The European Commission’s proposal for a cross-border mechanism (ECBM). Potential implications and perspectives

Publication Date08 Oct 2018
Pages219-239
DOIhttps://doi.org/10.1108/JPPEL-08-2018-0024
AuthorFranziska Sielker
SubjectProperty management & built environment,Building & construction,Building & construction law,Real estate & property,Property law
The European Commissions
proposal for a cross-border
mechanism (ECBM)
Potential implications and perspectives
Franziska Sielker
Department of Land Economy, University of Cambridge, Cambridge, UK
Abstract
Purpose The purpose of this paper is to examine the viewpoints of key stakeholders on the European
Commissions proposal for a regulation for a mechanism to resolve legal and administrative obstacles in
cross-borderregions. The mechanism known as ECBM, or European Cross-bordermechanism, was presented
as part of the legislative package for EU Cohesion Policy2021-2027. The regulation will allow one Member
State to apply their legal provision in another Member State for a concretely dened case.This proposal is
particularly interesting as it does not give further competence to the European level, but changes how
Member States may interact with one another, yet, it raises critiques as regards to its compliance with
constitutional,international and European law.
Design/methodology/approach This paper outlines themain elements of contention, which are legal
justication, state sovereignty, compliance with the subsidiarityand proportionality principle, thematic and
territorialscope, voluntariness and the administrative burden.
Findings The authorconcludes that theassessment of the voluntariness of theregulation will be crucialin
examining the regulations compliance with EU principles and suggests that a more nuanced reading as to
which parts of the regulation are voluntary is needed. The author further expects the legal text to change
substantialduringthe legislativeprocedure, in particularin regardto the thematicalscope and the bindingness.
Originality/value This piece summarises the debate currently held in the European Council and the
European Parliamentin a structured way to an interestedreadership. Examining the proposed regulationand
the arguments for and against it offers the opportunityto review the main arguments that will be raised in
any future debateon legal proposals on territorial development initiatives.
Keyword EU Cohesion Policy, EU Regional Policy, European Cross-border Mechanism,
European Territorial Cooperation, Subsidiarity, Proportionality, Cross-border cooperation
Paper type Research paper
1. Introduction
On 28
th
May 2018, the European Commission proposed a regulation for a mechanism to
resolve legal and administrative obstacles in cross-border regions as part of the Cohesion
Policy legislative package. The mechanism is known as ECBM, or European Cross-border
Mechanism. The regulation will allow one Member State to apply their legal provision in
another Member Statefor a concretely dened case. The proposal differentiates betweentwo
different forms of an ECBM: a self-executive European Cross-border Commitment and a
European-Cross-border Statement requiring a legislative procedure in the Member States.
This legal proposal is particularlyfar reaching as it touches upon fundamental questions of
The research carried out here was supported by the British Academy through a Newton International
Fellowship.
Cross-border
mechanism
219
Received10 August 2018
Accepted22 August 2018
Journalof Property, Planning and
EnvironmentalLaw
Vol.10 No. 3, 2018
pp. 219-239
© Emerald Publishing Limited
2514-9407
DOI 10.1108/JPPEL-08-2018-0024
The current issue and full text archive of this journal is available on Emerald Insight at:
www.emeraldinsight.com/2514-9407.htm
territoriality, subsidiarity and the reach of rule-of-law in an international community, such
as the European Union. It does not as such give competence to the European level or
Member States. It facilitates the use of other states sets of legislation. The proposed
legislation is subject to negotiation between the European Commission and the European
Parliament as well as the European Council as part of the negotiations of the Multi-Annual
Financial Framework 2021-2027 and connected legislative frameworks. It was prepared by
the Commissions Directorate General for Regional and Urban Policy (DGRegio). With this
proposal the European Commission reacts to an initiative commenced by one EU Member
State, namely Luxembourg, in 2015. This proposal provokes substantial debates and, as is
indicated by initial reactions of EU Member States raises considerable resistance by some
states for both its implications for national and sub-national competences and for its
compliance with constitutional,international and European law.
The purpose of this discussion paper is to, rst, summarise the history of the proposals
development, second, to summarise the upcoming legislative procedure and introduce the
stakeholder groups involved in the decision-making process as well as, third, to outline the
arguments that will be brought forward during the debate in a structured way to an
interested readership. The further development of the proposal is now subject to the
legislative procedure,with rst indications as to the direction the legislative text will take to
be expected by late fall 2018. Examiningthe proposed regulation and the arguments for and
against it offers the opportunityto highlight arguments that will be raised in this, and in any
future debate on legalproposals on territorial development initiatives.
The paper, rsts ummarises the background, idea, purpose and objective of the European
CommissionsCOM (2018a) 373 proposal for a Regulation of the European Parliament and of
the Council on a mechanism to resolve legal and administrative obstacles in cross-border
contexts. Second, the paper sketches the legislative procedure. Third, the paper assesses the
proposed regulation of the European Commission for a Cross-border Mechanism in regard to
aspects of contention between the national and European governmental level. The main
aspects are th e legal justication, state sovereignty, compliance with the subsidiarity and
proportionality principle, thematic and territorial scope,voluntariness and theadministrative
burden. Thereby the paper outlines the potential implications of this regulation should it enter
the aquis-communitaire, the body of European Union law comprising all treaties, directives,
regulations, decisions, declarations, legal acts and the Court of Justices judgements. The paper
discusses these areas of contention by introducing the arguments and counter-arguments
raised. By highlighting the different viewpoints of stakeholder groups the paper anticipates
the positions likelyto be taken by stakeholders involved in the negotiationsto come.
The paper concludes that the ECBM proposal goes beyond the mainstream
understanding of Cohesion and Regional Policy as primarily being driven by nancial
incentives. The voluntariness of the regulation will be crucial in assessing the regulations
compliance with EU principles and beyond, e.g. national constitutional law. The paper
suggests that a more nuanced reading as to which parts of the regulation are voluntary is
needed. This argument is based on the understanding that the regulation in effect proposes
three and not two mechanisms. The regulationproposes two forms of an ECBM, a statement
and a commitment, which follow a different legal procedure. However, closer scrutiny
reveals that in case of not reaching an agreement on the provisionof making use of another
countries law, an ad hoc legal resolution within thenational legal provisions may have to be
found. The outcome of the negotiationsto come depends on the different viewpoints taken in
the decision-making process. These differ not only between the institutions formally
involved in the legislative procedure, but more importantly also between the different
communities in these institutions.
JPPEL
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