sou · GVB3105 · 2008-01-01 00:00:00 — Om EG- förordningen skulle anses ställa krav på domstolsprövning av regeringens beslut, får denna tas om hand inom ramen för rättsprövningen. Vissa beslut i registreringsfrågor ska dock prövas av domstol. Enligt utredningen bör registreringsmyndighetens beslut att av- skriva en ansökan om registrering eller att vägra registrering kunna överklagas till domstol. Domstolsprövningen ska ske i allmän förvaltningsdomstol, dvs. i länsrätt som första instans och det krävs prövningstillstånd för överklagande till kammarrätten. Skyddet för tredje man Enligt förordning nr 1082/2006 ska en tredje man som anser sig kränkt av en grupperings handling eller underlåtenhet ha rätt att framställa sina krav genom ett rättsligt förfarande. Av förordningen framgår vidare att bildandet av en gruppering inte ska hindra medborgarna att utöva sina nationella konstitutionella rättigheter att överklaga beslut av offentliga organ som är medlemmar i en gruppering, när det gäller administration av verksamhet som genom- förs av grupperingen, tillgång till tjänster på sitt eget språk och tillgång till information. Behörig domstol i dessa fall är domstolen i den medlemsstat i vars konstitution rätten att överklaga regleras. Enligt svensk rätt har tredje man som anser sig kränkt av en svensk juridisk persons handling eller underlåtenhet rätt att fram- ställa sina krav genom ett rättsligt förfarande. Det sagda innebär alltså att svenska civilrättsliga regler och svensk processrätt ska tillämpas på tvister mellan tredje man och en gruppering med registrerat säte i . Enligt utredningen behövs det således inga särskilda regler som möjliggör för tredje man, som anser sig kränkt av en grupperings handling eller underlåtenhet, att framställa sina krav genom ett rättsligt förfarande. Enligt utredningen bör offentlighetsprincipen i 1 kap. 9 § första stycket sekretesslagen utvidgas till att även omfatta en gruppering med registrerat säte i . Vid beaktande av att rimlig tid måste sättas av för remissbehand- ling, fortsatt beredning inom och behandling i , bedömer utredningen att föreslagen lag om en europeisk gruppering för territoriellt samarbete inom EU kan träda i kraft . De övriga ändringar i lag och förordningar som utredningen föreslår bör träda i kraft . Konsekvenser av utredningens förslag Utredningens förslag bedöms sammantaget inte medföra några ökade kostnader av betydelse för berörda parter. Remit of the Inquiry Under its terms of reference, the Inquiry is to analyse and assess how the provisions of Regulation (EC) no 1082/2006 of Parliament and of 2006 on a European Grouping of Territorial Cooperation (EGTC) relates to Swedish law; it is also to reach a position on what legislation is needed in order to effectively apply the EC Regulation in and to submit a comprehensive legislative proposal that contains both the amendments that would need to be made to the current regulatory system and the new rules that are needed as a result of the EC Regulation.TPF1FPT The remit of the Inquiry also includes analysing the possibilities for a Swedish government agency to become a member of a European grouping of territorial cooperation (EGTC), including an EGTC that has been established in another for the purpose of being a managing authority for a programme under territorial cooperation objective. The Inquiry is also at to address additional issues that it thinks need to be considered in the context of the remit, as well as to propose any legislative amendments that it deems appropriate. Proposing amendments to the constitution or to tax legislation is not part of the remit. EC Regulation on a European Grouping of Territorial Cooperation In the spring of 2006, after several years of discussions and negotiations, the EU Member States reached agreement on a Regulation on a European Grouping of Territorial Cooperation. 1TP PT ToR 2006:115, p. Parliament and the Council decided on 5 2006 to adopt the Regulation (Regulation no 1082/2006). The Regula- tion came into effect on 1 2007. An EGTC is a new legal personality for territorial cooperation in the EU. The objective of an EGTC shall be to facilitate and promote cross-border, transnational and/or interregional coopera- tion (territorial cooperation) between its members with the aim of strengthening economic and social cohesion. The members of an EGTC can thus act in areas that geographically adjoin each other, but members that are situated in areas that do not adjoin each other can also participate in an EGTC. Actors situated in areas that are separated by water can also cooperate across national borders by forming an EGTC. An EGTC must be made up of members located on the territory of at least two Member States. The members of an EGTC can be Member States or regional or local authorities, or bodies that are governed by public law in accordance with a provision in an EC Directive 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 of an EGTC. Recourse to an EGTC is optional. The EGTC acts on behalf of its members and is required to carry out the tasks given to it by its members. The tasks to be carried out by the EGTC must fall within the competence of every member under its national law. The tasks of an EGTC are to be limited primarily to the imple- mentation of territorial cooperation programmes or projects co- financed by the Community through , and the . The tasks may, however, also include other specific actions of territorial cooperation with or without a financial contribution from the Community. An EGTC may not perform tasks that 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 and regulatory powers, and foreign policy. The decision to establish an EGTC shall therefore be taken at the initiative of its prospective members. These members are to draw up proposals for a convention and statutes. The contents of the convention and statutes are regulated in detail by Regulation no 1082/2006. A convention is to specify the EGTCs name and members, its registered office, the extent of the territory in which it may execute its tasks, its objective and tasks, its duration and the conditions governing its dissolution. The statutes are to contain, as a minimum, all the information in the convention together with details of the EGTCs organisation, the arrangements for its functioning and the distribution of members responsibilities. The EGTCs internal organisation is to consist of an assembly and a director. The statutes may provide for additional organs. If other organs exist, the statutes should define their powers. The EC Regulation only specifies certain minimum requirements con- cerning the contents of the statutes and the minimum organs an EGTC must have. In other words, the make-up of the EGTC is quite flexible. The location of the EGTCs registered office is important as the law of the state in which it has its office – and in which, therefore, it is registered – will be applied in matters that concern the EGTC and that are either only partially covered or not covered at all by Regulation no 1082/2006. members participation in an EGTC is to be approved by the under whose law it has been formed. The not, however, approve participation if such participation is not in conformity with Regulation no 1082/2006, the prospective members powers and duties or national law in general, or if participation is not justified for reasons of public interest or of public policy of that . In addition to approving a members participation, any amendment to the EGTCs convention and any substantial amendment to the statutes must be approved by the . If membership of an EGTC has been approved by the Member States concerned, the members are to draw up a convention and statutes that must be adopted unanimously by the members. When drawing up these documents, the members must ensure con- sistency with the approval of the Member States. In order for the EGTC to acquire the status of a legal personality, the convention and statutes must have been approved by all members. In addition, the EGTCs statutes and any subsequent amendment to them must be registered and/or published in accordance with the applicable national law in the where the EGTC has its register- The EGTC will acquire legal personality on the day of registration or publication, whichever occurs first. The Member States are entitled to decide on fees in connection with the registration of the convention and statutes. The fees may not exceed the administrative costs. An EGTC may be dissolved for various different reasons. The EGTC may always be dissolved by a decision of the members. An EGTC can be dissolved if the duration specified for its existence in the EGTCs convention has expired or if another cause for disso- lution specified in the convention has occurred. In addition, a national court or authority in the where an EGTC has its registered office can order an EGTC to be wound up. This can happen if the EGTC is no longer engaging in activities that, for example, facilitate and promote territorial cooperation or if it is acting outside the confines of the tasks it has been given. It may also be that an EGTCs activities contravene national law in a . A competent national body may, therefore, in certain cases prohibit an EGTC from conducting an activity on its territory or require those members which have been formed under the Member States law to withdraw from the EGTC unless the EGTC ceases the activity in question. This refers to cases when an EGTC out an activity in contravention of a Member States provisions on public policy, public security, public health or public morality, or in contravention of the public interest of that . The Inquirys deliberations and proposals Regulation no 1082/2006 is binding in its entirety and directly applicable in every . Consequently, if a certain matter is governed by the Regulation, not and may not issue any provisions on the same matter. On a number of points, however, the EC Regulation does give the Member States scope to make their own decisions on certain matters concerning EGTCs. Moreover, in some respects the Member States are obliged under the Regulation to take legislative measures at a national level. These kinds of supplementary Swedish rules should in certain cases be provided in the form of laws, whereas others can be provided in legislation of a lower order (ordinances or authority regulations). Regulation no 1082/2006 must, therefore, be supplemented with Swedish rules in certain respects. In the following respects, can, and in some cases must, decide: the tasks of an EGTC, a members participation in an EGTC etc., the of an EGTC, and which rules are to apply in terms of publication and fees, the legal capacity of an EGTC, annual accounts, audit and annual report, control of management of public funds, liquidation, insolvency and cessation of payments, dissolution of an EGTC etc., judicial examination, and protection of third parties. The tasks of an EGTC In order to enable Swedish bodies to participate effectively in an EGTC, the Inquiry proposes that the Riksdag authorise the Government to transfer certain administrative tasks to an EGTC. The proposal means that the Government would, in special cases, be able to transfer an administrative task to an EGTC with its registered office in or in another EU . Administrative tasks that may be transferred shall concern the administration of territorial cooperation programmes that are co- financed by the EU. During the current programme period, such programmes are co-financed by the Community through , and funds are distributed to projects under the territorial cooperation objective. Transferable tasks may involve the exercise of public authority. In this case, the exercise of public authority refers to decisions about the distribution of funds in connection with the administration of the aforementioned programmes. In the Inquirys view, these matters should be regulated by a special law: an Act concerning European Groupings of Territorial Cooperation in the EU. As some of the tasks that can be transferred involve the exercise of public authority, the Riksdags decision must be taken by a qualified majority. Public bodies can of course participate in an EGTC that out tasks other than the administration of territorial cooperation programmes that are co-financed by the EU. Under Regulation no 1082/2006, Swedish public bodies can, therefore, participate as members in an EGTC that is across national borders. The question of whether a Swedish body is able to participate in an EGTC together with bodies from other countries will depend on the Swedish bodys competence and powers. Under Regulation no 1082/2006, a has the right to limit the tasks that an EGTC is allowed to perform without financial support from the Community. However, this does not apply to cooperation measures that are included in territorial cooperation objective and that are listed in Article 6 of EC Regulation no 1080/2006. It should be possible for Swedish bodies to be members of an EGTC as long as such participation is not incompatible with Swedish law. The Inquiry does not consider it desirable to go further than this and limit an EGTCs tasks with respect to programmes or projects that do not receive financial support from the EU. A members participation in an EGTC etc. The Inquiry proposes that any application for the participation of a Swedish member in an EGTC be examined by the Government. application for amendments to an EGTCs convention and substantial amendments to its statutes should also be examined by the Government. In the Inquirys view, this right of examination should not be subject to delegation. The current provisions concerning the handling of Government business and the final processing of decisions, etc., should also be applied when the Government is examining an application for participation in an EGTC by a Swedish member and applications for amendments to an EGTCs convention or statutes. Regulation no 1082/2006 states which documents are to be submitted for the examination of an application for membership of an EGTC. In the Inquirys view it does not seem necessary to provide any more precise regulations concerning the contents of applications. of an EGTC and rules concerning publication and fees The Inquiry proposes that a register of EGTCs whose registered office is in be kept by a registration agency. for Economic and Regional Growth () should be assigned the task of being this registration agency. The registration agency should immediately publish the information entered in the register in the Official Swedish Gazette (Post- och Inrikes Tid- ningar). The Inquiry also proposes that any party applying for registration should pay an administration fee. party that is registered should pay a fee for maintenance of the register. Furthermore, the Inquiry proposes that the Government or the agency determined by the Government be allowed to issue regulations on the submission of notifications in register matters, etc., and on fees for registration matters. In addition, the ordinance containing instructions for the agency that is to be the registration agency should be amended so that it is clear from the ordinance that the agency is the state administrative agency for registration matters concerning EGTCs whose registered office is in , and that the agency has the authority to issue certificates and extracts from the agency register. Legal capacity of an EGTC Under Regulation no 1082/2006, an EGTC shall have, in each , the most extensive legal capacity accorded to legal persons under that Member States national law. An EGTC shall be able to acquire or dispose of movable and immovable property, employ staff and be a party to legal proceedings. Under Swedish law, a legal person can acquire rights, assume obligations and be a party to legal proceedings. In the Inquirys view there is no need for a law or other statute stating that an EGTC has a certain legal capacity. Annual accounts, audit and annual report In the Inquirys view, the provisions on annual accounts contained in the Municipal Accounting Act (1997:614) and on auditing con- tained in the Auditing Act (1999:1079) should, where appropriate, also apply to EGTCs whose registered office is in . The auditing of EU funds is regulated in EC Regulation no 1083/2006. Further, the Inquiry proposes that an EGTC with its registered office in be required to submit an annual report. The report is to contain the information needed to assess the EGTCs activities and position. The EGTC should submit its annual report to the registration agency. Under the Inquirys proposals, the documents will be available for inspection at both the EGTC and the registration agency. The EGTCs auditors should examine the accounts upon which the annual report is based. The audit statement and any notes should be contained in their entirety in the annual report. The Inquiry proposes that an EGTC with its registered office in be required to submit its annual accounts to the registra- tion agency. The agency is to publish the annual accounts in an appropriate way. The Government or the agency determined by the Government should issue regulations on the submission and publication of annual accounts and on the submission of annual reports. Control of management of public funds The Inquiry proposes that the Government decide which agency is to exercise control in accordance with Article 6(1) of Regulation no 1082/2006. Furthermore, the Government or the agency determined by the Government should issue regulations on how controls are to be carried out. The agency designated to exercise these controls should also be responsible for informing the Member States concerned of any difficulties encountered during the controls. In cases where an EGTC has its registered office in , the agency should be able to provide information to other national control authorities pursuant to Chapter 1, Section 3, third paragraph of the Secrecy Act (1980:100). Liquidation, insolvency and cessation of payments In the Inquirys view, the Bankruptcy Act (1987:672) can be applied in cases concerning an EGTC with its registered office in . Therefore, no special rules are needed on insolvency and cessation of payments in the case of an EGTC. The Bankruptcy Ordinance (1987:916) should, however, be supplemented with the information that, in cases where the debtor is an EGTC with its registered office in , a copy of the notice of the bankruptcy order is to be sent to the registration agency. In cases of liquidation, the Inquiry proposes that the members of an EGTC with its registered office in regulate in the EGTCs convention the conditions for and proceedings in the event of the EGTCs liquidation. The registration agency should be informed of any decision on liquidation. detailed regulations on how this notification should be made are to be issued by the Government or the agency determined by the Government. In the Inquirys view, notice that an EGTC with its registered office in has been declared bankrupt or gone into liquida- tion should be registered and published by the registration agency. detailed regulations are to be issued by the Government or the agency determined by the Government. Dissolution of an EGTC etc. Under the Inquirys proposals, questions of prohibiting an EGTC from conducting activities in and of a Swedish members withdrawal from an EGTC will be examined by the Government. The Government should also examine the question of winding up an EGTC with its registered office in due to its no longer fulfilling certain requirements contained in Regulation no 1082/2006. Under the Inquirys proposal, the registration agency will be responsible for making any application to dissolve an EGTC. Furthermore, the Inquiry proposes that the Government inform the registration agency of any Government decision on prohibiting an EGTC from conducting activities in , on a Swedish members withdrawal from an EGTC and on the dissolution of an EGTC with its registered office in . The information should be registered and published by the registration agency. detailed regulations are to be issued by the Government or the agency determined by the Government. In cases where the members of an EGTC with its registered office in have decided on dissolution of the EGTC, the registration agency should be notified for the purposes of registra- tion and publication. detailed regulations are to be issued by the Government or the agency determined by the Government. The Inquiry also proposes that the ordinance with instructions for the agency that is to be the registration agency be amended so that it is clear from the ordinance that the agency is competent, in certain cases, to apply to the Government for the dissolution of an EGTC with its registered office in . detailed regulations on arrangements for this application process at the registration agency are to be issued by the Government or the agency determined by the Government. In the Inquirys view, Regulation no 1082/2006 does not imply any right to judicial examination of a Government decision. The Inquiry considers, moreover, that the Government may be regarded as a judicial authority such as referred to in the EC Regulation. Therefore, it is sufficient that the Government reviews its decision if this is requested. Should the EC Regulation be considered to require judicial examination of a Government decision, this may be dealt with within the framework of judicial review proceedings. Certain decisions on matters of registration must, however, be examined by a court. The Inquiry considers that a decision by the registration agency to dismiss a registration application or to refuse registration should be appealable to a court. The judicial examina- tion is to be made at an administrative court, that is to say the county administrative court in the first instance; leave to appeal will be required for appeal to the administrative court of appeal. Protection of third parties Under EC Regulation no 1082/2006 a third party that considers itself wronged by the acts or omissions of an EGTC shall be entitled to pursue its claims by judicial process. The EC Regulation also states that the of an EGTC shall not hinder citizens from exercising their national constitutional rights to appeal against decisions made by public bodies that are members of an EGTC in respect of the administration of activities conducted by the EGTC, access to services in their own language and access to information. In these cases, the competent court will be the court in the under whose constitution the right to appeal arises. Under Swedish law, a third party that considers itself wronged by the acts or omissions of a Swedish legal person is entitled to pursue its claims by judicial process. This therefore means that Swedish civil law regulations and Swedish procedural law are to be applied in disputes between a third party and an EGTC with its registered office in . Thus, the Inquiry considers that no special rules are needed to enable a third party that considers itself wronged by the acts or omissions of an EGTC to pursue its claims by judicial process. In the Inquirys view, the principle of public access to official documents in Chapter 1, Section 9, first paragraph of the Secrecy Act should be extended to include an EGTC with its registered office in .