ADDITIONAL
PROTOCOL
TO THE EUROPEAN
OUTLINE CONVENTION
ON TRANSFRONTIER
CO-OPERATION
BETWEEN
TERRITORIAL COMMUNITIES
OR AUTHORITIES
Strasbourg,
9.XI.1995
The
Council of Europe member States signatory to this Protocol to the European
Outline Convention on Transfrontier Co-operation between Territorial
Communities or Authorities (hereinafter referred to as “the Outline
Convention”),
Affirming
the importance of transfrontier co-operation between territorial communities or
authorities in border areas;
Being
resolved to take further measures to secure transfrontier co-operation between
territorial communities or authorities;
Wishing
to facilitate and develop transfrontier co-operation between territorial
communities or authorities situated in border areas;
Acknowledging
the need to adapt the Outline Convention to the actual situation in Europe;
Considering
that it would be appropriate to supplement the Outline Convention with a view
to reinforcing transfrontier co-operation between territorial communities or
authorities;
Having
regard to the European Charter of Local Self-Government;
Bearing
in mind the Declaration on transfrontier co-operation in Europe which the
Committee of Ministers made on the occasion of the 40th anniversary of the
Council of Europe and which, among other things, called for continued action in
order to gradually remove barriers of any kind – administrative, legal,
political or psychological – to curb the development of transfrontier projects,
Have
agreed the following additional provisions:
Article 1
1 Each
Contracting Party shall recognise and respect the right of territorial
communities or authorities under its jurisdiction and referred to in Articles 1
and 2 of the Outline Convention to conclude transfrontier co-operation
agreements with territorial communities or authorities of other States in
equivalent fields of responsibility, in accordance with the procedures laid
down in their statutes, in conformity with national law and in so far as such
agreements are in keeping with the Party's international commitments.
2 A
transfrontier co-operation agreement shall entail only the responsibilities of
the territorial communities or authorities which have concluded it.
Article 2
Decisions
taken jointly under a transfrontier co-operation agreement shall be implemented
by territorial communities or authorities within their national legal system,
in conformity with their national law. Decisions thus implemented shall be
regarded as having the same legal force and effects as measures taken by those
communities or authorities under their national legal system.
Article 3
A
transfrontier co-operation agreement concluded by territorial communities or
authorities may set up a transfrontier co-operation body, which may or may not
have legal personality. The agreement shall specify whether the body, regard
being had to the responsibilities assigned to it and to the provisions of
national law, is to be considered a public or private law entity within the
national legal systems to which the territorial communities or authorities
concluding the agreement belong.
Article 4
1 Where
the transfrontier co-operation body has legal personality, such personality
shall be as defined in the law of the Contracting Party in which its
headquarters are located. The legal personality of the body is recognised by
the other Contracting Parties which have territorial communities or authorities
party to the transfrontier agreement in conformity with their own national law.
2 The
transfrontier co-operation body shall perform the responsibilities assigned to
it by the territorial communities or authorities in accordance with its purpose
and in the manner provided for in the national law by which it is governed.
Thus:
a action
by the transfrontier co-operation body shall be governed by its statute and by
the law of the headquarters State;
b the
transfrontier co-operation body shall not, however, be empowered to take
measures which apply generally or which might affect the rights and freedoms of
individuals;
c the
transfrontier co-operation body shall be financed from the budgets of the territorial
communities or authorities. It shall not be empowered to impose levies of a
fiscal nature. It may, where appropriate, receive revenue in respect of
services provided by it to territorial communities or authorities, users or
third parties;
d the
transfrontier co-operation body shall have an annual estimated budget and shall
draw up a balance-account which shall be approved by auditors independent of
the territorial communities or authorities party to the agreement.
Article 5
1 The
Contracting Parties may, if their national law allows it, decide that the
transfrontier co-operation body is to be a public law entity and that, for the
purposes of each Contracting Party's legal system, any measures which it takes
are to have the same legal force and effects as if they had been taken by the
territorial communities or authorities which concluded the agreement.
2 However,
the agreement may stipulate that it is for the territorial communities or
authorities which concluded the agreement to execute such measures, especially
where the measures may affect the rights, freedoms and interests of
individuals. Moreover, each Contracting Party may provide that general
responsibilities cannot be attributed to the transfrontier co-operation body and
that such a body shall not be empowered to take measures which apply generally.
Article 6
1 Measures
taken by territorial communities or authorities under a transfrontier
co-operation agreement shall be subject to the same supervision as the law of
each Contracting Party prescribes in respect of any measure taken by the
territorial communities or authorities concluding the agreement.
2 Measures
taken by a transfrontier co-operation body set up under an agreement shall be
subject to the supervision provided for in the law of the State in which the
body's headquarters are located, keeping in mind, in addition, the interests of
territorial communities or authorities of other States. The transfrontier
co-operation body shall comply with information requests made by the
authorities of the States to which the territorial communities or authorities
belong. The supervisory authorities of the Contracting Parties shall endeavour
to establish means of appropriate co-ordination and information.
3 Measures
taken by a body as referred to in paragraph 1 of Article 5 shall be
subject to the same supervision as the law of each Contracting Party prescribes
in respect of any measure taken by the territorial communities or authorities
concluding the agreement.
Article 7
Any
disputes arising from a transfrontier co-operation body's activities shall be
referred to the courts which are competent under internal law or under an
international agreement.
Article 8
1 Each
Contracting Party shall declare, when signing this Protocol, or when depositing
the instrument of ratification, acceptance or approval, whether it will apply
the provisions of Articles 4 and 5 or of one of those articles only.
2 Such
a declaration can be modified at any subsequent time.
Article 9
No
reservations to the provisions of this Protocol shall be allowed.
Article 10
1 This
Protocol shall be open for signature by the States which have signed the
Outline Convention, which may express their consent to be bound by either:
a signature
without reservation as to ratification, acceptance or approval; or
b signature
subject to ratification, acceptance or approval, followed by ratification,
acceptance or approval.
2 A
member State of the Council of Europe may not sign this Protocol without
reservation as to ratification, acceptance or approval, or deposit an
instrument of ratification, acceptance or approval, unless it has already
deposited or simultaneously deposits an instrument of ratification, acceptance
or approval of the Outline Convention.
3 The
instruments of ratification, acceptance or approval shall be deposited with the
Secretary General of the Council of Europe.
Article 11
1 This
Protocol shall come into force three months after the date on which four member
States of the Council of Europe have expressed their consent to be bound by the
Protocol, in accordance with the provisions of Article 10.
2 In
respect of any member State which subsequently expresses its consent to be
bound by it, the Protocol shall come into force three months after the date of
its signature or deposit of instrument of its ratification, acceptance or
approval.
Article 12
1 After
the entry into force of this Protocol, any State which has acceded to the
Outline Convention may also accede to the Protocol.
2 Accession
shall be effected by the deposit with the Secretary General of the Council of
Europe of an instrument of accession which shall take effect three months after
the date of its deposit.
Article 13
1 Any
Contracting Party may, at any time, denounce this Protocol by means of
notification addressed to the Secretary General of the Council of Europe.
2 Such
denunciation shall become effective six months after the date of receipt of the
notification by the Secretary General.
Article 14
The
Secretary General of the Council of Europe shall notify the member States of
the Council of Europe and any State which has acceded to this Protocol of:
a any
declarations submitted by the Contracting Parties in conformity with
Article 8;
b any
signature;
c the
deposit of any instrument of ratification, acceptance, approval or accession;
d any
date of entry into force of this Protocol, in accordance with Articles 11 and
12;
e any
other measure, notification or communication relating to this Protocol.
In
witness whereof, the undersigned, being duly authorised thereto, have signed
this Protocol.
Done
at Strasbourg, this 9th day of November 1995, in English and French, both texts
being equally authentic, in a single copy which shall be deposited in the
archives of the Council of Europe. The Secretary General of the Council of
Europe shall transmit certified copies to each member State of the Council of
Europe and to any State invited to accede to this Protocol.