The legal basis

Cross-border cooperation is based on international, national and cantonal law.

In Europe, the Madrid Convention constitutes the legal framework for cross-border cooperation activities. It encourages the conclusion of agreements between regions and local authorities on opposite sides of a border. The Karlsruhe Agreement has given concrete shape to these principles in relations between Switzerland, Germany, France and Luxembourg. The EU also has rules on cross-border cooperation between its member states and with third states. In Switzerland, the Confederation and the cantons cooperate closely on drafting and concluding cross-border treaties.

Madrid Convention: founding instrument of the legal framework for cross-border cooperation in Europe

The European Framework Convention on Transfrontier Cooperation between Territorial Communities or Authorities (Madrid Convention) of 21 May 1980 was drawn up at the initiative of the Council of Europe. Like its five neighbouring states, Switzerland is a signatory to it. It has also ratified the three protocols to this Convention.

The objective of the Madrid Convention is to promote and facilitate the conclusion of agreements between regions and local authorities on opposite sides of a border. It provides a legal framework for cooperation at a sub-national level, particularly in the domains of regional, urban and rural development, environmental protection, infrastructure improvements and disaster relief.

The Convention provides model agreements and treaties for cross-border cooperation. These range from the loose mutual exchange of information to clearly defined legal obligations. The parties undertake to overcome any difficulties that might impede cross-border cooperation.

The Additional Protocol of 9 November 1995 aims to strengthen cross-border cooperation between European countries by improving the legal framework provided by the Framework Convention. It expressly recognises the right of territorial authorities to conclude agreements on cross-border cooperation in certain circumstances.

The Second Protocol to the Madrid Convention of 5 May 1998 facilitates cooperation between the authorities of territories that are not directly contiguous.

The Third Protocol to the Madrid Convention of 16 November 2009 establishes rules for the creation of “European Cooperation Groupings” (ECGs) that have legal personality under the law of the state in which the ECG has his headquarter.

Karlsruhe Agreement: for the creation of cross-border bodies

In 1996, the Federal Council signed with the governments of Germany, France and Luxembourg the Karlsruhe Agreement on Transboundary Cooperation between local communities and local bodies. The Federal Council signed the Agreement on behalf of the cantons of Solothurn, Basel-Stadt, Basel-Landschaft, Aargau and Jura. Since then, the Agreement has been extended to the cantons of Schaffhausen, Bern, Neuchâtel, Vaud, Geneva and Valais. 

The Agreement gives concrete shape to the principles of the Additional Protocol to the Madrid Convention. It contains provisions on the conclusion of cross-border cooperation agreements, as well as on the creation of cross-border bodies known as local groupings.

EU Regulation on European Grouping of Territorial Cooperation (EGTC)

In line with Regulation no. 1082/2006 of the European Parliament and European Council of 5 July 2006 on European Grouping of Territorial Cooperation (EGTC), EGTCs may be established on EU territory. EGTCs aim to simplify and foster cross-border, transnational and/or interregional cooperation between their members. An EGTC has legal personality. Its members may include member states, regional or local authorities and other public bodies. In principle, the regional authorities of two EU member states are sufficient to create an EGTC. The 2013 amendment to the regulation now makes it possible for an EGTC to be created from regional authorities of only one EU member state and from one or more third countries bordering the member state concerned. This is of particular interest to Swiss cantons in order to develop opportunities for cooperation not only in the trinational regions but also bilaterally.

Federal Constitution: a close collaboration between the federal government and the cantons

According to the Federal Constitution (Art. 54, paras. 1 and 2, Art. 16, Art 184, paras. 1 and 2), concluding international agreements is the prerogative of the Confederation. However, the Swiss Federal Constitution (Art. 56, para. 1) grants the cantons the right to conclude agreements with foreign authorities on matters that lie within their competences.

The Federal Council’s practice has allowed the cantons maximum autonomy in the conduct of their cross-border relations. They can conclude agreements with foreign authorities in all fields for which they are responsible. However, agreements must not contain anything contrary to the interests of the Confederation or of other cantons.

Swiss law requires the Confederation and the cantons to collaborate closely on cross-border matters. The cantons may thus maintain direct contacts with lower-ranking authorities, i.e. with local or regional authorities. It is generally a matter of dealing with specific problems of relations between neighbours within the region.

However, the cantons may not correspond directly with the central authorities of a foreign State. The Federal Constitution (Article 56, para. 3) provides that official contacts between cantons and the central authorities of foreign countries must be arranged by the Federal Council. It is therefore up to the Federal Council to conduct negotiations and to sign and ratify the agreement. Although the Federal Council acts at the request and on behalf of the cantons concerned, it also takes account of the interests of the Confederation or of other cantons.

The Federal Council usually concludes agreements on behalf of the cantons, which are contracting parties. Therefore, the treaties must be approved in accordance with cantonal procedures. If it is in the direct interests of the Confederation, however, the Federal Council can also conclude agreements on behalf of itself.

The cantons must notify the federal government of proposed agreements in advance (Federal Constitution, Article 56, para. 2). The federal authorities then verify that the agreement is constitutional and that it accords with the foreign policy of the Confederation.

Agreements between regions

By entering into cross-border agreements, the cantons have given themselves a legal framework for facilitating relations with their cross-border partners. These agreements concern a wide range of regional issues.