Reading EUropean borderlands under the perspective of legal geography and spatial justice

ABSTRACT

Recently, the notion of spatial justice has been discussed as a possible conceptual foundation for rethinking EU Cohesion Policy. While scholars have adopted a dual distributive and procedural understanding of spatial justice, the paper argues that, applied to cross-border areas, such a conceptualisation is challenged to explain how the border contributes to disparities. We argue that actively questioning the role of law is paramount for better examination of the dynamics within border areas. An understanding of spatial justice informed by legal geography allows examination of how law fosters and impedes movement across borders. The paper presents three recent examples where policy representatives from affected communities have fought to adapt legal provisions to cross-border spatiality. Whether such initiatives increased border communities' capacities to shape their own development (i.e. European Grouping of Territorial Cooperation) or not yet (i.e. co-development at the Lorraine-Luxembourg border; European Cross-Border Mechanism), these examples show that analysing EUropean borderlands as a spatio-legal category helps understanding of how space and law constantly struggle with one another, and how spatial justice emerges from a movement out of this conflict. The paper concludes by discussing the practical and conceptual implications of combining legal geography and spatial justice for analysing EU Borderlands.

KEYWORDS:

• Spatial justice
• legal geography
• border areas
• European integration
• ECBM

1. Setting the scene

Recently, discontent in socioeconomically struggling communities feeling ‘left behind’ (Rodríguez-Pose 2018) has emphasized critical accounts concerning the effectiveness of the EU regional policy in tackling spatial disparities and the need to make the EU territorial cohesion objective more operational (Barca 2019). The notion of spatial justice emerged in several EU-financed research projects (COHESIFY, IMAJINE, RELOCAL) as a possible conceptual foundation for rethinking the policy of local development in the EU. In this context, scholars have used a dual distributive and procedural justice perspective to assess the effectiveness of the cohesion policy in tackling spatial disparities (Madanipour, Shucksmith, and Talbot 2017; Lang and Görmar 2019; Social Inclusion 2020, special issue 8(3)). They have also emphasized that spatial justice allows one to shift perspective on development, i.e. considering how the locale can be empowered rather than have a ‘one-size-fits-all’ approach to development imposed on it (Jones, Goodwin-Hawkins, and Woods 2020; Blondel and Evrard 2019). What about cross-border areas? How can spatial justice help us to rethink the specific challenges of local development in cross-border areas? A distributive and procedural understanding of spatial justice allows us to qualify border disparities as injustice, as imbalanced power relationships across borders can impede local communities’ ability to steer their development (Piras et al. 2020; Evrard and Engl 2018). Such a conceptualization allows us to demonstrate how procedural and distributive mechanisms can be activated to empower border communities. Yet it is challenged to explain how the border – as a complex and multifaceted phenomenon (Haselsberger 2014) – contributes to producing disparities.

We argue that uncovering the underlying mechanisms producing such disparities at the border is crucial. We suggest that questioning more actively the role of law – and its fairness – is paramount to a better examination of the specific dynamics within border areas. The latest evidence from the EU Cross-border Review demonstrates that law shapes spatial dynamics in EU border areas. Access to public services (i.e. hospitals, universities) is generally lower in border regions as a result of the complexity and the cost of navigating between different administrative and legal systems (European Commission 2017a, 3–4). Evidence shows that legal and administrative obstacles hinder citizens and businesses in their capacity to ‘fully harness[ing] the potential of their place of residence or work’ (European Commission 2017b, 10). By interrogating how the legal norm impedes cross-border practice, we are interested in uncovering what forms of unequal access to law this can create. In so doing, this paper also contributes to the broader discussion in border studies that interrogates the ethics of borders and how borders are practised (Scott 2020).

To examine the interrelations between law and geography in EUropean¹ cross-border areas and how situations of spatial injustice can unfold from them, we use legal geography and spatial justice as a conceptual framework. By systematically studying how the impact of law is felt and made (at least in part locally), legal geography has long demonstrated the imbrication of the legal, the social and the spatial (Bennet and Layard 2015, 208). The systematic enquiry on the spatialisation of law helps to uncover how law works. We draw in particular on Philippopoulos-Mihalopoulos’ thought to understand how law and space are intrinsically linked and struggling with one another. Philippopoulos-Mihalopoulos conceptualises spatial justice as the movement out of this conflict, a movement of ‘withdrawal’. He understands justice as a transcending movement emerging from the tension between law and space (Philippopoulos-Mihalopoulos 2010, 213). Mobilizing this conceptualization in cross-border areas allows us to discuss their specificity, considering in particular how the cross-border context can restrict access to specific rights, resources, infrastructures, decisions, as a result of incompatible or contradictory laws. Using this starting point, we observe constant attempts to spatialize the law so that it adapts to borderlands’ spatiality. The analysis is centred on how – by constantly negotiating and reorienting one another – EUropean borderlands attempt to adapt law (i.e. regulation to their specificity).

We use this conceptualization to analyse three most recent examples where legal instruments have been invoked by several policy spheres to adapt to the specificity of EU cross-border areas. Firstly, the European Commission has surveyed legal and administrative obstacles impeding cross-border interactions in multiple ways (EU cross-border review: European Commission 2017a). As highly interdependent and fluid areas, EU cross-border areas seek paths to adapt or redefine regulation according to their needs. In many cases, the law is not responsive, thus restricting movement, effective access to EU rights, and creating situations of unequal access to rights, of injustice. We briefly introduce the European Cross-Border Mechanism (ECBM), an EU regulation proposing a multi-level mechanism to overcome legal and administrative obstacles. Such a mechanism demonstrates the attempt to ‘adjust’ the law to border areas’ specificities, thus overcoming obstacles. In the legal geography terminology, law adapts significantly to space, law ‘unfolds’ space to address unjust situations. Secondly, we draw on a thorough case study analysis conducted in 2018 at the Lorraine-Luxembourg border. There, cross-border interdependencies are multifaceted and anchored at different levels, and wide-ranging disparities can be observed. To face these challenges, political discourses suggest a number of adjustments. These discourses contributed in particular to driving the reflections and then the adoption of a Recommendation at the Council of Europe for a ‘fair distribution of taxes in transfrontier areas’ (CoE 2019). As the latter is not binding, policy representatives from affected communities seek policy and legal changes. They seek a more equitable law. Yet, up to now, withdrawal attempts have failed to adapt the law. Thirdly, we briefly introduce the first EUropean legal instrument designed to facilitate cross-border cooperation, the European Grouping of Territorial Cooperation (EGTC). The latter allows cross-border areas to create a cross-border legal person that is able to implement projects and infrastructure (European Council and Parliament 2006). By operating with one single law, EGTCs are ‘capacitated’ to run cross-border cooperation and define a dedicated territorial governance. Law and space ‘fold’ into one another. In the concluding section, we argue that conceptualizing spatial justice as the intense and paradoxical relationship between law and space (Philippopoulos-Mihalopoulos 2010 and 2015) allows us to shed light on how the EUropean integration shapes EUropean borderlands.

2. A call for a spatio-legal conceptualization of EUropean borderlands

Recently, Haselsberger admirably summed up borders as complex phenomena. ‘They are multifaceted, multilevel and interdisciplinary institutions and processes transecting spaces in not only administrative and geopolitical but also cultural, economic and social terms’ (Haselsberger 2014, 505). As a consequence, borders are analyzed by several disciplines, ranging from geography, cultural studies, anthropology, economy, law and most notably sociology. In the last two decades, the field of border studies has also expanded as an interdisciplinary platform for exchange and analysis (Scott 2020). This diversity and profusion has prevented scholars from defining a cohesive theory of borders (Newman 2006). The literature has proved dynamic and as diverse as borders are multifaceted.

In addition to this complexity, EUropean borderlands’ spatiality is unique, as exemplified by the reintroduction of border controls. As a response from some European Member States to handling several crises (e.g. terror attacks and migration in 2015, and Covid-19 in 2020), the reintroduction of border controls demonstrates that cross-border, national and European arenas are highly intertwined. When Member States understand that their competences (e.g. security, health, migration) take priority over EU competence (e.g. the Single Market), the EU becomes easily challenged in managing borders in an orderly manner. The EU's and Member States’ laws and territories contradict one another. The reintroduction of border controls calls the effectiveness of the EU Single Market into question (i.e. impeded cross-border work and flows: Evrard, Nienaber, and Sommaribas 2018). These crises also challenge our own conceptualization of cross-border areas. Drawing on a Deleuzian/Guattarian understanding of space, Pullano emphasises that even though they are co-constitutive of one another, the EU's and the Member States’ territorialities are of different natures, thus partly explaining this contradiction and interdependence. The EU territoriality aspires to be a smooth space (Pullano 2009). By removing regulatory barriers and allowing increased interconnections (e.g. flows), the EU shapes a space where the circulation of goods, people and services is fluid. This smooth EU territoriality is however only operational through the medium of the hierarchical, bounded, striated space, that of the Member States. This conceptualization points out the interwoven nature of the EU's and Member States’ respective territorialities, and the necessity to take a closer look at them to understand the specificity of EUropean borderlands. By using the notion of ‘EUropean borderland’, we acknowledge that ‘borders simultaneously divide and unite, repel and attract, separate and integrate’ (Buchanan 1995, 392) in a specific and unique way that is partly driven by the EU integration process (O’Dowd 2001), i.e. the imperative to allow smooth territoriality while being structured by striated territoriality. In this context, law is a decisive tool in operationalizing the EU's or the Member States’ territorialities.

A closer look at the literature in law and geography demonstrates however that space and law are mostly understood as contextual factors. The role of law and space in shaping EUropean borderlands is hardly thematised, or problematized. In the border studies and European planning studies literature, the role of law has been mainly understood as a normative context framing cross-border space. It is associated with the political (i.e. ‘political-juridical’), as one constitutive dimension of state borders, besides the ‘economic, ideological-cultural and military/policing’ dimensions (O’Dowd 2010, 1035; see also Haselsberger 2014 for a similar definition). It is mostly taken into account in analyses dealing with the institutionalization of cross-border areas (Paasi 1986; as summarized by Johnson et al. 2011; Evrard 2017). Analyses have demonstrated in particular that legal, political and institutional mismatches impede the extent of cross-border cooperation (Chilla, Evrard, and Schulz 2012). Yet analyses tend to keep law as contextual information, not actively questioning the processes through which it contributes to shaping borderlands. This approach is similar to that of legal scholars, which tends to focus on legal instruments, on whether and how they ‘facilitate’ institutional cross-border cooperation rather than consider how they embed themselves in broader bordering practices and how these contribute to constructing a spatiality. Legal scholars have analyzed how a legal and legitimate decision can be taken between sub-national authorities across a national border in the absence of a European or international legal framework. This defines the scope of cooperation (Woehrling 2001; Lejeune 2004) and circumscribes it to the sum of the competences that the institutions involved have in common (i.e. the lowest common denominator) (Levrat 2005). In these analyses, geography is not thematised, or only as a contextual element explaining the raison d’être for cooperation. We suggest that a systematic active questioning of how the law is both felt and made and how it is intertwined with the spatial is needed. There is a need to problematize how law – and, with, against – space shapes cross-border areas. We therefore turn to legal geography and spatial justice.

3. Reading EUropean borderlands from the perspective of legal geography and spatial justice

Legal geography investigates ‘the co-constitutive relationship between people, place and law (…) examining law's materialization within space’ (Bennett and Layard 2015). Legal geographers take a critical look at the presence and absence of spatialities in legal practice and of law's traces and effects embedded within places (idem). Therefore, they:

contend that in the world of lived social relations and experience, aspects of the social that are analytically identified as either legal or spatial are conjoined and co-constituted. Legal geographers note that nearly every aspect of law is located, takes place, is in motion […] Law is always ‘worlded’ in some way. Likewise, social spaces, lived spaces, and landscapes are inscribed with legal significance. Distinctively legal forms are open to interpretation and many become caught in a range of legal practices. Such fragments of a socially segmented world – the where of law – are not simply the inert sites of law but are inextricably imbricated in how law happens. (Braverman et al. 2014, 1)

How do legal geographers work? ‘Splice’, ‘nomosphere’ and ‘lawscape’ are key conceptual devices used to

identify moments or instances where legally informed decisions and actions take place [in the sense both of the occurrence of a legal performative (an event) and of being spatially located and embodied]. They are locally enacted encodings, which weave together spatial and legal meanings. (Bennett and Layard 2015, 410)

Until now, legal geography has been used in different ways to approach borders and borderlands. Considering territory as constitutive of a state (Gottmann 1951), the literature interested in law and geography first approached the notion of border through the prism of the nation-state territory (Stanford Law Review special issue ‘Surveying Law and Borders’, 1996). There, geography has been instrumental in defining borders, while the law has allowed them to be surveyed and enforced, thus contributing to making sovereignty effective. In the last two decades, legal geographers have had a broader understanding of the border, considering not only borders in their materiality but also the interplay between psychological and socio-spatial boundaries and conceptualisations of the bounded self (Blomley 2010). A strand of the literature looks at how ‘boundaries affect the inner lives of individuals’, thus mobilizing behaviour studies and considering how the individual relates to the border. It thus explores the link between the law and boundaries with ‘psychic boundaries’ (Blandy and Sibley 2010). Another important strand of the literature deals with state borders. Migration policy is the main field of research for scholars dealing with EU law and borderlands. Such analyses deal with states’ strategic use of territory and regulatory provisions to firstly exclude non-citizens, thus creating enclaves and exclaves from the sovereign territory (Maillet, Mountz, and Williams 2018; Bialasiewicz and Maessen 2018 on migrants). Another segment of this literature demonstrates how law can be instrumental in supporting the claiming of land and territorial expansion (e.g. Israel in the West Bank, Forman, 2009). The last strand of literature shows that the effectiveness of borders and territoriality is challenged when they divide the indigenous population (e.g. Inuit) and are drawn on inaccessible terrain (e.g. water, ice: Shadian 2018). This understanding of the border is particularly illuminating when studying the excluding/othering effects of law, and how the border is instrumental in its inscription in space. By understanding space and law as limited by the border, this understanding tends however to limit law and space to binary functions (that of regulating on the one hand and contextualizing movement on the other). Therefore, instead of starting our reasoning from the borderland, we suggest questioning actively how law and space interact in EUropean borderlands.

Philippopoulos-Mihalopoulos is one of the few authors analyzing legal geography with spatial justice. For him, spatial justice is ‘the most promising platform on which to redefine, not only the connection between law and geography, but more importantly, the conceptual foundations of both law and space’ (2010: 201). His thinking is fully articulated in critical legal scholarship (e.g. Brighenti) and geography (e.g. Soja, Massey, Lefebvre). He grounds his understanding of justice on Derrida. Justice is an ‘experience of the impossible’, which is always yet ‘to come’, and comes from within the calculability of the law (Philippopoulos-Mihalopoulos 2013, quoting Derrida 1992). Drawing on Deleuze and Guattari's object-oriented ontologies and writing on new materialism, Philippopoulos-Mihalopoulos presents spatial justice as premised on an ontological withdrawal, which mediates between the abstractions of law and space. He grounds his understanding of space on D. Massey's. Space is ‘a product of interrelations and embedded practices, a sphere of multiple possibilities, a ground of chance and undecidability, and as such always becoming, always open to the future’ (Philippopoulos-Mihalopoulos 2013, 8; quoting Massey 2005). By being open, space involves ‘multiple possibilities indicat[ing] lack of direction and possibly destination’ (Philippopoulos-Mihalopoulos 2011, 8). As it is continuously becoming, space is also unstable and unpredictable. The law comes to compartmentalize space: ‘Law is nomos, dividing and allocating, partitioning and governing’ (Philippopoulos-Mihalopoulos 2011, 8). Therefore, ‘law and space cannot be separated from each other. They are constantly conditioned by each other, allowing one to emerge from within its connection to the other’ (Philippopoulos-Mihalopoulos 2015, 4). This is what he calls ‘lawscape’, the ‘way the ontological tautology between law and space unfolds as difference’ (Philippopoulos-Mihalopoulos 2018, 21). Therefore, Philippopoulos-Mihalopoulos supports a full spatialisation of law.

Space is not just the question ‘how would this decision be formed over there?’ but significantly, ‘‘why is the decision expected to be formed in this way here?’ […] The result is a law that keeps on questioning itself, not in eternal undecidability but in continuous acknowledgment of its own limitations. […] Spatiality is an ethical position. (Philippopoulos-Mihalopoulos 2010, 9)

Therefore, space requires a radical conception of justice, a spatial justice. Spatial justice is conceptualized as the intense and paradoxical relationship between law and space. ‘Spatial justice is located amid spatial simultaneity’ (Philippopoulos-Mihalopoulos 2010, 210).

It all begins with a betraying simple phenomenological dualism: one body and another body. And then, right in the middle of this, the desire of movement: I want to be where you are, exactly there, exactly then. The motives (greed, attraction, possessiveness, territorialism, reterritorialization) can be put aside for the time being, for what is important is the desire of justice as Deleuze and Guattari would have it, the act of moving, of passing, of being deterritorialized by the spatial position of the other – that is by allowing the position of the other to make her territory out of my position. (Philippopoulos-Mihalopoulos 2010, 209)

This act of moving from the lawscape is called ‘withdrawal’. It ‘is not an escape but a shaking up of desire in order to orient the legal space differently. To withdraw is to fight’ (Philippopoulos-Mihalopoulos 2015, 2).

This is the beginning of spatial justice then, right in the middle between striated and smooth, as a movement that remains when bodies claim each other's space. […] The need for justice arises as soon as the law distributes space. […] When the lines conflict and the bodies clash, when a geopolitical presence is not tolerated, when two peoples are forced to ‘share’ the same space at the same time, when the industry moves into the forest, when the ship moves into the fish stock: there is conflict. Spatial justice is the movement out of this conflict while delving deeper into it. […] Justice finds its space in the movement of escape, of withdrawal: withdrawing from judgment, from justice itself, from one's own justice, and away from the space of the other's claim. […] If law is found together with space in a fold of doubt and self-limitation, then justice is precisely this going-against yet through the law in attempting to cross the line of law's normative geometry while being inscribed within it. (Philippopoulos-Mihalopoulos 2010, 8)

This conceptualization distinguishes itself radically from more widespread interpretations of spatial justice, which Philippopoulos-Mihalopoulos sees as not sufficiently connected to law, by ignoring the legal dimension within the notion of justice (2015, 3). Social scientists, and geographers in particular, understand spatial justice as ‘the ensemble of relations between spatial dynamics and justice […] linked with the spatial turn in the social sciences and the trend towards the spatialisation of social problems (Morange and Quentin 2018). The preoccupation with a fair distribution of outcomes – seen both as distribution and institutionalized processes – is paramount. For Soja (2010, 2), analyzing the spatial aspects of justice and injustice requires consideration of ‘fair and equitable distribution in space of socially valued resources and the opportunities to use them’. The spatial lens helps to capture the process causing unjust geographies, considering structures of domination, exploitation or distribution (ibid.). Most recently, Madanipour et al. have conceptualized it as ‘the equitable spatial distribution of resources and opportunities, and fairness in the relations of power that shape and transform the social space’ (2020, 80). This understanding allows us, in particular, to analyse ‘both the just geographic distribution of resources and opportunities, and the power relations that cause (in)justice between social groups and between spaces’. Applying such a conceptualization fits with analyzing the situation of a border locality affected by inequitable distribution of resources (e.g. public services amenities, taxes) and highly restricted capacities to shape its own future (Evrard 2019). By using Philippopoulos-Mihalopoulos’ conceptual lens, we aim to question how the spatialisation of law in cross-border context can produce unequal access to provisions, infrastructures or services.

4. Testing legal geography and spatial justice in EUropean borderlands

In this section, we employ the concepts of lawscape and of withdrawal (Philippopoulos-Mihalopoulos 2010 and 2015) to shed new light on the initiative of a wide range of stakeholders involved in implementing policy provision across borders, to argue for three adaptations of law at the European level. The recurring rationale is to enhance cross-border areas’ capacity to adapt law² to the geography of border areas, thus allowing them to enhance their governance capabilities (Evrard 2020). These sets of discussion reflect example situations where law is explicitly used to empower border areas and allow them to tackle specific challenges they face. We examine them successively. These three ‘withdrawal’ attempts illustrate the specificity of EUropean borderlands.

3.1. The cross-border review and the ECBM: when space ‘unfolds’ law

The European Commission-led cross-border review³ provides

evidence that border regions generally perform less well economically than other regions within a Member State. […] Access to public services such as hospitals and universities is generally lower in border regions. Navigating between different administrative and legal systems is often complex and costly. Individuals, businesses, public authorities, and non-governmental organisations have shared with the Commission their – at times – negative experiences of interaction across internal borders. (European Commission 2018)

The cross-border review provides an EU-wide systematic account of the impact of administrative and legal obstacles to EUropean borderlands. It completes the existing academic literature in geography that had analyzed the erosive effect of the border as a barrier following the completion of the Single Market in the 1990s (de Boe, Grasland, and Healy 1999). Geographers have also analyzed the emergence of cross-border metropolitan areas (ESPON/University of Luxembourg 2010) and how, by using the border as a resource, patterns of integration are particularly heterogenous, some regions being particularly interdependent, others being more homogenous (Sohn, 2014). Beyond these spatial analyses, the cross-border review sheds new light on EUropean borderlands’ spatiality. It is through the practice, the experience of interacting in borderlands, of moving within borderlands, that so-called ‘border obstacles’ emerge. The act of moving in space contributes to changing the folding and unfolding:

There is a “correlation between the frequency of border crossing and the obstacles perceived when interacting across the border. The more often a person crosses the border, the less likely he/she is to mention a lack of trust as an obstacle. The same applies to language barriers and sociocultural differences. On the contrary, the more often a person crosses the border, the more likely he/she is to mention legal and administrative barriers as obstacles. One possible explanation is that the frequency of travel multiplies the opportunity to encounter such obstacles; in other words, obstacles of this nature are more strongly felt when mobility across the border is higher and more frequent” (European Commission. 2017b, 13–14)

The repetition of movement ‘does not bring identity but difference’ (Philippopoulos-Mihalopoulos 2013). And this difference can challenge access to specific rights. Recalling Deleuze (2004), Philippopoulos-Mihalopoulos uses the example of festivals: ‘they repeat an ‘unrepeatable’. They do not add a second or third time to the first, but carry the first to the “nth” power’ (2004, 2). ‘Repetition in the sense of difference is neither habit nor mere generality, which in their turn produce similarity and identity’ (Philippopoulos-Mihalopoulos 2013). In EUropean borderlands, the act of moving in space and in law calls for new habits and customs. In return, legal provisions may not be in capacity to adapt to these new practices. The act of moving is never quite the same. It changes and transforms progressively in EUropean borderlands, especially as interactions grow and diversify. Spatiality changes, thus questioning the space/law relationship and calling for a withdrawal. This withdrawal happens as an act of renegotiation between cross-border practices and access to EU rights. The cross-border review demonstrates that access to specific EU rights is impeded in EUropean borderlands, thus resulting in unequal access to specific legal provisions in cross-border contexts.

The cross-border review uses the notion of obstacle to refer to

the difficulties faced by EU land border regions [usually] caused by laws, rules or administrative practices which limit the unhampered flow of goods, services, capital and people and which obstruct the inherent potential of border regions when interacting across the border. The political, geo-physical, economic and socio-cultural dimensions of European borders create a variety of ‘closure effects’ (obstacles or barriers) and ‘opening effects’ that always exist in parallel. (European Commission. 2017b, 8)

Border obstacles are symptomatic to EUropean borderlands spatiality, i.e. being shaped by smooth and striated territorialities. If EUropean borderlands are a lawscape, the border obstacle characterises them and constitutes a significant motive for ‘withdrawing’, for renegotiating the law and defining a more ‘just’ law. In practice, however, the search for the ‘most adequate’ law is a complex matter, as several bodies of law can emerge indistinctively. The cross-border review identifies three categories of obstacles (European Commission 2017b):

• Legal barriers caused by the absence of Union legislation in policy fields where a Union competence exists, or by shortcomings in a transposition of Union legislation into national law;

• Legal barriers caused by incoherent or inconsistent domestic laws of EU Member States in policy fields where no or only a partial Union competence exists;

• Administrative barriers caused by inadequate procedural and/or adverse behavioural aspects at the local, regional or national levels.

These three categories of barriers demonstrate that the EUropean borderlands lawscape assembles a specific form of spatiality with heterogeneous expressions of law. Whereas EUropean borderlands share a number of specificities resulting from the EU-wide body of law, they are also differentiated from one another as, for instance, the more integrated their spatiality becomes, the more the body of law becomes framed nationally. Law is multiple (i.e. emerging from other levels) and can be contradictory at the same time, thus exposing EUropean borderlands to uncertainty.

Following the cross-border review, the Commission issued a Communication⁴ which was followed by a regulation proposal for a ‘European Cross-border Mechanism’ (ECBM) currently under discussion at the Council after first reading and approval from the European Parliament.⁵ It entails two provisions that represent a paradigm shift, as they go beyond accompanying EU integration (as Interreg does with financial support, for example) to ‘allowing integration to be adapted to cross-border areas’ (Engl and Evrard 2019). Firstly, it would also institutionalize a mechanism allowing cross-border areas to refer to a national ‘contact point’ to identify the origin of legal/administrative obstacle to cross-border cooperation and to offer support to overcome it (Evrard 2020). In doing so, this mechanism would allow us to define the body of law applicable to a specific cross-border activity. Secondly, this instrument would allow the use of a single law in a cross-border area to manage a common project or infrastructure. In the attempt to adjust law to EUropean borderlands’ spatiality and to effectively allow movement, this element is crucial in the EU's aspirational smooth space. It is in this sense also that this regulation can be analyzed as closer to the ethics of the EU.

3.2. At the Lorraine-Luxembourg border: when law folds space

In the next section, we analyse how in a particularly interdependent EUropean borderland, the lawscape is constantly challenged. Policy representatives and stakeholders constantly attempt – without success – to renegotiate cross-border arrangements (Evrard 2019). The Greater Region (covering Lorraine, Luxembourg, Saarland, Rhineland-Palatinate and Wallonia) accounts for one of the highest rates of commuter flow in the EU and can be qualified as a cross-border polycentric metropolitan region (ESPON & University of Luxembourg, 2010). In the Greater Region, cross-border mobility is a condition of its functioning, especially as the metropolisation of Luxembourg's agglomeration expands (Hesse 2016; Durand et al. 2018), and as it accounted for more than 230,000 commuters in 2017 (OIE 2019). This cross-border area exemplifies the EU's aspirational smooth space, allowing particularly intensive cross-border mobility for work, study, leisure and culture (see Wille et al. 2016 for an overview). Part of these cross-border interdependencies result also from striated spaces. Besides the EU's exclusive and shared competencies, Member States have kept a large amount of room for manoeuvre in the fields of tax and economy. In putting differentials in close contact, the border can encourage the emergence of niche effects (e.g. competition and deadweight effects) (Casteigts 2013). The French-Luxembourg borderland exemplifies this situation rather well. Established as an important financial centre internationally (Hesse 2013, 616), Luxembourg's dynamic economy relies largely on qualified labour from abroad, taking either the form of foreign residents (in 2018, 47.9% of residents were foreigners) or commuters from Belgium, Germany and Lorraine (46% of the workforce; LISER, 2018). Even though the local economies of the neighbouring countries benefit greatly from this dynamic economy (e.g. residential economy, dynamic housing market), negative externalities have grown over the past few years (e.g. inflation, sprawl) (INTERREG VA SDT-GR project, Belkacem and Pigeron-Piroth 2020). In addition, municipalities bordering Luxembourg face specific challenges, as they are less and less attractive for businesses and employees that prefer to settle in Luxembourg (Evrard 2019). This situation is even more acute in French and German municipalities bordering Luxembourg, where between 50%-80% of the resident population work in Luxembourg. As tax is withheld at the source in Luxembourg, these municipalities face the challenge of sustaining public services for which they have the main responsibility (e.g. primary schools, facilities to host health care services, local transport infrastructure, support for facilities for sport and cultural activities). Bilateral agreements exist between some countries to organize a tax redistribution towards the municipalities that are the most affected (e.g. between France and Switzerland; Luxembourg and Belgium) (Evrard 2019).

Facing multifaceted cross-border interdependencies anchored at different levels, policy representatives and stakeholders involved in cross-border matters discuss a number of policy adaptations. They range from renegotiating taxation⁶, co-financing cross-border infrastructures, developing a cross-border spatial planning scheme (INTERREG VA SDT-GR project), to establishing cross-border agglomerations at a lower scale, thus operationalizing a ‘co-development’ strategy.⁷ Apart from the SDT-GR, this profusion of ideas emerges next to the most institutionalized framework for cooperation, the EGTC Secretariat of the Summit of the Executives, which includes the highest political representatives of the area. This situation is not specific to the Greater Region, as the Council of Europe adopted a recommendation for ‘a fair distribution of taxes in cross-border areas – potential conflicts and potential for compromise’ (CoE 2019). The dynamic attempts to renegotiate the regulation of cross-border interdependencies at national and European levels demonstrates the active questioning of the fairness of the law. Up to now, withdrawal attempts have failed. Law ‘folds’ space in such a way that the justice of law is effectively and constantly questioned.

3.3. The European Grouping for Territorial Cooperation: when law and space fold into one another

Thirdly, we briefly introduce the EGTC legal mechanism that allows cross-border areas to create a cross-border legal person that is able to implement projects and infrastructure. Although non-obligatory, the European Grouping for Territorial Cooperation (EGTC) is the sole legal instrument conceived by the EU to support cross-border cooperation and the management of European territorial cooperation programmes (European Council and European Parliament 2006). Equipped with legal capacity, it de facto adjusts the law to space, as it allows a cross-border body to recruit staff, sign contracts, establish its own budget, launch and answer calls for tenders, and conduct cross-border projects on behalf of its members within a defined cross-border perimeter. The EGTC represents the first EU instrument which on the one hand allows the institutionalization of a cross-border common institution that is legally recognized by the EU and Member States’ laws, and on the other hand that can be equipped with dedicated competences. It stands as an institution that is able to represent and perpetuate the cross-border region (in the sense of Paasi 1986) (Evrard 2016).

The EGTC was established by a European Regulation in 2006, as a result of intense mobilization by stakeholders and political representatives active in cross-border areas (Levrat 2005). As of 2020, about 70 EGTCs are operational all over the EU. A systematic analysis of the use of this instrument (Committee of the Regions, Spatial Foresight, t33, ÖIR. 2019) indicates that it mainly helps in ‘overcoming the problems that the border imposes on communities it divides’ (ISIG 2013, 9). As it has also been used to create cross-border public services or infrastructure to organize cross-border interdependencies, it demonstrates the capacity of the law to adapt to evolving EUropean borderlands’ spatialities. In addition, lawyers interpret this instrument as contributing to shaping an embryonic EU cross-border administrative law (Tambou 2019), or as an instrument contributing to the emergence of a ‘melted law’ (Perrier and Levrat 2015). This discussion demonstrates that the instrument represents a significant evolution in how law adapts to EUropean borderlands’ spatiality. In this particular case, as in the ECBM example (section a, above), law ‘folds’ with space.

5. Conclusion

In this paper, we have argued that a systematic active questioning of how law and space co-construct EUropean borderlands is needed. Problematizing how law frames, drives and impedes cross-border interdependencies and exchanges is essential to understanding how European integration shapes EUropean borderlands. Understanding EUropean borderlands as a spatio-legal category, a lawscape, thus going beyond the ‘separation/othering’ function of the border, helps us to understand how the border contributes to driving injustices. We have observed three forms of injustices to which EUropean borderlands are specifically exposed.

Firstly, even though interactions and exchanges are at the heart of the EU project and of its law, movements (to use Philippopoulos-Mihalopoulos’ terminology) are more likely to be impeded in EUropean borderlands. The more cross-border integration expands, the more people, businesses and public authorities are exposed to border obstacles, to unequal access to rights. The ECBM mechanism is an attempt to provide a tool to spatialize legal provisions in EUropean borderlands. This mechanism aims at ‘capacitating’ EUropean borderlands, providing them a tool to spatialize regulation so that it fits their spatiality.

The second form of injustice refers to local and regional authorities’ restricted capacities to cooperate effectively across borders despite the existence of the Single Market. In the absence of a European administrative law, national law regulates the cooperation between infra-national authorities. The effectiveness of their cooperation depends on the compatibility of two legal systems. EUropean borderlands are therefore unequally able to shape their own future in comparison with non-border localities. The EGTC acts in this context as an empowering tool. It acknowledges EUropean borderlands’ specificity and capacitates them to act accordingly. The EGTC regulation exemplifies the adaptation of EU law to EUropean borderlands’ spatiality. In so doing, the regulation ensures EUropean borderlands are better able to cooperate across borders. This capacitating instrument therefore enhances procedural justice. The EGTC and the ECBM instruments work similarly and exemplify a similar form of withdrawal where a dedicated legal instrument (anchored in EU law) ‘capacitates’ policy representatives and border stakeholders to act in EUropean borderlands. National territory becomes porous to neighbouring Member States’ laws when EGTC or ECBM tools are activated (Chambon 2015). These tools are paramount for EUropean borderlands to have the effective capacity to shape their own future and for the EU to develop an integration process that is more just towards EUropean borderlands.

Thirdly, the current failure to renegotiate the mechanisms of wealth distribution (i.e. distribution of commuters’ tax) to address spatial disparities in the highly interdependent cross-border area of the Greater Region exemplifies a situation where law resists cross-border spatiality and perpetuates the nation-state container. Therefore, a less systematic form of withdrawal is currently in negotiation, that of defining common means and procedures for financing public infrastructure of cross-border interest. In this example, agreeing on the ‘right’ law is particularly difficult as it involves renegotiating distributive laws (i.e. taxation). Until now, the EUropean level has not taken the initiative to address this specific issue in EUropean borderlands, as Member States are fiercely opposed to discussing taxation issues at the European level. This situation might change as recurring calls from other sectors (i.e. tax evasion) and other international organizations (i.e. OECD and CoE) evolve on this topic. In this particular example, we see how the notions of lawscape and withdrawal can be supportive of a more distributive-procedural understanding of spatial justice.

From the three policy examples, we conclude that EUropean borderlands are heterogenous and yet a consistent category of analysis. Repetition of movements across borders shapes EUropean borderlands’ spatiality and, in doing so, calls for policy arrangements allowing to spatialize legal provisions. Law appears as multiple and to some extent contradictory (i.e. emerging from several levels), thus exposing EUropean borderlands to uncertainty. The EUropean response has been so far to empower EUropean borderlands directly – on the one hand – by providing them with dedicated funding opportunities (i.e. INTERREG) (e.g. distributive justice), and – on the other hand – by providing dedicated legal instruments (i.e. EGTC and ECBM under negotiation) (e.g. procedural justice). Spatial justice is a very operational conceptual tool to analyse EUropean borderlands. Combining this understanding of spatial justice with an understanding of spatial justice that is more inspired by legal geography (i.e. that of Philippopoulos-Mihalopoulos) allows us to bring into the discussion another strand of the literature studying border areas (e.g. law) and to actively problematize the role of law in shaping EUropean borderlands’ spatiality and its fairness.

Acknowledgements

The author wishes to thank the special issue coordinators, Dr. Alice Engl and Dr. Rannveig Edda Hjaltadottir as well as two anonymous reviewers for their valuable comments which helped to improve this paper. The author thanks also the entire team of the RELOCAL project at the University of Luxembourg (PI: Prof. Dr. Birte Nienaber).

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

Results incorporated in this article received funding from the European Union's Horizon 2020 research and innovation programme under grant agreement No. 727097, project RELOCAL (Resituating the local in cohesion and territorial development), 2016–2021.

Notes

1 This article differentiates the European continental context from that of EU polity (Clark and Jones 2008, 301).

2 We understand law in a wide sense: the ‘written and oral law, but also embodied social and political norms’ (Philippopoulos-Mihalopoulos 2015, 1). EUropean borderlands are shaped by a particularly wide range of written law emerging mostly from the EU and national levels, and even from the regional level in federal Member States. In addition, cross-border institutions have organised forms of regulation allowing them to maintain and ‘perpetuate’ (Paasi 1986) their regional construction (for an example in the Greater Region: Evrard 2017).

3 The Cross-Border Review is a multi-method survey conducted by the DG REGIO from 2015 to 2017, set up to ‘respond to the challenges still persisting in border regions, despite 25 years of funding through the Interreg programmes’ (cross-border review homepage). Results of the study ‘Easing legal and administrative obstacles in EU border regions’, the public consultation and expert workshops are publicly available: https://ec.europa.eu/regional_policy/en/policy/cooperation/european-territorial/cross-border/review/ The author of this paper acted as one of the three scientific external experts for the study.

4 Communication from the Commission to the Council and the European Parliament, 2017: ‘Boosting growth and cohesion in EU border regions’ {SWD(2017) 307 final} https://ec.europa.eu/regional_policy/sources/docoffic/2014/boosting_growth/com_boosting_borders.pdf.

5 Regulation of the European Parliament and of the Council on a mechanism to resolve legal and administrative obstacles in a cross-border context, 29.05.2018 (COM(2018) 373 final). See https://ec.europa.eu/commission/publications/regional-development-and-cohesion_en.

6 For instance, in June 2019, the mayors of Metz and Trier called on their respective nation states to negotiate a bilateral treaty with Luxembourg https://lequotidien.lu/grande-region/retrocession-de-limpot-sur-le-revenu-des-frontaliers-le-maire-de-metz-demande-lequite/.

7 The IBA Alzette Belval is the latest project in development; it is to a large extent coordinated by the EGTC Alzette-Belval: http://gectalzettebelval.eu/mission-de-prefiguration-iba/.