An ex-ante assessment of the proposed European Cross-Border Mechanism (ECBM), which aims to facilitate cross-border cooperation on projects and services by resolving conflicts between national legal provisions in cross-border regions. This dossier offers a thorough analysis of this proposal and assesses preliminarily the potential effects of the proposed regulation on the German-Dutch and Dutch-Flemish border regions.

Dr. Hannelore Niesten

(With support of Dr. Nina Büttgen and Martin Unfried)

Intention – This dossier contains a multidisciplinary, ex ante analysis of the cross-border impact of the European Cross-Border Mechanism to remove legal and administrative obstacles in a cross-border context, as based on a proposed EU regulation. The main objective of this cross-border impact assessment is to examine the legal and practical possibilities of the European Cross-Border Mechanism for the border regions of Belgium, Netherlands, and Germany.

Objective – The EU’s internal border regions contribute significantly to Europe’s socio-economic wealth. Within the framework of a specific cross-border project, the proposed EU regulation envisages scope for the adaptation of national and regional legislation. In cooperation with Member States, regions, and other stakeholders, the European Cross-Border Mechanism can be a tailor-made instrument at EU level to better exploit the potential of border regions. The mechanism aims to contribute to the removal of border obstacles through commitments or declarations to be made by the responsible authorities, including, if necessary, through amendments to national legislation. EU Member States can opt for this mechanism or use existing national methods to overcome legal border obstacles hampering cross-border cooperation. Minimising the negative effects of the continuing lack of territorial, legal, and administrative coherence in border regions will have a positive effect on the European integration process.

Content – The European Cross-Border Mechanism offers positive initiatives to local actors to promote cross-border opportunities. It offers, in fact, a new, streamlined, and clear procedure (regarding time frame/application procedure) to project stakeholders and (potential) applicants dealing with border obstacles in the context of conducting of cross-border projects. At the same time, the horizontal border mechanism is to prompt Member States to recognise the (project) initiators and identified addressees of the request, and provide a well-defined timetable for the national cooperation instruments that already exist. Ultimately, obstacles hampering cross-border cooperation will be removed in an efficient way.

Added value – The added value of the European Cross-Border Mechanism for Benelux countries with an extended governance system seems somewhat more limited than for other Member States. The members of the Benelux Union already have a whole range of tailor-made and effective border instruments in place. The added value of the European Cross-Border Mechanism for the Benelux countries and border regions therefore lies mainly in an incentive to improve the current Benelux governance system. At the Benelux level, there is no horizontal legal instrument for legal adaptations outside the sectoral agreements in a cross-border context. The current Benelux governance system can therefore be supplemented by a tailor-made, horizontal Benelux mechanism. For border regions where the current set of instruments is less equipped to remove obstacles to cross-border cooperation (mainly Eastern and South European countries and border regions) due to the absence of multilateral or multilevel cooperation, the border mechanism could have a very beneficial effect. As such, it would be useful for local actors who are currently thinking up ad hoc solutions on a case-by-case basis for border regions without bilateral agreements or an effective infrastructure.

Under the proposed European Cross-Border Mechanism, the border regions (e.g. between Flanders and the Netherlands and between Germany and the Netherlands, but also between Wallonia and France) could cooperate more efficiently on the basis of an extension of the Benelux instruments. If, for example, the obstacle to cross-border cooperation cannot be solved by regional or national cooperation, a horizontal Benelux instrument could be set up in a multilevel context (Benelux) to tackle and remove the obstacle. Moreover, the collection, discussion, and agenda of legal cross-border problems could be organised more systematically by the Benelux in an institutionalised way (e.g. by converting the inspiration of the Nordic Council of Ministers/FMC into a ‘European Council for Free Movement’ for the Benelux). Such an organisation could complement the current Benelux governance system, so that cross-border cooperation can be further developed and obstacles to this cooperation can be removed more efficiently.

Instrument – The European Cross-Border Mechanism imposed from the EU in the form of a regulation can be supported. A directive would cause transposition problems for decentralised countries (e.g. Belgium and Germany) and could lead to divergent national implementation laws. The choice for a regulation is innovative, as it offers a choice between the European Cross-Border Mechanism, enabling national legislative adaptation through a commitment or a declaration, or the use of a proprietary mechanism, i.e. an existing national instrument that would produce a comparable result (obstacle removal). Despite the nature regarding the choice of instruments, the regulation will impose direct obligations on Member States to remove obstacles to cross-border cooperation based on legislative conflicts within a concrete time frame. The choice of the legal form of a regulation would, in principle, make the objective of removing these obstacles legally enforceable. Once an obstacle is identified, the political responsibility of a Member State is strengthened. The obligations imposed on Member States by the regulation would mean that a Member State could be held legally liable if, for example, its refusal to sign an obligation or statement is not accepted as objectively justified. The new legal status of the cross-border mechanism under a regulation would ultimately make the removal of obstacles to cross-border cooperation less and less dependent on the willingness and good will of governments and authorities to cooperate at several levels. The initiator of a cross-border project experiencing obstacles due to uncoordinated national legal provisions could thus follow a certain procedure with a timetable for their application with a clear addressee for their application (competent authority of the Member State). This empowerment of the applicant reduces the need for and any delay in an agreement between the two sides of the border to adjust a mismatch in the legislation.

Implementation – National implementing legislation is necessary to ensure effective use of the European Cross-Border Mechanism. The EU regulation imposes a concrete status on promoters with clearly defined powers and obligations for the competent national authorities. Provinces situated along a national border should support this basic idea of the EU regulation. It is recommended that each Member State establishes a legal model with a tailor-made governance system to achieve the objective of removing obstacles to cooperation in cross-border projects. The mechanism established under the regulation requires Member States to set up a (two-tier) mechanism for each border with a neighbouring Member State in order to remove legal obstacles to cooperation in a common cross-border region. The envisaged national and regional coordination points in all border regions could play a crucial role in dealing with the request of project initiators for the removal of obstacles to cooperation in cross-border projects. Stakeholders in cross-border projects facing such an obstacle should have the right to submit the application to the national coordination points, which should then assess the admissibility and merits of the application on a case-by-case basis – even if the Member State subsequently withdraws from the procedure to deal with the case by means other than the EU regulation.

Recommendations – This analysis suggests a number of recommendations that can improve the proposed European Cross-Border Mechanism. The implementation of the European Cross-Border Mechanism should take place within the wider debate of improving existing governance systems on the basis of existing cooperation instruments. For the implementation of the European cross-border mechanism, it is recommended that Member States include an explicit provision in their national legislation allowing for certain legal derogations for certain border regions. In addition, a framework with essential further clarifications and definitions should be provided for the own existing mechanism to comply with. After all, certain aspects remain unclear, in particular the scope of the obstacle to cross-border cooperation, the role of the actors, the expectations and powers of the coordination points, the voluntary nature, and the consequences for implementation. In addition, it needs to be made clear whether Member States or border regions (or even possibly at project level) can choose to implement the mechanism. What would happen if one Member State chooses to implement the cross-border mechanism, but the neighbouring country does not? Should the cross-border coordination points be located in each Member State? Or would it be better for them to be located only in cross-border regions? With these types of questions, it becomes clear that the procedure and certain definitions need to be considered in more detail. The procedure will hopefully be clearly described, so that it is clear to those stakeholders who want to use the European Cross-Border Mechanism.

European integration – Ultimately it is up to the Member States to, hopefully, also be convinced of the suitability of the European Cross-Border Mechanism. The European Cross-Border Mechanism established under the regulation will certainly help to minimise legal and administrative obstacles in a cross-border context as a step towards the achievement of an EU internal market. The mechanism set up at national and regional level should be brought into line with the objectives and principles of the European and Benelux cross-border mechanism. In the event that the EU regulation is not finally adopted, the explanation and the proposal should, at least, provide clear and comprehensive guidance for supporting Member States to improve interregional cooperation.