IV. Extension of Community Law for the Purpose of Codifying the Tasks, procedures and Legal Instruments of a European Spatial Development Policy

1. Differences Among the Various Institutional Foundations for European Spatial Planning Policy

Spatial planning in Germany (Raumordnung)-institutionalised within the specific framework provided by the German Basic Law, in particular the system of cooperative federalism-is just as ill-suited to serve as a direct model for standardisation in EU Treaty provisions on spatial development tasks required at the European level as the comparable forms of institutionalisation found in other Member States, for example "aménagement du territoire" in France. Both the general conditions at Community level and the political and legal constitutional and administrative structures found in the individual Member States are far too varied for this to be feasible.

Over the years, however, a number of valuable indications have emerged from German experience in the field of spatial planning, as a task and instrument capable of promoting the horizontal (inter-departmental) and vertical coordination (involving the Federation and the Länder according to the principle of countervailing influence) of plans and measures affecting spatial development, on how the task of European spatial development might be regulated within the framework of the basic structures of Community law.

2. Effects of the Subsidiarity Principle on European Spatial Development Policy

Against the background of the subsidiarity principle, described in Art. 3b EC Treaty and which in its tendency is to be interpreted as leading to a diminution rather than an extension of the powers and responsibilities of Community organs, the statutory framework of European spatial development policy is required to be framed in a manner which limits the existing legal powers of Member States and the scope of the political action which they may take only to the extent that Member States impose such a limitation upon themselves by means of intergovernmental agreements.

A coordinating function, let alone a responsibility for coordination on the part of the EU, equivalent to the German understanding of Federal responsibility for spatial development, must not under any circumstances lead to a situation in which the strict separation of competencies between the EU and Member States provided in the EC Treaty might be circumvented. More particularly, it would be highly questionable from a legal point of view to seek support for coordination by appealing to the "inherent nature of the matter at issue" in order to invoke "emergency powers", for instance in order to adduce failures in intergovernmental cooperation as providing grounds for empowerment to a course of action-in particular by the Commission-not sanctioned under Community law.

The EU's general powers to coordinate its own policies internally are not affected.

3. The Need for Institutionalisation in Community Law

A European Spatial Development Policy based on intergovernmental agreement among Member States-possibly with the procedural involvement of the Committee of the Regions-poses a number of fundamental questions on the most suitable approach to institutionalising the participation of Member States and regions in drawing up objectives in Community law, questions which need to be addressed equally by Community organs and by the Member States (and their subdivisions, e.g. regions).

With regard to standardisation of European spatial development policy in Community law, the way forward recommended by the German Conference of Ministers for Spatial Planning (MKRO) involving the establishment of an additional political "pillar" is sound from the legal-systems point of view.

In the interests of implementing the subsidiarity principle, this would require a solid foundation in the EU Treaty, on which consequently legal regulation of procedural modalities (e.g. on a European Spatial Development Perspective) and provision of the required instruments (e.g. reporting on spatial development policy) could be based.

In the light of the current trend to reduce the number of political "pillars" set up under the Maastricht Treaty by a process of merging, the political feasibility of creating a foundation of this type must, however, be seen as being in doubt. Consequently, other options need to be examined for that contingency.

The decision to refrain from any form of institutionalisation of European spatial development policy in Community law would introduce the risk of Community organs-and in particular the Commission-undertaking actions which are in fact in conflict with the current regulation of competencies, and of this leading to a creeping extension of its competencies, which against the background of the subsidiarity principle has to be seen as undesirable.

4. 1 Adoption into Community Treaties
In the case of it not being possible to incorporate European spatial development policy as an additional "pillar" of cooperation among Member States within the EU Treaty, a satisfactory means of establishing norms for European spatial development policy would be in the form of amendments to the EC Treaty.
4.Establishing norms for European spatial development policy by means of an explicit increase to the number of EC policies which are laid down in the EC Treaty (Part 3 EC Treaty) would represent an unacceptable extension of Community competencies at the expense of the current powers of Member States and would be in conflict with the subsidiarity principle.
4.2 Degree of Coordination Required for the Task of European Spatial Development
In terms of legal construction, the task of coordination has to be regarded as being located among the spheres of activity and policies which are regulated explicitly by the EC Treaty. With regard to the assignment of tasks, it is to be regarded as falling within the ambit of the relevant Directorate-General (currently DG XVI Regional Policies, but these tasks might well also be allocated differently, e.g. vested in the President). In substantive terms, however, it is best seen as a task to be undertaken by the Community with the participation of Member States. This needs to be taken into account in elaborating both content and procedures.

From this construction to underpin the task of spatial development policy it does not necessary follow, from a legal point of view, that the Directorate-General should be equipped with competencies and instruments for coordination which would provide a legal basis for supplanting existing legal powers. On the contrary, coordination can quite feasibly be achieved by means of binding agreements at the political level.

A European spatial development policy which aspires to achieve coordination must from the outset be designed to breach departmental boundaries in the interests of coordination. Similarly, in pursuing the aim of coordination it must clearly extend beyond the scope of the EU policy area to which this task has been assigned (e.g. European regional policy). In particular, it must encompass those areas which, within the context of European spatial development policy, appear to call for coordination, e.g. EC environmental and agricultural policies.

Both the subsidiarity principle and the largely programme-area related implementation of European policies could, however, lead to the level of coordination within European spatial development policy falling somewhat short of the level of coordination which exists within German spatial planning, and which has its basis in both the federal structure of Germany and the conception of spatial planning as fundamentally interdepartmental and spatially all-inclusive. This starting point is in any case rather difficult for other Member States, with their different constitutions and legal traditions, to grasp and cannot therefore necessarily be expected to find acceptance within the European context, even if in other respects the German conception of spatial planning is widely recognised as a model to follow.

The recommended amendment to Art. 3 of the EC Treaty by the addition of a new paragraph (2), tabled by the German Conference of Ministers for Spatial Planning (MKRO) and which reads as follows19:

"(2) The Community shall coordinate its activities within the areas covered by departmental policies affecting the development of cities and regions in Member States on the basis of the aims of Member States in respect of spatial development and a European Spatial Development Perspective to be established through cooperation among Member States".

provides, with its reference to the "... areas covered by departmental policies affecting the development of cities and regions in Member States", a point of reference for coordination within the framework of a European spatial development policy which reveals a quite specific orientation for the type of coordination required for such a policy. In making a reference to "cities and regions", it does, however, also open up the possibility of pursuing conceptional models for spatial planning at European level.

4.3 Terminological Aspects of the Labels "European Spatial Development or Spatial Planning Policy"
In framing an amendment to the EU Treaty in order to institutionalise European spatial development policy, it is important to note that the relevant terms in German, French and English may quite possibly be used in a variety of quite different senses, both within the linguistic conventions of Member States and in the translation of EC/EU documents.

Due account was taken of this fact in drawing up the document Principles for a European Spatial Development Policy 20, which was discussed and agreed upon at the meeting of the informal Council of Ministers for Spatial Planning in Leipzig on 21-22 September 1994. In this document the use of the German term "Raumordnung" (spatial planning)-and equally of the French term "aménagement du territoire"-is avoided in favour of the term "European spatial development policy" (cf. also Chapter II).

The present paper also adopts this usage, which additionally attempts to avoid the impression of European spatial development policy being a policy whose origins lie within the Community, which might be created by using the labels "task" or "policy area".

It may on many occasions appear somewhat contrived to avoid using the term "European spatial planning policy" (or the German equivalent Europäische Raumordnungspolitik) in academic texts and certainly in more general usage and in the press. In the medium term, however, this usage will become more familiar as the policy task associated with European spatial development policy starts to take on clearer shape.

For the sake of clarification, it bears repetition that the German term "Raumordnung" has in the past (e.g. in the German-language version of the EC Treaty - cf. Art. 130s EC Treaty under Title XVI Environment) been used in a sense quite different to the task of European spatial development policy referred to in this context. It occurs in the German title of the document Europe 2000, but has, however, ceded to the new term "Raumentwicklung" (spatial development) in the German title of the recently published Europe 2000+.

5. Draft Proposals for an Amendment to Art. 3 EC Treaty

The legal problems of demarcation would appear on the surface to be alleviated if the term "European spatial development policy" were not to be used explicitly in the creation of a normative provision, and instead the task and the functions associated with it could be paraphrased without employing an explicit label, for example by making an addition to the catalogue of Community activities contained in Art. 3 EC Treaty.

Proposals of this kind might, for example, introduce a dash and the following words

"- sustainable and balanced spatial development of its territory"

immediately after little j, or equally add these words conjoined by the word "and" to the text of little j. Alternatively, without introducing an amendment to Art. 3 EC Treaty, it would be possible to make a corresponding addition to one of the provisions included under Title XIV Economic and Social Cohesion.

The tendency underlying specific amendments to details of the Treaty is that of keeping the substance and scope of the institutionalisation of European spatial development policy relatively broad and general.

The flexibility afforded by relatively non-specific regulation of this kind is accompanied by the disadvantage that this lack of precision may under some circumstances impede observation of the subsidiarity principle, for example when Community organs make use of the broader scope for interpretation in order to extend their own powers.

6. Institutionalisation of Community-Intergovernmental Responsibilities for Tasks by the Addition of a Second Paragraph to Art. 3 EC Treaty

In order to guarantee adherence to the subsidiarity principle, the aim of making European spatial development policy a matter for action by the Community with the participation of Member States must be safeguarded by as detailed as possible a specification of its instruments and of the procedures to be observed in decision-making processes.

The proposed amendment to Art. 3 EC Treaty by the inclusion of an additional paragraph (2)21, tabled by the German Conference of Ministers for Spatial Planning (MKRO) and mentioned above, takes full account of this concern.

A matter which still requires investigation is whether the construction for the discharging of tasks provided in the proposed amendment would entail more far-reaching modifications to the current structure of Community organisations, attributable, for example, to the call for the creation of an additional pillar outlined above, possibly in order to ensure its legal validity before the European Court of Justice in the case of it being tested.

7. Limitation Simply to Amending EC Treaty Provisions on Individual EU Policies

A final fall-back position for regulating the task of European spatial development policy would be in the form of detailed modifications to individual EC Treaty provisions affecting specific EG policies, as set out by the Ministry for Regional Planning, Building and Urban Development (BMBau). One case in point would be an amendment to Art. 130a (1) or 130b EC Treaty by including additionally the aspect of "spatial cohesion". Equally these provisions might be enhanced by establishing instruments and procedures to support a European Spatial Development Perspective and by including a statutory requirement for periodic reporting.

It would also be highly advisable to include a supplementary provision, for example to Art. 130e EC Treaty, under which the Community would support institutional cooperation among local and regional territorial entities in connection with cross-border cooperation in areas close to internal or external borders.

If the approach of making merely selective amendments to existing provisions were to be followed, and if it also relied solely on the subsidiarity principle to implement itself and dispensed with the elaboration of instruments and procedures, the envisaged innovation for Community law associated with a new intergovernmentally supported policy area known as "European Spatial Development" would be called into question.

 
Inhaltsverzeichnis zurück weiter Seitenanfang