The Pan-European General Principles on Transnational Mutual Assistance and Participation in Administrative Procedures and Transfrontier Cooperation between Administrative Authorities
(compiled by Ulrich Stelkens)
IV. Pan-European Individual Rights to Transnational Mutual Assistance and Transfrontier Cooperation?
I. Delination of the Scope of the Pan-European General Principles on Transnational Mutual Assistance and Participation in Administrative Procedures and Transfrontier Cooperation in Administrative Matters
The pan-European general principles on transnational mutual assistance and participation in administrative procedures deal with ad hoc cooperation between administrative authorities of different CoE Member States in relation with a specific administrative procedure to be carried out by an administrative authority of one of these states. The pan-European general principles on transfrontier cooperation deal with forms of institutionalised cross-border cooperation between administrative authorities of different CoE Member States usually based on an agreement between these administrative authorities with the aim of jointly to providing public services together or coordinating administrative actions (especially in the field of regional spatial planning).
However the distinction between transnational mutual assistance and transfrontier cooperation is not clear-cut, but rather gradual (as Article 17 of 'Convention 108' as amended by the Protocol amending the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (CETS No. 223) in particular shows (click here).
The scope of application of the pan-European general principles on transnational mutual assistance and participation in administrative procedures and transfrontier cooperation in relation to the scope of application of other pan-European general principles can be delineated as follows:
- The pan-European general principles on transnational mutual assistance and participation in administrative procedures and transfrontier cooperation between administrative authorities are factually closely connected to the pan-European general principles on digitalisation of public administration and e-Government (for these principles click here): Internet and electronic communication facilitate and can therefore be used for transnational administrative action (such as the dissemination of (official) documents and the access to data in general) and may therefore be used for this purpose. Digitalisation may, thus, be a tool to promote transnational mutual assistance, participation and cooperation but this is only one 'public service' which can be provided by electronic government.
- In addition, the pan-European general principles on transnational mutual assistance and participation in administrative procedures and transfrontier cooperation complement all other pan-European general principles of good administration by adding a "transnational dimension".
II. The Pan-European General Principles on Transnational Mutual Assistance and Participation in Administrative Procedures
The idea that the CoE should engage in questions of transfrontier mutual assistance in administrative matters between the CoE Member States goes back to a proposal of the the Ad Hoc Committee on Legal Co-Operation to the Committee of Ministers:
"6. Mutual assistance in administrative matters
Decision: This subject was adopted for the legal programme subject to the preparation of a detailed study. Delegations were asked to communicate their observations to the Secretariat, which would subsequently draft an over-all report on the matter. In the light of this study the European Committee on Legal Co-operation would ultimately decide whether, and in what manner, the problem might be further examined.
Commentary
It was proposed that the possibility should be examined of concluding a Convention on mutual assistance in administrative matters on the lines of the Hague Convention of 1st March 1954 on civil procedure.
The question arose of the fields to be covered by any possible convention. Subjects mentioned were problems of road traffic, aliens regulations, hunting and fishing licences. The importance of having a system of direct notification between neighbouring States was emphasised. Furthermore, in cases of international disputes originating from expropriations ordered by a third State, co-operation between the administrations of various European States concerned might well prove useful; such expropriation often damaged the interests of nationals of several States, and some co-ordination of the attitude to be adopted by those States would then be expedient, if only to avoid duplication in the payment of compensation. It was also observed that the rules of courtesy did not always allow of solutions technically as satisfactory as those which might be obtained through the drafting of a convention."
The study was presented at the 2nd Colloquy on European Law in Aarhus (30 June –2 July 1971) organised by the CoE. Its proceedings are published in CoE (ed.), International Mutual Assistance in Administrative Matters (1971). An extended version of the report of Edwin Loebenstein prepared for this Colloquy is published as E. Loebenstein, International Mutual Assistance in Administrative Matters - Österreichische Zeitschrift für öffentliches Recht/Supplementum 2 (1972), 93 p.
4. Convention on Mutual Administrative Assistance in Tax Matters (ETS No. 127)
1. European Convention on the Service Abroad of Documents relating to Administrative Matters (ETS No. 094)
- Opening for signature: 24 November 1977
- Entry into force: 1 November 1982
- The convention is signed by 13 and ratified by 9 Member States of the CoE
Summary of the Treaty Office:
"The Convention aims to set out a legal basis for mutual assistance with regard to the service of documents relating to administrative matters. However, the Parties may extend its application to fiscal matters or to any proceedings in respect of offences the punishment of which does not fall within the jurisdiction of their judicial authorities.
The Convention lays down rules to be respected as regards requests for service, exemption from legalisation, language, and service by consular agents, post or other channels of transmission.
Each Party is to designate a central authority to receive and take action on requests for service of documents relating to administrative matters emanating from other Parties."
"Introduction
1. Owing to the large number of people who are living in foreign countries and the length of their stay in those countries, it is often necessary for the authorities of one State to assist those of another State in carrying out its tasks with regard to those persons.
Save for some international conventions, each of which binds only a more or less restricted number of the member States of the Council of Europe, mutual assistance between administrative authorities of different States is based mainly on informal or ad hoc arrangements which have been prompted by practical necessity as well as by neighbourliness. Mutual assistance in administrative matters is less developed than mutual assistance in civil, commercial or criminal matters; it has seldom been systematised except in some narrowly defined fields.
2. For this reason, in 1963 the Committee of Ministers of the Council of Europe included the problem of mutual assistance in administrative matters in its Resolution (63) 29 concerning the legal programme of the Council of Europe.
The matter was taken up in 1969 in the framework of the activities of the sub-committee to review the legal programme of the European Committee on Legal Co-operation (CCJ). The next step was its examination by the 2nd Colloquy on European Law which was organised in 1971 at Aarhus (Denmark) following a decision of the Committee of Ministers. The work of the colloquy was based on the replies by governments to a questionnaire on international mutual assistance in administrative matters as well as on papers presented by MM. M. Fromont, J. Gersing and E. Loebenstein.
3. In 1975, the Committee of Ministers decided, on the proposal of the CCJ, to set up a Committee of Experts on Mutual Assistance in Administrative Matters to study the possibility of drawing up appropriate legal instruments dealing with:
a. the service abroad of administrative documents emanating from one State and intended for persons residing in another State; as well as
b. improvement of means whereby the authorities of one State may obtain information from the authorities of another State;
and to determine the administrative fields to which these new instruments should apply.
4. The committee of experts held four meetings in 1975 and 1976 under the chairmanship of Professor J. Oyame (Switzerland); the Vice Chairman was Mr L. Chatin (France). It set up a working group presided by Mr L. Chatin and composed of Mr K. Berchtold (Austria), Mrs B. Lynaes (Denmark), Mr St. Cantono Di Ceva (Italy) and Mr J. S. Dixon (United Kingdom), which held two meetings in the summer of 1975.
The committee of experts began its work with a general discussion on the basic principles by which its activities should be guided. It carefully examined the various aspects of the problem, including the question of how many and what kind of legal instruments were to be elaborated; it took into account the fact that the CCJ had already ruled out the idea of a single international instrument which would cover the entire field of mutual assistance in administrative matters. The committee of experts decided to proceed by elaborating two draft conventions, the first one dealing with the service abroad of documents relating to administrative matters and the second one with the obtaining abroad of information and evidence in administrative matters.
5. Although the former has a direct bearing on relations between administrative authorities and the individual, whereas the latter deals mainly with the means of co-operation between administrative authorities inter se, the committee was of the opinion that the two conventions are closely linked, particularly in view of the similarity of the solutions adopted. For this reason, it devoted particular attention to problems of consistency between the two texts and with other multilateral international conventions on mutual assistance in civil and commercial matters on the one hand and criminal matters on the other.
6. The main preoccupation of the committee of experts was to fill in the gaps between other existing international conventions and at the same time to avoid overlapping with them, so as to establish a coherent conventional framework on which international mutual assistance between the member States could be based.
7. With regard to the European Convention on the Service Abroad of Documents relating to Administrative Matters, the committee took account particularly of the Hague Convention on Civil Procedure of 1 March 1954 and the Hague Convention on the Service Abroad of Judicial and Extra-judicial Documents in Civil or Commercial Matters of 15 November 1965, for example with regard to the transmission procedures to be followed; it also had regard to the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959, in particular in connection with defining the scope of the Convention.
8. The committee of experts benefited from the attendance at its meetings of an observer from the Permanent Bureau of the Hague Conference on Private International Law."
2. European Convention on the Obtaining Abroad of Information and Evidence in Administrative Matters (ETS No. 100)
- Opening for signature: 15 March 1978
- Entry into force: 1 January 1983
- The convention is signed by 9 and ratified by 6 Member States of the CoE
Summary of the Treaty Office:
"Parties undertake to afford each other mutual assistance in administrative matters. Each Party designates a central authority to forward requests for assistance, and another to receive and take action on incoming requests. The request may concern information on law, regulations and customs, factual information and documents, as well as evidence to be used in judicial proceedings. Under certain conditions, Parties may obtain evidence in an administrative matter directly through their diplomatic or consular agents."
"Introduction
1. Owing to the large number of people who are living in foreign countries and the length of their stay in those countries, it is often necessary for the authorities of one State to assist those of another State in carrying out its tasks with regard to those persons.
Save for some international conventions, each of which binds only a more or less restricted number of the member States of the Council of Europe, mutual assistance between administrative authorities of different states is based mainly on informal or ad hoc arrangements which have been prompted by practical necessity as well as by neighbourliness. Mutual assistance in administrative matters is less developed than mutual assistance in civil, commercial or criminal matters; it has seldom been systematised except in some narrowly defined fields.
2. For this reason, in 1963 the Committee of Ministers of the Council of Europe included the problem of mutual assistance in administrative matters in its Resolution (63) 29 concerning the legal programme of the Council of Europe.
The matter was taken up in 1969 in the framework of the activities of the sub-committee to review the legal programme of the European Committee on Legal Co-operation (CCJ). The next step was its examination by the 2nd Colloquy on European Law which was organised in 1971 at Aarhus (Denmark) following a decision of the Committee of Ministers. The work of the colloquy was based on the replies by governments to a questionnaire on international mutual assistance in administrative matters as well as on papers presented by MM. M. Fromont, J. Gersing and E. Loebenstein.
3. In 1975, the Committee of Ministers decided, on the proposal of the CCJ, to set up a Committee of Experts on Mutual Assistance in Administrative Matters to study the possibility of drawing up appropriate legal instruments dealing with
a. the service abroad of administrative documents emanating from one State and intended for persons residing in another State; as well as
b. improvement of means whereby the authorities of one State may obtain information from the authorities of another State;
and to determine the administrative fields to which these new instruments should apply.
4. The committee of experts held four meetings in 1975 and 1976 under the chairmanship of Professor J. Voyame (Switzerland); the Vice-Chairman was Mr L. Chatin (France). It set up a working group presided by Mr L. Chatin and composed of Mr K. Berchtold (Austria), Mrs B. Lynaes (Denmark), Mr St. Cantono Di Ceva (Italy) and Mr J. S. Dixon (United Kingdom), which held two meetings in the summer of 1975. In 1977 a new committee of experts on mutual assistance met to give final consideration to the draft of the present Convention.
The committee of experts began its work with a general discussion on the basic principles by which its activities should be guided. It carefully examined the various aspects of the problem, including the question of how many and what kind of legal instruments were to be elaborated; it took into account the fact that the CCJ had already ruled out the idea of a single international instrument which would cover the entire field of mutual assistance in administrative matters. The committee of experts decided to proceed by elaborating two draft conventions, the first one dealing with the service abroad of documents relating to administrative matters and the second one with the obtaining abroad of information and evidence in administrative matters.
5. Although the former has a direct bearing on relations between administrative authorities and the individual, whereas the latter deals mainly with the means of co-operation between administrative authorities inter se, the committee was of the opinion that the two conventions are closely linked, particularly in view of the similarity of the solutions adopted. For this reason, it devoted particular attention to problems of consistency between the two texts and with other multilateral international conventions on mutual assistance in civil and commercial matters on the one hand and criminal matters on the other.
6. The main preoccupation of the committee of experts was to fill in the gaps between other existing international conventions and at the same time to avoid overlapping with them, so as to establish a coherent conventional framework on which international mutual assistance between the member States could be based.
7. Special attention was given, when the European Convention on the Obtaining Abroad of Information and Evidence in Administrative Matters was being elaborated, to the Hague Conventions on Civil Procedure of 1 March 1955 and on the Taking of Evidence Abroad in Civil or Commercial Matters of 18 March 1970, as well as the European Conventions on Information on Foreign Law of 7 June 1968 and on Mutual Assistance in Criminal Matters of 20 April 1959, particularly with regard to the mutual assistance machinery and certain forms of assistance provided for in this Convention, such as requests for information on law and practice and letters of request in administrative matters.
8. During its work the committee of experts benefited from the attendance at its meetings of an observer from the Permanent Bureau of the Hague Conference on Private International Law."
3. Mutual Assistance under the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108)
The 'Convention 108' is signed and ratified by all 46 Member States of the CoE. Its scope of application covers "to automated personal data files and automatic processing of personal data in the public and private sectors." (Article 3 (1)). For the general role of 'Convention 108' for the pan-European general principles on data protection in the public sector click here.
"Chapter IV – Mutual assistance
Article 13 – Co-operation between Parties
1 The Parties agree to render each other mutual assistance in order to implement this Convention.
2 For that purpose:
a each Party shall designate one or more authorities, the name and address of each of which it shall communicate to the Secretary General of the Council of Europe;
b each Party which has designated more than one authority shall specify in its communication referred to in the previous sub-paragraph the competence of each authority.
3 An authority designated by a Party shall at the request of an authority designated by another Party:
a furnish information on its law and administrative practice in the field of data protection;
b take, in conformity with its domestic law and for the sole purpose of protection of privacy, all appropriate measures for furnishing factual information relating to specific automatic processing carried out in its territory, with the exception however of the personal data being processed.
Article 14 – Assistance to data subjects resident abroad
1 Each Party shall assist any person resident abroad to exercise the rights conferred by its domestic law giving effect to the principles set out in Article 8 of this Convention.
2 When such a person resides in the territory of another Party he shall be given the option of submitting his request through the intermediary of the authority designated by that Party.
3 The request for assistance shall contain all the necessary particulars, relating inter alia to:
a the name, address and any other relevant particulars identifying the person making the request;
b the automated personal data file to which the request pertains, or its controller;
c the purpose of the request.
Article 15 – Safeguards concerning assistance rendered by designated authorities
1 An authority designated by a Party which has received information from an authority designated by another Party either accompanying a request for assistance or in reply to its own request for assistance shall not use that information for purposes other than those specified in the request for assistance.
2 Each Party shall see to it that the persons belonging to or acting on behalf of the designated authority shall be bound by appropriate obligations of secrecy or confidentiality with regard to that information.
3 In no case may a designated authority be allowed to make under Article 14, paragraph 2, a request for assistance on behalf of a data subject resident abroad, of its own accord and without the express consent of the person concerned.
Article 16 – Refusal of requests for assistance
A designated authority to which a request for assistance is addressed under Articles 13 or 14 of this Convention may not refuse to comply with it unless:
a the request is not compatible with the powers in the field of data protection of the authorities responsible for replying;
b the request does not comply with the provisions of this Convention;
c compliance with the request would be incompatible with the sovereignty, security or public policy (ordre public) of the Party by which it was designated, or with the rights and fundamental freedoms of persons under the jurisdiction of that Party.
Article 17 – Costs and procedures of assistance
1 Mutual assistance which the Parties render each other under Article 13 and assistance they render to data subjects abroad under Article 14 shall not give rise to the payment of any costs or fees other than those incurred for experts and interpreters. The latter costs or fees shall be borne by the Party which has designated the authority making the request for assistance.
2 The data subject may not be charged costs or fees in connection with the steps taken on his behalf in the territory of another Party other than those lawfully payable by residents of that Party.
3 Other details concerning the assistance relating in particular to the forms and procedures and the languages to be used, shall be established directly between the Parties concerned."
Articles 20 to 26 of the Protocol amending the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (CETS No. 223) will change Chapter IV of 'Convention 108' as follows:
"Chapter V – Co-operation and mutual assistance
Article 16 – Designation of supervisory authorities
1 The Parties agree to co-operate and render each other mutual assistance in order to implement this Convention.
2 For that purpose:
a each Party shall designate one or more supervisory authorities within the meaning of Article 15 of this Convention, the name and address of each of which it shall communicate to the Secretary General of the Council of Europe;
b each Party which has designated more than one supervisory authority shall specify the competence of each authority in its communication referred to in the previous littera.
Article 17 – Forms of co-operation
1 The supervisory authorities shall co-operate with one another to the extent necessary for the performance of their duties and exercise of their powers, in particular by:
a providing mutual assistance by exchanging relevant and useful information and co-operating with each other under the condition that, as regards the protection of personal data, all the rules and safeguards of this Convention are complied with;
b co-ordinating their investigations or interventions, or conducting joint actions;
c providing information and documentation on their law and administrative practice relating to data protection.
2 The information referred to in paragraph 1 shall not include personal data undergoing processing unless such data are essential for co-operation, or where the data subject concerned has given explicit, specific, free and informed consent to its provision.
3 In order to organise their co-operation and to perform the duties set out in the preceding paragraphs, the supervisory authorities of the Parties shall form a network.
Article 18 – Assistance to data subjects
1 Each Party shall assist any data subject, whatever his or her nationality or residence, to exercise his or her rights under Article 9 of this Convention.
2 Where a data subject resides on the territory of another Party, he or she shall be given the option of submitting the request through the intermediary of the supervisory authority designated by that Party.
3 The request for assistance shall contain all the necessary particulars, relating inter alia to:
a the name, address and any other relevant particulars identifying the data subject making the request;
b the processing to which the request pertains, or its controller;
c the purpose of the request.
Article 19 – Safeguards
1 A supervisory authority which has received information from another supervisory authority, either accompanying a request or in reply to its own request, shall not use that information for purposes other than those specified in the request.
2 In no case may a supervisory authority be allowed to make a request on behalf of a data subject of its own accord and without the express approval of the data subject concerned.
Article 20 – Refusal of requests
A supervisory authority to which a request is addressed under Article 17 of this Convention may not refuse to comply with it unless:
a the request is not compatible with its powers;
b the request does not comply with the provisions of this Convention;
c compliance with the request would be incompatible with the sovereignty, national security or public order of the Party by which it was designated, or with the rights and fundamental freedoms of individuals under the jurisdiction of that Party.
Article 21 – Costs and procedures
1 Co-operation and mutual assistance which the Parties render each other under Article 17 and assistance they render to data subjects under Articles 9 and 18 shall not give rise to the payment of any costs or fees other than those incurred for experts and interpreters. The latter
costs or fees shall be borne by the Party making the request.
2 The data subject may not be charged costs or fees in connection with the steps taken on his or her behalf in the territory of another Party other than those lawfully payable by residents of that Party.
3 Other details concerning the co-operation and assistance, relating in particular to the forms and procedures and the languages to be used, shall be established directly between the Parties concerned.
4. Convention on Mutual Administrative Assistance in Tax Matters (ETS No. 127)
- Opening for signature: 25 January 1988
- Entry into force: 1 April 1995; the Convention has been amended by the Protocol amending the Convention on Mutual Administrative Assistance in Tax Matters (CETS No. 208) of 2010 which has been ratified to date by 40 CoE Member States
- The convention is signed and ratified by all 46 Member States of the CoE (and 100 Non-CoE Member States)
Summary of the Treaty Office:
"This treaty allows the Parties to develop, on common foundations and respecting the basic rights of tax-payers, extensive administrative co-operation covering all compulsory taxes, with the exception of customs duty. The types of assistance are varied, covering the exchange of information between Parties, simultaneous tax examinations and participation in tax examinations carried out in other countries, the recovery of taxes due in other Parties and notification of documents issued in other Parties.
Moreover, any State wishing to accede to the Convention may tailor the extend of its obligations, by virtue of a detailed system of reservations expressly provided for in the text; it may restrict its participation to certain types of mutual assistance or to assistance in connection with certain taxes.
This enhanced mutual assistance is intended to help combat tax evasion, and is accompanied by safeguards to protect tax-payers, whether individual or corporate, and national economies. Thus a Party may refuse to supply information when this would mean divulging trade, industrial or professional secrets, or to provide assistance in connection with a tax which it regards as incompatible with the generally accepted principles of taxation. Moreover, application of the Convention may not restrict the rights and guarantees accorded to individuals by the law of the assisting State. There are strict rules covering the secrecy of information obtained in application of the text."
"The Convention on Mutual Administrative Assistance in Tax Matters is the result of work carried out jointly by the Council of Europe and by the Organisation for Economic Cooperation and Development (OECD).
It was drawn up within the Council of Europe by a committee of experts under the authority of the European Committee on Legal Co operation (CDCJ), on the basis of a first draft prepared by OECD's Committee on Fiscal Affairs. Experts from member countries of OECD which are not members of the Council of Europe participated as observers.
The Convention was opened for signature by the member States of the Council of Europe and member countries of the Organisation for Economic Co operation and Development on 25 January 1988 (the 1988 Convention).
The 1988 Convention was revised in 2010 primarily to align it to the internationally agreed standard on transparency and exchange of information and to open it up to States which are not members of the OECD or of the Council of Europe. The internationally agreed standard, which was developed by OECD and non OECD countries working together in the OECD’s Global Forum on Transparency and Exchange of Information, is included in Article 26 of the 2008 OECD Model Tax Convention, and has been endorsed by the G7/G8, the G20 and the United Nations.
The text of the Explanatory Report, prepared by the committee of experts and transmitted to the Committee of Ministers of the Council of Europe and the Council of OECD and approved by OECD's Committee on Fiscal Affairs, does not constitute an instrument providing an authoritative interpretation of the text of the Convention, although it may facilitate the understanding of the Convention's provisions.
The text of the Explanatory Report was amended in 2010 primarily on the basis of the Commentary on Article 26 of the OECD Model Tax Convention. It is understood that the provisions of the Convention, as amended by the 2010 Protocol, which follow the corresponding provisions of the 2008 OECD Model Tax Convention, shall generally be given the same interpretation as that expressed in the OECD Commentary thereon.
Introduction:
1. The object of this Convention is to promote international co operation for a better operation of national tax laws, while respecting the fundamental rights of taxpayers.
2. A measure of co operation already exists by virtue of various instruments, some bilateral, others multilateral, and the usefulness of these is well recognised. However, commercial and economic relationships are now so greatly concentrated and diverse that it has been felt necessary to prepare a new instrument both general in scope that is to say providing for the various possible forms of assistance and covering a broad range of taxes and multilateral, allowing more effective international co operation between a large number of States, through the uniform application and interpretation of its provisions.
3. This instrument is framed so as to provide for all possible forms of administrative co operation between States in the assessment and collection of taxes, in particular with a view to combating tax avoidance and evasion. This co operation ranges from exchange of information to the recovery of foreign tax claims.
4. The Convention is open to the signature of member States of each of the two international organisations which have participated in its drafting; namely the Council of Europe and OECD. Co operation between these States is greatly facilitated by the fact that they have legal systems based on similar general principles of justice and law as well as economies that are interrelated.
5. The Convention as revised by the 2010 Protocol is also open to the signature of States outside the Council of Europe or OECD.
6. In this context, the Convention attempts to reconcile the respective legitimate interests of those involved: in particular, the requirements of mutual international assistance in tax assessment and enforcement, respect for special features of national legal systems, the confidential nature of information exchanged between national authorities and the fundamental rights of taxpayers.
7. Taxpayers have especially the right to respect for their privacy and the right to a proper procedure in the determination of their rights and obligations in tax matters, including appropriate protection against discrimination and double taxation.
8. In applying the Convention, tax authorities will be bound to operate within the framework of national laws. The Convention specifically ensures that taxpayers' rights under national laws are fully safeguarded. However, national laws should not be applied in a manner that undermines the object and purpose of the Convention. In other words, the Parties are expected not to unduly prevent or delay effective administrative assistance."
5. Section II of the Appendix to Recommendation No. R (87)16 of the Committee of Ministers to member states on administrative procedures affecting a large number of persons
For the relevance of this recommendation in spatial planning procedures in general click here.
In the present context, the Recommendation No. R (87)16 is particularly interesting because it establishes (in its Section II) principles of transnational public authority participation and the participation of persons residing or having interests in the territories of neighbouring states (an aspect which seems only implicitely be covered by Articles 6 and 7 of the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) (for the relevance of the Aarhus Convention in the present context click here).
"The Committee of Ministers, [...].
Considering that, in an increasing number of fields, administrative authorities are called upon to take decisions which affect in varying ways a large number of persons, especially in the fields of major installations, industrial plant and spatial planning;
Considering that it is desirable that common principles be laid down in respect of such decisions in all member states so as to ensure compatibility between the protection of a large number of persons and the requirements of efficient administration;
Considering, in addition, that some of these administrative decisions may also affect persons residing or having interests in the territories of neighbouring states;
Bearing in mind in this respect recent trends in international environmental law concerning the transborder effects of activities carried out within the jurisdiction or under the control of a state;
Considering that it is desirable that administrative authorities also take into consideration observations from such persons concerned relating to potential effects of proposed decisions in the territory of neighbouring states;
[...].
Recommends the governments of member states to be guided in their law and administrative practice as well as in their mutual relations by the principles set out in the appendix to this recommendation; [...].
Appendix to Recommendation No. R (87) 16Scope and defintions
The present recommendation applies to the protection of the rights, liberties and interests of persons in relation to non-normative administrative decisions (administrative acts) which concern a large number of persons, more specifically:
a. a large number of persons to whom the administrative act is addressed, hereafter referred to as persons of the first category;
b. a large number of persons whose individual rights, liberties or interests are liable to be affected by the administrative act even though it is not addressed to them, hereafter referred to as persons of the second category;
c. a large number of persons who, according to national law, have the right to claim a specific collective interest that is liable to be affected by the administrative act, hereafter referred to as persons of the third category.
Persons of the three categories are hereafter referred to as persons concerned.
Section I below sets out the principles applicable to the making of the above-mentioned administrative acts and to the control thereof.
Section II states additional principles designed to protect the persons concerned when an administrative act is liable to have effects in the territory of a neighbouring state.
Section I: Administrative procedure and control [...]
Section II: International aspects
VIII.
When the administrative act is likely to affect rights, liberties or interests in the territory of a neighbouring state, the administrative participation procedure referred to in Section I should be accessible to the persons concerned in that state, on a non-discriminatory basis, according to the following indications :
a. The competent authority should provide these persons with the information mentioned in Principle I, at the same time as it informs the persons concerned on its territory. Such notification may be made either directly, by any appropriate means, provided the rules or practices governing relations between the states concerned so allow, or through the authorities of the neighbouring state.
b. Such representation arrangements as may be laid down by the competent authority should apply to the representation of these persons.
c. These persons may submit their observations either directly, in accordance with the procedure in the territory of the state where the act is being proposed, or through the authorities of the neighbouring state when these authorities have declared their readiness to perform such functions in their residents’ interest.
d. The competent authority should inform these persons of the administrative act following the methods of communication mentioned in paragraph a.
e. The competent authority can provide the information mentioned in paragraphs a and d in its own language. It shall not be bound to take into account observations submitted in other languages.
IX.
Access to the control procedure should be secured without discrimination on grounds of nationality or residence.
X.
Access to the administrative participation procedure and to the control procedure may be subject to reciprocity.
XI.
The application of the principles contained in this section may be subordinated to conventions concluded between the states concerned.
With due regard to the jurisdictions provided for by the internal law of each state as well as to the existing international agreements, the states and territorial communities or authorities concerned should further maintain liaison with one another with a view to ensuring an effective participation by all persons concerned. They should endeavour to facilitate exchanges of information between the competent authority and the persons concerned. They may conclude either general or specific agreements or arrangements on a basis of reciprocity and equivalence for such purposes as :
a. designating the authorities of the neighbouring state which should be approached according to the kind of administrative act proposed;
b. enabling the factors relevant to the taking of the administrative act to be made available to the persons concerned in the neighbouring state;
c. enabling an authority of the neighbouring state to obtain the observations of the persons concerned residing in its territory and to forward them to the competent authority;
d. stating the languages to be used."
See also the Explanatory memorandum (pp. 11 ff. of the Final Activity Report of the CDCJ on Draft Recommendation on administrative procedures affecting a large number of persons (CM(87)153-add2):
"2. It has been found that an increasing number of actions by public authorities are of such complexity or scale as simultaneously to affect, with varying intensity, a large number of persons. Their impact may even be felt in the territory of a neighbouring State. Such actions of public authorities may not only affect in a concrete manner the rights, liberties and interests of a large number of persons but they may also attract the attention and anxiety of a large number of other persons whose interests could be affected and cause them to want to influence the proposed action. In some circumstances the interests of the latter persons are so important that they ought to be given protection in the administrative procedure.
The factors now mentioned have a special bearing on the organisation of the administrative procedure and call for adequate solutions.
Two basic questions arise.
How should the protection of a large number of persons be organised so as to remain compatible with the requirements of efficient administration? To what extent, under which conditions and how should persons whose rights, liberties or interests are liable to be affected by an administrative act in the territory of a neighbouring State, have the possibility to take part in its making and to have it reviewed by a control organ?
3. [...].
4. In spite of the differences between the legal and administrative systems of the member States, it was possible to discover a large measure of agreement concerning the fundamental principles which should guide the rules on administrative procedures concerning a large number of persons and to recommend their extension. The task was basically one of developing and adapting the principles set out in Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities and, subsidiarily, in Recommendation No. R (80)2 concerning the exercise of discretionary power by administrative authorities.
5. The protection of rights, freedoms and interests liable to be affected in the territory of a neighbouring state raised more delicate issues. States admittedly have a duty to see to it that activities carried on within their jurisdiction cause no damage in the territory of another state. In conformity with recent trends in international environmental law, states do increasingly consult together and exchange such information as will enable them to assess any effects of proposed decisions on the environment (in the widest sense) in neighbouring states. On the lines of certain initiatives already taken at international level, notably in the framework of OECD, it appeared desirable to encourage national authorities called upon, to make decisions of such scope to take into consideration not only observations from authorities of the neighbouring state but also observations from persons liable to be affected by the said decisions in their rights, liberties or interests, in the territory of the latter state. The fullest possible participation by these persons in the administrative procedure and in the control procedure should accordingly be permitted. This includes participation, in appropriate ways, of persons having a legitimate concern or anxiety with respect to major projects of environmental importance.
6. Drafting a convention to cover the whole problem area was considered a premature move. Instead, the more cautious way of drafting a recommendation was chosen. Such an instrument had already been selected in the past to lay down the basic principles for the protection of the individual in relation to the acts of administrative authorities; there was no sound reason to depart from that course in the special field of proceedings concerning a large number of persons. The recommendation aims both at basing the internal law of member states on certain
fundamental principles, to which proposals for implementation are attached, and at suggesting lines along which international agreements
or arrangements may usefully be concluded in this field, in order better to take account of its international dimensions.""24. Envisaged in Section II are situations where a project which gives rise to a participation procedure in the territory of one state is liable to affect rights, liberties or interests in the territory of a neighbouring state, including a state separated from the state in which the act is being proposed by international waters. However, the instrument does not cover environmental effects which could occur a long way from the project launched or approved by administrative authorities (long-range transboundary air or water pollution). In the above situations, consultations between public authorities in each neighbouring state, in particular on the basis of model agreements set out in the European Outline Convention
on Transfrontier Co-operation between Territorial Communities or Authorities, will undoubtedly constitute a positive step forward. However, it was felt that the persons concerned themselves should be able to take part in the defence of their interests. Keeping in mind the declared aim of an ever-greater unity between member states, it appears justified to associate the said persons with the preparation of the act, in spite of the border’s existence.
[25 - 31 [Comments on principles VIII to X]
Principle XI
32. The extension of participation procedures to persons concerned by the effects of administrative acts in a neighbouring state may, in same instances, be dealt with in international conventions or agreements.
The first paragraph of Principle XI specifies that states may subordinate the application of all principles contained in Section II to the conclusion of interstate conventions. Concluding such conventions may, in particular, be deemed necessary by those states which want to rely on reciprocity or wish to stipulate more precisely the framework, forms and limits of the minimum administrative assistance referred to in Principle VIII.
33. The second paragraph is aimed at encouraging a wider measure of mutual assistance extending beyond the minimum prescribed in Principle VIII, via consultations between authorities, the simplification of exchanges between the competent authority and the persons concerned and, where appropriate, the conclusion of general or specific agreements or arrangements on a basis of reciprocity and equivalence. It contains various suggestions as to the measures of assistance which might be agreed upon. Here, a vast procedural field is open to cooperation, ranging from placing the relevant information at the disposal of the persons concerned in the town halls of the neighbouring state to the holding of hearings with representatives of the authority which is to take the act."
CoE (ed.), The administration and you (1st edition 1996/1997), p. 25:
"45. When the administrative act is likely to affect rights, liberties or interests in the territory of a neighbouring state, the administrative
participation procedure should be made accessible to the persons concerned in that state on a non-discriminatory basis.
45.1. Comment: In an increasing number of fields (major installations, industrial plants, spatial planning, etc.), administrative authorities are called upon to take administrative acts which affect in various ways a large number of persons. Some of these acts can also affect persons residing in neighbouring states. It is therefore desirable that administrative authorities also take into consideration observations from such persons concerned relating to potential effects of proposed acts in the territory of neighbouring states. In order to ensure compatibility between the requirements of
good and efficient administration on the one hand and, on the other hand, the fair and effective protection of a large number of persons including,
where appropriate, persons concerned by international effects of administrative acts, a Council of Europe recommendation adapted and complemented the principles which govern administrative acts addressed to one or a small number of individually identified private persons (see Appendix 3)."
III. The Pan-European General Principles on Transfrontier Cooperation between Administrative Authorities
For a collection of CoE material on cross-border cooperation see this website of the CoE.
See, furthermore, C. Ricq, Handbook of Transfrontier Co-operation (2nd edition 2006). This handbook was initiated by the CoE Committee of Experts on Transfrontier Co-operation (LR-CT).
1. Precursors of the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities (ETS No. 106)
a) PACE Recommendation 470 (1966) Draft Convention on European co-operation between local authorities
"The Assembly,
1. Considering that co-operation between local authorities of different European countries is desirable and has indeed become a necessity in certain frontier zones;
2. Considering that many local authorities are being forced to resort to inter-municipal co-operation in order to discharge their functions, and in particular to meet certain demands imposed upon them by contemporary civilisation;
3. Considering that machinery for intermunicipal co-operation between authorities of different countries is unsatisfactory and that the absence of any firm legal framework complicates co-operation of local authorities across frontiers;
4. Considering that international contacts between local authorities have nevertheless multiplied in the processes of European unification and the lowering of the former barriers of national frontiers;
5. Considering that it is worth while and necessary to provide local authorities in frontier areas of member States with adequate means to offset the drawbacks of their peripheral location by working together across frontiers, and to extend their national possibilities for co-operation to the European level;
6. Considering that frontier zones feel more and more the need for co-ordination of local and regional activities on opposite sides of frontiers and harmonisation of their development plans:
7. Recommends the Committee of Ministers:a to draw the attention of member Governments to the problem of European co-operation between local authorities;
b to instruct a committee of governmental experts to prepare as early as possible a draft convention based on the text appended hereto;
c to submit the draft Convention, after being prepared by the committee of experts, if necessary, to the Assembly and the European Conference of Local Authorities for an opinion or to communicate the text to these bodies;d also to instruct a committee of experts to make a comparative study of the possibilities for intermunicipal co-operation in member countries with a view to facilitating co-operation across frontiers between local authorities."
On the impact of this recommendation cf. para. 1 of the Explanatory Report to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities:
"In September 1966 the Council of Europe’s Consultative Assembly adopted Recommendation 470 on European co-operation between local authorities, in which it recommended that the Committee of Ministers have a draft European convention drawn up by a committee of experts on the basis of a draft appended to the recommendation. The Committee of Ministers did not act on this recommendation, but a few years later it did ask the Committee on Co-operation in Municipal and Regional Matters to make a study of problems concerning co-operation between local authorities in frontier regions."
The study was prepared for the Committee on Co-operation in Muncipal and Regional Matters by P. Orianne and published as CoE (ed.), Co-operation between local authorities in frontrier regions: Difficulties in co-ooperation between local authorities and ways of solving them - Study Series Local and Regional Authorities in Europe (1973)
b) CM Resolution (74)8 on co-operation between local communities in frontier areas
On this recommendation cf. para. 2 of the Explanatory Report to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities:
"In February 1974, after examining this study [cf. above], the Committee of Ministers adopted Resolution (74) 8 on co-operation between local communities in frontier areas, in which it recommended that Council of Europe member States, amongst other things:<
- promote European co-operation between local authorities in a number of specifically local fields recognised as such in national law;
- introduce into national legislation as soon as possible such changes as were necessary to remove any obstacles to transfrontier co-operation between local authorities;
- make administrative rules more flexible with a view to speeding up and simplifying protective procedures in regard to transfrontier co-operation between local authorities;
- supervise, if necessary, the establishment of regional transfrontier committees;
- provide local authorities with the instruments appropriate for transfrontier co-operation."
2. European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities (ETS No. 106)
- Opening for signature: 22 May 1980
- Entry into force: 22 December 1981
- The convention is signed by 41 and ratified by 38 Member States of the CoE
Summary of the Treaty Office:
"The Convention is intended to encourage and facilitate the conclusion of cross-border agreements between local and regional authorities within the scope of their respective powers. Such agreements may cover regional development, environmental protection, the improvement of public services, etc., and may include the setting up of transfrontier associations or consortia of local authorities.
To allow for variations in the legal and constitutional systems in the Council of Europe's member States, the Convention sets out a range of model agreements to enable both local and regional authorities as well as States to place transfrontier co-operation in the context best suited to their needs.
Under the Convention, Parties undertake to seek ways of eliminating obstacles to transfrontier co-operation and to grant to authorities engaging in international co-operation the facilities they would enjoy in a purely national context."
"9. As Stated in its preamble, the Convention is aimed at promoting transfrontier co-operation as far as possible and contributing to the economic and social progress of frontier regions, since the smooth functioning of transfrontier co-operation between municipalities and regions enables them to carry out their tasks more effectively and, hence, enables frontier areas to be improved and developed more harmoniously."
3. Declaration of the Committee of Ministers on Transfrontier Cooperation in Europe, adopted on 6 October 1989 on the occasion of the 40th anniversary of the Council of Europe
"The Committee of Ministers of the Council of Europe,
On the occasion of the 4Oth Anniversary of the Council of Europe,
Recalling the Council of Europe's constant and repeated efforts over a period of many years in connection with transfrontier co-operation;
Welcoming the incessant endeavours of the Standing Conference of Local and Regional Authorities of Europe (CLRAE), the European Conference of Ministers responsible for Regional Planning (CEMAT) and the Parliamentary Assembly to combat xenophobia, incomprehension, mistrust and intolerance, so that the psychological barrier established at frontiers by centuries of history shall be dismantled for all time;
Noting with satisfaction the progress achieved in frontier regions towards creating a new spirit and making the peoples of Europe aware of the solidarity among them and their common destiny;
Recognising that frontier regions, the scars of history, now link the peoples of Europe together and that there is now a general consensus among those with political responsibility for territorial authorities on the need to work with their neighbours in a spirit of co-operation, neighbourliness, openness and solidarity;
Convinced of the need to pursue the search for ideas and the work which is under way, while restating the importance of transfrontier co-operation with a view to achieving true solidarity among citizens of Europe by the year 2000,
1. Recalls that co-operation between the states of Europe has developed within the Council of Europe in a very wide range of fields, such as regional planning, the environment, urban and rural development, infrastructure, economic policy, planning, the problems of frontier workers, coping with natural disasters, the harmonisation of law, culture, science, research and technology, and notes with satisfaction that, as far as the frontier regions are concerned, it has been directed towards:
- identifying the problems of frontier regions and defining appropriate practical solutions;
- systematising and co-ordinating initiatives;
- informing and raising the awareness of European, governmental, regional and local agencies and the public of the problems and beneficial effects of transfrontier co-operation;
- gradually eliminating the legal, administrative, economic and cultural obstacles still all too frequently encountered in respect
of harmonisation;
2. Recognises that their common interests make frontier communities the major protagonists of regional development and an ideal proving ground for co-operation and, this being so, encourages the work being done to prevent these regions from ever again being drawn towards an unbalanced and marginal situation and to commit them instead to the future, thanks to transfrontier co-operation, and to a harmonious process of development with due regard to the powers prescribed by the domestic law of each state;
3. Recalls the existence of the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities of 1980, ratified by fourteen member states, and invites those which have not yet done so to review their position with a view to acceding to the Convention, so as to ensure that good neighbourly relations between peoples are furthered on either side of frontiers. It invites the signatory states to the Convention to implement it, particularly by concluding bilateral agreements, and to use the model agreements proposed;
4. Thanks all the transfrontier institutions, organisations and associations for their efforts to find solutions to problems relating to their common interests, and urges them to continue these endeavours in future with special emphasis on improving relations with frontier regions of Central and Eastern European states, in the spirit of the Council of Europe Outline Convention;
5. Encourages continued study, in the most appropriate manner, of the work which is under way in co-operation with the European Community institutions:
- in order to develop the exchange of information between all agencies of transfrontier co-operation, national governments and territorial authorities;
- in order gradually to remove the barriers of every kind - administrative, legal, political and psychological - which might
curb the development of transfrontier projects;
6. Declares that the development of transfrontier co-operation, which gives practical expression to a true solidarity between peoples, is a major contribution to the progress of European unification, essential to healthy, fair and balanced growth in the Europe of tomorrow, and important in guaranteeing generations to come a future of peace and freedom."
4. Additional Protocol to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities (ETS No. 159)
- Opening for signature: 9 November 1995
- Entry into force: 1 December 1998
- The convention ratified by 7 Member States of the CoE
Summary of the Treaty Office:
"The Protocol aims to strengthen the Outline Convention by expressly recognising, under certain conditions, the right of territorial communities to conclude transfrontier co-operation agreements, the validity in domestic law of the acts and decisions made in the framework of a transfrontier co-operation agreement, and the legal corporate capacity ("legal personality") of any co-operation body set up under such an agreement.
As the general legal framework for co-operation of local/regional authorities across borders in Europe, the Outline Convention together with its Protocol will be useful to the new member States in their governmental reform processes."
5. Protocol No. 2 to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities concerning interterritorial co-operation (ETS No. 169)
- Opening for signature: 5 May 1998
- Entry into force: 1 February 2001
- The convention is ratified by 22 Member States of the CoE
Summary of the Treaty Office:
"The Protocol aims to strengthen inter-territorial co-operation between European countries. It follows the Council of Europe's declaration at the Vienna 1993 summit to build a tolerant and prosperous Europe through transfrontier co-operation.
The Protocol complements the existing Convention and Protocol which are concerned with relations between adjacent communities that share common borders. These two legal texts have proved so successful that twinning agreements have begun to spring up between areas that are further apart. Protocol 2 will act as a legal text to cover these new arrangements. It recognises the right of authorities to make such agreements and sets out a legal framework for them to do so."
6. Vilnius Declaration on Regional Co-operation and the Consolidation of Democratic Stability in Greater Europe (Adopted by the Committee of Ministers on 3 May 2002 at the 110th Session of the Committee of Ministers)
"Bearing in mind the statutory aim of the Council of Europe, which is to achieve a greater unity between its members across the continent on the basis of their common commitment to pluralist democracy, respect for human rights and the rule of law;
Convinced that regional co-operation between European countries can make an essential contribution to the building of a Greater Europe without dividing lines, encompassing all the countries on the continent, as advocated by the Committee of Ministers’ Budapest Declaration (7 May 1999);
Recalling also the Declaration on transfrontier cooperation in Europe adopted by the Committee of Ministers on the occasion of the 40th Anniversary of the Council of Europe;
We, the Ministers of Foreign Affairs of the member states of the Council of Europe, meeting in Vilnius for our 110th session and having discussed the achievements of a number of regional co-operation mechanisms;
Stress the importance of regional co-operation as a factor for consolidating democratic stability in various parts of the European continent;
Underline that, according to the particular situation of the countries involved and their common aims, regional co-operation helps to implement the Council of Europe’s founding principles of pluralist democracy, human rights and the rule of law at grass-roots level, by:
- promoting the Council of Europe’s values and standards on a day-to-day basis;
- strengthening the protection of national minorities while respecting the territorial integrity of states;
- transforming borders into lines of contact thus facilitating exchanges between peoples;
- promoting mutual understanding and cultural co-operation;
- encouraging good neighbourly relations and mutual trust;
- fostering social and economic development;
Call for the regional dimension of the Council of Europe’s co-operation programmes to be reinforced in the regions regarded as priorities by the Organisation, building on the results already achieved in the Council’s areas of responsibility;
Express our support for efforts to develop regional cooperation wherever a need for such cooperation exists;
Encourage member states, in view of the experience acquired by regional co-operation mechanisms, to reinforce this co-operation, especially with regard to the following:
- awareness-building in the spheres of human rights, protection of minorities, confidence-building measures and education;
- freedom of the media;
- more advanced integration processes and the resulting opportunities for all member states;
- transborder activities by civil society to promote pluralist democracy;
- transfrontier co-operation between local and regional authorities and the setting up and development of Euro-regions;
- cross-border harmonisation of the conditions governing social and economic development, trade and investment, as well as improvements to infrastructure and conservation of the natural and cultural heritage;
- freedom of movement and contacts between people, especially youth;
- education and health protection;
- justice and law enforcement, including the fight against organised crime and corruption, trafficking in human beings and illegal migration;
- co-operation against terrorist activities while respecting human rights and fundamental freedoms;
Agree to promote coherence between the activities of the Council of Europe and those of the various regional co-operation mechanisms, as well as the sharing of their experience and results;
To that end, invite the Secretary General of the Council of Europe to convene a working meeting of representatives of regional co-operation mechanisms with representatives of the Council of Europe and other European institutions and organisations, in order to:
- exchange and compare information on regional activities and projects;
- identify common methods and aims for effective interaction;
- discuss possible joint projects in specific areas;
- lay down guidelines for the exchange of information and for co-operation between their secretariats or representatives in the planning and implementation of programmes;
- gather information on the Council of Europe’s experience and achievements and contribute to ongoing or planned activities of relevance to them;
- make proposals regarding future co-operation.
7. Recommendation Rec(2005)2 of the Committee of Ministers to member states on good practices in and reducing obstacles to transfrontier and interterritorial cooperation between territorial communities or authorities
"The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Having regard to the European Framework Convention on Transfrontier Cooperation between Territorial Communities or Authorities, signed in Madrid on 21 May 1980 ("the Madrid Convention"), its Additional Protocol of 9 November 1995 and its Protocol No. 2 of 5 May 1998 concerning interterritorial cooperation;
Bearing in mind the Declaration of the Committee of Ministers on Transfrontier Cooperation in Europe, adopted on 6 October 1989 on the occasion of the 40th anniversary of the Council of Europe, which encouraged gradual action to remove administrative, legal, political and psychological barriers that might curb the development of transfrontier projects;
Bearing in mind the Vilnius Declaration on regional cooperation and the consolidation of democratic stability in Greater Europe, adopted by the Committee of Ministers on 3 May 2002;
Bearing in mind the Chişinău Political Declaration on transfrontier and interterritorial cooperation between states in South-Eastern Europe, adopted by the Committee of Ministers on 6 November 2003;
Recalling that cooperation between the local and regional authorities of Europe, particularly as developed under the Madrid Convention, is an essential component of good neighbourliness between member states and can help to strengthen democracy and democratic stability in Europe;
Having learnt, particularly from the annual reports of the Committee of Advisers for the Development of Transfrontier Cooperation in Central and Eastern Europe, of numerous examples of good practices in transfrontier cooperation between member states and their territorial communities or authorities;
In the light of the efforts of the Committee of Experts on Transfrontier Cooperation to identify a number of obstacles of a legal, administrative, economic or practical nature affecting transfrontier cooperation between territorial communities or authorities;
Convinced that the generalisation of good practices and the removal of obstacles could facilitate ratification of the Madrid Convention and its protocols by states that have not yet done so and enable existing parties to give full effect to their provisions;
Believing that the removal of obstacles to transfrontier and interterritorial cooperation could also eventually facilitate the preparation of new legal instruments or inter-state agreements to take account of developments in such cooperation,
Recommends that the governments of member states:
1. establish an appropriate legal framework for transfrontier and/or interterritorial cooperation activities of territorial communities or authorities, complying with the principles of the Madrid Convention and its Protocols;
2. consider the possibility of becoming party to the Convention and its Protocols;
3. take the measures proposed in the appendix to this recommendation, adapting them where necessary to particular situations, in order to improve transfrontier and interterritorial cooperation and reduce the obstacles encountered by their territorial communities or authorities in their transfrontier and/or interterritorial cooperation activities;
4. involve territorial communities or authorities with the relevant powers under domestic law in preparing and implementing the measures proposed in the Appendix to this Recommendation;
5. continue the process of dialogue and cooperation within the Steering Committee on Local and Regional Democracy (CDLR) and the Committee of Experts on Transfrontier Cooperation (LR-CT) aimed at strengthening the legal framework and practical arrangements for transfrontier and/or interterritorial cooperation."
8. Protocol No. 3 to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities concerning Euroregional Co-operation Groupings (ECGs) (CETS No. 206)
- Opening for signature: 16 November 2009
- Entry into force: 1 March 2013
- The convention is ratified by 6 Member States of the CoE
Summary of the Treaty Office:
"Protocol No. 3 to the Madrid Convention provides for the legal status, establishment and operation of "Euroregional Cooperation Groupings". Composed of local authorities and other public bodies from the Contracting Parties, the aim of a grouping is for transfrontier and interterritorial co-operation to be put into practice for its members, within the scope of their competences and prerogatives. Under the Protocol the Council of Europe may draw up model national laws for facilitating adoption by the Contracting Parties of appropriate national legislation for enabling the "Euroregional Co-operation Groupings" to operate effectively."
IV. Pan-European Individual Rights to Transnational Mutual Assistance and Transfrontier Cooperation?
The question arises whether effective transnational administrative mutual assistance and cooperation between the administrative authorities of the CoE Member States can also have an 'indivudal rights dimension'.
1. Possible impacts of pan-European individual rights to transnational mutual assistance and transfrontier cooperation between administrative authorities
Individual rights in relation with transnational administrative mutual assistance and cooperation between the administrative authorities of the CoE Member States are recognised with regard to safeguards for individuals in cases where mutual assistance is provided in administrative procedures leading to an administrative decision of such nature as it is likely to affect adversely the rights and interests of an individual (cf. Articles 21 - 23 of the Convention on Mutual Administrative Assistance in Tax Matters (ETS No. 127)).
However, there may also be a positive obligations on CoE Member States for transnational mutual assistance and transfrontier cooperation arising from pan-European individual rights. One may, e.g., ask:
- Can the non-recognition of documents issued by another CoE Member State or the failure to obtain information from another CoE Member State in the course of an administrative procedure conducted by that administrative authority be regarded as an interference by the authority with individual rights if that results in disadvantages or procedural complications for the person concerned (such as a certain "presumption of fraud") which are not suffered by persons who are not the subject of cross-border administrative investigations?
- Under what conditions can such an interference can be justified? Would it be conceivable to recognise a principle of mutual trust between CoE Member States "based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values" on which the CoE is founded, as stated in Article 3 SCoE" (cf. the wording of ECJ [Full Court], Opinion 2/13 of 18 December 2014 at [168]), at least to the effect that there is a certain obligation for effective (not too cumbersome) transnational administrative cooperation where this is helpful for the realisation of individual rights of commuters, people living in border areas or people who live or have lived abroad?
- Do people living in border areas between CoE Member States have a right to expect the respective neighbouring states to promote cross-border cooperation between administrative authorities and collectivities in order to reduce the disadvantages associated with the border-area-situation and to take account of real cross-border commuting situations including the need to keep local border traffic open and as smooth as possible?
2. Possible sources of pan-European individual rights to transnational mutual assistance and transfrontier cooperation between administrative authorities
a) Article 2 (2) of Protocol 4 to the ECHR: The right of everyone to leave any country, including his own
- Opening for signature: 16 September 1963
- Entry into force: 2 May 1968
- The convention has been ratified by 42 Member States of the CoE (with the exception of Greece, Switzerland, Turkey and the United Kindgom)
A summary of the pertinent case law is presented in ECtHR (ed.), Guide on Article 2 of Protocol No. 4 to the European Convention on Human Rights - Freedom of movement (version of August 2022), para. 113 ff., para. 154 ff.
b) Article 8 ECHR
ECtHR, İletmiş v. Turkey (29871/96) 6 December 2005:
"42. The Court considers that the confiscation by the administrative authorities of the applicant's passport and their failure to return it to him for a number of years amount to an interference with the applicant's exercise of his right to respect for his private life. Sufficiently close personal ties existed for there to have been a risk that they would be seriously affected by the confiscation measure [...]. It observes in this connection that the applicant had been living in Germany for seventeen years, had gone there at the age of 22 to study at university and had got married there, that his two children had been born there and that the whole family lived in Germany, where both spouses were employed as social workers.
43. Such interference breaches Article 8 unless it is "in accordance with the law", pursues one or more of the legitimate aims referred to in paragraph 2 and appears "necessary in a democratic society" to achieve those aims.
44. First of all, on the question of "lawfulness" within the meaning of Article 8 § 2 of the Convention, the Court recognises that the interference was "in accordance with the law" [...].
45. The Court also accepts that the withdrawal of the passport in 1992, at the time of the applicant's arrest, pursued at least one of the "legitimate aims" set out in Article 8, namely preserving "national security" and/or "the prevention of ... crime".
46. As to whether the measure was "necessary in a democratic society", that is, whether it corresponded to a "pressing social need" and was proportionate to the legitimate aim pursued, the Court notes at the outset that the Convention finds no fault with preventive measures of this type [...].
47. The Court considers, however, that the longer the proceedings went on without any progress being made and without any evidence against the applicant being produced, the less compelling the legitimate aim became. Likewise, with the passing of time the applicant's right to freedom of movement, considered here as an aspect of his right to respect for his private life, increasingly outweighed the imperatives of national security and the prevention of crime.
48. On this point the Court observes that, in the fifteen years of proceedings during which the applicant was prohibited from leaving the country, no evidence of any threat to national security or any risk of crime was adduced. That no such threat existed is confirmed by the fact that the Assize Court at no time ordered the applicant not to leave the country. Furthermore, the administrative authorities themselves never gave reasons for the impugned prohibition. The Court fails to see, therefore, how the simple fact that the applicant had been suspected in 1984 of belonging to an illegal organisation, or that the resulting proceedings were still pending, could possibly justify such harsh measures against him over a period of fifteen years in the absence of any concrete evidence that there was a real danger of him committing a crime. The Court also stresses that the applicant had no criminal record and was eventually acquitted of the charges against him, no material proof of his purported membership of the organisations concerned having been found in the course of the preliminary investigations or the trial.
49. Finally, the Court must consider the applicant's personal and family situation when he lived in Germany [...] and take into account the extent of the uncertainty and upheaval in his life caused by the indefinite maintenance of the impugned measure.
50. At a time when freedom of movement, particularly across borders, is considered essential to the full development of a person's private life, especially when, like the applicant, the person has family, professional and economic ties in several countries, for a State to deprive a person under its jurisdiction of that freedom for no reason is a serious breach of its obligations.
The fact that "freedom of movement" is guaranteed as such under Article 2 of Protocol no. 4, which Turkey has signed but not ratified, is irrelevant given that one and the same fact may fall foul of more than one provision of the Convention and its Protocols [...].
The Court comes to the conclusion that, after a time [...], continuing to prohibit the applicant from leaving the country no longer answered a "pressing social need" and was therefore disproportionate in relation to the aims pursued, legitimate though they were under Article 8 of the Convention.
Accordingly, there has been a violation of Article 8 of the Convention."
ECtHR, Parmak and Bakır v. Turkey (22429/07 25195/07) 3 December 2019:
82. The Government raised two preliminary objections in their observations. Firstly, they argued that the second applicant’s complaint with respect to the travel ban in question related to freedom of movement, a right that was governed by Article 2 of Protocol No. 4, to which Turkey was not a party. They therefore asked the Court to declare this part of the second applicant’s complaint inadmissible.
83. Secondly, the Government argued that the second applicant had failed to substantiate any disadvantage he had allegedly suffered as a result of the alleged violation, and therefore asked the Court to declare this complaint inadmissible under Article 35 §§ 3 (b) and 4 of the Convention.
84. The Court reiterates that the fact that "freedom of movement" is guaranteed as such under Article 2 of Protocol No. 4, which Turkey has signed but not ratified, is irrelevant, given that one and the same fact may fall foul of more than one provision of the Convention and its Protocols [...]. Moreover, the Court has examined similar complaints under Article 8 of the Convention by having regard to the fact that freedom of movement, particularly across borders, is considered essential to the full development of a person’s private life, especially when he or she has family, professional and economic ties in several countries ( see İletmiş v. Turkey, no. 29871/96, § 50, ECHR 2005‑XII; Paşaoğlu v. Turkey, no. 8932/03, §§ 42-43, 8 July 2008; see also, mutatis mutandis, Riener v. Bulgaria, no. 46343/99, § 134, 23 May 2006, and Pfeifer v. Bulgaria, no. 24733/04, §§ 59-62, 17 February 2011). In that connection, submitting the necessary documents to that effect, the second applicant has substantiated before the domestic authorities as well as the Court that he was a lawful resident of Germany, and that he worked as a freelance journalist. Lastly, with regard to the Government’s objection concerning the alleged lack of a significant disadvantage, the Court notes that the parties do not dispute the fact that the applicant was a non-resident at the material time and that his life prior to his arrest in Turkey was based in Germany. In that respect the Court considers that the effects of the travel ban on the applicant’s private life in so far as it prevented him from returning to his place of residence cannot be underestimated. The Court also considers that it cannot be excluded that the travel ban had pecuniary implications for the applicant. Accordingly, there are no grounds for concluding that the applicant has suffered no significant disadvantage.
85. Accordingly, the Court rejects the Government’s preliminary objections and notes that the second applicant’s complaint under Article 8 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible."
- Opening for signature: 13 December 1957
- Entry into force: 1 January 1958
- The convention has been ratified by 17 Member States of the CoE
Summary of the Treaty Office:
"The Agreement aims to facilitate personal travel of nationals of the Parties, who may enter or leave the territory of another Party by all frontiers on presentation of one of the documents listed in the appendix to this Agreement. Moreover, Parties agree to allow the holder of any of the documents to re-enter its territory without formality even if his/her nationality is under dispute.
The facilities accorded shall only be available for visits of not more than three months duration.
This Agreement shall in no way prejudice the provisions of any domestic law and bilateral or multilateral treaties or agreements in force or to enter into force, whereby more favourable terms are applied to the nationals of other Parties."