Introduction

As former Commissioner for Cohesion and Reforms, Elisa Ferreira put it: “…internal borders still represent hurdles to individuals, companies, or civil society, due to incompatible legal frameworks or administrative procedures that do not fully consider the territory beyond the border” (see E. Ferreira). That is why in 2018 the European Commission tabled a proposal for an EU regulation on a mechanism to resolve legal and administrative obstacles in a cross-border context in order to allow for the application in one Member State, with regard to a cross-border region, of the legal provisions from another Member State, where the application of the legal provisions of the former would constitute a legal obstacle hampering the implementation of a joint project. The reason behind this initiative could be linked to the fact that cross-border regions are hotbeds for legal disputes (see M. Unfried et al.), as these are areas where the rules of two or more national legal systems collide and interact on a regular basis (see J. Beck).

Under the proposal, legal obstacles were defined as legal provisions with regard to the planning, development, staffing, financing or functioning of a joint project that could obstruct the inherent potential of a border region when interacting across the border. Joint project meant any item of infrastructure with an impact in a cross-border region or any service of general economic interest provided there.

In truth, legal and administrative obstacles to cross-border cooperation may take the form of a lack of EU legislation in those fields where the EU has exclusive or shared competence, diversity and inconsistencies between national or regional legislation in matters of purely coordinating or supporting competence of the Union, and administrative barriers caused by asymmetrical cooperation or a lack of horizontal coordination or different administrative cultures (see I. Ottaviano). As clarified by the European Commission in 2017, solving 20% of those obstacles would lead to a 2% increase in cross-border regions’ GDP, while removing all the obstacles would make those regions 8% richer (see the Communication on boosting growth and cohesion in EU border regions).

As highlighted by the Commission in the proposal, Article 174 TFEU recognises the challenges faced by border regions and provides that the Union should pay particular attention to them in order to strengthen the EU’s economic, social and territorial cohesion. This would justify increased integration between cross-border regions, as it would make it possible to overcome physical borders and promote institutional innovation (see L. De Sousa), and more specifically, the setting up of a mechanism to resolve legal and administrative obstacles in cross-border contexts.

The Mechanism to Resolve Legal and Administrative Obstacles in a Cross-border Context as an Old Proposal

As provided for in the original proposal, the mechanism could lead to the conclusion of either a European Cross-Border Commitment (ECBC) or a European Cross-Border Statement (ECBS), provided that the Member States could opt for existing ways to resolve the relevant legal obstacles. The ECBC would have been self-executing and the competent authorities of the committing Member State would have to amend the existing administrative acts, where necessary, and adopt the additional acts in order to allow the application of the foreign provision on its territory. The ECBS could be applied only after a legislative procedure had been started in the committing Member State, following which administrative acts would be amended and adopted where necessary. If a Member State had opted for the mechanism, it would have to establish one or more Cross-border Coordination Points that would be responsible for dovetailing the cooperation between the Member States.

The proposal was welcomed with positive responses by the Committee of the Regions, the Economic and Social Committee, and the European Parliament. The latter adopted its negotiating position on 14 February 2019 and kept the amendments to a bare minimum, focusing for instance on the Commission’s duties related to the preparation of a supporting communication strategy.

For its part, the Council declared its support for the proposal, but also held that additional analyses would be required to tackle issues related to the voluntary nature of the mechanism, the bureaucratic burden it would cause, and the coordination with existing tools. Following the COVID-19 pandemic, the proposal was considered a low-level priority by the Council, which in the end halted work on it.

However, the proposal did gather scholarly interest. Some highlighted that the mechanism seemed to be inspired by the experimental legislation existing in some Member States, which is aimed at temporarily implementing rules derogating from ordinary law (see I. Ottaviano). Following a trial period, those rules can be either definitively adopted, modified or abandoned. That happens in Germany both at the federal and Länder level with the Experimentierklausel, and in France (see Articles 37-1 and 72(4) of the French Constitution).

Others praised the proposal because it aimed at creating a cross-border area in which normative homogeneity with respect to a given joint project could be achieved (see F.E. Grisostolo and yours truly) and because of its place-based approach and voluntary nature, that would make it possible for regional and local authorities to choose and adapt the best mechanisms to deal with cross-border cooperation issues (see G. Asaro). According to another author, the proposal was far reaching as it touched upon “fundamental questions of territoriality, subsidiarity and the reach of rule-of-law in an international community”, but it would be likely to draw criticism as to whether it would respect Member States’ sovereignty (see F. Sielker).

The Border Regions’ instrument for development and growth (BRIDGEforEU) as an Apparently Ineffective Solution to the Same Problem

On 14 September 2023, the European Parliament adopted a resolution stressing the persistence of legal and administrative obstacles affecting cross-border regions’ economies and societies. It underlined the need to amend the Commission’s proposal in order to set up a simple and straightforward coordination framework allowing Member States’ authorities to remove those obstacles and requested the Commission to submit a new proposal. In the annex to the resolution, recommendations were laid down as to the content of the proposal to be submitted by the Commission. A key role would be played by a Cross-border Committee, a temporary body composed of representatives from the competent authorities of the Member States concerned, that should come up with an ad hoc solution for the removal of a cross-border obstacle. Should they agree upon the ad hoc solution, the Member States would be under the obligation to adopt the necessary implementing measures.

On 12 December 2023, the Commission adopted an amended proposal for a regulation on facilitating Cross-Border Solutions. On 28 January 2025, the European Parliament and the Council reached a political agreement and on 7 May 2025, Regulation 2025/925 on a Border Regions’ instrument for development and growth (BRIDGEforEU) was adopted. The Regulation envisages the voluntary establishment of cross-border coordination points in each Member State for the reporting of cross-border obstacles and the evaluation of dossiers submitted by initiators, meaning public or private entities involved in the provision, operation, establishment or functioning of a cross-border public service or infrastructure. The cross-border coordination points (or the competent national authorities) shall assess the cross-border obstacle described by the initiator. If they conclude that there is an obstacle, they may rely on an international agreement in force or other procedures existing under national law, create ad hoc mechanisms or apply the Cross-Border Facilitation Tool. If the cross-border coordination points (or the competent national authorities) decide to apply the Cross-Border Facilitation Tool, they shall contact the competent authority to verify the interest in and feasibility of eliminating the obstacle. The decision to remove an obstacle remains voluntary and the relevant national authorities are responsible for it. The cross-border coordination points shall inform the initiator in writing about the outcome of the procedure. Legal redress shall be limited to verifying the respect of procedural rights pursuant to Regulation 2025/925.

The result is highly nuanced, as it is left to the discretion of the Member States to remove the obstacles, since there is no longer an obligation to do so. Moreover, Member States remain free to determine the measure, if any, to be implemented to overcome the obstacles. In particular, the application of rules drawn from the law of another Member State is no longer mentioned, although this does not seem to be excluded. Thus, the innovative dimension of the mechanism also fades away. Finally, the establishment of contact points becomes optional. Presumably, this will lead to a system that is less efficient in dealing with the problems posed by cross-border obstacles, as bodies specifically dedicated to this could be lacking.

Conclusion

It has been argued that cohesion policy lies at the heart of the European integration process, as it aims to promote the homogeneity and unity of the Union (see C. Blumann). Therefore, this policy is marked by a strong solidarity dimension, which is the reason behind its existence (see I. Ottaviano).

Over time, the Union’s action in this field has changed contours. In fact, there has been a shift from a purely economic and social cohesion, promoted through funding mechanisms such as the European Regional Development Fund or the European Social Fund, to a more properly territorial cohesion, pursued through forms of dialogue involving regional and local authorities (see M. Vellano).

Over the years, territorial cooperation has significantly contributed to an innovative trend in the development of the European integration process. One may think of Euroregions, macroregional strategies, the European Groupings of Territorial Cooperation, as well as the B-Solutions programme. This initiative was launched by the European Commission in 2018 as a way to offer legal support to public authorities in cross-border areas in order to determine the underlying reasons for any administrative or legal barriers influencing their cross-border interactions and to look into possible remedies. However, the programme does not provide a remedy mechanism but simply aims at facilitating the task of competent national authorities in dealing with the obstacles (see L. Van der Auwermeulen).

Therefore, the mechanism to resolve legal and administrative obstacles in a cross-border context, as laid down in the original proposal, would have proven useful to fill this gap. However, it has been severely watered down, giving what appears to be excessive room for Member States’ discretion while contributing little to EU cohesion.

Posted by Alessandro Rosanò.

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Alessandro Rosanò is Senior Assistant Professor of EU Law at the University of Parma. He holds a PhD in Law from the University of Padova and has previously held research and teaching positions at the Universities of Turin, Florence, and Valle d’Aosta.