Strasbourg, 10 May 2011 LR-IC(2011)4
EUROPEAN COMMITTEE ON LOCAL AND REGIONAL DEMOCRACY
COMMITTEE OF EXPERTS ON LOCAL AND REGIONAL GOVERNMENT INSTITUTIONS AND COOPERATION
COMPARATIVE STUDY OF THE
TREATY PROVISIONS ON THE EUROREGIONAL CO-OPERATION GROUPINGS (ECGS)
AND REGULATORY PROVISIONS ON A EUROPEAN GROUPING FOR
TERRITORIAL CO-OPERATION (EGTC)
prepared by the Directorate General of
Democracy and Political Affairs
Directorate of Democratic Institutions
The current document (see appendix) was drawn up, at the request of the Committee, by Professer Yves Lejeune from the Université catholique de Louvain (Belgium). It is a simplified version of the tables and observations from documents LR-IC(2010)12 and 13, which have been joined together. These documents were examined by the Committee at its meeting held from 29 to 30 November 2010.
The aim of the document is to set out the provisions from Protocol No. 3 to the Madrid Outline Convention by linking them to those in EC Regulation 1082/2006 of the European Parliament and the Council of the European Union. The comments are aimed at highlighting the similarities and variations between the two texts in order to evaluate what may be of interest in each instrument for member States, local authorities and any other entity which may use them.
This evaluation could be useful for any member State planning on signing or ratifying Protocol No. 3. It could be particularly useful for European Union member States which are subject to Regulation 1082, including in connection with its revision.
The information from the following tables could be borne in mind by Committee members on examining item 7 of the agenda of the present meeting. This item deals with the identification of subjects on which provisions still have to be drafted for inclusion in the Appendix of Protocol No. 3.
The Committee members are invited to take note of the document below.
Comparative study of the
treaty provisions on the Euroregional Co-operation Groupings (ECGs)
and regulatory provisions on a European Grouping for
Territorial Co-operation (EGTC)
There have been three stages in the Council of Europe’s work on a European Euroregional co-operation instrument:
- First, the drawing up of a preliminary draft Protocol concerning the establishment of Euroregional Co-operation Groupings (ECGs), the substantive rules of which would have been self-executing in each State Party.
- Next, preparation of a draft European Convention containing a uniform law on [transfrontier] territorial co-operation groupings ([T]TCGs), a law which every State Party would have had to incorporate as it stood into its domestic law.
- Lastly, complete restructuring of the initial preliminary draft Protocol on Euroregional Co-operation Groupings (ECGs), identifying a minimum core of basic rules compatible with the Regulation on the EGTC and containing a detailed Appendix on which States Parties that wish to do so could draw in order to supplement their legislation. This new draft, reworked at considerable length and amplified by various amendments was the document adopted and opened for signature at the Conference of Ministers responsible for Local and Regional Government on 16 November 2009 in Utrecht (Netherlands).
During the first two stages the objective was to prepare, in co-operation with the European Union, a legal instrument that would offer future ECGs a polymorphous uniform status based on substantive rules acceptable to all member States of the Council of Europe, supplemented – for matters not regulated by the treaty or the statutes of the proposed grouping – by the national laws of the State in which the headquarters was situated. The idea was, in a sense, to establish a set of substantive legal rules to regulate Euroregions and other transfrontier bodies in the same way in all Council of Europe member States.
With the adoption of Regulation (EC) No. 1082/2006 of 5 July 2006, applicable in principle since 1 August 2007, the situation changed completely: Protocol No. 3 now had to contain no solution that was incompatible with the EGTC Regulation as introduced by the European Union. From then on, the provisions of the draft Protocol became ever more similar in content to the Regulation, often so much as to be indistinguishable from it. However, the aim of the Council of Europe was still to offer differentiated formats for the establishment of ECGs, among which the EGTC format would be just one of the possibilities. Consequently, in order to retain a minimum degree of flexibility for the status of ECGs, while remaining compatible with the status of EGTCs as defined in Regulation No. 1082/2006, Protocol No. 3 adopted on 16 November 2009 limited the basic rules which it laid down (Part I) to a framework resembling that of the Regulation, relegating to an Appendix to be drafted later the additional substantive rules that earlier drafts had sought to formulate (Part II).
The preamble to Protocol No. 3 explicitly states that the “framework legislation” defined in Part I may be sufficient for certain European Union Member States, whose national legislation already contains “such provisions as are appropriate to ensure the effective application” of Regulation No. 1082/2006. The Protocol’s objective is thus twofold; firstly to offer all Council of Europe member states a legal instrument fully compatible with Regulation No. 1082/2006; secondly to allow them if desired to take harmonised measures for the implementation of the Protocol, particularly if they do not belong to the European Union.
Since the basic rules of Protocol No. 3 (Part I) were devised to avoid conflicting with those of Regulation No. 1082/2006, it would be useful therefore to ascertain by comparison whether the solutions offered by the two legal instruments are compatible. This comparison is made in the following table - with reference to each question addressed by the Protocol and/or the Regulation. It is also a means of assessing the Council of Europe Protocol’s intrinsic merit compared to the European Union Regulation.
The table systematically follows the same order as the articles of the Protocol. The third column, headed "Comparison", contains no new proposal. It highlights the substantive niceties that distinguish the two texts. There is never any outright incompatibility but in some respects the texts specify different solutions or one of them deals with questions not addressed by the other.
Protocol No. 3 to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities concerning Euroregional Co-operation Groupings (ECGs)
Euroregional co-operation groupings (ECGs)
1. Territorial communities or authorities and other bodies referred to under Article 3, paragraph 1, may set up a transfrontier co-operation body in the form of a "Euroregional co-operation grouping” (ECG) on the territory of the member States of the Council of Europe, Parties to this Protocol, under the conditions provided by it.
2. The objective of the ECG shall be to promote, support and develop, for the benefit of populations, transfrontier and interterritorial co-operation between its members in their common areas of competence and in keeping with the competences established under the national law of the States concerned.
Legal personality, legal capacity and applicable law (partim)
1. The ECG shall be a legal person. […]
2. The ECG shall have the most extensive legal capacity accorded to legal persons under that State’s national law.
[3… see below]
5. The ECG may enter into contracts, hire staff, acquire movable and immovable property and bring legal proceedings.
1 (continuation). It (=the ECG) is governed by the law of the Party, Council of Europe member State, in which it has its headquarters.
3. The law applicable to the type of corporate entity chosen for the ECG by the members shall be stipulated in the agreement establishing the ECG, without prejudice to the provisions of this Protocol or to any other specific provision adopted by the party in accordance with Article 13.
4. The ECG shall have the right to its own budget and the power to implement it.
1. Members of the ECG shall be territorial communities or authorities of a Party and may also include the respective member State concerned of the Council of Europe.
All legal persons established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character may be members if:
– their activity is financed mainly by the State, a territorial community or authority or similar body; or
– their management is subject to the control of these entities; or
– half the members of their administrative, managerial or supervisory organ are appointed by the State, a territorial community or authority or similar body.
Individuals may not be members of an ECG.
2. Territorial communities or authorities of a State non-Party to this Protocol, which shares a border with a Party which is or will become the State in which the ECG has its headquarters, may take part in the establishment of, or join, this ECG if an agreement between these two States so allows, without prejudice to the provisions of this Protocol.
3. Territorial communities or authorities of the Parties shall have the majority of voting rights in the ECG.
Establishment of the ECG
1. The ECG shall be established by a written agreement between its founding members.
2. [see below]
3. The agreement shall specify, in addition to the list of members, the name of the ECG, the address of its headquarters, the duration, object and tasks of the ECG, as well as its geographical scope. The name of an ECG whose members have limited liability shall include the word “limited.”
2. The prospective members shall submit all appropriate documentation to prove that the necessary procedures or formalities required by the national law applicable to them have been respected. This documentation shall be appended to the agreement.
4. Before concluding an agreement to found an ECG or before joining an ECG, the territorial communities or authorities shall, as appropriate, inform, notify or obtain authorisation from their national authorities regarding this intention.
5. Authorisation may be refused if membership of the ECG would violate this Protocol or provisions of national law, including the powers and responsibilities of prospective members, or if membership is not justified for reasons of public interest or of public policy of the Party concerned. In such a case, the Party shall give a statement of its reasons for withholding approval.
6. Each State may, in a declaration deposited with the instrument of ratification or at any subsequent time, waive the requirement of information, notification or authorisation referred to in paragraph 4, in general, or for specific categories of territorial communities or authorities or for specific types of co-operation.
7. The agreement shall be registered or published in the State where the ECG has its headquarters, as well as in all States to which its members belong, in accordance with the national law applicable.
8. The territorial communities or authorities, members of the ECG, shall inform their national authorities that the ECG has been lawfully established.
9. The agreement shall be written in the language(s) of the State where the ECG has its headquarters and in the language(s) of the member(s), all versions being equally authentic.
1 The statutes of the ECG shall be an integral part of the agreement establishing it.
2 The statutes shall be written in the language(s) of the State where the ECG has its headquarters and in the language(s) of the member(s), all versions being equally authentic. They may specify which language or language(s) is(are) to be considered the working language(s).
3 In addition to the mandatory provisions of the agreement, the statutes shall contain rules on membership, withdrawal and dissolution of the ECG, including the legal consequences, as well as on operations, organs and their tasks, staffing, budgets and financing, liability, accountability and transparency of the ECG, without prejudice to the provisions of this Protocol and in conformity with the applicable law.
Amendments to the agreement and the statutes
Any amendment to the agreement referred to in Article 4 and any substantial amendment to the statutes referred to in Article 5 shall follow the same procedures and form of those articles respectively. Substantial amendments to the statutes shall be those entailing, directly or indirectly, an amendment to the agreement. The majority required for the adoption of any such amendment shall be determined in the statutes
Tasks and scope of action
1 The ECG shall perform the tasks that its members entrust to it. These tasks shall be in accordance with the competences of the members under their respective national law and shall be listed in the agreement and in the statutes.
2 The ECG shall adopt decisions and ensure their implementation, in respect and for the benefit of individual persons or legal entities subject to the jurisdiction of the States to which its members belong. Members shall adopt or facilitate all necessary measures falling within their competences in order to ensure that the ECG’s decisions are implemented.
3 The tasks given to an ECG shall not concern the exercise of regulatory powers. The ECG shall not be empowered to take measures which might affect the rights and freedoms of individuals, or to impose levies of a fiscal nature.
4 The ECG may not exercise competences that territorial communities or authorities exercise as agents of the State to which they belong, except where duly authorised. It may exercise competences that States members of the ECG confer upon it.
1 The ECG shall be established for a limited or unlimited period of time, to be specified in the agreement and the statutes.
2 The ECG shall be wound up ipso facto when the period for which it was established has expired or if the territorial communities or authorities cease to control the majority of voting rights. It may also be wound up by a unanimous decision of its members.
1 The ECG – or, if its assets are not sufficient, its members jointly − shall be liable with regard to third parties for its acts, including debts of whatever nature, even if those acts do not fall within its tasks.
[2: see below]
[3: see below]
4 If a member of the ECG has only limited liability in accordance with the national law to which it is subject, the other members may also limit their liability in the statutes.
5 A State on whose territory it is intended to set up the headquarters of an ECG may prohibit the registration or publication of notice of an ECG if one or more of its prospective members has limited liability.
2 The ECG shall be liable to its members for any breach of the law to which it may be subject.
3 The organs of the ECG shall be liable with regard to the ECG for any breach of law they have committed in the exercise of their functions.
1. In the event of a dispute between the ECG and its members, the competent courts shall be those of the State in which the ECG has its headquarters.
2. In the event of a dispute between the ECG and a third party, the competent courts shall be those of the State in which the third party effectively resides or, in the case of a legal person, the State in which its seat or headquarters is located, as long as these States are member States of the Council of Europe.
3 Notwithstanding the provisions of paragraph 2, the ECG, the territorial communities or authorities, other public or private law entities concerned and third parties may conclude an arbitration agreement. If a third party’s residence, seat or headquarters is not located in the territory of a member State of the Council of Europe, the ECG shall conclude an arbitration agreement for all activities with this party.
4. Third parties shall retain, vis-à-vis territorial communities or authorities on behalf of which the ECG performs certain tasks, all the rights they would enjoy if those tasks were not performed by the ECG.
5. In any case the rights of individuals and legal persons shall include the right to appeal before all competent organs and courts, including the right of access to services in their own language and the right of access to information.
Supervision, administrative and judicial review
1 Decisions and acts of the ECG shall be subject to the same supervision and administrative and judicial review of the legality of acts of territorial communities or authorities as those required in the State in which the ECG has its headquarters.
2 The ECG shall comply with information requests made by the authorities of the States to which the territorial communities or authorities belong. The supervisory authorities of the Parties shall endeavour to establish means of appropriate co-ordination and information.
3 Decisions and acts of territorial communities or authorities and other public and private law entities shall be subject to the supervision and administrative and judicial review of the legality of acts of territorial communities or authorities and of other public law entities in the forms required in the States under whose jurisdiction the said authorities fall.
4. Where the ECG carries out any activity in contravention of the provisions on public policy, public security, public health or public morality of the States to which its members belong, or in contravention of the public interest of the said States, the competent authority or body of these States may prohibit that activity on its territory or require those members that fall under its jurisdiction to withdraw from the ECG unless the latter ceases the activity in question. Such prohibitions shall not constitute a means of arbitrary or disguised restriction on co-operation between the members. Review of the competent authority’s or body’s decision by a judicial authority shall be possible.
5. Notwithstanding the rules on dissolution of the ECG under the present Protocol and the statutes, at the request of a competent authority with a legitimate interest, a competent court or the competent authority of a Party where the ECG has its headquarters may order the ECG to be wound up if it finds that the ECG is acting outside the tasks entrusted to it.
The competent court or authority may allow the ECG time to rectify the situation. If the ECG fails to do so within the time allowed, it may be declared wound up.
1 The management and budget implementation of the ECG shall be subject to financial audit in accordance with the national law of the Party in which it has its headquarters. This State shall inform the other States whose territorial communities or authorities are members of the ECG without delay of the results of the audit and of the measures taken concerning the ECG.
2 Any other State implicated either by its direct participation in the ECG or through the participation of its territorial communities or authorities or other legal persons listed in Article 3, paragraph 1, may, only on its territory and in accordance with the national law applicable, carry out a financial audit of the ECG. The ECG and the States of the members shall be informed in advance.
Implementation of the Protocol
1 The Parties shall take such legislative, administrative or other measures as are appropriate to ensure that the provisions of Part I of this Protocol are implemented within 12 months of its ratification. They shall inform their territorial communities or authorities and the Secretary General of the Council of Europe.
2 In order to facilitate implementation of this Protocol, an appendix will provide the more detailed, but optional provisions for the establishment and operation of ECGs. The Parties wishing to introduce into their national law all or part of the provisions of the appendix may do so in accordance with the relevant constitutional and legislative procedures.
3 The provisions of the appendix may be reproduced as they appear or may be adapted to meet the needs of the Parties concerned.
4 The Parties may declare that the provisions of the appendix, once introduced into their national legal system, constitute the implementing provisions referred to in paragraph 1.
5 The provisions of the appendix do not constitute an authoritative interpretation of the provisions included in Part I.
6 The provisions of the appendix shall be drafted by the Council of Europe and appended to this Protocol as soon as they are approved by the Committee of Ministers.
1. The Parties shall inform their territorial communities or authorities of the measures taken to implement this Protocol.
2. The Parties shall notify the Secretary General of the Council of Europe of measures taken to implement this Protocol.
3. The Parties shall forward to the Secretary General of the Council of Europe all appropriate information on ECGs set up pursuant to this Protocol.
1 This Protocol shall not affect the applicability of treaties existing between the Parties in matters of transfrontier or interterritorial co-operation or the ability of the Parties to conclude new treaties on the subject if they so wish.
2 In relations between Parties which are members of the European Union, this Protocol shall apply without prejudice to the applicable Community law.
Scope of Application
1 Each State shall, in a declaration deposited with the Secretary General of the Council of Europe at the time of ratification, acceptance, approval or accession, designate the categories of territorial communities or authorities and legal persons mentioned under Article 3, paragraph 1, which it excludes from the scope of this Protocol.
2 For the purpose of applying this Protocol, autonomous public communities or authorities vested with their own legislative power under the national law of the Party in whose jurisdiction they are situated shall be considered as "territorial communities or authorities", without prejudice to the provisions of paragraph 1.
3 Any declaration made under paragraph 1 may be altered by a notification addressed to the Secretary General. Such notification shall become effective on the day of its receipt.
No reservations in respect of this Protocol shall be permitted.
Terms and definitions
The terms and definitions used in this Protocol have the same meaning and purpose as the same terms and definitions given in the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities, its Additional Protocol and Protocol No. 2.
Signature and entry into force of the Protocol
1 This Protocol shall be open for signature by the States signatory to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities. It shall be subject to ratification, acceptance or approval. A Signatory to this Protocol may not ratify, accept or approve it unless it has previously or simultaneously ratified, accepted or approved the European Outline Convention. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.
2 This Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date of deposit of the fourth instrument of ratification, acceptance or approval.
3 In respect of any signatory State which subsequently expresses its agreement to be bound by it, the Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date of deposit of the instrument of ratification, acceptance or approval.
1 After the entry into force of this Protocol, any State which has acceded to the European Outline Convention may also accede to this Protocol.
2 Accession shall be effected by the deposit with the Secretary General of the Council of Europe of an instrument of accession, which shall take effect on the first day of the month following the expiration of a period of three months after the date of its deposit.
1 Any Party may, at any time, denounce this Protocol by means of a notification addressed to the Secretary General of the Council of Europe. Such denunciation shall become effective on the first day of the month following the expiration of a period of six months after the date of receipt of such notification by the Secretary General.
2 If this Protocol is denounced, the legal personality and capacity of the ECGs established prior to the denunciation shall be unaffected.
The Secretary General of the Council of Europe shall notify the member States of the Council of Europe and any other State which has acceded to this Protocol of:
- any signature;
- the deposit of any instrument of ratification, acceptance, approval or accession;
- any date of entry into force of this Protocol in accordance with Articles 19 and 20;
- any domestic legislation implementing the provisions of this Protocol pursuant to Article 13, paragraph 1;
- any declaration received in application of the provisions of Article 4, paragraph 6, of Article 13, paragraph 4, and Article 16, paragraphs 1 and 3, or any notification of modification of such declarations;
- any other act, notification or communication relating to this Protocol.
In witness thereof the undersigned, being duly authorised thereto, have signed this Protocol.
Regulation (EC) No 1082/2006 of the European Parliament and of the Council of 5 July 2006 on a European grouping of territorial cooperation (EGTC)
Nature of an EGTC
1. A European grouping of territorial cooperation, hereinafter referred to as ‘EGTC’, may be established on Community territory under the conditions and subject to the arrangements provided for by this Regulation.
2. The objective of an EGTC shall be to facilitate and promote cross-border, transnational and/or interregional cooperation, hereinafter referred to as ‘territorial cooperation’, between its members as set out in Article 3(1), with the exclusive aim of strengthening economic and social cohesion.
3. An EGTC shall have legal personality.
4. An EGTC shall have in each Member State the most extensive legal capacity accorded to legal persons under that Member State's national law.
It may, in particular, acquire or dispose of movable and immovable property and employ staff and may be a party to legal proceedings.
1. An EGTC shall be governed by the following:
a) this Regulation;
b) where expressly authorised by this Regulation, the provisions of the convention and the statutes referred to in Articles 8 and 9;
c) in the case of matters not, or only partly, regulated by this Regulation, the laws of the Member State where the EGTC has its registered office.
Where it is necessary under Community or international private law to establish the choice of law which governs an EGTC's acts, an EGTC shall be treated as an entity of the Member State where it has its registered office.
2. Where a Member State comprises several territorial entities which have their own rules of applicable law, the reference to the law applicable under paragraph 1(c) shall include the law of those entities, taking into account the constitutional structure of the Member State concerned.
1. An EGTC shall establish an annual budget which shall be adopted by the assembly, containing, in particular, a component on running costs and, if necessary, an operational component.
2. The preparation of its accounts including, where required, the accompanying annual report, and the auditing and publication of those accounts, shall be governed as provided for by Article 2(1)(c).
Composition of an EGTC
1. An EGTC shall be made up of members, within the limits of their competences under national law, belonging to one or more of the following categories:
a) Member States;
b) regional authorities;
c) local authorities;
d) bodies governed by public law within the meaning of the second subparagraph of Article 1(9) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts.
Associations consisting of bodies belonging to one or more of these categories may also be members.
2. An EGTC shall be made up of members located on the territory of at least two Member States.
1. An EGTC shall be governed by a convention concluded unanimously by its members in accordance with Article 4.
2. The convention shall specify:
a) the name of the EGTC and its registered office, which shall be located in a Member State under whose laws at least one of the members is formed;
b) the extent of the territory in which the EGTC may execute its tasks;
d) the list of the EGTC's members;
c) the specific objective and tasks of the EGTC, its duration and the conditions governing its dissolution;
e) the law applicable to the interpretation and enforcement of the convention, which shall be the law of the Member State where the EGTC has its registered office;
f) the appropriate arrangements for mutual recognition, including for the purposes of financial control; and
g)the procedures for amending the convention, which shall comply with the obligations set out in Articles 4 and 5.
Establishment of an EGTC
1. The decision to establish an EGTC shall be taken at the initiative of its prospective members.
2. Each prospective member shall:
a) notify the Member State under whose law it has been formed of its intention to participate in an EGTC; and
b) send that Member State a copy of the proposed convention and statutes referred to in Articles 8 and 9.
3. Following notification under paragraph 2 by a prospective member, the Member State concerned shall, taking into account its constitutional structure, approve the prospective member's participation in the EGTC, unless it considers that such participation is not in conformity with this Regulation or national law, including the prospective member's powers and duties, or that such participation is not justified for reasons of public interest or of public policy of that Member State.
In such a case, the Member State shall give a statement of its reasons for withholding approval.
As a rule, the Member State decides within three months of receiving an application which is admissible under the terms of paragraph 2.
When deciding on the prospective member’s participation in the EGTC, the Member States may apply the national rules.
4. Member States shall designate the competent authorities to receive the notifications and documents as set out in paragraph 2.
5. The members shall agree on the convention referred to in Article 8 and the statutes referred to in Article 9 ensuring consistency with the approval of the Member States in accordance with paragraph 3 of this Article.
6. [see below, opposite Article 6 of the Protocol]
Acquisition of legal personality and publication in the Official Journal
1. The statutes referred to in Article 9 and any subsequent amendments thereto shall be registered and/or published in accordance with the applicable national law in the Member State where the EGTC concerned has its registered office. The EGTC shall acquire legal personality on the day of registration or publication, whichever occurs first. The members shall inform the Member States concerned and the Committee of the Regions of the convention and the registration and/or publication of the statutes.
2. The EGTC shall ensure that, within 10 working days from registration and/or publication of the statutes, a request is sent to the Office for Official Publications of the European Communities for publication of a notice in the Official Journal of the European Union announcing the establishment of the EGTC, with details of its name, objectives, members and registered office.
1. The statutes of an EGTC shall be adopted on the basis of the convention by its members acting unanimously.
2. The statutes of an EGTC shall contain, as a minimum, all the provisions of the convention together with the following:
a) the operating provisions of the EGTC's organs and their competencies, as well as the number of representatives of the members in the relevant organs;
b) the decision-making procedures of the EGTC;
c) the working language or languages;
d) the arrangements for its functioning, notably concerning personnel management, recruitment procedures and the nature of personnel contracts;
e) the arrangements for the members' financial contributions and the applicable accounting and budgetary rules, including on financial issues, of each of the members of the EGTC with respect to it;
f) the arrangements for members' liability in accordance with Article 12(2);
g)the authorities responsible for the designation of independent external auditors; and
h) the procedures for amending the statutes, which shall comply with the obligations set out in Articles 4 and 5.
Organisation of an EGTC (partim)
1. An EGTC shall have at least the following organs:
a) an assembly, which is made up of representatives of its members;
b) a director, who represents the EGTC and acts on its behalf.
2. The statutes may provide for additional organs with clearly defined powers.
[3: see below, opposite Article 9 of the Protocol]
Establishment of an EGTC (end)
6. Any amendment to the convention and any substantial amendment to the statutes shall be approved by the Member States according to the procedure set out in this Article. Substantial amendments to the statutes shall be those entailing, directly or indirectly, an amendment to the convention.
1. An EGTC shall carry out the tasks given to it by its members in accordance with this Regulation. Its tasks shall be defined by the convention agreed by its members, in conformity with Articles 4 and 8.
2. An EGTC shall act within the confines of the tasks given to it, which shall be limited to the facilitation and promotion of territorial cooperation to strengthen economic and social cohesion and be determined by its members on the basis that they all fall within the competence of every member under its national law.
3. Specifically, the tasks of an EGTC shall be limited primarily to the implementation of territorial cooperation programmes or projects co-financed by the Community through the European Regional Development Fund, the European Social Fund and/or the Cohesion Fund.
An EGTC may carry out other specific actions of territorial cooperation between its members in pursuit of the objective referred to in Article 1(2), with or without a financial contribution from the Community.
Member States may limit the tasks that EGTCs may carry out without a Community financial contribution. However, those tasks shall include at least the cooperation actions listed under Article 6 of Regulation (EC) No 1080/2006.
4. The tasks given to an EGTC by its members shall not concern the exercise of powers conferred by public law or of duties whose object is to safeguard the general interests of the State or of other public authorities, such as police and regulatory powers, justice and foreign policy.
(Preamble to the Regulation, clause 13:
“ […]the powers exercised by regional and local authorities as public authorities […] cannot be the subject of a convention” setting up an EGTC).
5. The members of an EGTC may decide by unanimity to empower one of the members to execute its tasks.
2. The convention shall specify:
c) the specific objective and tasks of the EGTC, its duration and the conditions governing its dissolution;
Organisation of an EGTC (end)
3. An EGTC shall be liable for the acts of its organs as regards third parties, even where such acts do not fall within the tasks of the EGTC.
Liquidation, insolvency, cessation of payments and liability
1. As regards liquidation, insolvency, cessation of payments and similar procedures, an EGTC shall be governed by the laws of the Member State where it has its registered office, unless otherwise provided in paragraphs 2 and 3.
2. An EGTC shall be liable for its debts whatever their nature.
To the extent that the assets of an EGTC are insufficient to meet its liabilities, its members shall be liable for the EGTC's debts whatever their nature, each member's share being fixed in proportion to its contribution, unless the national law under which a member is formed excludes or limits the liability of that member. The arrangements for contributions shall be fixed in the statutes.
If the liability of at least one member of an EGTC is limited as a result of the national law under which it is formed, the other members may also limit their liability in the statutes.
The members may provide in the statutes that they will be liable, after they have ceased to be members of an EGTC, for obligations arising out of activities of the EGTC during their membership.
The name of an EGTC whose members have limited liability shall include the word ‘limited’.
Publication of the convention, statutes and accounts of an EGTC whose members have limited liability shall be at least equal to that required for other kinds of legal entity whose members have limited liability, formed under the laws of the Member State where that EGTC has its registered office.
A Member State may prohibit the registration on its territory of an EGTC whose members have limited liability.
3. Without prejudice to the financial responsibility of Member States in relation to any funding from the Structural and/or Cohesion Funds provided to an EGTC, no financial liability shall arise for Member States on account of this Regulation in relation to an EGTC of which they are not a member.
1. Third parties who consider themselves wronged by the acts or omissions of an EGTC shall be entitled to pursue their claims by judicial process.
2. Except where otherwise provided for in this Regulation, Community legislation on jurisdiction shall apply to disputes involving an EGTC. In any case which is not provided for in such Community legislation, the competent courts for the resolution of disputes shall be the courts of the Member State where the EGTC has its registered office.
The competent courts for the resolution of disputes under Article 4(3) or (6) or under Article 13 shall be the courts of the Member State whose decision is challenged.
3. Nothing in this Regulation shall deprive citizens from exercising their national constitutional rights of appeal against public bodies which are members of an EGTC in respect of:
a) administrative decisions in respect of activities which are being carried out by the EGTC;
b) access to services in their own language; and
c) access to information.
In these cases the competent courts shall be those of the Member State under whose constitution the rights of appeal arise.
Member State's provisions on public policy, public security, public health or public morality, or in contravention of the public interest of a Member State, a competent body of that Member State may prohibit that activity on its territory or require those members which have been formed under its law to withdraw from the EGTC unless the EGTC ceases the activity in question.
Such prohibitions shall not constitute a means of arbitrary or disguised restriction on territorial cooperation between the EGTC's members. Review of the competent body's decision by a judicial authority shall be possible.
1. Notwithstanding the provisions on dissolution contained in the convention, on an application by any competent authority with a legitimate interest, the competent court or authority of the Member State where an EGTC has its registered office shall order the EGTC to be wound up if it finds that the EGTC no longer complies with the requirements laid down in Articles 1(2) or 7 or, in particular, that the EGTC is acting outside the confines of the tasks laid down in Article 7. The competent court or authority shall inform all the Member States under whose law the members have been formed of any application to dissolve an EGTC.
2. The competent court or authority may allow the EGTC time to rectify the situation. If the EGTC fails to do so within the time allowed, the competent court or authority shall order it to be wound up.
Control of management of public funds
1. Control of an EGTC's management of public funds shall be organised by the competent authorities of the Member State where the EGTC has its registered office. The Member State where the EGTC has its registered office shall designate the
competent authority for this task before giving its approval to participation in the EGTC under Article 4.
2. Where required under the national legislation of the other Member States concerned, the authorities of the Member State where an EGTC has its registered office shall make arrangements for the appropriate authorities in the other Member States concerned to carry out controls on their territory for those acts of the EGTC which are performed in those Member States and to exchange all appropriate information.
3. All controls shall be carried out according to internationally accepted audit standards.
4. Notwithstanding paragraphs 1, 2 and 3, where the tasks of an EGTC mentioned under the first or second subparagraph of Article 7(3) include actions which are co-financed by the Community, the relevant legislation concerning the control of funds provided by the Community shall apply.
5. The Member State where an EGTC has its registered office shall inform the other Member States concerned of any difficulties encountered during the controls.
1. Member States shall make such provisions as are appropriate to ensure the effective application of this Regulation. Where required under the terms of that Member State's national law, a Member State may establish a comprehensive list of the tasks which the members of an EGTC within the meaning of Article 3(1) formed under its laws already have, as far as territorial cooperation within that Member State is concerned.
The Member State shall inform the Commission and the other Member States accordingly of any provisions adopted under this Article.
2. Member States may provide for the payment of fees in connection with the registration of the convention and statutes. Those fees may not, however, exceed the administrative cost thereof.
(5) The Council of Europe acquis provides different opportunities and frameworks within which regional and local authorities can cooperate across borders. This instrument is not intended to circumvent those frameworks or provide a set of specific common rules which would uniformly govern all such arrangements throughout the Community.
Entry into force
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union.
It shall apply by 1 August 2007, with the exception of Article 16, which shall apply from 1 August 2006.
Report and review clause
By 1 August 2011, the Commission shall forward to the European Parliament and the Council a report on the application of this Regulation and proposals for amendments, where appropriate.
An ECG may only be set up on the territory of a Council of Europe member state bound by Protocol No. 3, just as an EGTC must be set up in the territory of a European Union state.
The bodies/organs referred to in Article 1, § 1, of the Protocol should be construed as “legal persons”. This term is in fact used in the English version of Article 3.1, 2nd sentence, as well as in both language versions of Article 16.1 of the Protocol (“legal persons”).
Territorial co-operation, within the meaning of Regulation No. 1082/2006, embraces transfrontier co-operation and interterritorial co-operation within the meaning of Protocol No. 3.
The objective assigned to ECGs is described more extensively. It is not confined to strengthening economic and social cohesion, as prescribed by Regulation No. 1082.
The extent of the legal capacity assigned to an ECG by the national legislation of its headquarters state is not automatically greatest in each State Party, as the capacity of an EGTC is. The intention of assigning the greatest possible capacity to an ECG will dictate the choice that the Grouping be governed by the law of the state that grants its legal persons the greatest legal capacity.
The Protocol (Article 2.5) and Regulation No. 1082 (Article 1.4) give a non-exhaustive list of the ingredients of the capacity of the Grouping whose status they settle. The contractual capacity of an EGTC is implicit.
Articles 2.1 and 2.3 of the Protocol, together with Article 2.1 of Regulation No. 1082, provide that a grouping (ECG or EGTC) be governed by the law of its headquarters state except as otherwise provided by the Protocol or the Regulation in respect of the ECG or EGTC as the case may be. Under the Regulation, the founding agreement (convention) and the statutes of an EGTC may derogate from the Regulation wherever this is expressly authorised by the Regulation; the laws of the Member State where the EGTC has its registered office are applicable ”in the case of matters not, or only partly, regulated by this Regulation”. According to the Protocol, the law applicable to the points which must be included in the statutes need not be that of the headquarters state, wherever the Protocol admits of this derogation by operation of Article 2.3. Pursuant to this rule, the law of the headquarters state must be combined with the provisions of the Protocol itself laying down the basic rules in respect of the foundation, membership, remit, organisation, operation, responsibility and supervision of ECGs, and with any national legislative and regulative provision which, in implementing the Protocol, may derogate from the rules governing the category of legal persons chosen.
Article 2.3 of the Protocol in fact contains an essential rule not encountered in the Regulation: the law of the headquarters state enables the founding members of an ECG to determine the category of legal persons (type of corporate entity) chosen for the grouping instituted by them. On the other hand, Article 2.1, 2nd sentence, of Regulation No. 1082 lays down no obligation to determine the type of corporate entity to which the future EGTC will belong, which may lead to the constitution of EGTCs in a class of their own. The two systems are altogether compatible, but the Protocol affords far greater legal certainty.
Article 2.2 of the Regulation has an equivalent in Article 16.2 of the Protocol, (see below) which includes in its scope autonomous public communities or authorities vested with legislative power in their own right, implying that the legislation of these entities should also be taken into consideration in determining the law applicable to an ECG.
Article 2.4 of the Protocol is hardly less succinct than Article 11.1 of Regulation No. 1082. Article 5.3 of the Protocol (see below) adds that the statutes shall contain rules on “budgets and financing”, it being understood that these statutory provisions must be “in conformity with the applicable law”, that is essentially with the law of the headquarters state. Article 11.2 of Regulation No. 1082 does not provide otherwise.
According to the Protocol, an ECG is a grouping of regional and/or local public entities which may be joined by the states to which these entities are answerable and by other legal persons providing a public service or controlled by the public authorities, whereas under Regulation 1082, an EGTC is a composite grouping in which regional and/or local authorities do not hold a predominant position.
It also follows from Article 3.1 of the Protocol that a state can only participate in an ECG where one or more of its territorial communities or authorities is also a member.
The term “établissement” used in the French text of Article 3.1, 2nd sentence of the Protocol corresponds to the term “organisme” used in Article 3 of Regulation No. 1082.
According to the provision of the Directive to which Article 3.1 d) of Regulation No. 1082 refers,
“A "body governed by public law" means any body:
(a) established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character,
(b) having legal personality and
(c) financed, for the most part, by the State, regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies; or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law”.
The description given by Article 3.1, 2nd sentence of the Protocol is identical.
Unlike Regulation No. 1082, the Protocol does not permit associations of regional or local authorities to be members of an ECG, unless it is accepted that such associations correspond to the definition of the “body” referred to in Article 3.1, 2nd sentence of the Protocol.
Nor may individuals be members of an EGTC.
Article 3.2 of the Regulation is essential to establish the “transfrontier” nature of an EGTC, whereas the use of the terms “transfrontier and interterritorial co-operation” is sufficient to make this point regarding ECGs in the Protocol.
Under Article 3.2 of the Protocol, its scope may be extended beyond the territory of the States Parties, but the headquarters of the ECG must be in a State Party sharing a border with the State not Party to the Protocol. The preamble to Regulation 1082 makes similar provision, although the legal basis of the Regulation is Article 175 para. 3 of the Treaty on the functioning of the European Union (which precludes extending its scope to Union non-member states). Para. 16 of the preamble of the Regulation in fact contains the stipulation that “where the legislation of a third country or agreements between Member States and third countries so allow”, territorial entities of these countries may participate in founding an EGTC or join it if the other members of the grouping are located in the territory of at least two Union Member States and if the future EGTC has its registered office in the territory of one of them.
Article 3.3 of the Protocol stresses the predominant position of territorial communities or authorities within ECGs. This guarantee is not provided within an EGTC.
It is self-evident that the agreement establishing an ECG must be concluded unanimously, like the founding convention of an EGTC, although Article 4.1 of the Protocol does not specify this.
The requirement to add the word “limited” to the name of an EGTC whose members have limited liability (Protocol, Article 4.3 in fine) is set out in Article 12.2, para. 5, of the Regulation.
While the conditions for dissolving an EGTC must be specified by its founding convention, the rules for the dissolution of an ECG must be contained in its statutes (Protocol, Article 5.3), which form an integral part of the agreement establishing it (Protocol, Article 5.1).
Article 2.3 of the Protocol provides that the applicable law — which is that of the State Party in which the ECG has its headquarters, in accordance with Article 2.1 — “shall be stipulated in the agreement establishing the ECG”. Same formula in Article 8.2. e of the Regulation.
The “mutual recognition” referred to in Article 8.2.f of the Regulation is an obscure concept. Is this a reference to the legal capacity of an EGTC in states others than that in which the registered office is situated?
It is not mandatory that an ECG’s founding agreement reproduce the amendment procedure since, under Article 6 of the Protocol, this is the same as the one for the initial conclusion of the agreement (see commentary below on Article 6 of the Protocol).
According to the actual letter of Article 4.1 of Regulation No. 1082, the initiative to establish an EGTC may be taken by the “prospective members”, that is by the states concerned as well as by the regional or local authorities. On the contrary, it is implicit in the wording of Article 3.1, 1st sentence of the Protocol that the initiative to found an ECG rests with the territorial communities or authorities of the Parties.
Compared to Regulation No. 1082, the Protocol affords additional protection by requiring prospective members of an ECG to prove to one another that they have respected the “necessary procedures or formalities required by the national law applicable to them”.
Whereas Article 4.3 of the Regulation requires the approval of each member State concerned, Article 4.4 of the Protocol provides only for authorisation to be obtained from each State “as appropriate/le cas échéant”, ie if the national legislation of the State concerned so provides.
The wording used in the Article 4.5 of the Protocol and Article 4.3, 1st sentence of the Regulation (“justified for reasons of public interest or of public policy”) is unfortunate. It actually amounts simply to a negative obligation: the participation of a prospective member of an ECG may not be contrary to public order or the public interest.
The deadline mentioned in Article 4.3, 2nd sentence, of the Regulation is not binding. The lack of reference to a deadline in Article 4.4 of the Protocol is thus not incompatible with the Regulation.
While “national rules” are applicable to Member States “deciding on the prospective member's participation in the EGTC” (Regulation, Article 4.3, 3rd sentence), “provisions of national law” (Protocol, Article 4.5) are also applicable to the supervision and review of decisions to participate in an ECG, in accordance with Article 11.3 of the Protocol and Article 3.4 of the Madrid Outline Convention, under whose terms “Agreements and arrangements shall be concluded with due regard to […] any rules of control or supervision to which territorial communities or authorities may be subject”.
The provision corresponding to Article 4.4 of Regulation No. 1082 in the Protocol is Article 11.3 thereof.
Obviously decisions to participate in establishing an ECG or to join one must also comply with any decisions by the authorities responsible for supervision or review of legality, in accordance with Article 11.3 of the Protocol.
The States referred to in Article 4.6 of the Protocol are in principle those whose national legislation does not provide for, or does not provide in all cases for, certain of the procedures mentioned in this provision. Paragraph 6 thus gives the Protocol greater flexibility, enabling regional and local self-government to be respected more fully.
Article 4.7 of the Protocol is far more demanding than Article 5.1 of the Regulation: it requires registration or publication of the founding agreement (and of the statutes forming an integral part thereof) in each State whose territorial communities or authorities are members of the ECG.
Unlike an EGTC, an ECG automatically acquires legal personality and the resultant capacity at the date on which the agreement takes effect, pursuant to Article 2 of the Protocol (implicitly).
Article 4.8 of the Protocol prescribes information to all national authorities in a similar perspective to that of Article 5.2 of Regulation No. 1082.
Article 4.9 of the Protocol, like Article 5.2, is inspired by Article 7 of the European Charter for Regional or Minority Languages.
The Protocol simplifies the procedure for setting up an ECG as compared with an EGTC by including the statutes in the agreement establishing the grouping (Article 5.1). It thus obviates the difficulties of demarcation between the respective remits which have been encountered when setting up EGTCs.
As the agreement establishing an ECG is signed by all the founder members (Protocol, Article 4.1) and the statutes of the ECG are part of that agreement, the statutes must also be unanimously adopted in the same way as the statutes of an EGTC (Regulation No. 1082, Article 9.1).
Article 5.3 of the Protocol states less exact requirements than Article 9.2 of Regulation No. 1082 regarding the content of the grouping’s statutes. The reason for it is that under the terms of the Protocol, the statutes of an ECG shall be “in conformity with the applicable law” ie principally with the law of the headquarters state. The same does not apply to the statutes of an EGTC: Article 2 of the Regulation seems to imply that the founding convention and the statutes may derogate from the laws of the headquarters state, provided that they comply with the actual Regulation. The clarifications provided by Article 9.2 of the Regulation concerning the content of an EGTC’s statutes are therefore intended to compensate for the subsidiary force of the laws of the headquarters state in respect of that EGTC.
Here too the Protocol system appears to afford greater legal certainty than the Regulation and to conform more closely to the natural ranking of norms by giving the applicable laws precedence over the statutes.
There is no provision in the Protocol comparable to Article 9.2 g) of Regulation No. 1082. The usefulness of this provision seems questionable.
Article 5 of the Protocol has no provisions equivalent to Article 10 of Regulation No. 1082, so it does not require the director of an ECG to be an organ – and not an administrative officer – of the grouping (Article 10.1, b) of the Regulation), but it does not exclude that possibility. Indeed, it leaves the rules relating to the ECG’s “organs and their tasks” (Article 5.3) to be determined by its statutes, in accordance with the national legislation governing the grouping.
Article 6 of the Protocol and Article 4.6 of Regulation No. 1082 lay down exactly the same rule.
The wording of Article 7.1 of the Protocol (“tasks … in accordance with the competences of the members”) is broader than that of paras. 1 and 2 of Article 7 of Regulation No. 1082: it authorises the formation of an ECG without each member’s area of competence needing to cover the whole of the tasks assigned to the grouping. Taken literally, the provision in the Regulation to the effect that the tasks of an EGTC must “all fall within the competence of every member under its national law” (end of Article 7.2) seems, however, to rule out the participation of a prospective member lacking competence for any of the EGTC’s tasks or in all fields pertaining to the objective assigned to the grouping.
According to para. 11 of the preamble to Regulation No. 1082, an EGTC may be set up either for the purpose of implementing territorial co-operation programmes (or projects) co-financed by the European Union, notably under the Structural Funds in conformity with Regulations Nos. (EC) 1083/2006 and 1080/2006, or for the purpose of carrying out actions of territorial co-operation which are at the sole initiative of the Member States and their regional and local authorities with or without a financial contribution from the Union.
The current practice shows that the majority of the EGTCs formed carry out actions of transfrontier co-operation without a contribution from the European Union (opinion of the Committee of the Regions, 27-28 January 2011, para. 17).
The Regulation has no provision comparable to Article 7.2 of the Protocol. This rule affords “the utmost flexibility” (explanatory report, commentary on Article 7) as to the binding nature of the ECG’s decisions in the various states to which its members belong. This is a useful point to make, considering Article 7.3 below.
The wording of Article 7.3 of the Protocol is narrower than that of the Regulation. It is inspired by Article 4.2 of the Additional Protocol and refers implicitly to administrative control measures (which limit the exercise of freedoms proportionally to requirements of public policy). It will be noted that, by excluding “the exercise of powers conferred by public law”, the Regulation precludes the setting up of true public-law EGTCs. The same does not apply to Article 7.3 of the Protocol regarding ECGs, which may be vested with power to take administrative decisions with an individual effect.
The possibility of granting an ECG powers to be exercised on behalf of the State, provided by Article 7.4 of the Protocol (deconcentration system), has no equivalent in the Regulation, in view of the limited scope of the tasks that may be assigned to an EGTC.
There is no provision in the Protocol comparable to Article 7.5 of Regulation No. 1082. This in fact seems to have been designed to enable one of the partners in a territorial co-operation programme to be the actual managing authority of the programme in place of the EGTC which would have been set up for that purpose.
In purely theoretical terms, Article 8.2 of the Protocol gives an ECG less statutory autonomy than that enjoyed by an EGTC because it specifies the cases in which the grouping may be dissolved. Furthermore, it affords greater protection to the interests of territorial communities and authorities when they no longer hold a majority within the organs of an ECG.
Article 9.1 of the Protocol sets forth the principle of liability of an ECG in respect of third parties by reason of its legal personality. As such liability can only be incurred through the acts of the organs of the grouping, Article 9.1 of the Protocol may be regarded as the counterpart to Article 10.3 of Regulation No. 1081, which provides that an EGTC is always liable for the acts of its organs.
Where debts are concerned, see the observations below on Article 12.2 of the Regulation.
The fact that every ECG is subject to the law of the headquarters State in the matters specified by Article 12.1 of Regulation No. 1082 stems from the principle stated by Article 2.1 of the Protocol.
There is some confusion in Article 9 of the Protocol between liability generally and liability for debts. Under the Regulation, the relevant provision is Article 12.2, 1st sentence, corresponding to Article 9.1 of the Protocol.
The members of an ECG are jointly liable for the grouping’s debts in the event of its failure to pay, under Article 9.1 of the Protocol. The “joint” nature of the obligation means that each member of the grouping is held severally liable only for its share, which is presumably limited to the amount of the member’s contribution, as in the Regulation on the EGTC (Art. 12.2, second sentence).
Same rule in the Protocol (Article 9.4) and Regulation No. 1082 (Article 12.2, 3rd sentence).
There is no provision comparable to Article 12.2, 4th sentence, of the Regulation in the Protocol. However, the same possibility is offered to ECGs in the absence of provisions to the contrary in the Protocol and in the legislation of the headquarters state.
The Protocol provision corresponding to Article 12.2, 5th sentence of Regulation No. 1082 is found in Article 4.3 of the Protocol.
There is no provision comparable to Article 12.2, 6th sentence of the Regulation in the Protocol.
Article 9.5 of the Protocol and Article 11.2, 7th sentence of the Regulation have equivalent scope.
According to the Protocol’s explanatory report, “the law to which [an ECG] may be subject” under Article 9.2 is not only the law of the headquarters State, but also the Protocol, the statutes of the grouping and, in so far as applicable to the ECG, the laws of the states to which its members belong.
The Regulation has no provision comparable to Article 9.2 of the Protocol.
The Regulation has no provision comparable to Article 9.3 of the Protocol. This is a useful point to make.
The rule laid down by Article 12.3 of Regulation No. 1082 is self-evident: states not members of a grouping remain outsiders where its activities are concerned.
The provision that would be the equivalent to
Article 15 of Regulation No. 1082 in respect of the ECG is implied by Article 10.2 of the Protocol.
Both Article 10.1 of the Protocol and Article 10.2 of Regulation No. 1082 assign jurisdiction to the courts of the headquarters state
“Community legislation on jurisdiction” (Regulation, Art. 15.2) probably refers to Chapter 2 of Council Regulation 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
Article 10.2 of the Protocol assigns jurisdiction to the courts of the state in which the third party effectively resides or has headquarters. However, it does not determine what the competent courts will be when the third party is resident or carries on activities in a non-member State of the Council of Europe.
Article 15.2 of the Regulation stipulates in all cases the rule that jurisdiction belongs to the courts of the headquarters state for the settlement of disputes to which an EGTC is party.
The Protocol has no provision equivalent to Article 15.2, 2nd sentence of the Regulation. The substance of this rule can however be found in Article 11.1 of the Protocol.
The Regulation has no provisions equivalent to Article 10.3 of the Protocol.
In requiring the conclusion of an arbitration agreement where the third party’s residence or headquarters is not located in a Council of Europe member state, the second sentence of Article 10.3 of the Protocol is intended to complement Article 10.2, which confers jurisdiction on the courts of the State of residence or headquarters State only if that State is a member of the Council of Europe.
Article 10.4 of the Protocol deals with a possibility not mentioned in the Regulation, namely the delegation of tasks to an ECG by one or more territorial communities or authorities which are members of it. In the event of a dispute arising out of those activities, aggrieved third parties can apply to the courts of the State having jurisdiction over the territorial communities or authorities on behalf of which the grouping acted.
Article 10.5 of the Protocol paraphrases Article 15.3 of the Regulation, but does not formally specify against whom the right of appeal may be exercised and does not designate the competent courts. It is implicit in Article 15.3 of the Regulation that however the EGTC is organised, each public-law member of the grouping retains full responsibility vis-à-vis members of the public in respect of the points mentioned in paras. a, b and c. It may be noted in this connection that in Article 15.3.(a) of the Regulation, the “administrative decisions in respect of activities” are not those of the EGTC, but those of each of its public-law members responsible for implementing the decisions of its organs.
A comparison of Article 15.3 of the Regulation with Article 10.5 of the Protocol, whose wording is more general, leads to the conclusion that the obligation to respect the rights protected by the Protocol binds both the ECG as such and its members, and that the authorities receiving appeals and the competent courts are those of the state where the holders of those rights are resident or has a seat of activity.
Article 11.1 of the Protocol leaves the headquarters state to determine the rules of supervision and review applicable where an ECG comprises different categories of territorial communities or authorities subject to different rules of supervision and review in the same State Party). See also Article 6.2 of the Additional Protocol: “Measures taken by a transfrontier co-operation body set up under an agreement shall be subject to the supervision provided for in the law of the State in which the body's headquarters are located, keeping in mind, in addition, the interests of territorial communities or authorities of other States. […]”
The wording of Article 11.2 of the Third Protocol was closely modelled on the 2nd sentence of Article 6.2 of the Additional Protocol.
Article 11.3 merely restates, concerning the implementing measures taken by the members of an ECG, the rule in Article 6 of the Additional Protocol: “Measures taken by territorial communities or authorities under a transfrontier co-operation agreement shall be subject to the same supervision as the law of each Contracting Party prescribes in respect of any measure taken by the territorial communities or authorities concluding the agreement” (Article 6.1).
It is possible that the review referred to in Article 11.3 might not be provided for by law in respect of some private-law entities which are members of the ECG.
There are no provisions comparable to Article 11 of the Protocol in the Regulation.
Article 11.4 of the Protocol and Article 13 of Regulation No. 1082 lay down exactly the same rule.
Article 11.5 of the Protocol and Article 14 of Regulation No. 1082 have essentially the same scope.
Unlike Article 6.1 of Regulation No. 1082, Article 12.1 of the Protocol requires the other States concerned to be informed of the results of the financial audit.
The procedure described in Article 12.2 of the Protocol is less complex than that referred to in Article 6.2 of the Regulation.
The Protocol has no provision comparable to Article 6.3 of the Regulation.
The “legislation concerning the control of funds provided by the Community” would also be applicable to an ECG formed to implement territorial co-operation programmes or projects co-financed by the European Union under the structural funds.
While Article 6.5 of the Regulation requires the headquarters state to inform the other states of difficulties encountered during the review, Article 12 of the Protocol lays down other information requirements.
Article 16.1 of the Protocol obliges the States Parties to designate the categories of “potential members” which they mean to exclude from the scope of the Protocol. This rule enables states so desiring to introduce a concept of incompatibility between the right to belong to an ECG and the right to belong to an EGTC.
The governments of the European Union Member States should ensure that the amendment proposals put forward by the Commission on 1 August 2010 take account of Protocol No. 3 and at all events create no major incompatibility between the future version of the Regulation and the text of Protocol No. 3.
Protocol No. 3 is very close to Regulation No. 1082/2006 in very many respects. The fact that the basic legal rules governing the ECG are less complete on one question or another than those governing the EGTC — or vice versa — obviously does not prevent the Protocol from being compatible with the Regulation.
Generally speaking, the above comparison brings out the added value provided by the Protocol as compared with the Regulation and also demonstrates the usefulness of the work carried out by the Council of Europe.
1. The Protocol better reflects the public law character of the grouping’s members and infra-state nature
• The formula instituted by European Union Regulation No. 1082/2006 (EGTC) comprises exclusively public and quasi-public entities but is subject to operational and supervisory rules that are essentially inspired by company law and private law, rather than public law. This can be illustrated by the distinction drawn between the constituent convention of the grouping and its statutes, which is typical of companies (Articles 8 and 9); the requirement to register those statutes (Article 5); the prohibition on exercising powers conferred by public law (Article 7.4); unsystematic supervision of compliance with public policy, public safety, public health, public morality or even the public interest (Article 13), etc. The formula offered by the Protocol presents the ECG as having the character of a grouping of territorial public law entities which may be joined by the states to which they belong and private establishments financed, controlled or administered by the public authorities (Articles 1.1 and 3). An ECG is thus not an inter-state grouping in which regional or local authorities participate, or a composite grouping where they are not predominant (EGTC rules, Article 4.1), but a grouping of infra-state territorial entities principally subject to the rules of the headquarters state governing the chosen category of legal persons, subject to the provisions of the Protocol.
• The Protocol also gives greater prominence to the role accorded to the representatives of those territorial entities by giving them the majority of the votes in the organs of such a grouping (Article 3.3). Conversely, Regulation No. 1082/2006 does not specify the legal situation of the territorial communities that are members of an EGTC in relation to other participants, in particular in relation to the states that may also be members.
• Unlike Regulation No. 1082/2006, the Protocol contains various provisions protecting the use of regional and minority languages in the ECG (Articles 4.9 and 5.2), which is justified by the public law nature of its principal members.
2. The Protocol affords greater flexibility
• The Protocol provides the possibility of setting up an ECG either as a private law corporate body or as a public law entity in such varied forms as may be prescribed by the domestic implementing legislation. The Regulation does not specify whether or not an EGTC can be a public law legal person, but the prohibition on conferring public powers on it (Article 7.4) indicates unambiguously that it can only be a private law legal person or a fictitious public law entity. Thus the Protocol offers more varied options than Regulation No. 1082/2006 for setting up a transfrontier or interterritorial co-operation grouping.
• The Protocol organises jurisdiction for disputes between an ECG or its members and third parties more equitably (Article 10.2) than Regulation 1082; it also allows arbitration (Article 10.3).
• The kinship between the system established by the Protocol and the EGTC system offers the territorial communities or authorities answerable to states not members of the European Union the twofold advantage of being able to set up ECGs with an international status virtually identical to that of the European Union EGTCs and, furthermore, not being required to place them under the law of a Member State of the European Union, but freely under one of their own national legal systems.
• Finally, the flexibility of the Protocol also benefits states, which can adjust their supervision and their administrative control over decisions to participation in or join a future ECG (Article 4.6). They may also pre-emptively and generally exclude certain categories of prospective members from the scope of the Protocol (Article 16).
3. The Protocol ensures greater legal certainty
• The Protocol undeniably has a great advantage of legal certainty in requiring that the rules of national law applicable in the alternative be specified by mentioning the particular category of bodies to which a proposed ECG will belong (Article 2.3).
• Unlike Regulation No. 1082/2006, the Protocol is not vitiated by the least ambiguity as to the possibility of setting up a grouping with members holding dissimilar responsibilities (compare Article 7.1 of the Protocol and Article 7.2 of the Regulation).
• Unlike Regulation No. 1082/2006, the Protocol imposes a system of general and systematic administrative review of legality (“administrative supervision”) for decisions of ECGs in accordance with the law of a given state: the one where the ECG has its headquarters (Article 11.1).
4. The Protocol lends itself to wider use
• The Protocol enables the local and regional authorities of the non-European Union states to found transfrontier or interterritorial bodies on a pattern virtually identical to the EGTC.
• The Protocol explicitly provides the possibility for local and regional authorities of non-European Union states to join with those of Members States in founding transfrontier or interterritorial bodies on a pattern virtually identical to the EGTC.
• Protocol No. 3 has a wider and more diversified substantive scope than Regulation No. 1082/2006 on the EGTC. The objective that an ECG can be given is far more extensive (Article 1.2); the same applies to the tasks which may be assigned to it (Article 7).
• The future Appendix to the Protocol will allow better execution of Regulation No. 1082/2006 under national legislation because of the resemblance between the Protocol and the Regulation. Indeed, in certain respects the Appendix to the Protocol will provide proposals for domestic regulations which could supplement or modify the domestic law applicable to EGTCs in the States that wish to have specific laws to regulate such groupings in their territory.
(Louvain-la-Neuve, 24 February 2011)
 Doc. LR-CT (2004)15 of 12 July 2004.
 Doc. CDLR (2006)17 of 27 April 2006; text reproduced in Vers un droit commun de la coopération transfrontalière, Brussels, Bruylant, 2006, pp. 213-348.
 Doc. LR-CT (2007)8 of 18 June 2007.
 CETS 206. — To date (24 February 2011) there have been ten signatures not followed by ratifications.
 For further details on developments during the first two stages, see Y. Lejeune, “L’apport du Conseil de l’Europe à l’élaboration d’un droit commun de la coopération transfrontalière”, in Vers un droit commun de la coopération transfrontalière, pp. 119-146, here pp. 131-140.
 Euroregions are structures for co-operation between regional or local authorities or groupings of regional or local authorities which are concerned with all neighbourhood issues falling within the competence of the partners. When they confine themselves to studying these issues and suggesting the adoption of co-ordinated measures, they are simply general consultation bodies, sometimes lacking legal personality. When, on the other hand, they are able to contribute to regional development operationally, they are practising transfrontier co-operation, have their own legal personality and are then required to devise, manage and implement integrated development programmes under the supervision of the States and, possibly, with financial support from the European Union Structural Funds.
 See Article 18 of the Regulation.