Communication from the Commission - A framework for target-based tripartite contracts and agreements between the Community, the States and regional and local authorities
Date: 2002-12-11
Institutions: European Commission
Subjects: application of EU law, local government, power of implementation, regional and local authorities, regional authority, regional cooperation, relations between the State and the regions

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 11.12.2002
COM (2002) 709 final

COMMUNICATION FROM THE COMMISSION

A framework for target-based tripartite contracts and agreements
between the Community, the States and regional and local authorities

1. 

INTRODUCTION

In  addition  to  being  privileged  local  democracy  actors  within  the  countries  of  the  Union,
territorial  authorities  are  called  upon  to  play  a  growing  role  in  the  framing  and
implementation  of  Community  policies.  With  this  in  mind,  the  White  Paper  on  European
Governance  adopted  by  the  Commission  in  2001  put  forward  the  idea  of  target-based
tripartite  contracts,  to  be  concluded  between  the  Member  States,  the  territorial  authorities
designated  by  them,  and  the  Commission.  In  proposing  a  “trial”,  the  Commission  was
motivated  mainly  by  considerations  of  flexibility:  “there  should  be  more  flexibility  in  the
means provided for implementing legislation and programmes with a strong territorial impact,
provided the level playing field at the heart of the internal market can be maintained”.

There is a general emphasis in the Treaties on the need for Community actions to take account
of diversity. This is already evident in the very design of the legislative instruments. Not only
were  directives  designed  to  allow  the  Member  States  a  significant  degree  of  flexibility  in
national 
to  a  certain
differentiation in the methods of implementation, provided that such  differentiation is  based
on objective assessment criteria.

transposition.  Community  regulations  also 

themselves 

lend 

In  addition,  in  certain  areas  of  action  with  strong  territorial  impact,  such  as  cohesion  or
environmental policy, the Treaty explicitly provides for local circumstances to be taken into
account.  Flexibility is inherent  in the  very  principles  of  economic  and  social  cohesion,  the
aim of which is to reduce disparities in the levels of development of the different regions and
the backwardness of the regions. Thus, the notion of “partnership” is one of the fundamental
principles underlying the programming and implementation of the Structural Funds for 2000-
2006.  However,  this  principle,  provided  for  in  Article  8  of  Council  Regulation  (EC)  No
1260/1999,  is  implemented  “in  full  compliance  with  the  respective  institutional,  legal  and
financial  powers  of  each  of  the  partners”.  This  flexibility  is  also  reflected  in  the
environmental policy objectives which “aim at a high level of protection taking into account
the diversity of situations in the various regions of the Community”.

Nevertheless, with the exception of cohesion policy, Community practice and the intensity of
legislative action have not always taken sufficiently into account the growing role of regions
and  cities  in  the  implementation  of  national  and  Community  policies.  Hence  the  interest
which emerged during the consultations on the Governance White Paper in contractual tools
aimed at developing the possibilities of differentiation between and participation of territories
in the  realisation  of objectives  defined  at  European  level  or  in  cooperation  between  various
geographical levels.

Those  same  consultations  also  revealed  the  apprehensions  or  reservations  of  some  Member
States,  which are  rightly concerned that  such  a contractual  approach must  not  challenge  the
fundamental  principle  of  the  sole  responsibility  of  the  Member  States  for  carrying  out
Community policies. The idea of experimental or voluntary pilot projects, particularly in the
environmental  area,  was  welcomed.  That  of  tripartite  contracts  “empowering  certain
subnational authorities to implement specific actions aimed at achieving objectives defined in
basic  Union  legislation”  gave  rise  to  requests  for  clarification,  both  from  certain  Member
States and from European networks of regional and local authorities. This is the subject of the
present  Communication,  which  describes  the  general  conditions  for  recourse  to  “tripartite
contracts”, whether in the context of applying a legislative act or in reference to a Community
objective. Throughout the remainder of this Communication, we therefore propose to use:

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–  target-based tripartite  contracts to describe  contracts  concluded  between  the  European
Community  -  represented  by  the  Commission  -  a  Member  State  and  regional  and  local
authorities  in  direct  application  of  binding  secondary  Community  law  (regulations,
directives or decisions); and

–  target-based  tripartite  agreements  to  describe  agreements  concluded  between  the
Commission,  a  Member  State  and  regional  and  local  authorities  outside  a  binding
Community framework.

2. 

AIMS AND SCOPE OF TARGET-BASED TRIPARTITE CONTRACTS AND AGREEMENTS

(cid:1)  Target-based  tripartite  contracts  and  agreements  are,  on  principle,  subject  to  a  general
obligation  of  compatibility  with  the  Treaties;  in  particular,  they  may  under  no
circumstances  create  or  sustain  obstacles  to  intra-Community  trade.  They  may  only  be
envisaged where they do not conflict with the constitutional systems of the Member States.
They are justified when they offer value added by comparison with other instruments for
the  achievement  of  common  objectives.  This  value  added  may  lie  in  either  the
simplification  resulting  from  the  contract  (where,  for  example,  the  contract  reduces  the
number of detailed horizontal implementing measures required) or in the political benefits
and efficiency gains resulting from closer involvement and participation of regional and
local  authorities  in  policies  whose  impact  varies  in  accordance  with,  for  example,
geographical, climatic or demographic circumstances and which are thus likely to benefit
from  local  knowledge  and  practice.  In  some  cases,  such  simplification  and  increased
participation  of  territorial  authorities  may  also  be  expected  to  lead  to  speedier
performance.

(cid:1)  On the basis of these aims, it is possible to determine a number of general characteristics of
tripartite contracts and  agreements  relating to scope, actors, and  certain  arrangements for
participation and information in the implementation process.

Areas  in  which  the  pursuit  of  Community  objectives  must  take  into  account
significant  variations  in  territorial  impact  as  well  as  the  a  priori  availability  of
territorial policy management experience will be prime candidates for the conclusion
of tripartite contracts or agreements. Regional policy and the environment spring to
mind. However, recourse to tripartite instruments does not affect the management of
Structural Funds as laid down in existing regulations, without prejudice to the future
development  of  these  regulations.  Since  the  aim  is  to  develop  experience  and
encourage involvement, the clear identification of local actors to be included in the
contract  or  agreement  is  an  important  condition  for  success.  This  identification
requires the involvement of the Member States, if only to ensure that the contract or
agreement is compatible with constitutional, legislative and administrative provisions
in force in each Member State.

The  notion  of  contract  or  agreement  implies  that  the  actors  concerned  converge
around  previously  and  clearly  defined  objectives.  Whether  quantitative  or
qualitative, these objectives should, as far as possible, be measurable. In the case of
tripartite  contracts,  minimum  objectives  to  be  included  in  the  contract  will  be
specified in the basic legislative instrument (directive, decision or regulation). As for
tripartite  agreements,  minimum  basic  objectives  are  to  be  deduced  from  relevant
preparatory documents (for example, a recommendation or a White Paper).

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Finally,  considerable  information  will  have  to  be  provided  on  the  content,
implementation and results of the contractual or agreement-based approach. For the
attention  of  the  interested  parties,  this  will  be  the  task  first  and  foremost  of  the
regional and local  authorities concerned,  which will  have to consult and involve as
much as possible organisations representing local and regional life. For the attention
of the relevant Union institutions and bodies, the Commission will be responsible for
submitting  to  the  Parliament,  the  Council  and  the  Committee  of  the  Regions  an
evaluation and follow-up report.

(cid:1)  In the case of tripartite contracts between the Community - represented by the Commission
- a Member State and the regional and local authorities designated by them, compatibility
with the general provisions of the Treaties requires that the following be included:

– 

– 

in  the  basic  legislative  instrument  (directive,  decision  or  regulation),  an
enabling  clause  by  which,  in  accordance  with  Article  202  of  the  Treaty,  the
legislator authorises the Commission to conclude a contract with the Member
States  and  the  local  authorities  involved  in  the  achievement  of  the  objectives
defined in the legislation (cf. Annex I to the Communication); and

in  the  wording  of  the  contract  itself,  a  provision  aimed  at  recalling  that  the
Member State in which the tripartite contract is performed is alone responsible
vis à vis the Commission for its due performance and, consequently, subject to
possible legal action pursuant to Article 226 of the Treaty. This provision does
not exclude other partners from participating in the detailed performance of the
tripartite contract.

(cid:1)  Finally,  tripartite  agreements  must  include  a  clause  referring  to  compatibility  with  the

general provisions of the Treaties.

3. 

IMPLEMENTATION OF TARGET-BASED TRIPARTITE CONTRACTS AND AGREEMENTS

(cid:1)  The  establishment  of  a  contractual  commitment  in  the  form  of  a  target-based  tripartite
contract or agreement will take the form of a document signed by the authorising officers.
A model contract or agreement reiterating the principles and aims outlined in the first part
of this Communication is attached in Annex II.

(cid:1)  Any one of the future contracting parties may take the initiative to establish such tripartite
relations.  For  its  part,  the  Commission  will  review  such  initiatives  while  taking  into
account, on a case-by-case basis, the possibility of following up to them in the light of the
general principles outlined in this framework communication. This review will be carried
out in concertation with the Member States concerned.

Expressions of interest and possible pilot initiatives will - in addition to being subjected to
a  value  added  assessment  -  be  considered  with  regard  to  available  human  and  financial
resources.

(cid:1)  The  Commission  does  not  plan  to  propose  a  modification  of  the  existing  provisions
governing the implementation of the Structural Funds, considering instead that the existing
partnerships should be allowed to run their course.

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(cid:1)  In  the  first  instance,  the  Commission  plans  to  launch  pilot  target-based  tripartite
agreements.  Only  after  having  assessed  and  drawn  lessons  from  this  experiment  will  it
consider the possibility of target-based tripartite contracts.

a) the  Commission will examine the possibility of  securing  appropriations  for  pilot
target-based tripartite agreements on the basis of Article 48 § 2 of the new financial
regulation which incorporates the contents of the interinstitutional agreement of May
1999 on budgetary discipline and improvement of the budgetary procedure.1 In any
implementation  of
event, 
contracts/agreements  will  be  defined  later,  in  accordance  with  the  new  financial
regulation.  Recourse 
the
Commission’s  right  to  demand  and  obtain,  in  accordance  with  its  responsibilities
pursuant  to  Article  274,  the  necessary  financial  guarantees  from  the  partner
concerned and, failing that, from the Member State.

tripartite  contracts/agreements  does  not  affect 

the  budgetary  and 

financial 

rules 

the 

for 

to 

b)  in  general,  tripartite  agreements  or  contracts  will  not  qualify  for  additional
Community  financing.  They  will  become  an  arrangement  for 
the  use  of
appropriations normally allocated to the performance of common policies.

Annex I:

Enabling clause (tripartite contracts)

Annex II:

Model tripartite contract or agreement

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Point 37 of this agreement specifies that appropriations for pilot schemes of an experimental nature aimed at testing
the feasibility of an action and its usefulness may be implemented without a basic act as long as the actions which
they  are  intended  to  finance  fall  within  the  competence  of  the  Community.  The  same  applies  to  appropriations
relating  to  preparatory  actions  intended  to  prepare  proposals  with  a  view  to  the  adoption  of  future  Community
actions.

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Annex 1

Enabling clause for a tripartite contract
to be inserted into a draft regulation, directive or decision

1. 

Aim

“In view of what follows:

The [...] measures envisaged have strong territorial impact.

These measures aim to achieve the following objectives: [...].

In order to take account of certain regional or local characteristics, these objectives
may, where applicable, be achieved by a tripartite contract between the Community,
represented by the Commission, a candidate Member State and a  regional  or  local
authority of that Member State, where the criteria defined in the present regulation
are met.

The aim of tripartite contracts is to achieve optimal implementation of the objectives
established by the regulation.”

2. 

Arrangements

Article […]:

“The  [...]  objectives  may,  in  order  to  take  account  of  certain  regional  or  local
characteristics,  be  achieved  by  a  tripartite  contract  between  the  Community,
represented  by  the  Commission,  a  candidate  Member  State  and  a  regional  or  local
authority of that Member State, where the following criteria are met:

– 

– 

the  envisaged  tripartite  contract  must  be  authorised  by  the  constitutional,
legislative,  regulatory  or  administrative  provisions  of  the  candidate  Member
State;

the regional or local authority concerned must have the required powers in the
targeted area of implementation;

– 

[…]”

Article […]:

“The  tripartite  contract  referred  to  in  Article  [...]  is  ratified  by  a  decision  of  the
Commission  addressed  to  the  Member  State  and  the  regional  or  local  authority
concerned.”

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ANNEX 2

Model tripartite contract or agreement (key elements)

1.

Contracting parties or parties to the agreement

The contracting parties or the parties to the agreement shall be mentioned, along with
the natural persons representing them (names and positions). The competence of the
parties  shall  be  verified,  as  well  as  the  power  of  signature  of  the  natural  persons
representing them.

2.

Preamble

(cid:1)  The preamble to a “tripartite contract” based on an  enabling  clause  inserted  in a
Community regulation, directive or decision shall refer to the relevant Community
and national legal bases.

Example:

“The present tripartite contract is based on Article [...] of EC Regulation No [...] of
the  European  Parliament  and  the  Council  of  [...]  concerning  [...]  and  on  Articles
[...]  [relevant  constitutional  and  administrative  provisions  of  the  Member  State
concerned].”

(cid:1)  The preamble to a “tripartite agreement” shall refer to the relevant Community or

national legal framework.

Example:

“The aim of the present tripartite agreement is to implement, in a voluntary manner,
the  Recommendation  of  the  European  Parliament  and  the  Council  of  30 May  2002
concerning the implementation of Integrated Coastal Zone Management in Europe.

This tripartite agreement is compatible with Articles [...] [relevant constitutional and
administrative provisions of the Member State concerned].”

3.

Definitions

The  tripartite  contract  or  agreement  shall  contain  precise  definitions  of  the  main
terms used, in particular technical and legal terms open to different interpretations.

4.

Subject of the contract or agreement

The  subject  of  the  contract  or  agreement  shall  be  clearly  defined.  Contracts  or
agreements  shall  be  concluded  for  the  achievement  of  specific  “objectives”.  These
may be quantitative and/or qualitative but must in any case be susceptible to follow-
up. In particular, quantitative objectives must be quantified and qualitative objectives
identifiable. Any exceptions must be specifically mentioned.

5.

Nature of obligations

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Preference  will  be  given  to  obligations  regarding  results  as  opposed  to  obligations
regarding means.

In  the  case  of  a  tripartite  contract  based  on  an  enabling  clause  inserted  in  a
Community regulation,  directive  or  decision,  only  obligations  regarding  results  can
be considered.

6.

Arrangements for follow-up and evaluation

Tripartite  contracts  or  agreements  shall  contain  transparent  and  appropriate
arrangements  for  credible  follow-up  and  evaluation.  In  this  respect,  existing  best
practice may be taken into account.

7.

Transparency

Tripartite contracts or agreements shall be established and implemented in the most
transparent  manner  possible.  Transparency  is  first  and  foremost  of  concern  to  the
interested  parties  and,  in  particular,  the  organisations  representing  regional  or  local
life  (the  business  world,  chambers  of  commerce,  non-governmental  organisations,
etc.).  The  transparency  of  the  project  shall  be  reflected  in  the  preamble  to  the
contract or agreement.

With  a  view  to  ensuring  transparency  in  implementation,  contracts  or  agreements
shall provide for an adequate mechanism for informing, associating and/or consulting
as often as is achievable.

The  contract  shall  be  adequately  advertised.  The  Commission  shall  publish  in  the
Official  Journal  of  the  European  Communities  an  extract  from  those  contracts  and
agreements to which it is a party, accompanied by indications on how to obtain the
totality of the documents.

8.

Consequences of non-performance

Tripartite contracts or agreements shall specify the consequences of non-performance
of  their  provisions  and,  where  applicable,  any  remedies.  In  the  case  of  a  tripartite
contract provided for in a regulation, directive or decision, the basic act shall indicate
that in case of non-performance, Community common law rules will, ipso facto, at a
minimum,  apply.  For  tripartite  agreements,  non-performance  clauses  shall  be
established on a case-by-case basis.

9.

Duration

Tripartite  contracts  or  agreements  shall  be  concluded  for  a  fixed  term  with  a
possibility for renewal if provided for in the texts to which they refer.

10.

Decision of the Commission

Tripartite contracts based on an enabling clause inserted in a Community regulation,
directive or decision shall be ratified by a decision of the Commission addressed to
the  Member  State  and/or  the  regional  or  local  authority  concerned.  This  provision
shall be the subject of a specific clause in the contract. The Commission’s decision
shall be published in the Official Journal of the European Communities with extracts

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from the contract or agreement, as well as indications on how to obtain a full copy of
the text in the original language, annexed.

11.

Date and signature

Tripartite contracts or agreements shall be dated and signed by natural persons with
the power of signature.

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