One of the primary aims of the European Union (EU) is to promote economic, social and territorial cohesion among its Member States. One of the main means of pursuing this aim is legislation.
There are three main types of legislative competences envisaged by the Treaty on the Functioning of the EU: exclusive competence where only the Union may legislate; shared competence where both the Union and the Member States may legislate; and competence of the Union to carry out actions to support, coordinate or supplement actions of the Member States.
With regard to these three types, particularly the latter two types of legislation can result in neighbouring EU States in having mutually incompatible national laws. Mutually incompatible national laws may in turn result in so-called border obstacles.
A border obstacle is, according to the European Commission’s working definition, “not only a restriction of free movement as established by the European Court of Justice, but a law, rule or administrative practice that obstructs the inherent potential of a border region when interacting across the border”.
In a similar way, the Nordic Council of Ministers defines border obstacles as laws, public rules or practices that hamper the mobility of individuals or enterprises to operate across borders. It notes that different levels of benefits and taxes are as such no border obstacles. But it regards it as a border obstacle if somebody is worse off on account of their mobility than others in a comparable situation, both in the country of residence as well as in the country they work in.
Practical examples and areas affected
The Nordic countries are an example of a region that deals with border obstacles in a structured manner. Finland, Denmark, Sweden, Norway, Iceland, Faroe Islands, Greenland and Åland Islands have created the so-called Border Obstacle Council. The Council lists border obstacles from a range of different areas and tries to promote their eradication in the respective countries.
An example of a border obstacle that the Nordic Border Obstacle Council has been working on is the way many professions are regulated either by the state or by the different economic sectors in the Nordic countries. These different requirements hinder the free movement of workers across the borders of the Nordic countries and thus constitute a border obstacle. Another example relates to work experience placements that can be offered to unemployed persons in Finland for example to try to find out what their options are at choosing a vocation or support their return to the labour market. Currently, unemployed persons cannot undertake work experience placements in another Nordic country.
These are examples of obstacles that can be removed if the state in question agrees to change its policies or practices. The Nordic Border Obstacle Council has succeeded in making this happen with some obstacles. Others have proven harder to tackle.
Northern Europe is not the only region that is affected by border obstacles. A 2017 report commissioned by the European Commission has listed 239 legal and administrative obstacles on 37 out of 40 internal EU land borders. There was a notable range of policy areas the report found were affected by border obstacles. The areas that were found to be most significantly affected were labour market and education; social security and health; transport and mobility; policy planning and public services; as well as industry and trade.
Border obstacles are a concern particularly in the border regions inside the EU. It should be noted that the sheer number of people affected by border obstacles is not always very high. However, in border regions the different facets of people’s lives are lived across the border, be it studying, working, doing business, or so on. Indeed, border regions should naturally be where benefits of the EU are felt every day. Yet according to the evidence found by the European Commission, border regions generally fall behind other regions in a Member State in terms of economic performance, making it even more important to facilitate their development and eradicate unnecessary border obstacles.
Positive development at EU level?
It can be noted that there have been positive developments at the level of the Union lately. One positive development can be found in the proposal for a new regulation “on a mechanism to resolve legal and administrative obstacles in a cross-border context” that the European Commission has drafted. While the scope of the proposal does not seem to be very wide (it applies to “legal obstacles hampering the implementation of a joint Project”), it would allow for a Member State to ‘”pull over the border” the legal provisions of the neighbouring Member State’.
Another positive development are the proposed provisions for Interreg that are part of the reforms proposed to EU cohesion policy during the next budget cycle of 2021-2027. The Commission sends a clearer signal that overcoming border obstacles contributes to the overall objective of the Interreg cross-border cooperation programme. Still, project-based funding alone cannot solve all legal and administrative barriers.
There have also been calls for the EU to support “a more coordinated implementation of EU legislation across EU Member States” which probably could make a real difference in preventing new border obstacles from emerging.
One could also hope that the increased attention to border obstacles in Brussels would create momentum among EU Member States to pay attention to their border regions and try to reduce the incoherence between their national laws and those of their neighbours, should they have been reported to lead to a border obstacle.
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