do not fall within its tasks, provided that the said acts do not exceed the powers which *** law confers or authorises to be conferred on those bodies or staff.

4. Where the damage has been caused intentionally or as a consequence of the serious negligence of a member of staff or one or more members of a body of the Grouping, the Grouping shall be entitled, even following the termination of duties, to institute proceedings against the members of staff or members of that body, jointly or severally, as appropriate.

Explanatory note

Paragraph 1, which states the obvious in that "The Grouping shall assume all the obligations deriving from its commitments", repeats the rule whereby the ECG "shall be liable with regard to third parties for its acts" (Article 9.1 of Protocol No. 3).

Paragraph 2 repeats the rule set forth in Article 9.2 of Protocol No. 3. It corresponds to Article 10.3 of Regulation (EC)No. 1082/2006 on the EGTC.

Paragraph 3 clarifies and elaborates on the rule regarding the liability of the ECG vis-à-vis third parties contained in Protocol No. 3.

Paragraph 4 proposes that the ECG, whose liability has been held liable as a result of a serious or intentional error by a member of staff or a member of a body of the Grouping, be entitled to institute proceedings against the persons at fault.

The wording of the provisions in this Section is based directly on Article 58 of the revised preliminary draft uniform law on territorial co-operation groupings (doc. CDLR 2006-17 of 27 April 2006) and, with regard to paragraph 3, on Article 9.2 of the Genevan law of 14 November 2008 on transfrontier co-operation bodies (LOCT).

Text of Protocol No. 3

Article 9 – Liabilities

3 The organs of the ECG shall be liable with regard to the ECG for any breach of law they have committed in the exercise of their functions.

APPENDIX to Protocol No. 3

XXXI. Liability of the ECG's organs vis-à-vis the Grouping (Article 9.3 of the Protocol)

1. The Chair, Vice-Chair or Vice-Chairs, members of the Board and the Director General shall be liable vis-à-vis the Grouping, jointly or severally, as appropriate, for any breach of this law, the statutes or other laws to which the Grouping is subject, committed in the exercise of their duties.

2. The question of their liability vis-à-vis the Grouping may be raised either by the Grouping itself, by the *** state or by the states to whose jurisdiction the foreign members of the Grouping are subject.

Explanatory note

Paragraph 1 clarifies the rule set forth in Article 9.3 of Protocol No. 3.

Paragraph 2 proposes that the states to whose jurisdiction the members of the ECG are subject also have the right to raise the question of the personal liability of the management bodies vis-à-vis the Grouping.

The wording of the provisions in this Section is based directly on Article 59 of the revised preliminary draft uniform law on territorial co-operation groupings (doc. CDLR 2006-17 of 27 April 2006)

Text of Protocol No. 3

Article 10 – Dispute settlement

1 In the event of a dispute between the ECG and its members, the competent courts shall be those of the State in which the ECG has its headquarters.

2 In the event of a dispute between the ECG and a third party, the competent courts shall be those of the state in which the third party effectively resides or, in the case of a legal person, the State in which its seat or headquarters is located, as long as these States are member States of the Council of Europe.

4 Third parties shall retain, vis-à-vis territorial communities or authorities on behalf of which the ECG performs certain tasks, all the rights they would enjoy if those tasks were not performed by the ECG.

5 In any case the rights of individuals and legal persons shall include the right to appeal before all competent organs and courts, including the right of access to services in their own language and the right of access to information.

APPENDIX to Protocol No. 3

XXXII. Judicial settlement of disputes (Article 10.1, 10.2, 10.4 and 10.5 of the Protocol)

1. In the event of a dispute between the Euroregional Co-operation Grouping and its members, members of management bodies or members of staff with regard to its activities, jurisdiction shall be determined by the domestic law of the state on whose territory the Grouping’s headquarters is located. This rule shall be without prejudice to paragraph 4.

2. In the event of a dispute between a Euroregional Co-operation Grouping and a third party, the competent courts shall be those of the Council of Europe member state in which the third party has his or her primary residence, or in the case of a legal entity, the state in which one of its seat or headquarters is located.

3. Paragraphs 1 and 2 shall be without prejudice to the provisions of the international treaties entered into by the *** state [and European Union law] regarding jurisdiction and which could apply to disputes in which a Euroregional Co-operation Grouping is a party.

4. Third parties shall retain, vis-à-vis the territorial community or authority on whose behalf the Grouping performs certain tasks in accordance with the provisions in Section XXVI, all the rights they would enjoy if those tasks were not performed by the Grouping. The competent courts shall be those in the state to whose jurisdiction the territorial community or authority on whose behalf the Grouping is performing the said tasks is subject.

5. Nothing in this law may be relied on to adversely affect the scope and exercise of the rights of appeal available under the domestic law of other states to natural persons subject to the jurisdiction of those states against public-law legal entities which are members of the Grouping, in respect of:

a) administrative decisions for implementation of the deliberations of the Grouping;

b) access to services in their own language; and

c) access to information.

Text of Protocol No. 3
APPENDIX to Protocol No. 3

Explanatory note

Paragraphs 1 and 2 reformulate the rules laid down in Article 10.1 and 10.2 of Protocol No. 3. Paragraph 1 retains the rule of the jurisdiction of the courts of the state in which the ECG has its official headquarters in the event of a dispute between the Grouping and its members, subject to the reservations set out in paragraph 4. Paragraph 2, like Article 10.2 of the Protocol, assigns jurisdiction to the courts of the state in which the third party has his or her primary residence [29] or in which one of its seats or headquarters is located, provided that the state in question is a member of the Council of Europe. It does not specify the competent courts where the third party resides or operates, even in part, in a state which is not a member of the Council of Europe. In such cases, paragraph 2 of Section XXXII imposes an obligation of arbitration.

Paragraph 3 circumscribes the application of European Union law and the law of international treaties regarding jurisdiction, in the same way as Regulation (EC) No. 1082/2006 in respect of their application to disputes in which EGTCs are a party. In this connection, it specifies the limits of the applicability of Article 10.1 and 10.2 of Protocol No. 3. An international convention or a European Union rule – for example, Chapter II of Regulation (EC) No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters — could acknowledge the jurisdiction of the courts in a state other than that indicated in paragraphs 1 and 2 of this Section, for example the courts in a non-member state of the Council of Europe.

Paragraph 4 clarifies the provision laid down in Article 10.4 of Protocol No. 3. It refers to the mandate, concession or delegation of public services assigned to the ECG by one or more territorial communities or authorities which are members of the Grouping, as provided for under Section XXVI. In the event of a dispute arising from these activities, injured third parties can apply to the courts of the state to whose jurisdiction the territorial communities or authorities on behalf of whom the ECG has acted are subject. The wording is based on Article 61.3 of the revised preliminary draft uniform law on territorial co-operation groupings (doc. CDLR 2006-17 of 27 April 2006).

Paragraph 5 gives effect to Article 10.5 of Protocol No. 3, circumscribing its application to the judicial rights of appeal guaranteed by the domestic law of the states to whose jurisdiction the foreign members of ECGs established under *** law are subject. Although Article 10.5 does not formally specify against whom the appeal may be submitted, nor the competent courts, it is possible to conclude from a comparison of Article 15.3 of Regulation (EC) No. 1082/2006 with this provision – which is worded in a more general way – that those under an obligation to uphold the rights protected by virtue of the Protocol are both the ECG and its members, and that the competent courts are those in the state in which those right-holders reside or have their operational units. The wording in this paragraph is based on Article 10.2 of the Geneva law of 14 November 2008 on transfrontier co-operation bodies (LOCT), combined with Article 15.3 of Regulation (EC) No. 1082/2006.

Text of Protocol No. 3

Article 10 – Dispute settlement

3 Notwithstanding the provisions of paragraph 2, the ECG, the territorial communities or authorities, other public or private law entities concerned and third parties may conclude an arbitration agreement. If a third party´s residence, seat or headquarters is not located in the territory of a member State of the Council of Europe, the ECG shall conclude an arbitration agreement for all activities with this party.

APPENDIX to Protocol No. 3

XXXIII. Arbitration (Article10.3 of the Protocol)

1. Notwithstanding all contrary legal provisions, the Euroregional Co-operation Grouping and the territorial communities or authorities and other *** members of the Grouping may conclude an arbitration agreement with third parties.

2. The prior conclusion of an arbitration agreement is mandatory when the Grouping enters into contractual relations with a third party primarily residing or having its seat or headquarters in a state which is not a member of the Council of Europe. Notwithstanding the rule laid down in paragraph 2 of Section XXXII, such an agreement excludes from the jurisdiction of the courts of the state in which the third party has his or her primary residence, or one of its seats or headquarters, any subsequent dispute between the Grouping and the third party with regard to the non-performance of their respective duties.

Explanatory note

The aim of paragraph 1 is to authorise arbitration between the ECG or its members and third parties, despite the frequently made prohibition for public-law entities to make use of this judicial remedy. It corresponds to the first provision of Article 10.3 of Protocol No. 3, while specifying that the members of the ECG entitled to conclude such arbitration agreements, are exclusively those, like the grouping itself, that are bound by the law in the legislating state.

The agreement may be, but does not have to be, concluded before the dispute arises.

Paragraph 2 is intended to clarify and supplement paragraph 2 of Section XXXII which assigns jurisdiction to the courts of the state in which the third party has his or her primary residence[30] or has a seat or headquarters only if that state is a member of the Council of Europe.

Accordingly, the first provision lays down the requirement for the conclusion of a prior arbitration agreement in cases where the third party has neither his or her primary residence norseats or headquarters in a Council of Europe member state, in accordance with the second provision of Article 10.3 of the Protocol.

The second provision of paragraph 2 of this Section precludes the jurisdiction of courts in the state in which the third party has his or her primary residence or in any state where another seat or headquarters of the third party is situated once the arbitration agreement is put in place with a view to resolving disputes relating to the non-performance of the respective duties of the ECG and the third party. This is the implicit, but clear, consequence of Article 10.3 of Protocol No. 3.

Text of Protocol No. 3

Article 11 – Supervision, administrative and judicial review

1 Decisions and acts of the ECG shall be subject to the same supervision and administrative and judicial review of the legality of acts of territorial communities or authorities as those required in the State in which the ECG has its headquarters.

2 The ECG shall comply with information requests made by the authorities of the States to which the territorial communities or authorities belong. The supervisory authorities of the Parties shall endeavour to establish means of appropriate co-ordination and information.

APPENDIX to Protocol No. 3

XXXIV. Administrative review of legality (Article 11.1, 11.2 and 11.4 of the Protocol)

1. The acts and deliberations of a Euroregional Co-operation Grouping established under public law shall be subject to the same administrative review of legality as that which applies to the acts and deliberations of *** territorial communities or authorities. If the Grouping includes *** communities or authorities subject to different review rules, the administrative review of the acts and deliberations of the Grouping shall be carried out in accordance with the rules applicable to … (to be specified by the legislating state).

2. The supervisory authority of such a Grouping shall also ensure protection of the interests of public-law legal entities, which are members of the Grouping and which are subject to the jurisdiction of other states.

3. The supervisory authority of such a Grouping and the competent authorities for supervising the various members of the Grouping shall provide all the information requested and inform each other of the measures they intend to take and the results of their review.

4. As an exception to the above, the statutes of a Euroregional Co-operation Grouping established under *** public law comprising several states or one state and one or more autonomous public communities or institutions vested with their own legislative power may provide that the acts and deliberations of the Grouping shall be subject to the supervision of an authority common to these states, communities or institutions. The common supervisory authority shall comprise representatives of the competent authorities for the supervision of the various members of the Grouping. It shall verify the compliance of the Groupings’ decisions with *** law, the statutes and ensure that the interests of all legal entities which are members of the Grouping are protected. The procedure shall remain subject to *** law.

5. Any Euroregional Co-operation Grouping must comply with requests for information from the administrative authorities to whose supervision the foreign members of the Grouping are subject by the law of their respective state.

6. Where a Grouping carries out an activity contrary to public policy, public security, public health, public morality or the general interest of a state to whose jurisdiction one or more of its foreign members are subject, the competent authority of that state may prohibit that activity on its territory or notify the Grouping that it is opposed to the members which are subject to its supervision continuing to be part of the Grouping, unless the latter ceases the activity in question.

7. Where a grouping established under foreign law carries out on *** territory an activity contrary to public policy, public security, public health, public morality or the general interest, the competent *** authority^{^[31]} shall prohibit that activity or notify the Grouping that it is opposed to the *** members of the latter continuing to be part of it, unless the Grouping ceases the activity in question on *** territory. Such notification shall be duly substantiated.

Text of Protocol No. 3
APPENDIX to Protocol No. 3

Explanatory note

Paragraphs 1 to 4 in this Section concern review of the legality of the activities of ECGs established under public law subject to the jurisdiction of the legislating state. Paragraphs 5 and 6 make provision for the occasional supervision of all ECGs, established under either private or public law.

In accordance with Article 11.1 of Protocol No. 3, paragraph 1 provides that the substance of and arrangements for the administrative review of public-law ECGs shall be the same as those for the administrative review of the acts and deliberations of *** territorial communities or authorities. The rule is more detailed than is provided for in Article 6.2 of the first Additional Protocol, which states”[m]easures taken by a transfrontier co-operation body set up under an agreement shall be subject to the supervision provided for in the law of the state in which the body's headquarters are located”. Nonetheless, the Grouping may comprise *** communities or authorities subject to different supervision rules, either because they belong to different categories, or because they are subject to the jurisdiction of different public institutions or communities with their own legislative power in the legislating state. In such cases it is suggested that the legislative body subject the administrative review of the acts and deliberations of the Grouping to its own rules, drawing on the principles inherent in the rules in force regarding the different categories of territorial communities or authorities subject to the jurisdiction of the state in which the Grouping’s headquarters is located.

Paragraph 2 obliges the supervisory authority to take account of the interests of the foreign members of the Grouping. It reflects the concern expressed in Article 11.1 of Protocol No. 3, which merely restates a rule laid down in Article 6.2 of the first Additional Protocol: “(…) although the interests of territorial communities or authorities in other states must also be respected.”

Paragraph 3 provides for the exchange of information and consultation between the supervisory authority of a Grouping established under *** public law and the competent authorities for supervision of the members – both national and foreign – of this Grouping. It reflects a further concern expressed in Article 11.2 of Protocol No. 3, first stated in Article 6.2 of the first Additional Protocol: “[t]he supervisory authorities of the Contracting Parties shall endeavour to establish means of appropriate co-ordination and information.”

The proposals appearing in paragraph 4 are based on Article 55.3 of the revised preliminary draft uniform law on territorial co-operation groupings (doc. CDLR 2006-17 of 27 April 2006), and Article 13.2 of the draft new Benelux Convention on transfrontier and interterritorial co-operation. They call for the establishment of a common administrative authority to supervise a public-law ECG of which at least two members have their own legislative power.

Paragraph 5 obliges any ECG established under domestic law to comply with information requests made by the competent authorities for supervising the foreign members of this Grouping, as stipulated in Article 11.2 of Protocol No. 3. The same requirement is seen in Article 6.2 of the first Additional Protocol: “The transfrontier co-operation body shall comply with information requests made by the authorities of the states to which the territorial communities or authorities belong.”

The proposals set out in paragraphs 6 and 7 are based on Article 57 of the revised preliminary draft uniform law on territorial co-operation groupings (doc. CDLR 2006-17 of 27 April 2006).

Text of Protocol No. 3
APPENDIX to Protocol No. 3

Paragraph 6 concerns cases where the authorities of the state to whose jurisdiction one or more foreign members of the ECG are subject prohibit on their territory those of the Grouping’s activities which they regard as contrary to public policy or the general interest, or where they demand that those members cease to belong to the Grouping, in accordance with Article 11.4 of the Protocol.^{^[32]} Notification of this demand is deemed to be grounds for withdrawal under paragraph 3 of Section X.

Paragraph 7, which concerns ECGs established under foreign law, to a certain extent constitutes the corollary of paragraph 6. The jurisdiction of the legislating state vis-à-vis *** members of such ECGs can be justified by the fact that the activities deemed to be contrary to public policy or the general interest take place on its territory. This jurisdiction does not oblige the legislature of the state whose law primarily governs the ECGs to consider notification by the competent *** authority as a grounds for withdrawal.

Text of Protocol No. 3

Article 11 – Supervision, administrative and judicial review

APPENDIX to Protocol No. 3

XXXV. Judicial review of legality (Article 11.1 and 11.5 of the Protocol)

1 At the request of the administrative or judicial authority responsible for supervision of the Grouping or at the request of the competent authority of a state to whose jurisdiction one or more foreign members of the Grouping are subject, the court specified by *** law shall declare that the founding agreement is null and void if it is inconsistent with the provisions of this law. Where rectification is possible, the relevant court shall allow time for such action to be taken. Nullity of the founding agreement shall entail its liquidation under the conditions laid down in Section XXVIII.

2 The acts and deliberations of a public-law Euroregional Co-operation Grouping shall be subject to the same judicial review of legality as that applying to the acts and deliberations of *** territorial communities or authorities.

3 At the request of either of the authorities referred to in paragraph 1, the court specified by *** law shall order the winding up of the Grouping which acts contrary to the aim and purposes for which it was established and outside the confines of the tasks entrusted to it. Before issuing a final decision, the relevant court shall allow time for the situation to be remedied if such rectification is possible.

4 The competent authorities of all states to whose jurisdiction the members of the Grouping are subject shall be informed without delay of the court decision regarding nullity or ordering the winding up of the Grouping.

Explanatory note

The proposals set out in paragraphs 1 and 4 are based on Article 67 de the revised preliminary draft uniform law on territorial co-operation groupings (doc. CDLR 2006-17 of 27 April 2006).

The national authority responsible for supervising the ECG which refers the matter to the competent court within the meaning of paragraph 1 will be an administrative authority if the Grouping is a public-law entity; it will be a judicial authority (the public prosecution service) if the Grouping is a private-law entity. Under the same paragraph, the competent foreign authority will be the one responsible for the review of legality within a state to whose jurisdiction one or more foreign members of the Grouping are subject. As the agreement establishing the ECG is declared null and void retroactively by the court judgment, there is no need to wind up the Grouping, but simply to liquidate it (see paragraph 5 of Section XXVIII).

Paragraph 2 reiterates the rule laid down in Article 11.1 of Protocol No. 3, but may apply only to public-law ECGs.

Paragraph 3 reformulates the rule laid down in Article 11.5 of Protocol No. 3 and Article 14 of Regulation (EC) No. 1082/2006 on the EGTC. In the case in question, the relevant court shall order the liquidation of the Grouping (see paragraph 3 of Section XXVIII).

Text of Protocol No. 3

Article 12 – Financial audit

1 The management and budget implementation of the ECG shall be subject to financial audit in accordance with the national law of the Party in which it has its headquarters. This State shall inform the other States whose territorial communities or authorities are members of the ECG without delay of the results of the audit and of the measures taken concerning the ECG.

2 Any other State implicated either by its direct participation in the ECG or through the participation of its territorial communities or authorities or other legal persons listed in Article 3, paragraph 1, may, only on its territory and in accordance with the national law applicable, carry out a financial audit of the ECG. The ECG and the States of the members shall be informed in advance.

APPENDIX to Protocol No. 3

XXXVI. External financial supervision (Article 12 of the Protocol)

1. The Grouping’s balance sheet and profit and loss account shall be certified by auditors independent from the members comprising the Grouping, in accordance with the rules applicable to the external financial supervision of legal entities established under the same laws as the Grouping and with internationally accepted audit standards.

2. The audited accounts shall be forwarded to the supervisory authorities of each member of the Grouping. The management bodies of the Grouping shall provide any additional information required for supervision by both the *** and foreign competent authorities.

3. If the *** state is a member of a Grouping established under foreign law, it may arrange for external financial supervision of the activities of this Grouping on national territory, in accordance with *** rules in this area. This shall also apply to the supervisory authority to which any *** member of this Grouping is subject. The results of the audit shall be forwarded to the competent authorities in the foreign state upon the latter’s request.

4. The supervisory authority of a *** public-law Grouping shall exchange with the foreign states that are members of the Grouping or to whose jurisdiction the foreign members of the Grouping are subject the necessary information for the financial supervision of the Grouping’s activities on the territory of those states.

Explanatory note

Paragraph 1 in this Section provides for the mandatory external supervision of the financial management of the ECG subject to the legislation of the state in which the Grouping’s headquarters is located, in accordance with Article 12.1 of Protocol No. 3. This supervision relates to the balance sheet and profit and loss account. Where applicable, the legislation which is declared to be applicable must comply with ”internationally accepted audit standards”, to quote the expression used in Article 6.3 of Regulation (EC) No. 1082/2006 on the EGTC.

As Article 12.1 also requires all other interested states to be informed of the results of the audit, paragraph 2 obliges all ECGs to forward the audited accounts to the supervisory authorities of each member of the Grouping. The wording of this paragraph is taken in part from Article 6.5 of the Genevan law of 14 November 2008 on transfrontier co-operation bodies (LOCT).

Paragraph 3 is intended to facilitate the application of Article 12.2 of Protocol No. 3, which provides that any interested state may arrange on its territory for financial supervision of the activities of an ECG established under legislation which is not its own. It applies to a Grouping established under foreign law whose members include the legislating state or legal entities subject to its own domestic law. It is suggested that the financial supervision of the activities of this Grouping on the national territory can be carried out either at the request of the legislating state itself, or at the request of the supervisory authority of any member subject to the jurisdiction of that state. The results of the audit must be forwarded to the competent foreign authority for supervision of the ECG. It should be noted that this obligation cannot be extended to private-law ECGs which, in principle, are not subject to administrative review by any authority likely to request such information.

Text of Protocol No. 3
APPENDIX to Protocol No. 3

Lastly, paragraph 4 refers to the financial supervision which a foreign state may carry out on its territory in respect of members of an ECG established under *** law subject to the jurisdiction of that state. This is not a matter which falls within the competence of the legislating state; it is for this reason that the proposed wording in this paragraph merely states that the supervisory authority of a GEC established under *** public law must obtain the appropriate information from the competent authorities of the other interested states.^{^[33]}

Text of Protocol No. 3

Article 15 – Applicability of other treaties

This Protocol shall not affect the applicability of treaties existing between the Parties in matters of transfrontier or interterritorial co-operation or the ability of the Parties to conclude new treaties on the subject if they so wish.

APPENDIX to Protocol No. 3

XXXVII. Applicability of existing treaty rules (Article 15 of the Protocol)

The existence and the powers and responsibilities of bodies under *** law established in accordance with treaties negotiated by *** in the field of transfrontier or territorial co-operation shall be unaffected by this law.

Explanatory note

The provision is based on Article 68 of the revised preliminary draft uniform law on territorial co-operation groupings (doc. CDLR (2006) 17 of 27 April 2006). Its aim is to ensure that the legal rules established on the one hand by Protocol No. 3 and on the other by treaties negotiated in this field with other States Parties to the Protocol can co-exist.

Text of Protocol No. 3

Article 16 – Scope of Application

1 Each State shall, in a declaration deposited with the Secretary General of the Council of Europe at the time of ratification, acceptance, approval or accession, designate the categories of territorial communities or authorities and legal persons mentioned under Article 3, paragraph 1, which it excludes from the scope of this Protocol.

APPENDIX to Protocol No. 3

XXXVIII. Exclusion from the scope of application (Article 16.1 of the Protocol)

This law shall not apply to the following categories of territorial communities or authorities [to be specified].

Nor is it applicable to the following categories of legal persons, governed by *** law: … [to be specified]

Explanatory note

Under paragraph 1 of Article 16 of the Protocol each state is required, when it deposits its instrument of ratification, acceptance, approval or accession, to designate the categories of territorial communities or authorities and of other legal entities which it intends to exclude from the scope of the Protocol. Ideally, the declaration deposited with the Secretary General of the Council of Europe to this effect should be the subject of a prior decision by the legislative body of that state, in particular to enable the scope of Sections II and V to be clearly delimited. If a State Party subsequently decides to modify this list, this too should preferably be subject to a prior decision of the legislative body of that state.

Text of Protocol No. 3

Article 18 – Terms and definitions

The terms and definitions used in this Protocol have the same meaning and purpose as the same terms and definitions given in the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities, its Additional Protocol and Protocol No. 2.

APPENDIX to Protocol No. 3

XXXIX. Terms and definitions (Article 18 of the Protocol)

1 For the purposes of this law, the following definitions shall apply:

· “territorial communities or authorities”: public communities, institutions or authorities exercising local and regional functions and regarded as such under the domestic law of the state to whose jurisdiction they are subject, and Groupings of such public communities, institutions or authorities within the jurisdiction of the same state; autonomous public communities or institutions vested with their own legislative power under the law of the state to whose jurisdiction they are subject shall also be regarded as “territorial communities or authorities”;

· “transfrontier co-operation”: any concerted action designed to promote, support and develop, for the benefit of the local populations, relations between territorial communities or authorities located in adjoining areas within the jurisdiction of two or more states, including the conclusion of agreements with the territorial communities or authorities of other states;

· “interterritorial co-operation”: any concerted action designed to promote, establish and develop, for the benefit of the local populations, relations between territorial communities or authorities within the jurisdiction of two or more states, other than relations of transfrontier co-operation between neighbouring authorities, including the conclusion of agreements with the territorial communities or authorities of other states;

· “transfrontier co-operation agreement”: any agreement coming under one or more national legal systems, concluded by territorial communities or authorities located in adjoining areas within the jurisdiction of different states, or by ECGs with these communities or authorities in their common fields of competence, in conformity with each state’s own constitutional provisions, in accordance with the applicable national laws and according to the procedures laid down therein;

· “interterritorial co-operation agreement”: any agreement coming under one or more national legal systems, concluded by territorial communities or authorities located in non-adjoining areas within the jurisdiction of different states or by ECGs with these communities or authorities in their common fields of competence, in conformity with each state’s own constitutional provisions, in accordance with the applicable national laws and according to the procedures laid down therein;

· “Protocol No. 3”: the protocol to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities concerning Euroregional Co-operation Groupings (ECGs) opened for signature in Utrecht on 11 November 2009.

· “Headquarters”: the premises of an ECG (or one of its premises) constituting its registered office and indicated in its statutes.

2. Unless expressly provided otherwise in this law, the term “Grouping” shall mean a Euroregional Co-operation Grouping (ECG) under *** law.

APPENDIX to Protocol No. 3

Explanatory note

Since Protocol No. 3 has been opened for signature by states which have not signed the Additional Protocol of 9 November 1995 to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities nor Protocol No. 2 concerning interterritorial co-operation of 17 March 1998, it was deemed appropriate to reproduce, in a systematic manner, the definitions given by the Outline Convention and its three protocols and thereby to enable these concepts to be expressly introduced in domestic law.

In the first bullet point of paragraph 1, the generic term “institutions” has been added to the public communities or authorities exercising local or regional functions so that the term “territorial communities or authorities” also encompasses public bodies with limited territorial competence, Groupings of territorial communities and other public-law entities. The term "authorities exercising local or regional functions” is more a reference to the organs of public-law legal entities with limited territorial competence.

In accordance with Article 16.2 of Protocol No. 3, autonomous public communities or institutions vested with their own legislative power are also regarded as “territorial communities or authorities.”

By virtue of the definitions of transfrontier co-operation agreements and interterritorial co-operation agreements given in this Section, written agreements establishing an ECG and laying down its statutes, as an integral part of the agreement in question, can also qualify as such agreements. Each contracting territorial community or authority’s capacity to enter into such agreements is determined by the constitutional and legal provisions of its national law.

The term “headquarters” shall mean the sole or main head office of any legal entity provided it is specified in that entity’s statutes. It is not imperative for this to be where the ECG’s central administrative offices are located.

Paragraph 2 implies that the only ECGs for which a State Party to Protocol No. 3 may draw up a detailed statute in accordance with this Appendix, are those governed by the law of that state. As a result of the principle set out in Article 2 of the Protocol, such groupings must have their official headquarters in the territory of that state.

The jurisdiction of the legislating states vis-à-vis these ECGs is also determined by the *** nationality of the territorial communities or authorities which are members thereof, but it may also apply to the participation of foreign territorial communities or authorities, specifically or in a manner similar to national territorial communities or authorities (see Sections II.2, V.1 and 3, VII.4, XVI, XVII.4, XXIII.2, XXIV.1 and 2, XXVI, XXVII.2, XXIX, XXXII. 1 and 4)

Furthermore, the jurisdiction of the legislating state also extends to the activities of ECGS established under foreign law on *** territory, where the legislature of the state to whose jurisdiction this territory is subject so decides (see Sections XXV, XXXIV and XXXVI.3).

By exception, the provisions of the Appendix applying to all ECGs, regardless of the national law applying to them, have a multilateral scope and must be regarded as national rules relating to private substantive international law (see Sections XXIII.3 and XXV.2).

APPENDIX to Protocol No. 3

XL. Transfer of headquarters to the territory of another State Party to the Protocol (not mentioned in the Protocol)

1 Headquarters may be transferred to the territory of another state whose territorial communities or authorities are members of the Grouping. The transfer shall not give rise to the winding up of the legal entity. It shall transform the Grouping, without any break in continuity or change in purpose, into a Euroregional Co-operation Grouping, whose personality shall thereafter be governed by the national law of the state to which its headquarters has been transferred.

2 The law of the state to which the headquarters has been transferred shall nonetheless apply without prejudice to the *** rules of public policy, which shall remain applicable to the Grouping.

3 The provision in paragraph 2 of Section XXI shall be applicable to the agreement recording the transfer of the headquarters.

4 The transfer of a Grouping’s headquarters and the agreement recording the transfer and the consequent amendment of the founding agreement and the statutes shall be disclosed in the manner provided for by the legislation applying to legal entities established under the same laws as the Grouping.

5 A Grouping against which winding up, liquidation or similar proceedings have been brought may not transfer its headquarters.

6 A Grouping which has transferred its headquarters to another state shall be considered, for the purposes of any dispute arising prior to the transfer, as having its headquarters on the national territory of the state in which it was registered prior to transfer, even if an action is brought against the Grouping after the transfer.

APPENDIX to Protocol No. 3

Explanatory note

The transfer of the headquarters of an organisation to the territory of another state without the winding up of the pre-existing legal entity is possible in respect of European Economic Interest Groupings (EEIGs),[34] European Companies (ECs)[35] and European Co-operative Societies (ECSs).[36] It therefore seemed beneficial to provide for this possibility for ECGs in the Appendix to Protocol No. 3.

The consequence of transferring an ECG’s headquarters to the territory of another state under whose law certain foreign members are established is to change the national law which mainly applies to the Grouping. The point is that a change of this kind constitutes an amendment to the founding agreement - and indeed a substantial amendment for public-law ECGs (see Article 4.2 of Protocol No. 3). Under Article 6 of the Protocol, amendments of this sort must follow “the same procedures and form” as for the adoption of the original agreement (requiring unanimous approval).

The provisions in this Section are based on Article 8 of Regulation (EC) No. 2157/2001 of 8 October 2001 on the Statute for a European company, Article 7 of Regulation (EC) No. 1435/2003 of 22 July 2003 on the Statute for a European Co-operative Society, Articles 10 and 11 of the revised preliminary draft uniform law on territorial co-operation groupings (doc. CDLR (2006) 17 of 27 April 2006) and Article 15 of the draft new Benelux Convention on transfrontier and interterritorial co-operation.

The proposal in this Section contains just one exception to the change of applicable national law: compliance with the legislation on public policy in the legislating state on whose territory the ECG headquarters was formerly located. These provisions (for example, the rules governing access to public documents or the use of official languages in debates, minutes and official documents) should be upheld by the Grouping even after its transfer.

APPENDIX to Protocol No. 3

XLI. Conversion of an existing transfrontier co-operation body into an ECG (not mentioned in the Protocol)

1. The conversion of a public or private-law body having legal personality under *** law and including territorial communities or authorities subject to the jurisdiction of different states into a Euroregional Co-operation Grouping shall give rise neither to the winding-up of the existing body nor to the creation of a new legal entity.

2. The headquarters may not be transferred from one state to another in accordance with Section XL above on the occasion of the conversion.

3. The management or administrative organ of the body in question shall draw up a conversion proposal and a report explaining and justifying the legal aspects of the conversion and indicating the implications for members and staff of adopting the form of a Euroregional Co-operation Grouping.

4. The conversion proposal shall be publicised in accordance with the legislation applying to the category of legal entity to which the body belongs, at least one month before the date of the meeting of the deliberative assembly called to take a decision on the conversion.

5. The deliberative assembly of the body in question shall approve the conversion proposal and the statutes of the Euroregional Co-operation Grouping.

6. The conversion of the body in question and the resulting new statutes shall be published in the manner provided for by the legislation applying to the category of legal entity to which the Grouping belongs following the conversion.

7. The rights and obligations of the body to be converted at the date on which these formalities are completed shall be transferred automatically to the Euroregional Co-operation Grouping.

Explanatory note

The provisions in this Section are based on Article 37 of Regulation (EC) No. 2157/2001 of 8 October 2001 on the Statute for a European Company, Article 35 of Regulation (EC) No. 1435/2003 of 22 July 2003 on the Statute for a European Co-operative Society and Article 18 of the revised preliminary draft uniform law on territorial co-operation groupings (doc. CDLR (2006) 17 of 27 April 2006).

[1] In the Protocol, ECG is an acronym for Euroregional Cooperation Grouping.

[2] For example, in the United Kingdom, signed and ratified international treaties must be formally included in a law transposing them into the domestic legal system.

[3] The three asterisks correspond to the state of the legislature concerned, to its national legislation or to the nationality of the territorial communities or authorities of the state in question.

[4] Proposal for a regulation amending Regulation (EC) No. 1082/2006 of 5 July 2006 on a European grouping of territorial cooperation (EGTC) as regards the clarification, simplification and improvement of the establishment and implementation of such groupings (doc. COM(2011°610 final/2 of 14 March 2012)

[5] This document (doc. 5609/13 ADD 4 REV 1 of 25 February 2013) was approved by the Council at the Justice and Home Affairs meeting on 7-8 March 2013 pending the adoption of a position by the European Parliament at first reading. – The document used to draw up the Appendix was the version dated 8 March 2013.

[6] Staatsblad van het Koninkrijk der Nederlanden, 2009, No. 512.

[7] This is in fact the “specific national law” applicable to the Grouping’s activities in accordance with Article 8.2h) of Regulation 1082/2006 on the EGTC, as the European Commission proposes to amend it [doc. COM(2011)610 final/2 of 14 March 2012, Article 1.9]. These terms are no longer used in the compromise document drawn up by the EU Council Presidency and have been replaced by the term "national law where the EGTC carries out its tasks", the appropriateness of which is debateable.

[8] See Comparative study of the treaty provisions on ECGs and regulatory provisions on a EGTC, Council of Europe, European Committee on Local and Regional Democracy, Doc. LR-IC(2011)4 of 10 May 2011.

[9] See Article 5.1 of Regulation (EC) No. 1082/2006 which it is not proposed to amend to any significant extent.

[10] Proposal for an amending regulation, doc. COM(2011)610 final/2, recital 7.

[11] Addition proposed by the European Commission to Article 3.1.a of Regulation No. 1082/2006 on the EGTC [proposal for an amending regulation, doc. COM(2011)610 final, Article 1.3.a.

[12] Proposal for an amending regulation, doc. COM(2011)610 final/2, recital 8.

[13] For the application of European Union law, Article 3.1d) of Regulation No. 1082/2006 equates these legal entities to public law bodies.

[14] The European Commission proposes introducing this addition in Article 3.1.d of Regulation No. 1082/2006 on the EGTC [proposal for an amending regulation, doc. COM(2011)610 final, Article 1.3.a].

[15] At least in its final revised version. See Article 1 of the proposal for an amending regulation [doc. COM(2011)610 final/2], in which point 3a limits the proposed amendment to Article 3.1 of Regulation No. 1082/2006 to the first subparagraph of that paragraph, and the compromise document drawn up by the EU Council Presidency [doc. 5609/13 ADD 4 REV 1]; associations of local or regional authorities are referred to in the 2^nd subparagraph, which remains unchanged.

[16] Addition which the European Commission proposes to make to Article 8.2 of Regulation No. 1082/2006 on the EGTC [proposal for an amending regulation, doc. COM(2011)610 final/2, Article 1.9].

[17] An amendment which the European Commission is proposing to make to Article 8.2 (new point j) and Article 12 (new paragraph 2a, subparagraph 1) of Regulation No. 1082/2006 on the EGTC [proposal for an amending regulation, doc. COM(2011)610 final/2, Article 1.9 and Article 1.12b].

[18] It can nonetheless be recalled that, under Article 5 of Protocol No. 3, the statutes are an integral part of the agreement establishing the ECG (see paragraph 1 of Section IX).

[19] This obligation may nonetheless be deduced from the fact that the statutes form an integral part of the agreement establishing the Grouping, which is itself subject to this formality.

[20] See Article 10 of Regulation No. 1082/2006.

[21] Pending the adoption of a position by the European Parliament on first reading, the EU Council approved a general stance on EGTCs (doc. 5609/13 ADD 4 REV 1 of 25 February 2013) at the Justice and Home Affairs meeting held on 7-8 March 2013. This political agreement, which does not prejudge the outcome of negotiations with the European Parliament, deleted the following proposals made by the European Commission:

"The following rules shall apply to the EGTC’s staff as referred to in point (i),

(a) those of the Member State where the EGTC has its registered office;

(b) those of the Member State where the EGTC’s staff is actually located; or

(c) those of the Member State of which the staff member is a national.

To allow equal treatment of all staff working at the same location, the national laws and rules, whether of public or private law, may be subject to additional ad hoc rules fixed by the EGTC.”

(proposal to amend Article 8, paragraph 2 of Regulation No. 1082/2006, doc. COM(2011)610 final/2, Art. 1.9, second sub-paragraph)

[22] It will be noted moreover that Article 16 of this Regulation stipulates that bodies appointed by two or more European Union member states may, by common agreement, provide for exceptions to Articles 11 to 15 of that Regulation

[23] See the proposal for an amendment to paragraph 6 of Article 4 of Regulation No. 1082/2006 (doc. COM(2011)610 final/2, Article 1.5c, fourth subparagraph), itself modified by the general stance on EGTCs approved on 7-8 March 2013 by the Council of the European Union (doc. 5609/13ADD 4 REV 1 of 25 February 2013, which contains a text replacing point 5.c of the European Commission's proposal).

[24] However, as the proposal amending Regulation No. 1082/2006 stands at present, the accession must be approved solely by the state in which the prospective member is established and be notified by that state to the state in which the EGTC has its headquarters.

[25] This requirement was already set out in Article 5.2 of the first additional Protocol to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities.

[26] In its proposed amendment of Regulation (EC) No. 1082/2006, the European Commission confined itself to suggesting that the tasks of the EGTC “fall within the competence under national law of at least one member from each Member state represented in that EGTC” — i.e.: “the competence, as determined by national law, of at least one member per (EU) state from which the members of the EGTC come”. The compromise document subsequently proposed by the Presidency of the EU Council (doc. 5609/13 ADD 4 REV 1 of 25 February 2013) is far stricter: the EGTC's tasks must fall within "the competence […] of every member, unless the Member State or third country approves the participation of a member formed under its national law even where that member is not competent for all the tasks specified in the convention" founding the EGTC.

[27] The European Commission proposes introducing this exception in Article 7 of Regulation No. 1082/2006 [proposal for an amending regulation, doc. COM(2011)610 final/2, Article 1.8b]. The compromise document drawn up by the EU Council Presidency states that the assembly of an EGTC may determine the terms and conditions of use of an item of infrastructure "in compliance with applicable national [NB: doubtless that of the headquarters state] or Union law" [general stance on EGTCs approved on 7-8 March 2013 by the Council of the European Union (doc. 5609/13ADD 4 REV 1 of 25 February 2013)].

[28] See the proposed amendment to paragraph 2 of Article 12 of Regulation (EC) No. 1082/2006 (doc. COM[2011]610 final/2, Art. 1, point 12, b), as supplemented by the compromise document on EGTCs approved on 7-8 March 2013 by the Council of the European Union (doc. 5609/13ADD 4 REV 1 of 25 February 2013).

[29] The concept of ”primary” residence is preferred here to that of “effective” residence as used by Article 10.2 of Protocol No. 3. All primary residences are of course effective, but not all effective residences are necessarily primary.

[30] As in Section XXXII, the concept of ”primary” residence is preferred here to that of “effective” residence.

[31] Here, the competent national or regional administrative authority in the legislating state should be specified.

[32] This paraphrases Article 13 of Regulation (EC) No. 1082/2006 on the EGTC.

[33] This proposal is partly based on Article 6.2 of Regulation (EC) No. 1082/2006 on the EGTC, which authorises the states concerned to make arrangements for auditing, on their territory, the activities of an EGTC established under foreign law, with the assistance of the state where it has its headquarters, where this is provided for under the national legislation of those states.

[34] See Article 14 of Regulation No. 2137/85 of 25 July 1985 on the European Economic Interest Grouping (EEIG).

[35] See Article 8 of Regulation No. 2157/2001 of 8 October 2001 on the Statute for a European Company (EC).

[36] See article 7 of Regulation No. 1435/2003 of 22 July 2003 on the Statute for a European Co-operative Society (ECS).