Opinion 7 (1997)1 on the draft Protocol No. 2 to the european outline Convention on transfrontier co-operation between territorial communities or authorities concerning interterritorial co-operation
1. The Congress welcomes the fact that the Select Committee of Experts concurs on the need to propose legal rules governing interterritorial co-operation; this in principle corresponds to what the CLRAE was seeking in its Resolution 248.
2. The Congress is of the view that the decision to apply the same rules to interterritorial and transfrontier co-operation is a positive step, in keeping with the need for the certainty of the law. The Congress points out that from a legal angle there is no reason to have different sets of rules for the two forms of co-operation.
3. On the other hand, the CLRAE regrets that the technique chosen for drafting this additional Protocol does not offer a new opportunity to devise, at the level of the Council of Europe’s 40 member states, legal rules making it possible to regulate interterritorial and transfrontier relations in such a way as to take account firstly of the fast-changing practices of territorial communities in this sphere and secondly of the most recent developments in legal techniques applicable to such relations.
4. In the opinion of the Congress, the draft additional Protocol constitutes a useful and important stage in the development of a European legal framework for transfrontier and interterritorial co-operation activities. It stresses, however, that this is only one stage and that it is important to pursue efforts without delay with a view to developing coherent law that can govern all these forms of co-operation and which takes into account in particular the need to make mechanisms more transparent and less complex so that they are perceived not as additional technocratic constructions but as instruments for promoting a democratic Europe that is close to its citizens.
5. Moreover, it regrets that a country which for geographical or political reasons does not wish to accede to the Outline Convention on Transfrontier Co-operation (island countries, for example) cannot accede directly to the Protocol concerning interterritorial co-operation.
6. Furthermore, the Congress wishes to bring the following points to the CDLR’s attention:
a) concerning the reference to "national law" in Article 2 of the additional Protocol, it should be established that the national law in question conforms to the Council of Europe’s legal instruments and this requirement should be mentioned, at least in the Explanatory Report;
b) the question of whether it would be appropriate to remove Article 5 of the Protocol, defining the term "mutatis mutandis", remains undecided, taking into account the fact that no other international law contains such a definition;
c) the Explanatory Report should clarify the terms of Article 6 allowing an independent choice concerning Protocol No.2 to be made between public and private law structures. This would emphasize the reasons why States might be led to make a different choice from one previously made, in the context of Articles 4 and 5 of additional Protocol No.1, concerning transfrontier co-operation in the strict sense of the term;
d) consideration should be given to the possibility of adding to the text of Protocol No. 2 the provisions laid down in Article 9 of the Appendix to Resolution 248 and the cross-reference made to an Appendix concerning arbitration to resolve possible disputes.