MCL-16(2009)6b

                  Council of Europe Conference

of Ministers responsible

for Local and Regional Government

                “Good local and regional governance in

              turbulent times: the challenge of change”

                16th Session, Utrecht, 16 - 17 November 2009

Transfrontier co-operation: the role of central government in removing obstacles

Introduction

Transfrontier co-operation has been and remains one of the cornerstones of European integration. By enabling territorial authorities or communities to engage in direct dialogue, co-operation and project-management (over time), it has on the one hand helped improve the quality of life of border populations while on the other made Europe a living reality. The ideals and objectives of a united Europe have been experienced by European citizens every time they have been able to access a public utility, board a bus line or use an infrastructure that serves cities and populations on both sides of a common frontier.

Building on experiments tried at a few, pioneering European borders, the Council of Europe adopted a convention (the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities, the so-called Madrid convention) that requires its parties, whether or not Council of Europe member states, to facilitate and foster transfrontier co-operation between those authorities, with a view to reinforcing or fostering neighbourly relations between them.

The Madrid convention and its protocols

The Madrid convention has been supplemented by two protocols. The Additional protocol recognizes “the right of territorial communities or authorities under [each party’s] jurisdiction […] to conclude transfrontier co-operation agreements with territorial communities or authorities of other States in equivalent fields of responsibility”, while Protocol No 2 recognizes the right of territorial communities or authorities “to engage in discussions and to draw up, within common fields of responsibility, interterritorial co-operation agreements”.

For the purposes of implementation of the Madrid convention, the parties can conclude bilateral agreements establishing “inter alia the context, forms and limits within which territorial communities and authorities concerned with transfrontier co‑operation may act”.

The duties of the Parties to the Madrid Convention[1]  are on the one hand, to “encourage and foster” the co-operation between their respective territorial authorities or communities and, on the other, to “endeavour to promote the conclusion of any agreements and arrangements that may prove necessary for this purpose”.

In practice, the Parties have to create the legal framework within which this co-operation can take place. The adoption of specific domestic legislation may be necessary, as may be the modification of general legislation pertaining to local authorities, to remove or qualify for instance, prohibitions or restrictions to co-operation with foreign entities. On the other hand, even where the legal framework permits this co-operation, indirect, non-legal obstacles may persist.

Removing obstacles to transfrontier co-operation

These obstacles may be of very different nature. They may be linked to administrative procedures or norms. Even if permissible, co-operation may require authorisation by central authorities, that documents are translated into several languages, that contacts go through diplomatic channels, etc.  They may also be related to the different types and scope of competences of neighbouring authorities, that may not coincide, thus limiting the scope to the lowest common denominator or introducing additional complexity (more institutional partners in the relationship, for instance).

The obstacles may also be objective, well known but nonetheless huge: the languages spoken across the border may be different but without an active policy for the teaching of the neighbour’s language(s) contacts may remain sporadic, limited to the political or administrative representatives of the local communities and not involve – as it should be the case – the population at large.

Finally, the resources available for crossborder co-operation – for project design, project implementation and the building of the capacities of the authorities concerned to embark into such projects – may be very limited or non existent at local level.

In a series of surveys conducted in 2003 and 2004, the Council of Europe identified several types of “obstacles” that limit de facto crossborder co-operation. Two Committee of Ministers’ recommendations[2] not only list the most frequent and clearly perceived obstacles or hindrances, but also propose measures to be taken in order to overcome them. Significantly, the recommendations are addressed to all member states, not just the parties to the Madrid convention, as the removal of the obstacles is seen as a step facilitating accession to the Convention.

Measures to be taken in order to remove existing obstacles or avoid creating new ones

 

The Maastricht conference of 6-7 July 2009 offered an opportunity to a number of actors of crossborder co-operation in Europe to come together and share their experience. The conclusions of the conference[3] identify a number of major challenges that stand in the way of more harmonious and effective crossborder co-operation. On a number of issues, governments can take action to avoid the surreptitious creation of, or to actively remove, obstacles to crossborder relations. Some examples are given hereunder.

Before legislating on issues that may affect crossborder relationships (crossborder traffic, for instance, labour market issues, VAT, etc.) member states should analyse the impact that the changes foreseen may have on these relationships (will they make them harder or easier?). The same applies to EU legislation, whose impact on local and regional authorities’ competences and capacity to co-operate with their neighbours should be assessed in order to avoid unwelcome side-effects.

National/domestic legislation can be scrutinised in order to identify and remove possible discrepancies or inconsistencies with the overarching objective of promoting crossborder co-operation and existing European treaties ratified in order to clarify and supplement the domestic legal order with provisions aimed at making crossborder co-operation secure in legal terms. The Madrid Convention and its protocols – including the Protocol No 3 opened for signature at Utrecht – should be taken into consideration first. EU member states should also consider, if this is their case, speeding up the process leading to the adoption of the legislation enabling the implementation of EC Regulation No 1082/2006.

The implementation of crossborder co-operation projects often requires that several levels of administration (local, regional, central) and several government departments (local government, foreign affairs, the line-ministries concerned) adopt a common or a coherent position and work hand in hand. However, the perception of the importance or the difficulty of co-operation differ from one authority to another, between the local (border) level and the central level. The experience of at least one country (the Netherlands) of having a special mediator for crossborder issues between internal administrations and bodies, was found to be interesting and valuable. It may be introduced in other countries too.

The issue of insufficient specific capacity of local authorities may be tackled through dedicated agencies: the examples quoted were the Mission Opérationnelle Transfrontalière in France and the Benelux Committee on Transfrontier Co-operation, from which other states may draw inspiration.

Some countries have experience of allowing local and regional authorities to experiment flexible and innovative approaches to problem-solving, if need be in the framework, or as a result of bilateral treaties that set the limits to be respected by the territorial authorities of the countries concerned.

Also, effective crossborder co-operation depends on mutual understanding and the sincere will to co-operate. In addition to there being specific interests to promote – be it economical, social, environmental etc. – it is important that populations have respect for each other and are keen on “intercultural” dialogue. This can and should be effectively promoted through adequate domestic and European policies aimed at improving the perception and appreciation of the neighbours’ culture, language, traditions.

Final comments

As a general remark, it could also be recalled that member states’ governments should take more advantage of their country’s membership of various international and European organisations (ranging from the Council of Europe to the OECD, the OSCE and the European Union) to promote a systematic and co-ordinated approach to crossborder issues, constantly bearing in mind that being a party to the Madrid Convention implies that all their policies – and the legislative measures and programmes they adopt in the various fora to which they belong – are consistent with their duty to “encourage and foster” transfrontier co-operation.

In conclusion, the conference could be the occasion for the ministers to:

a) reaffirm the importance they attach to crossborder co-operation between territorial communities or authorities;

b) engage in a thorough appraisal of the state of and obstacles to crossborder co-operation in their respective countries, having regard to Recommendations Rec(2005)2 and 3 of the Committee of Ministers;

c) agree to raise the awareness of domestic and European decision/law makers on the (possibly negative) impact of new legislation and policies on crossborder co-operation and promote impact-assessment procedures;

d) commit themselves to envisaging the signature and ratification of the European treaties to which their country is not yet a party.

They will also discuss and select the topics for their intergovernmental co-operation activities, in the framework of the discussion and adoption of the Utrecht Agenda.