I. Introduction
The starting point of the considerations is the assumption that the lack of the EU or bilateral legal grounds governing the principles, procedure and scope of cross-border cooperation means that specified objectives need to be achieved based on the administrative law of each country to which local entities are subject. Therefore, if a specific public task can best be performed through cross-border cooperation, there is an obligation to observe the provisions of administrative law, combined with the simultaneous monitoring of adequate legal regulations, which are in force on the other side of the border. This means that the performance of a cross-border public task is treated ‘piecemeal’ from the point of view of one legal order, because the system of domestic law only applies to that part of the task that is fulfilled on its territory. In other words, an identified public task is holistic by nature, but it is satisfied within the limits and based on the two independent regimes of administrative law to which the cooperating local authority entities are subject. In this specific situation, the search for smart solutions involving the disclosure of points of contact, as well as building connections between two parallel systems of administrative law, is of fundamental importance.
II. Parallelism Of Administrative Law
The examination of two legal orders is limited by the scope of substantive and geographic competence of the local entities responsible for satisfying cross-border needs. In this sense, the need becomes a central category of assessment of the validity of equivalent legal orders and sets the scope of necessary comparative law studies. It should be emphasised that the main trend of contemporary comparative law studies focuses on diagnosing the extent to which entire legal orders bear an influence on each other or the extent to which individual elements permeate, as in the case of the broadly discussed phenomenon of the convergence or divergence of continental and Anglo-Saxon legal systems, with regard to both setting and applying the law.1 However, in this case, a comparison of legal regulations and the identification of the scope of similarities and differences serve the purpose of finding the answer to the question of how to ensure that a public task of a cross-border nature is performed in conditions where two equivalent legal orders are applicable.
The validity of equivalent legal orders is characterised by two factors of both an integrating and a separating nature. The integrating elements assume the need for a minimum of similarities to exist in the public law regulations of the states to which the entities of the cross-border cooperation are subject. It applies to similarities of two types, both of a systemic nature and with respect to the processes and structures in public administration. The primary condition is the existence of common axiological grounds of the legal system to which the entities involved in the cross-border cooperation are subjected. The legal doctrine most frequently mentions the values that are common to the administrative law of European countries arising from the rule of law, from fundamental rights or from the right to good administration.2 As for the similarity of the second type, it is accepted that the implementation of the public interest across borders requires the presence of specific similarities in the structures and tasks of public administration. The study of administrative law has seen numerous comparative studies, treating the presence of similarities between cooperating local entities in subjective and objective terms as a necessary condition for conducting cross-border cooperation.3
The main factor separating equal legal orders is the validity of the law on a given territory according to the principle of territoriality, to which not only people but primarily public administration entities are subjected, setting the scope of their authority within the framework of the local jurisdiction that is granted. In addition, with regard to the cooperation of equal entities of local administration, other than the relationship of superiority and subordination, the principle of territoriality is of fundamental importance. If, for example, natural persons can cooperate in an area relatively flexibly, having freedom to move around4 and, ultimately, to change the law to which they will be subjected, the local authorities, which are a creation of the national legal order that have been established to implement public law, do not have such an option. Consequently, administrative entities can choose the law that applies to cross-border activities, to which they will be subjected only if the law expressly permits this. In this case, the norms of a single legal order may be applicable on a different territory only in combination, with the provisions of one internal legal system5 or with the provisions of international law6 or, finally, with EU law.7
In summary, collective or individual needs are satisfied in cross-border cooperation on conditions where two (or several) equivalent administrative legal orders are applicable, which are simultaneously characterised by integrating factors (similarity of legal regulations) and separating factors (principle of territoriality). The principle of territoriality is a type of ‘natural’ barrier to the cross-border cooperation of local entities, because it arises from the essence of administrative law. However, the choice of the legal form of the cooperation as a frame cooperation agreement enables the cooperating public entities to conduct a smart procedure of ‘recompensing’ the separating factors with integrating factors, as discussed later in the considerations.
III. Frame Agreement On Cross-Border Cooperation
A frame cooperation agreement is a commonly encountered form of cross-border cooperation between local authorities. It should be distinguished from a twinning agreement not concluded according to the criterion of location in the immediate vicinity of the state border, where the cooperation partner can even be a public administration entity from any part of the world.8
The framework nature of cross-border agreements involves bringing the subject matter of the agreement down to purely cooperation, as an organiser's activity. Cross-border cooperation here is an instrumental objective with respect to the main objective, which is the fulfilment of public tasks.9 The objective of the agreement is not, therefore, to delegate the performance of a public task to the other entity10 but to simultaneously take up a number of organiser's activities (in parallel) on both sides of the border, serving the purpose of performing cross-border public tasks. Needs are identified in the cross-border dimension by distinguishing specific areas of cooperation in the agreement, which fall within the areas of responsibility of the cooperating public authorities. Areas such as spatial planning, transport and communication, tourism, municipal management, environmental protection, education, culture and sport can be mentioned as examples for these areas.11 Therefore, it should be stated that the basic premise and starting point for partner cooperation is the similarity of competencies of the cooperating public authorities as well as the functions and tasks performed to satisfy identified cross-border needs. In other words, this is about the presence of competence similarities of the cooperating entities (and not competence competition12) in the sense that the minimum similarity of statutory competencies is a sine qua non condition for establishing the cross-border cooperation referred to in the frame agreement.
If it were to be found that the identification of competence similarities is a necessary condition for establishing cross-border cooperation, it should, therefore, be assumed that the next important criterion for implementing the cooperation would be the appearance of compatible legal structural solutions. Competencies are, in fact, assigned to the appropriate structures, and it is difficult to consider these two phenomena separately. However, it is precisely amongst the basic factors that inhibit cooperation that different structural conditions are often mentioned on both sides of the border. In particular, systemic differences are indicated in the structure of the state (unitarianism vs. federalism)13 or in the structure of territorial self-government units14 or in the size of the structures themselves.15 Furthermore, a significant obstacle to the stability, continuity and intensity of the cooperation is the term of office of the governing bodies of the public authority.16 In addition, public entities may reorganise their internal structures within the framework of their organizational powers,17 which fundamentally determines the quality of the cross-border contacts to date.
The permanent element of cross-border cooperation should be learning and monitoring the structures and their corresponding competencies on both sides of the border,18 although knowledge in this area alone is not sufficient for jointly performing tasks. In order to guarantee the achievement of the objectives of the cross-border cooperation – regardless of the political situation and the liking of individual players in the cooperation – frame agreements create structural solutions that are based on systemic similarities that exist in the administrative law of each of the countries. The new organisational ties incite direct effects in the sphere of administrative law of the states to which the cooperating public entities belong.19
Contractually structured systems of government include various levels of governance. The creation of a forum for a debate by the inhabitants, which is devoted to issues of importance to the local community on both sides of the border, should be positioned in the broadest possible dimension.20 Their nature resembles legally non-binding consultations with the municipality's inhabitants intended to strengthen the legitimacy of the local authorities and democratic processes in the municipality.21 The organisation of joint sessions of town councils22 and joint committees of municipal councillors23 should be mentioned at the level of the governing bodies. Their main task is to specify the overall strategy and basic objectives of cross-border cooperation.24 At the level of the executive bodies, these are direct meetings of the mayors who are responsible for the implementation of the strategy and the coordination of the administration's activities.25 This objective is also to be served by the creation of subordinated groups of departmental (sectional) managers, as well as the appointment of special collegial bodies26 or posts in the office.27 All the specified structures are of prime importance to the achievement of the objectives of the cooperation, because they are responsible for the fulfilment of public tasks – as a reminder – treated separately (partially) under two independent legal systems, although, in fact, we are dealing with a single cross-border public task.
It should be noted that the above contractual systemic structures are filled by authorities or their subordinate offices for which the implementation of cross-border cooperation is ‘only’ one of many organisational activities undertaken during the performance of the statutory tasks. Therefore, a special systemic solution tending towards specialisation and professionalisation of cooperation is the establishment within the frame agreement of a joint organisational unit dedicated exclusively to cross-border cooperation.28 However, even in this case, the new structure, just like the previous ones, operates within the framework of the applicability of two equal administrative law orders. This means that no separate cross-border legal entity is being established, whilst the regulations of domestic law only define that ‘fractional’ part of the structures to which the seconded employees of one cooperating public entity belong.29 The contractual cross-border structure understood in this way contains a multitude of regimes regarding employee relations, social security matters and tax liabilities of employees because of the domestic law to which the public entity delegating the worker is subjected.30 However, the integrating element is the identified cross-border need, which is satisfied by the competencies of the cooperating public authorities. To this end, employees having not only the substantive knowledge required for the performance of a specific public task but also language skills (obligatory bilingualism) and intercultural skills are seconded to cross-border structures.
All the contractual systemic structures described above, situated at various levels of the organisational structure, constitute a platform for information exchange, mutual learning, coordination and the creation of common solutions for satisfying an identified cross-border need. However, legally binding decisions are made in parallel and independently within the regime of the provisions of the administrative law of each of the States. Decisions are subjected to control and supervision activities in accordance with the legal procedure of each of the states. They also require the receipt of social acceptance in this respect, which is expressed in democratic processes. This is why information and communication with the inhabitants at every stage is so important.31
IV. Conclusions
The cross-border cooperation of local authorities, taken up based on the administrative law of each of the states, is marked by both integrating factors that refer to the similarities of the applicable system of law and separating factors arising from the principle of territoriality of administrative law.
The frame agreement is a smart solution (a smart tool) of cross-border cooperation, because it enables cooperating territorial self-government units to conduct a unique operation of ‘recompensing’ separating factors with integrating factors. The separation of cross-border cooperation embodies the barrier arising from the essence of public authority and administrative authority in the form of the principle of territoriality, as a result of which public entities cooperating across borders are subjected to ‘their own’ separate administrative law orders. In the absence of specific international legal grounds for cooperation or the existence of optional legal mechanisms, which public entities do not take advantage of, the parties to the frame agreement consciously refer to competencies and structural similarities of the administrative law of both states. The way in which the cross-border objectives are achieved is through the creation of new structural solutions within the existing organisational system of cooperating public entities without creating independent entities equipped with the attribute of legal personality. They are implemented as a result of synchronised actions undertaken parallelly and simultaneously but separately under the administrative law of each of the cooperating entities.
Frame agreements on cross-border cooperation are implemented in conditions of the coexistence of the administrative law orders of the cooperating entities. The cooperation specified in the frame agreement takes place exclusively in a horizontal arrangement, within the scope of res interna of the administrations between the public entities responsible for satisfying the cross-border need. The coexistence of independent legal orders means the lack of imposition or competition of these orders, but it enables simultaneous synchronised actions to be taken under the administrative law of each of the cooperating entities.