In its Cross-Border Review, the European Commission reports that border regions in a Member State generally perform less well economically than other regions in that Member State. For example, access to public services, such as hospitals and universities, is generally poorer. Navigating between different administrative and legal systems is often still complex and costly. Citizens, businesses, public authorities and non-governmental organisations told the European Commission about their, at times, negative experiences with interacting across internal borders.
As a result, the European Commission released its Communication on ‘Boosting growth and cohesion in EU border regions’ on 20 September 2017. One of the specific initiatives to improve the situation in border areas has now been taken up by the European Commission:
Mechanism for ‘overriding’ national legislation
The European Commission has proposed a mechanism which would allow a Member State to apply the legal provisions of a neighbouring Member State in a common cross-border region (EUREGIO) if the application of its own law constitutes a legal obstacle to the implementation of a joint project (an infrastructure project or the provision of a service of general economic interest).
There are two options for the mechanism, either a European Cross-Border Commitment (‘Commitment’), which is directly applicable, or a European Cross-Border Statement (‘Statement’), which requires a further legislative procedure in the Member State.
Regulation instead of Directive
The legal instrument presented by the Commission is the ‘Proposal for a Regulation of the European Parliament and of the Council on a mechanism to resolve legal and administrative obstacles in a cross-border context’ COM(2018) 373 final on 29 May 2018.
The Commission stated that it chose a Regulation because a recommendation is only non-binding and therefore too ineffective. Additionally, a Directive would not be the most effective instrument, since it would be binding on the Member State to which it was addressed in terms of the result to be achieved but would leave it to the national authorities to choose the form and the means.
As explained in Section 3.2 of the Border Regions Communication, the transposition of an EU Directive in two neighbouring Member States could create two distinct systems which then meet along internal borders. This could lead to complexity – and sometimes even legal uncertainty – and to increased costs.
The proposal for a Regulation has now been forwarded to the national parliaments of the Member States. They are now reviewing whether they believe that principles of proportionality and subsidiarity applicable to the creation of new EU legislation are respected. Any objections can be submitted until the beginning of September 2018.