The year 2021 is starting, and with it the new seven-year Multiannual Financial Framework of the European Union. In 2018, the European Commission proposed their legislative package for a new Cohesion Policy. This package included a proposal that received much attention, both politically and scholarly: The proposal for an ECBM regulation, a legal tool that would allow border regions to use legal provisions of one member state in their region.
In my 2018 paper ‘The European Commission’s Proposal for a Cross-border Mechanism (ECBM): Potential Implications and Perspectives’ in the Journal of Property, Planning and Environmental Law, I discussed seven potential areas of contention, notably the legal basis via article 175 TFEU on shared competence on Cohesion Policy, binding or voluntary nature, compliance with the subsidiarity and proportionality principles, thematic and territorial scope, administrative burden and voluntariness. I concluded the paper by stating, that I will curiously observe the development of this proposal and what the result will be. With the European Parliament and Council of the European Union having concluded negotiations and the package being ready for adoption, I am now revisiting what happened to the ECBM proposal. In short:
The ECBM cannot be found in the final Cohesion Policy package.
This is the first time that one of the proposals of DG Regio has not made it to the final legislative package. The European Parliament published their position (EP 2019). The Council of the European Union, however, is yet due to publish its position. From the surface of it, it seems that my prediction that for some Member States the proposal would have too far-reaching consequences and that it raises complex legal questions seem to have come true. So, what happened?
From a procedural perspective, a new EU legislation requires the Commission to present a proposal, which the European Parliament and the Council of the EU, first independently examine article by article and each presenting a counter proposal. Then these two legal arms of the EU meet with the executive arm, the Commission, in so called trilogue meetings to develop a provisional common understanding. The Parliament published its resolution, developed under the lead of the rapporteur van Miltenburg in the REGI Committee, in early 2019 (EP 2019). The resolution was reportedly criticised by some MEPs as missing an opportunity to really foster cross-border development. Yet, I contend that it was a realistic position to enter into the negotiations.
Meanwhile, in the Council, Member States expressed support for the idea but raised questions about the proposal. Particularly the instrument’s voluntary nature, its extra administrative burden, the full recognition of existing mechanisms and other legal implications relating to constitutional law were questioned. The responsible Structural Measures Working Party started its examination under the Austrian presidency in 2018. At the time the Council submitted a set of questions for clarification to the legal service of the Council. To my surprise, the legal service took until February 2020 till it presented its opinion to the Working Party (Legal Service Document Number 6009/20, official opinion published in March 2020 and partially opened to the public in April 2020). The main areas of contestation, as expected, are (1), the choice of the legal basis, (2) the compatibility with the Treaties and (3) the choice of the legal instrument and voluntary nature.
With the legal opination existing, why was the file not taken up in the Council negotiations? Both the Croatian and the German Presidencies acknowledged the complex nature of the file and in particular the voluntariness, the additional administrative burden and other legal implications. One reason for the delay was likely the critical position of the German representatives in the Council. Yet, it was not only the difficult nature of the file that mattered. The regulation received a lower level of priority under both presidencies due to an urgency to finalise the files relevant to the multi-annual financial framework such as the Common Provision Regulations and the structural funds. The COVID 19 pandemic led to a number of new proposals, such as the time-sensitive Coronavirus Response Investment Initiative, or the Just Transition Fund and the Recovery and Resilience Facility requiring article-by-article examination of new proposals, and subsequent re-examination of articles that had already been negotiated.
In December 2020, the Working Party on Structural Measures, submitted a Working Paper to the German Presidency inviting delegates to examine possible ways forward, that was discussed in the last meeting in Dec 2020 on 17th December 2020. Internal sources suggest that a key question was whether the Council should continue the legislative work on the proposal.
So what happens now? The Member States will provide comments by the end of January, with a decision on the subject to be expected when the legislative subject is finalised.
In general, there are three options. First, the Council starts the article-by-article examination presenting a likely radically reworded proposal. However, with the Portuguese and the Slovenian Presidency needing to finalise the long annexes to the MFF-relevant files, the file will not make it to top of the priorities just yet. Also, internal sources suggest that only four member states (Luxemburg, Hungary, France and Slovakia) have indicated willingness to go forward. A second option is that work on the file will discontinue. Third, the European Commission has the opportunity to withdraw the proposal and make a new one. About half of the Member States seem to be willing to continue debates but on the basis of a new proposal. About 6 Member States, however, decline to continue negotiations.
Personally, I still consider that despite its boldness the Commission’s proposal gives attention to an important topic for cross-border integration: the legal and administrative challenges. In a year such as 2020, where Europe experienced the ‘big rentrée’ of borders and states closed their borders overnight, tackling legal and administrative obstacles in border regions seems evermore incumbent.
References
1. COM (European Commission) (2018a) 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. {SEC (2018) 268 final} – {SWD (2018) 282 final} – {SWD(2018) 283}, Strasbourg COM(2018) 373 final, at [https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM%3A2018%3A373%3AFIN]
2. European Parliament (2019), Resolution of 14 February 2019 on a mechanism to resolve legal and administrative obstacles in a cross-border context, 2018/0198 (COD) https://www.europarl.europa.eu/doceo/document/TA-8-2019-0118_EN.pdf?redirect
3. Legal service of the Council of the European Union (2020). European Cross-Border Mechanism – opinion of the legal service, available on https://data.consilium.europa.eu/doc/document/ST-6009-2020-INIT/en/pdf
4. Sielker, Franziska (2018). The European Commission’s Proposal for a Cross-border Mechanism (ECBM): Potential Implications and Perspectives. In: Journal of Property, Planning and Environmental Law, Issue 3, 2018, DOI: 10.1108/JPPEL-08-2018-0024
Dr. Franziska Sielker is a Lecturer for Planning and Housing at the Department of Land Economy at the University of Cambridge and Associate Member of Cambridge Centre for Planning and Housing.
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