EN Official Journal of the European Union C 113/22

Opinion of the Committee of the Regions on ‘revision of the EGTC Regulation’

2012/C 113/06

THE COMMITTEE OF THE REGIONS

— is pleased that the European Commission proposal is consistent with the philosophy of the provisions of Regulation (EC) No 1082/2006 and helps to improve the establishment and functioning of European groupings of territorial cooperation (EGTCs);

— requests that the criteria for approving a convention or rejecting a request to set up an EGTC be clarified;

— wishes to strengthen its role, by extending its current responsibilities for keeping the register of EGTCs and running the Platform to include notification via the "EGTC form" and publishing in the Official Journal of the EU;

— draws the attention of the European Commission to the fact that it is very difficult or even impossible to establish beforehand in the convention a full list of European, national and regional laws that will apply to the activities of the EGTC;

— proposes that EGTCs that have already been established should benefit from the provisions of the new regulation, which are more favourable than those of Regulation No 1082/2006 which currently apply to EGTCs;

— urges that the list of undertakings that can participate in an EGTC be extended to include undertakings entrusted with the operation of services of general economic interest.

Rapporteur Michel DELEBARRE (FR/PES), Mayor of Dunkirk Reference document Proposal for a Regulation of the European Parliament and of the Council amending 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) as regards the clarification, simplification and improvement of the establishment and implementation of such groupings COM(2011) 610 final – 2011/0272 (COD)

I. POLICY RECOMMENDATIONS

THE COMMITTEE OF THE REGIONS,

1. is pleased that the European Commission proposal is consistent with the philosophy of the provisions of Regulation (EC) No 1082/2006 and helps to improve the establishment and functioning of European groupings of territorial cooperation (EGTCs);

2. welcomes the attention paid by the European Commission to incorporating the advances contained in the Treaty of Lisbon and, in particular, the objective of territorial cohesion;

3. is pleased that the proposal from the European Commission has taken into account many of the recommendations in previous CoR opinions (1);

State of play with European groupings of territorial cooperation

4. notes that 25 EGTCs have been created in less than four years, grouping together more than 550 local and regional authorities in 15 Member States and affecting more than 22 million Europeans;

5. is pleased that, as of 1 October 2011, more than half of the Member States had authorised the creation of EGTCs (Austria, Belgium, Cyprus, France, Germany, Greece, Hungary, Italy, Luxembourg, the Netherlands, Portugal, Romania, Slovakia, Slovenia and Spain);

6. points out that dozens of EGTCs are being planned or considered by the Member States;

7. considers that use of EGTCs should be voluntary: only territories or networks that will gain a real benefit from setting up an EGTC are using this tool to perpetuate and formalise their cooperation efforts;

8. believes that it should always be possible to implement European territorial cooperation measures on the basis of political, technical and administrative coordination between the partners in a project managed by a "lead partner";

9. calls on the European Commission to take more account of the EGTC as a preferred tool for implementing European territorial cooperation policy and to incorporate the EGTC more effectively into legislation relating to cohesion policy for the period 2014-2020;

10. highlights the wide range of EGTC partnerships, tasks and spheres of action that have been and are being set up, which demonstrates the great potential and the flexibility of this cooperation instrument;

11. feels that one possible advantage of using an EGTC for multi-level governance projects is that it enables all the relevant actors to be involved in the governance of a cross-border or Euro-regional territory;

12. emphasises the versatility of the EGTC tool and its potential for managing infrastructure and services of general economic interest for the benefit of European citizens in territories involving several Member States;

13. regrets that there is still little mention of the EGTC in the EU's sectoral policies apart from cohesion policy; furthermore, stresses the EGTC's potential as a tool for responding to initiatives and calls for tender, and for implementing programmes of the European Union, as well as the need to recognise the EGTC as a structure that is eligible for such initiatives and tenders;

14. notes that the level of the EGTC's integration into European and national legal systems is low;

15. has identified 79 authorities, designated by the 27 Member States, which are entitled to receive and process requests to set up EGTCs;

16. notes that questions on the interpretation of Regulation (EC) No 1082/2006 may receive different answers from these authorities, as shown in the matter of the law governing EGTC staff or EGTCs whose members have limited liability;

17. supports the conclusions of the European Commission in its report on the application of Regulation (EC) No 1082/2006 on a European grouping of territorial cooperation (EGTC);

18. is aware that the purpose of the proposed regulation is to enable the EGTC to be made more attractive and effective in order to take territorial cooperation measures while limiting the legal and financial risks for future members, prospective employees and contractors of the EGTC, and not taking a position on the choice of legal regime applying to the EGTC;

19. considers that work must be continued on the CoR's EGTC Platform (2) (see www.cor.europa.eu/egtc), so that EGTCs can be monitored and exchanges can take place concerning best practices and the challenges that both existing EGTCs and those being set up have to face and so that greater use can be made of the EGTC in the EU's sectoral policies; suggests that the EGTC Platform should, as of 2014, be given a role similar to that of the urban development platform proposed by the Commission in its proposal for a regulation on the European Regional Development Fund;

20. trusts that this work will be included in the Cooperation Agreement between the European Commission and the Committee of the Regions;

21. stresses the importance of immediately adopting this specific regulation, which has no particular implications for the EU budget, without waiting for adoption of the entire legislative package on post-2013 cohesion policy. This would enable the regulation to enter into force as soon as possible, providing fresh impetus for the development of new EGTC projects in a secure legal framework;

Analysis of the proposal for a regulation

22. supports the philosophy behind the European Commission's proposals that enable the provisions of Regulation (EC) No 1082/2006 to be brought into line with the practices of existing EGTCs and improve the way they operate;

23. stresses that such proposals can strengthen the European legal basis of EGTCs by providing uniform solutions on a European scale;

24. welcomes the increased scope of EGTCs and their partnerships, especially the inclusion of public undertakings within the meaning of Directive 2004/17/EC;

25. with this in mind, proposes that the list of undertakings that can participate in an EGTC be extended to include undertakings entrusted with the operation of services of general economic interest as defined in the decision (3) on the application of Article 106(2) of the Treaty on the Functioning of the European Union (4);

26. supports the European Commission's proposal to simplify the procedure for setting up an EGTC, based on approval of the convention alone within a deadline of six months;

27. believes that relaxing the rule that the tasks of an EGTC should be commensurate with its members' skills will contribute to the development of new forms of multi-level governance;

28. recommends, in this connection, that the criteria for approving a convention or rejecting a request to set up an EGTC be clarified;

29. emphasises that an EGTC acts on behalf of its members and does not exercise their powers. The EGTC is not a tool for merging members' powers but rather for implementing cooperation projects or programmes;

30. is pleased that the proposal for a regulation contains provisions on the national rules applicable to the contracts of EGTC staff, effectively setting a higher standard that will prevail over the various national laws existing in this area;

31. welcomes the introduction of specific provisions at the external borders of the EU and the inclusion of overseas territories in EGTC partnerships;

32. supports the possibility of creating a "bilateral" EGTC consisting of members drawn from a single Member State and members from a single non-EU state or an overseas territory;

33. feels that, for this provision to be fully implemented, the establishment of such an EGTC must not be left to the discretion of each Member State but that the relevant scenarios must be set out objectively in the regulation;

34. considers as a step forward the proposal to publish information about new EGTCs in the C series (information and notices) of the OJEU, using a template annexed to the proposal for a regulation, and not in the S series (public procurement notices), as is currently the case;

35. nevertheless points out that the EGTC cannot request such publication directly;

36. therefore recommends that the Committee of the Regions, which is responsible for keeping the register of EGTCs and running the EGTC Platform, should ensure such publication, and not the European Commission as proposed in the draft regulation;

37. believes, like the European Commission, that it is useful to make provision for an EGTC to establish tariffs and fees for the use of any infrastructure that it manages;

38. considers that this provision should be extended to include services of general economic interest that EGTCs may have to manage or provide;

39. wishes to see a legal solution provided that covers all EGTCs as regards the signing of cooperation agreements between EGTCs located on the same border or in the same transnational cooperation area for the purposes of carrying out a joint project;

40. considers that EGTCs must also be able to sign cooperation conventions with a legal entity that wants to cooperate on a project in certain areas but without forming part of the EGTC for all of its tasks;

41. draws the attention of the European Commission to the fact that it is very difficult or even impossible to establish beforehand in the convention a full list of European, national and regional laws that will apply to the activities of the EGTC;

42. endorses the proposals of the European Commission for clarifying the provisions relating to the EGTC's liability status, including the introduction of an insurance scheme;

43. points out, nevertheless, that the concept of "limited liability" derived from the system of "limited liability companies" only exists in a minority of EU countries;

44. considers that only the potential creditors of an EGTC have an interest in knowing in advance the extent of the financial commitments of the EGTC's members;

45. proposes that EGTCs that have already been established should benefit from the provisions of the new regulation, which are more favourable than those of Regulation No 1082/2006 which currently apply to EGTCs;

46. calls on the European Commission and the Member States to propose a non-mandatory model for the convention and statutes to be annexed to the regulation, in order to facilitate and speed up the procedures for authorising the establishment of EGTCs;

II. RECOMMENDATIONS FOR AMENDMENTS

Amendment 1

Article 1(3)

Add a point (f)

Text proposed by the Commission CoR amendment (5);

Reason

See point 24 of this opinion.

Amendment 2

Article 1(4)

Text proposed by the Commission CoR amendment 2. An EGTC may be made up of members drawn from the territory of only one Member State and of one third country or overseas territory, where that Member State considers such an EGTC consistent with the scope of its territorial cooperation or bilateral relations with the third country or overseas territory. 2. An EGTC may be made up of members drawn from the territory of only one Member State and of one third country or overseas territory, where consistent with the scope of : territorial cooperation ; or bilateral relations with the third country or overseas territory."

Reason

The criteria for authorising or refusing the establishment of an EGTC whose members come from a single Member State and a single third country or overseas territory must be objective and correspond to one of the three scenarios set out in the amendment. The creation of such an EGTC must not be left to the discretion of each Member State.

Amendment 3

Article 1(5)(a)

Text proposed by the Commission CoR amendment 3. Following notification under paragraph 2 by a prospective member, the Member State concerned shall approve the convention, taking into account its constitutional structure, and the prospective member's participation in the EGTC, unless it considers that such participation is not in conformity with this Regulation, other Union law concerning the activities of the EGTC or national law concerning the competences of the prospective member 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 agreement or shall suggest the necessary amendments to the convention to enable the prospective member's participation. 3. Following notification under paragraph 2 by a prospective member, the Member State concerned shall approve the convention, taking into account its constitutional structure, and the prospective member's participation in the EGTC, unless, , it considers that such participation : is not in conformity with this Regulation, other Union law concerning the activities of the EGTC; or national law concerning the competences of the prospective member, ; or is not justified for reasons of public policy of that Member State. In such a case, the Member State shall give a statement of its reasons for withholding agreement or shall suggest the necessary amendments to the convention to enable the prospective member's participation.

Reason

Notification is sent to one of the 79 competent authorities in the EU designated by the 27 Member States, which must be referred to in the regulation.

In the proposal for a regulation, the competence of one member in each Member State is sufficient to justify the participation of all the members from that same Member State (Article 7(2)). The provisions of Article 4(3) on checking that the competences of members are in keeping with the objective of the EGTC must be brought into line with those of Article 7(2).

Withholding approval on the grounds that it is against the public interest is redundant in the sense that the participation of a member is already examined to see whether it is in conformity with the Regulation, the scope of the EGTC being defined in Article 1(2).

Amendment 4

Article 1(6)

Text proposed by the Commission CoR amendment Article 5 is replaced by the following: "Article 5 Acquisition of legal personality and publication in the Official Journal 1. The convention and the statutes and any subsequent amendments thereto shall be registered or published, or both, according to 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, the Commission and the Committee of the Regions of the registration or publication of the convention. 2. The EGTC shall ensure that, within ten working days from the registration or publication of the convention, a request is sent to the Commission following the template set out in the Annex to this Regulation. The Commission shall then transfer this request to the Publications Office of the European Union for publication of a notice in the C series of the Official Journal of the European Union announcing the establishment of the EGTC, with the details set out in the Annex to this Regulation." Article 5 is replaced by the following: "Article 5 Acquisition of legal personality and publication in the Official Journal 1. The convention and the statutes and any subsequent amendments thereto shall be registered or published, or both, according to 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 registration or publication of the convention. 2. The EGTC shall ensure that, within ten working days from the registration or publication of the convention, a request is sent to the following the template set out in the Annex to this Regulation. The shall then transfer this request to the Publications Office of the European Union for publication of a notice in the C series of the Official Journal of the European Union announcing the establishment of the EGTC, with the details set out in the Annex to this Regulation."

Reason

The Committee of the Regions, which is in charge of keeping the register of EGTCs and running the EGTC Platform, has the job of ensuring that the convention is published in the C series, as such publication cannot be requested by the EGTCs themselves.

Cooperation and exchange of information between the Committee of the Regions and the European Commission must be part of the cooperation agreement between the two institutions.

Moreover, the publication of the convention and the statutes only in the Member State where the EGTC concerned has its registered office would be discriminatory and would make it harder to fulfil the requirement for transparency and the public's right to information.

Amendment 5

Article 1(8)(b)

Text proposed by the Commission CoR amendment (b) In paragraph 4, the following sub-paragraph is added: "However, the assembly referred to in Article 10(1)(a) of an EGTC may define the terms and conditions of the use of an item of infrastructure the EGTC is managing, including the tariffs and fees to be paid by the users." (b) In paragraph 4, the following sub-paragraph is added: "However, the assembly referred to in Article 10(1)(a) of an EGTC may define the terms and conditions of the use of an item of infrastructure the EGTC is managing , including the tariffs and fees to be paid by the users."

Reason

EGTCs must be allowed to define the tariffs and fees for services of general economic interest that they organise without management of related infrastructure.

Amendment 6

Article 1(8)

Add a point (c)

Text proposed by the Commission CoR amendment " "

Reason

All EGTCs must be able to draw on a European legal basis for concluding partnerships with other EGTCs or other legal entities for the purposes of carrying out joint cooperation projects.

Amendment 7

Article 1(9)(h)

Text proposed by the Commission CoR amendment (h) the specific Union or national law applicable to its activities, while the latter may be the law of the Member State where statutory organs exercise their powers or where the EGTC carries out its activities; ;

Reason

It is almost impossible to draw up beforehand a list of the European, national and regional legislation that the EGTC will have to apply when carrying out its tasks and covering the entire territory of its activities.

Amendment 8

Article 1(12)(b)(2a)

Text proposed by the Commission CoR amendment 2a. If the liability of at least one member of an EGTC is limited or excluded as a result of the national law under which it is established, the other members may also limit their liability in the convention. The name of an EGTC whose members have limited liability shall include the word "limited". The requirement for the publicity of the convention, statutes and accounts of an EGTC whose members have limited liability shall be at least equal to those required for other legal entities with limited liability of its members established under the laws of the Member State where that EGTC has its registered office. In the case of an EGTC whose members have limited liability, the Member States may require that the EGTC shall take appropriate insurance to cover the risks specific to the activities of the EGTC." 2a. If the liability of at least one member of an EGTC is limited or excluded as a result of the national law under which it is established, the other members may also limit their liability in the convention. an EGTC whose members have limited liability The requirement for the publicity of the convention, statutes and accounts of an EGTC whose members have limited liability shall be at least equal to those required for other legal entities with limited liability of its members established under the laws of the Member State where that EGTC has its registered office. In the case of an EGTC whose members have limited liability, the Member States may require that the EGTC shall take appropriate insurance to cover the risks specific to the activities of the EGTC."

Reason

Only potential creditors of an EGTC have an interest in knowing in advance the extent of its members' financial commitments; the word "limited" added to the name of the EGTC does not indicate the extent of its members' financial commitments or any insurance schemes which may cover the EGTC.

Amendment 9

Article 1 (14a)

Text proposed by the Commission CoR amendment

Reason

A proposal to add a new article to the EGTC regulation No 1082/2006 (this article would become Article 17 of that regulation). The proposed amendment is in keeping with the amendment tabled to point 19.

Amendment 10

Article 2

Add a new point after point 1

Text proposed by the Commission CoR amendment

Reason

EGTCs that have already been created must be able to benefit from the provisions of the present proposal for a regulation, which are more favourable than those of Regulation (EC) No 1082/2006.

Amendment 11

ANNEX

The proposed amendments to the text put forward by the European Commission are highlighted in yellow.

Amendment

ANNEX Template of the information to be submitted under Article 5(2) ESTABLISHMENT OF A EUROPEAN GROUPING OF TERRITORIAL COOPERATION (EGTC) Regulation (EC) No 1082/2006 of the European Parliament and of the Council of 5 July 2006 (OJ L 210, 31.7.2006, p. 219) The name of an EGTC whose members have limited liability shall include the word ‘limited’ (Article 12(2)) The asterisk* denotes mandatory fields.

Brussels, 15 February 2012. The President of the Committee of the Regions Mercedes BRESSO

(1) CdR 308/2007 fin and CdR 100/2010 fin.

(2) 127th meeting of the CoR Bureau, 26 January 2011, item 6. Ref. CdR 397/2010.

(3) C(2011) 9380 final, adopted on 20 December 2011

(4) This article concerns state aids in the form of compensation for a public service granted to certain undertakings responsible for managing services of general economic interest.

(5) COM(2011) 146 final.